Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for writ of habeas corpus after orders of the Superior Court of Orange County Nos. M8630, M9221, & M9837, Kazuharu Makino, Ronald P. Kreber, and Daniel J. Didier, Judges.
John Semeneck, in pro. per.; and Rich Pfeiffer, under appointment by the Court of Appeal, for Petitioner John Semeneck.
Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy District Attorney, for Respondent State of California.
OPINION
FYBEL, J.
Introduction
In 1999, petitioner John Semeneck was adjudicated a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA). In 2001, he admitted the allegations of a recommitment petition, and, in 2003, was again ordered recommitted for another two year term. He is in confinement within the custody of the California Department of Mental Health (DMH).
Further code references are to the Welfare and Institutions Code unless otherwise noted.
Semeneck’s petition for writ of habeas corpus alleges his commitment as an SVP was unlawful because the evaluations under section 6601, subdivision (a) that led to the commitment petition in 1999 and recommitment petitions in 2001 and 2003 were conducted in accordance with a standardized assessment protocol determined by the Office of Administrative Law (OAL) in 2008 to constitute an invalid “underground” regulation. Semeneck argues he “should be re-evaluated using the current approved legal standards to determine if his commitment was correct.”
We conclude Semeneck’s petition for writ of habeas corpus was timely, but deny his petition on the merits. Semeneck forfeited any challenge to the assessment protocol or protocols used for the evaluations leading to his 1999 commitment and 2001 recommitment by admitting the allegations of the 2001 SVPA recommitment petition. Semeneck fails to present evidence he was deprived of a fair trial or otherwise suffered prejudice from use of the assessment protocol leading to his 2003 recommitment.
2008 OAL Determination No. 19
A proceeding under the SVPA begins when prison officials screen an inmate’s records to determine whether the inmate is likely to be an SVP. If so, the inmate is referred to the DMH for a full evaluation to determine whether he or she meets the SVP criteria under section 6600. (§ 6601, subd. (b).) Two mental health professionals designated by the DMH (§ 6601, subd. (d)) evaluate the person in accordance with a standardized assessment protocol developed by the DMH to determine whether the person is a sexually violent predator (§ 6601, subd. (c).) If the evaluators agree the person meets those criteria, the director of the DMH must forward a request for a commitment petition to the county where that person was convicted. (§ 6601, subd. (d).)
To implement section 6601, the DMH has over the years published a clinical evaluator handbook and standardized assessment protocol for its SVP evaluators. In August 2008, the OAL issued a determination that various challenged portions of the 2007 version of the Clinical Evaluator Handbook and Standardized Assessment Protocol met the statutory definition of a regulation and, therefore, should have been adopted pursuant to the Administrative Procedure Act, Government Code section 11340.5. (2008 OAL Determination No. 19 (Aug. 15, 2008) p. 1 [as of Nov. 19, 2009].) The OAL determined that, as such, the protocol constituted an underground regulation as defined in California Code of Regulations, title 1, section 250. (2008 OAL Determination No. 19, supra, at p. 13.) A regulation enacted in violation of the Administrative Procedure Act is invalid. (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 340.)
The 2008 OAL Determination No. 19 concerned only whether the assessment protocol constituted a regulation under Government Code section 11342.600 and stated, “[n]othing in this analysis evaluates the advisability or the wisdom of the underlying action or enactment.” (2008 OAL Determination No. 19, supra, at p. 1.) The 2008 OAL Determination No. 19 advised that the OAL “has neither the legal authority nor the technical expertise to evaluate the underlying policy issues involved in the subject of this determination.” (Ibid.)
Allegations and Habeas Corpus Proceedings
Semeneck alleges that, in 1999, he was committed to the DMH for confinement as an SVP. In March 2001, Semeneck admitted the allegations of a recommitment petition and was confined for another two year term. In 2003, another petition for recommitment for a two year term was filed. In March of that year, Semeneck was again adjudged to be an SVP and was committed for another two year term. Semeneck did not appeal from any of the commitment orders.
Semeneck remains in confinement, awaiting trial on subsequent recommitment petitions filed in 2005 and 2007.
In September 2008, Semeneck filed a petition for writ of habeas corpus in the trial court. Semeneck has not provided us a copy of that petition, and it is not clear what it alleged. The trial court denied the petition, stating: “Petitioner alleges he was denied due process. He states the California Department of Mental Health (DMH) has failed to follow the applicable administrative codes, the appropriate legal process and protocol set forth in the SVP statutes, and Government Code section 11340, but does not explain in what manner any failure occurred.”
In his petition for writ of habeas corpus in this court, Semeneck alleges 2008 OAL Determination No. 19 was “Newly Discovered” evidence establishing the trial court lacked jurisdiction to adjudge him an SVP. We issued an order to show cause and appointed counsel for Semeneck. The People, as respondent, filed a formal answer to the petition. In the answer, the People affirmatively allege, “Petitioner has failed to demonstrate the [standardized assessment protocol] used to evaluate him was tainted by underground regulations.” We set the matter for oral argument. Semeneck filed a traverse.
We ordered Semeneck to augment the record with the assessment protocol or protocols used for his evaluations. He augmented the record with assessment protocols from July 2000, January 2002, May 2002, June 2002, and February 2003, and an undated protocol for “SVP Commitment Extension Evaluations.”
Most of the challenged passages in the 2007 assessment protocol that formed the basis for 2008 OAL Determination No. 19 also appear in the 2000 and 2002 assessment protocols in substantially the same form. However, the assessment protocols from 2000 and 2002 do not include some of the challenged passages. The July 2000, January 2002, and May 2002 assessment protocols in particular do not include a lengthy section called “SVP Commitment Extension Evaluations” (the June 2002 assessment protocol does include that section). We cannot tell whether the undated protocol for “SVP Commitment Extension Evaluations” was meant as a supplement to the July 2000, January 2002, and May 2002 assessment protocols. The 2003 assessment protocol is virtually the same as the 2007 assessment protocol determined by the OAL to be an underground regulation.
Discussion
I. The Petition Is Timely.
Neither the California Supreme Court nor the Legislature has expressly established a time limit for filing a petition for writ of habeas corpus. (In re Huddleston (1969) 71 Cal.2d 1031, 1034; see also In re Nunez (2009) 173 Cal.App.4th 709, 723.) The general rule is the petition must be filed “as promptly as the circumstances allow” (In re Clark (1993) 5 Cal.4th 750, 765, fn. 5) and “‘“[a]ny significant delay in seeking collateral relief... must be fully justified”’” (In re Sodersten, supra, 146 Cal.App.4th at p. 1221). “Delay is measured from the time a petitioner knew, or reasonably should have known, the information in support of the claim and the legal basis for the claim [citation], beginning as early as the date of conviction [citation].” (In re Nunez, supra, 173 Cal.App.4th at p. 723.)
The district attorney cites In re Robbins (1998) 18 Cal.4th 770, 780, as creating a 90 day deadline for filing a habeas corpus petition. That deadline (which has since changed) applied only to habeas corpus petitions filed directly in the California Supreme Court for capital cases. (See In re Sodersten (2007) 146 Cal.App.4th 1163, 1221.)
Semeneck filed his habeas corpus petition in the trial court in September 2008, more than seven years after he admitted the truthfulness of the SVPA petition. He argues his petition is timely because the OAL did not issue 2008 OAL Determination No. 19 until August 2008. The district attorney argues 2008 OAL Determination No. 19 is not newly discovered evidence and Semeneck could have argued the assessment protocol is an underground regulation before admitting in 2001 he is an SVP.
Although Semeneck might have been able to challenge the validity of the assessment protocol in 2001, the legal basis for that claim was not secure until the OAL issued 2008 OAL Determination No. 19 in August 2008. A month later, Semeneck promptly filed his habeas corpus petition in the trial court. His petition for writ of habeas corpus to this court therefore was timely.
II. Semeneck Forfeited His Challenge to the Assessment Protocol by Admitting the Allegations of the 2001 Recommitment Petition.
Citing People v. Medina (2009) 171 Cal.App.4th 805 (Medina), the district attorney argues Semeneck forfeited his right to habeas corpus relief based on the assessment protocol by admitting the allegations of the SVPA recommitment petition in March 2001. We agree. For purposes of analysis, we will assume, without deciding, the evaluations leading to Semeneck’s initial commitment in 1999 and recommitment in 2001 were based on an assessment protocol that was invalid as an underground regulation.
The defendant, in Medina, supra, 171 Cal.App.4th at pages 810, 817, had been initially committed as an SVP in 2001 after admitting the allegations of the commitment petition. In 2008, the defendant admitted the allegations of a recommitment petition and consented to an order of indefinite commitment. (Id. at p. 811.) The defendant appealed from the recommitment order but argued the original commitment order was void because it was based on an evaluation conducted pursuant to the assessment protocol ruled invalid by 2008 OAL Determination No. 19. (Medina, supra, 171 Cal.App.4th at pp. 810 811.)
The appellate court construed the defendant’s challenge to the 2001 commitment order as a collateral attack, and “[t]he cognizable grounds for such an attack are restricted to a lack of jurisdiction, since a judgment within the court’s jurisdiction can be attacked only directly through appeal.” (Medina, supra, 171 Cal.App.4th at p. 815.) The court assumed the assessment protocol used in 2001 was an underground regulation (id. at p. 815, fn. 4), but concluded any error in using the protocol did not deprive the trial court of fundamental jurisdiction (id. at p. 816). The defendant’s challenge to the assessment protocol amounted to a claim the commitment court acted in excess of jurisdiction, rather than without jurisdiction; therefore, the defendant “forfeited any challenge to the validity of the procedures preceding the filing of the initial petition when he admitted its allegations.” (Id. at p. 817.)
Semeneck admitted the allegations of the 2001 SVPA recommitment petition. Thus, under Medina, Semeneck forfeited his challenge to the assessment protocol unless the error in using the protocol deprived the trial court of fundamental jurisdiction over the SVPA recommitment petition.
Illegalities in criminal preliminary hearings that are “jurisdictional in the fundamental sense” are reversible per se on an appeal following the subsequent trial. (People v. Pompa Ortiz (1980) 27 Cal.3d 519, 529.) Illegalities in criminal preliminary hearings that are not jurisdictional in the fundamental sense must be reviewed “under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (Ibid.) The term “jurisdictional in the fundamental sense” means the “legal power to hear and determine a cause.” (Ibid.)
In People v. Glenn (2009) __ Cal.App.4th __ [2009 Cal.App. Lexis 1714], we held the use of the evaluations conducted pursuant to a standardized assessment protocol determined by the OAL to be invalid is not jurisdictional in a fundamental sense. Semeneck therefore forfeited any challenge to the evaluations used for his 1999 commitment and 2001 recommitment by admitting the allegations of the 2001 recommitment petition.
III. Semeneck Fails to Establish He Suffered Prejudice or Was Deprived of a Fair Trial from Use of an Invalid Assessment Protocol.
We do not know whether Semeneck admitted the allegations of the SVPA petition leading to his recommitment in 2003. As to that commitment, Semeneck must show, pursuant to Pompa-Ortiz, supra, 27 Cal.3d at page 529, that he was deprived of a fair trial or otherwise suffered prejudice as a result of the assessment protocol or protocols used for the evaluations leading to the 2003 recommitment.
Semeneck has neither alleged facts nor submitted evidence showing he did not receive a fair trial or otherwise suffered prejudice. In the answer, the district attorney affirmatively alleges that Semeneck “cannot demonstrate prejudice resulting from the use of the [standardized assessment protocol] used to evaluate him.” In the traverse, Semeneck does not admit or deny that allegation, but argues the only means for him to show prejudice is for us to “remand the matter to the trial court to permit either a challenge to the prior criteria that was used in the underground regulation, or show that the legal standard used in determining SVPs today would have resulted in the same outcome.” However, to warrant habeas corpus relief, Semeneck has the burden of submitting to us “copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.” (People v. Duvall (1995) 9 Cal.4th 464, 474.) He failed to satisfy those requirements.
Disposition
The petition for writ of habeas corpus is denied.
WE CONCUR: SILLS, P. J., MOORE, J.