Opinion
F085378
12-21-2023
THE PEOPLE, Plaintiff and Respondent, v. HERBERT ANDRE BROWN, Defendant and Appellant.
Laura Beth Arnold, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Super. Ct. No. 11CRSP680459 Jeffrey Y. Hamilton, Jr., Judge.
Laura Beth Arnold, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
Defendant Herbert Andre Brown appeals from an order committing him indefinitely as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA; Welf. &Inst. Code, § 6600 et seq.). On the date set for trial on the petition to indeterminately commit him as an SVP, Brown decided to waive his right to a trial and admit to the petition. The court accepted his admission and ordered him indeterminately committed as an SVP to the Department of State Hospitals (DSH). On appeal, Brown contends the commitment order must be vacated because his admission was not voluntary and intelligent. We affirm.
Unlabeled statutory references are to the Welfare and Institutions Code.
FACTS
On June 17, 2011, the Fresno County District Attorney filed a petition to commit Brown under the SVPA. The petition was made on pleading paper and was entitled in the caption: "Petition for Commitment under Welfare and Institutions Code sections 6600 et. seq." Brown was named the "Respondent" in the caption. The first line of the petition addressed the judge of the court, Brown, and Brown's attorney of record. The rest of the petition read:
"PLEASE TAKE NOTICE that on June 23, 2011, in Department 30 at 8:30, or as soon thereafter as may be heard, the Petitioner will petition the Court for the INDETERMINATE commitment of Isaac Moore [sic] under Sections 6600 et seq. of the Welfare and Institutions Code as a Sexually Violent Predator.
"This petition will be based upon reports of Dr. Marianne Davis; Dr. Eric P. Simon and the clinical evaluation summary from Dr. Robert Brook."
Dr. Brook's one-page clinical evaluation summary was attached to the petition. It concluded that Brown meets the criteria as an SVP under section 6600, subdivision (a), and included findings on the criteria.
On April 27, 2012, the District Attorney filed an amended petition, also on pleading paper, entitled "Amended Petition for Commitment under Welfare and Institutions Code sections 6600 et. seq." The amended petition was addressed again to the judge of the court, Brown, and Brown's counsel. It read:
"PLEASE TAKE NOTICE that on April 27, 2012, in Department 30 at 8:30, or as soon thereafter as may be heard, the Petitioner will move to amend petition filed June 17, 2011 for the INDETERMINATE commitment of Herbert Brown under Sections 6600 et. seq. of the Welfare and Institutions Code as a Sexually Violent Predator.
"This amended petition will be based upon reports of Dr. Marianne Davis; Dr. Jesus Padilla and Dr. Robert Brook."
The name "Isaac Moore" was once again typed into the petition. But that name was crossed out this time with a pen and the name "Herbert Brown" was handwritten above it. Nothing was attached to the amended petition.
On May 7, 2012, the court held a probable cause hearing on the petition under section 6602. Brown was represented by counsel and the court heard argument from both parties. The court considered the reports of Dr. Davis, Dr. Padilla, Dr. Brook, and
Dr. Michael Musacco. The court found probable cause supported the petition and set a settlement conference.
After years of settlement conferences, in January 2020 Brown's counsel moved to dismiss the petition, claiming the eight-year-long delay violated Brown's due process rights. In the motion, counsel referred to both the initial petition and amended petitions as petitions; that is to say, counsel acknowledged they were petitions, not just notices of intent to file petitions. The motion was denied.
May 2, 2022-Brown admits to the petition
On May 2, 2022, the matter was sent to a trial department for trial. Once in that department, the court called the case, stated that the matter was referred to that court for trial, and asked Brown if he wanted to go to trial. Brown asked the court to help him "understand the decision that [he] need[s] to make." The court explained that it was a trial department and that Brown had three options. Brown could (1) go to trial; (2) admit the petition; or (3) waive his speedy trial rights and continue the case for at least a year to allow him to return to the state hospital, participate in treatment, and change the doctors' minds about whether he meets the SVP criteria.
Brown asked the court if there could be a fourth option: could he have a new attorney appointed to represent him and the matter continued for about a week to allow him to discuss the three options with his new counsel? The court asked if Brown was requesting a Marsden hearing, and Brown said he was. The court then cleared the courtroom and conducted the Marsden hearing and denied Brown's request for new counsel to be appointed.
People v. Marsden (1970) 2 Cal.3d 118.
Immediately after the Marsden hearing, the court repeated Brown's three options: go to trial, admit to the petition, or waive time and return to the state hospital "for a couple years" to try to change the doctors' minds before returning to court. The court then asked the prosecutor if the parties and the court could agree on when Brown would come back to court if Brown chose the option to waive time and return to the hospital for treatment. The prosecutor said they could continue the case for a year if Brown wanted but also stated that they could continue it for as long as Brown wanted. The prosecutor also said that if Brown successfully changed the doctors' minds about his meeting the SVP criteria, the prosecutor "[would not] proceed on [the] case." The prosecutor explained that "[i]f the doctors flip[,]" the prosecution would not hire new doctors to try to reestablish the basis for their petition. Brown said that made sense to him.
The court then took a break to allow Brown to consult his attorney. When the parties returned from the break, Brown's counsel said Brown wanted to go to trial. The following then took place:
"[BROWN]: If I'm found guilty, what is the penalty that I would have?
"THE COURT: If they find the petition true, it's an indeterminate commitment.
"[BROWN]: Indeterminate.
"THE COURT: Correct. Meaning no time limit.
"[BROWN]: No time limit.
"THE COURT: Correct.
"[BROWN]: Okay. But if under the D.A.'s waiver, time waiver
"THE COURT: Right.
"[BROWN]: -I would have a chance with the two-year commitment?
"[DEFENSE COUNSEL]: One or two years."
"THE COURT: Yeah. Let me just make it clear. So what the D.A. is saying
"[BROWN]: Yeah?
"THE COURT: -is if you don't want to go to trial right now, right?
"[BROWN]: Right.
"THE COURT: We'll take what we're doing right now and just move it out. Right?
"[BROWN]: Right.
"THE COURT; You pick, one year, two years, right?
"[BROWN]: Right.
"THE COURT: Year and a half. Doesn't matter. The time doesn't matter. It's whether or not in that time period between right now and, you know, X number of months later, whether it's 12, 18 or 24 or 36, you have to convince the D.A.'s, the State of California's doctors that you're no longer a threat as a sexually violent predator. If you can do that, you would essentially be coming back for trial again. But what [the prosecutor] has stated on the record earlier was if those doctors that are now going to come in and say, 'He still presents a threat as a sexually violent predator,' if they change that opinion, then there wouldn't need to be a trial because he wouldn't go to trial. He wouldn't have any favorable doctors, no favorable witnesses. Does that make sense? So basically you're just pushing- you've heard the term 'kicking the can down the road?'
"[BROWN]: Yeah.
"THE COURT: That's what this is."
"[BROWN]: Okay. But in a sense, that sounds like what would be ultimately your decision. It's like an indeterminate from you and an indeterminate from the doctors.
"THE COURT: No. No, no. So here's the thing.
"[BROWN]: Yeah?
"THE COURT: You could admit the petition.
"[BROWN]: Yeah.
"THE COURT: And you would have an indeterminate term, right?
"[BROWN]: Right.
"THE COURT: You could go to trial and lose at trial.
"[BROWN]: Right.
"THE COURT: And you would have an indeterminate term. In other words, I don't have a-if you go to trial with me and I find the petition true, then I have one option, to give you that term, the indeterminate term. So you can admit it and not have the doctors come and testify or you could go to trial if you were to lose, in other words, if the D.A. proves that petition true, those are both the same, indeterminate term. The middle ground is, I won't go to trial, I won't admit it today, like you've told me, I've been there 16 years, I might as well wait until 2, see if I can get the doctors to change their mind, and then I'll come back in 2 and see where we are. That's what it is.
"[BROWN]: Okay. If I could, could we amend it to whereas to I would have-there's a new thing that's going on where I would be there at the hospital but wouldn't have to come through this county jail and stay anymore?
"THE COURT: I can't have that.
"[BROWN]: And I could get Zoom or whatever and stuff to decide? Because me being here at this county jail is a problem for me.
"THE COURT: No, I understand. I understand. So the short answer is I don't have that much control over that; however, what I'll tell you is this: If you don't admit the petition, then you're done, you just go, you go back to the hospital and whatever happens, happens."
The court then asked the prosecutor what type of "reconsideration" is available to persons who admit to an indeterminate term petition.
"[THE PROSECUTOR]: When a petition is admitted or a petition is found true, they're committed for an indeterminate term, they go back to the hospital, hopefully encouraged to do the treatment. Every year there's an annual update by doctors, and if the doctors feel like the individual is either ready for complete release or ready for release on conditional program, conditional release, Con Rep, then they make that recommendation every year.
"An individual can also petition individually despite the doctor's opinion, say, year down the road the doctor says they still meet criteria, the individual can then petition the court for release, saying, 'I disagree with the doctor,' but they then have the burden to prove that the doctor is wrong.
"THE COURT: Does that make sense, Mr. Brown?
"[BROWN]: Yeah. Okay. Okay. Here's what I would like to do: I'm going to go to trial and, you know, just leave it in God's hands."
The court then began discussing trial logistics before Brown interjected.
"[BROWN]: Okay, hold it, hold it.
"THE COURT: Yes?
"[BROWN]: I'm going to change my mind. How about this: I'm going to go ahead and sign the petition.
"THE COURT: Okay.
"[BROWN]: But I would like every other year or whenever I'm supposed to have this trial, that it be on Zoom, because, I mean, like, coming to this county jail is really not healthy for me.
"THE COURT: I understand. I understand. I don't know
"[DEFENSE COUNSEL]: If I can, Judge?
"THE COURT: Yeah, go ahead.
"[DEFENSE COUNSEL]: Sir, the State Supreme Court controls the ability of all judges to have Zoom hearings. There is a substantial likelihood that as of June 1st, Zoom will be no more.
"THE COURT: That is absolutely correct. So the Chief Justice has made an order that all of the pending emergency orders, the ones that have come out since March of 2020, are sunsetting, meaning they're done. Right?
"[BROWN]: Yeah.
"THE COURT: So I can't tell you that, yes, you can have a Zoom, and I'm not going to do that because I don't want to tell you something that I don't know to be true. And so, [defense counsel's] 100 percent right, as of June 1st, all those orders stop. Whether or not in the future you and the D.A. could agree to it, I don't know. Maybe. But I can't tell you, yeah, I can promise you that. I understand the part about the Fresno County Jail, I get it.
"[BROWN]: Okay.
"THE COURT: I get it. And I understand where you're coming from. I just don't know-do you understand me? I don't want to make you promises that I really don't know the answer to.
"[BROWN]: Okay.
"THE COURT: So I think in the future, if you indicate that you would like to appear by Zoom and the D.A.'s able to do that, that's likely, but I can't promise you that.
"[BROWN]: Okay. All right. All right.
"THE COURT: So you want to admit the petition?
"[BROWN]: Could I just read it?
"THE COURT: Of course.
"[BROWN]: Okay. Okay.
"THE COURT: Of course."
Brown then said to the court that it was important to read things before you sign them, and the court said that was good advice. The court then said that Brown would be shown the petition. Defense counsel stated that the petition Brown was to admit to was not a petition:
"[DEFENSE COUNSEL]: Yeah, it's not a petition.
"[THE PROSECUTOR]: Well, it is actually a petition.
"[DEFENSE COUNSEL]: Well
"[THE PROSECUTOR]: It was filed, as he says, back in 2012. It's very short. It was a mistake and the individual was changed by interlineation from Isaac Moore to Herbert Brown. Other than that, a change in doctors, because the doctors had retired that did the original reports, that's why we have two new doctors. So if he wants to look at that, it basically just says that we're filing a petition.
"THE COURT: So there was a typo in the name. There was a wrong name put in.
"[THE PROSECUTOR]: Yes.
"THE COURT: Would you mind showing that.
"[THE PROSECUTOR]: I will show that to him. And it basically just says we're petitioning he be found to be [a] sexually violent predator.
"THE COURT: Okay.
"[¶]... [¶]
"[BROWN]: Hmm. I noticed you crossed out the name Isaac Moore.
"THE COURT: They typed in the wrong name when it was filed.
"[THE PROSECUTOR]: It was a typo.
"[BROWN]: Okay. But you're using doctors
"[DEFENSE COUNSEL]: Those doctors have retired and there are other doctors, sir. As I explained to you before, we have to have the reports of doctors in a timely fashion, I say six months, the People say it's a year, but the other doctors are the older doctors. He has no doctors.
"[THE PROSECUTOR]: Those doctors were the doctors that gave their opinion when the petition was filed. They have since retired. So these doctors that I have today ready to testify are the updated doctors.
"[BROWN]: But I've never spoken to any of those doctors.
"[THE PROSECUTOR]: They tried to contact you to do an interview and you declined.
"[BROWN]: Okay. I'll admit the petition. Can you unhandcuff me?
"THE COURT: So there's nothing to sign. I'm going to do this orally. So you've read the petition?
"[BROWN]: Yeah.
"THE COURT: And you understand it?
"[BROWN]: Yeah.
"THE COURT: And we've talked a lot this morning about options.
"[BROWN]: Yeah.
"THE COURT: And you're choosing to admit the petition?
"[BROWN]: Yes.
"THE COURT: Okay. You understand that you would be admitting that you remain a sexually violent predator; you understand that
"[BROWN]: Yes.
"THE COURT: -that designation. You understand that you have a right to a speedy-and we've talked about this and I know your issues, but to admit the petition, you would be waiving your right to a speedy, public, jury or court trial, in this case it was a trial with me; you understand that?
"[BROWN]: Correct.
"THE COURT: And you're waiving that?
"[BROWN]: Correct.
"THE COURT: And you understand that at the court trial with me, or it if were a jury trial, the verdict has to be unanimous, so if it's a court trial, obviously it's only me, so I'm going to decide one way or the other, but the standard of proof is beyond a reasonable doubt; you understand that?
"[BROWN]: Correct.
"THE COURT: You understand that you have a right to be present and confront the witnesses that will testify against you, which are the doctors?
"[BROWN]: Correct.
"THE COURT: And you're waiving that right?
"[BROWN]: Correct.
"THE COURT: Okay. You have the right-just like a criminal trial, you have the right to not incriminate yourself, meaning that even though this is a civil proceeding, the People can't compel you to testify, they can't force you to testify?
"[BROWN]: Correct.
"THE COURT: And you are waiving that right?
"[BROWN]: Correct.
"THE COURT: Okay. You have the right to present your own evidence, call your own witnesses, and by admitting the petition you'll be waiving that.
"[BROWN]: Correct.
"THE COURT: Okay. Do you have any questions at all about your admission?"
"[BROWN]: I don't have any questions, but what I'm saying is that it's too bad we have to do this, because I don't get a chance for redemption.
I don't get a chance to show that I'm not what I was once convicted of, 'was' present tense. Like I said, I've been in that hospital and been in and out through some of the [h]oops which consist of their programming, and when I have doctors there that are falling asleep while people are talking about their cases and stuff, I don't see any efficiency as far as how things go as far as determining what their opinion professionally would be, you know. And so basically, I'm just leaving it up in the air and I'm going to ask you that, I have thought very hard about this decision, you know. Confused has been on my mind ever since December 7th I was up and brought here, you know. And, well, I mean, the deck was stacked against me, you know, for me to just take it to trial, let's just say this, that and the other and be faced with one indeterminate from you and be faced with whatever the way they had it worded from them is, you know, is all to more, no-win situation regardless. So I'm going to go ahead and okay it. I am going to ask you, though, could you expedite, I mean, make me go back to the hospital, order me back to the hospital as fast as possible so that I can get in contact with my family and talk to them and let them know what I've done and what my decision was and everything
"THE COURT: Yes.
"[BROWN]: -and put this whole thing behind me, you know?
"THE COURT: Yes, I will."
The court then stated that it believed Brown understood his rights and was "intelligently" and "freely" deciding to admit to the petition. Brown said "yes" he was. The court then officially asked Brown, "[D]o you admit the petition?" Brown answered, "Yes, sir." The court accepted his admission and ordered him returned to the state hospital. The court wished Brown good luck, and Brown thanked the court for "hearing [him] out" and said: "And I hope you're happy, everybody's happy here, you know. I just regret not getting a chance at redemption." With that, the hearing ended.
In January 2023, the court entered an order committing Brown, as an SVP, to DSH's custody for an indeterminate term. We note that this order was dated May 2, 2022. Brown appeals from this order.
DISCUSSION
Brown contends the commitment order must be vacated because the record does not affirmatively show that his admission to the petition was voluntary and intelligent. We reject the claim.
I. Appealability
The order of commitment was a final determination of Brown's rights under the SVPA, equivalent to a final judgment, from which an appeal may be taken. (Code Civ. Proc., § 904.1, subd. (a)(1).)
II. Relevant law on the SVPA
"Under the SVPA, an offender who is determined to be an SVP is subject to involuntary civil commitment for an indeterminate term upon release from prison. (§§ 6601-6604.)" (People v. Consiglio (2022) 86 Cal.App.5th 615, 628 (Consiglio).) The SVPA is designed"' "to provide 'treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior"' and to keep them confined until they no longer pose a threat to the public. [Citation.] Thus, '[t]he SVPA is not punitive in purpose or effect,' and proceedings under it are' "special proceedings of a civil nature." '" (People v. Putney (2016) 1 Cal.App.5th 1058, 1065; accord People v. Smith (2020) 49 Cal.App.5th 445, 451.)
"To establish that an offender is an SVP, the state must prove beyond a reasonable doubt that the offender (1) has been convicted of a sexually violent offense against at least one victim, and (2) has a diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior. (§§ 6600, subd. (a)(1), 6604.)" (Consiglio, supra, 86 Cal.App.5th at p. 628.)
"For the initial commitment, '[t]he SVPA provides for both a preliminary probable cause hearing and a later trial.' [Citation.] At the probable cause hearing, the court must 'determine whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.' (§ 6602, subd. (a).) This probable cause determination encompasses all the elements required for civil commitment as an SVP. [Citation.] If the court finds probable cause, it must then conduct a trial to determine whether the person qualifies for commitment as an SVP. (§ 6602, subd. (a).) The person is entitled to a jury trial, assistance of counsel, appointed counsel, experts or professional persons to perform an examination on the person's behalf, and access to all relevant medical and psychological records and reports. (§ 6603.)" (Consiglio, supra, 86 Cal.App.5th at pp. 628-629.)
"Once someone is committed as an SVP, he remains in custody until he successfully petitions for unconditional discharge under section 6605 or conditional release under section 6608. Alternatively, if DSH develops reason to believe the person no longer qualifies as an SVP, it must file a petition for writ of habeas corpus seeking the person's unconditional discharge. (§§ 6605, subd. (c), 7250.)" (Consiglio, supra, 86 Cal.App.5th at p. 629.)
"Section 6604.9 requires DSH to examine the mental condition of a committed SVP on an annual basis and submit to the court a report prepared by a professionally qualified person. Section 6604.9, subdivision (d), states that if DSH determines that 'the person's condition has so changed that the person no longer meets the definition of a sexually violent predator and should, therefore, be considered for unconditional discharge,' then 'the director shall authorize the person to petition the court for [conditional release to a less restrictive alternative or for an] unconditional discharge.' After such a favorable DSH evaluation, 'the SVP is strongly presumed to be entitled to unconditional discharge ....'" (Consiglio, supra, 86 Cal.App.5th at p. 629.) The trial court considers petitions for conditional release using the procedures described in section 6608 and considers petitions for unconditional discharge using the procedures described in section 6605. (§ 6604.9.)
"[A] trial court is to directly entertain a petition for unconditional discharge under section 6605 if-and only if-the [DSH], in its annual evaluation, has concluded that the 'person no longer meets the definition of a sexually violent predator.'" (People v. Peyton (2022) 81 Cal.App.5th 784, 799 (Peyton); § 6604.9, subds. (d) &(f).) Without such an evaluation, the person still may petition for conditional release under section 6608. (§ 6608, subd. (a).)
"Section 6605, subdivision (a), provides that when a court receives a petition for unconditional discharge, it must hold a 'show cause hearing' to determine whether 'probable cause exists to believe that the committed person's diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged _.' If the trial court determines such probable cause exists, 'then the court shall set a hearing on the issue' and the committed person 'shall be entitled to the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding,' including 'the right to demand a jury trial and to have experts evaluate him or her on his or her behalf.' (§ 6605, subd. (a)(2)-(3).) At the hearing, the burden of proof is 'on the state to prove beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.' (§ 6605, subd. (a)(3).)" (Consiglio, supra, 86 Cal.App.5th pp. 629-630.) "If the court or jury rules against the committed person at the hearing[,]" the person remains indeterminately committed and "may not file a new petition until one year has elapsed from the date of the ruling." (§ 6605, subd. (b).) But if the court or jury rules in the person's favor, the person shall be unconditionally released and unconditionally discharged. (Ibid.)
Section 6608 provides the procedures for a petition for conditional release. A person committed as an SVP may petition the court for conditional release with or without the recommendation or concurrence of the Director of State Hospitals. Upon receiving such a petition, the court "must obtain the Director's then-current recommendation regarding the SVP's suitability for conditional release. ([§ 6608], subd. (e).) The court then makes an initial assessment as to whether the petition is 'frivolous' (id., subd. (b)(1)), which asks whether the petition' "indisputably has no merit"' because 'any reasonable attorney would agree that the petition on its face and any supporting attachments [a]re totally and completely without merit' [citations]. If not frivolous, the matter can proceed to a hearing, where the SVP bears the burden of showing, by a preponderance of the evidence, that conditional release is appropriate." (Peyton, supra, 81 Cal.App.5th at pp. 797-798, fn. omitted.) In all events, no hearing on the petition may be held until the person has been under commitment for not less than one year. (§ 6608, subd. (f).) If the court determines that conditional release is appropriate, the court must order the person released to an appropriate state-run program for a year. (§ 6608, subd. (g).) After a year on conditional release, the person, with or without the recommendation of the director, may petition the court for unconditional discharge. (Id., subd. (m).) If the court denies the petition for conditional release, the person must wait a year from the denial to petition again. (Id., subd. (j).)
III. The issues
Brown contends the commitment order must be reversed because the record does not affirmatively demonstrate that Brown's admission to the petition was voluntarily and intelligently made. He supports this contention with four points. (1) He asserts he "was never made aware of allegations of any petition, because no petition was ever filed." (2) He relatedly asserts he "was never advised as to what facts were being alleged, or what facts he was admitting by virtue of his admission 'to the petition.'" (3) He also argues that it appears from the record that he did not know what the word "indeterminate" means and that he believed he would have a trial in one or two years if he "admitted the petition." (4) Lastly, he asserts the court incorrectly told him that he would "remain" an SVP if he admitted to the petition, when in fact he had never had that legal status.
To begin, we conclude that Brown's fourth point is forfeited because it is not supported by any legal discussion. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) Brown laid out his four points at the beginning of the argument section of his opening brief but proceeded to develop only the first three. We acknowledge that the court at one point mistakenly said that Brown would "remain" an SVP if he admitted to the petition. But Brown did not explain how this mistake contributed to his admission not being voluntarily or intelligently made. The point is therefore forfeited, and we will not consider it.
We will, however, address Brown's other three points, none of which have merit. To the contrary, the record affirmatively demonstrates Brown's admission was voluntary and intelligent, and we will thus affirm the commitment order.
A. Law and analysis
Although SVP proceedings are civil in nature, California courts recognize that a civil commitment is a significant deprivation of liberty. (Moore v. Superior Court (2010) 50 Cal.4th 802, 818.) Therefore," 'some constitutional protections available in the criminal context apply as a matter of due process to defendants in certain commitment proceedings.'" (People v. Washington (2021) 72 Cal.App.5th 453, 467.)
Brown acknowledges that no published California cases address whether an admission to a petition for commitment under the SVPA must be voluntarily and intelligently made to be valid. But he asserts "there is no conceivable reason for treating such admissions any different than guilty pleas" in criminal cases. In criminal cases, due process requires that a defendant's guilty plea be voluntary and intelligent. (Boykin v. Alabama (1969) 395 U.S. 238, 242 .)" '[A] plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.'" (People v. Gandy (2017) 13 Cal.App.5th 1288, 1295; quoting People v. Howard (1992) 1 Cal.4th 1132, 1175.)
We need not decide whether due process principles require that admissions to petitions for commitment under the SVPA be voluntary and intelligent because the record affirmatively shows that Brown's admission was voluntary and intelligent.
We turn now to the three points Brown asserts in support of his contention that the record does not affirmatively show that his admission was voluntary and intelligent. We begin with the first two, which both appear to relate to the adequacy of the amended petition itself. Brown asserts he was "never made aware of the allegations of any petition, because no petition was ever filed." He relatedly asserts that he was "never advised of what facts were being alleged" or of "what facts he was admitting."
To make his first point, he seizes on the wording in both the initial and amended petitions that the People "will petition the Court for" Brown's indeterminate commitment as an SVP. (Italics added.) From this, he asserts that neither the initial petition nor the amended petition is a petition; he implies that each is only a notice of an intent to file a petition. We acknowledge that a hyperliteral, contextless reading of the petitions would suggest that the petitions were merely notices of intent to file petitions. But in context, this interpretation is unreasonable. Not only was each document entitled a "petition," but the amended petition had been the operative petition for ten years when Brown admitted to it. The amended petition was the document that Brown was given to read in court when he asked the court if he could read the petition. And when Brown's counsel asserted at the May 2, 2022, hearing that it was not a petition, the prosecutor made clear that it was the operative petition in this proceeding. The record affirmatively shows that everyone, including Brown, understood that the initial and amended petitions were actual petitions and not mere notices of the prosecution's intent to file petitions.
It is curious that Brown's counsel would say this, given that over two years ago counsel filed a motion to dismiss "the petition" on due process grounds. And throughout that motion, counsel referred to the initial and amended petitions as petitions.
Brown's related contention that he never knew "what facts were being alleged" or "what facts he was admitting" also lacks merit. Both petitions advised Brown that the prosecution was seeking to have him indeterminately committed as an SVP under the SVPA. The petitions cited section 6600 et seq., which contains the SVPA. Each petition also stated the factual basis. For the initial petition, the stated factual basis was the reports of two doctors and the clinical evaluation of a third doctor. For the amended petition, the stated factual basis was the reports of three doctors. Brown read the amended petition in court, asked the court questions about it, and did not express confusion about what it was seeking: an indeterminate commitment under the SVPA. The record thus affirmatively shows Brown understood the amended petition's purpose and factual basis.
We turn now to Brown's third contention-that he did not know what "indeterminate" meant and that he believed he would have a trial in one or two years if he admitted to the petition. This contention is also meritless. First, Brown's discussion with the court at the May 2, 2022, hearing shows he understood that an "indeterminate" commitment is one with no definite period set.
"[BROWN]: If I'm found guilty, what is the penalty that I would have?
"THE COURT: If they find the petition true, it's an indeterminate commitment.
"[BROWN]: Indeterminate.
"THE COURT: Correct. Meaning no time limit.
"[BROWN]: No time limit.
"THE COURT: Correct."
This exchange with the court shows Brown understood what "indeterminate" meant, and the record contains nothing suggesting otherwise. This is to say, the record affirmatively shows that Brown understood that he could be committed for the rest of his life if he admitted to the petition. Moreover, it is implausible that during the eleven years these proceedings were pending Brown never came to understand what indeterminate meant; his discussion with the court at the May 2, 2022, hearing makes it clear that he did.
The record also affirmatively shows that Brown did not mistakenly believe that he could have a trial in "a year or two" if he admitted to the petition. Brown contends his mistaken belief was illuminated by his statement of his wanting to appear on Zoom "every other year or whenever that I'm supposed to have this trial[.]" Not so. We must examine this statement in context. The statement came after the prosecutor explained the annual evaluation for SVPs and explained that Brown could petition for release even if the doctors conclude after an annual evaluation that he still met the SVP criteria and should remain committed. These circumstances show that Brown was using the word "trial" there to refer to proceedings on petitions for release that he may file. We also must consider that Brown made this statement before the court's waiver of rights colloquy, during which Brown acknowledged in response to the court's questioning that he was waiving his right to a trial on the petition by admitting to the petition.
Brown also contends that he "expressed his understanding that, if he waived all his trial rights he 'would have a chance with the two-year commitment.'" He claims this misunderstanding was never dispelled. Brown's statement about having "a chance with the two-year commitment" is taken out of context. He did discuss "a chance with [a] two-year commitment" in the context of a waiver of trial rights. We will reproduce the portion of the transcript of the May 2, 2022, that Brown is alluding to. The following occurred while the court was explaining to Brown his three options: (1) admit the petition and forego a trial, (2) go to trial, and (3) waive his right to a speedy trial and continue the case for about a year or two.
"[BROWN]: If I'm found guilty, what is the penalty that I would have?
"THE COURT: If they find the petition true, it's an indeterminate commitment.
"[BROWN]: Indeterminate.
"THE COURT: Correct. Meaning no time limit.
"[BROWN]: No time limit.
"THE COURT: Correct.
"[BROWN]: Okay. But if under the D.A.'s waiver, time waiver
"THE COURT: Right.
"[BROWN]: -I would have a chance with the two-year commitment?
"[DEFENSE COUNSEL]: One or two years." (Italics added.)
This shows Brown did not mistakenly think he would have some kind of "chance with [a] two-year commitment" if he were to waive his trial rights and admit the petition. Instead, Brown was asking a clarifying question about the option of continuing the case to give him a chance to go back to the state hospital, participate in more treatment, and hopefully change the doctors' minds about whether he met the SVP criteria.
Even if the record suggested Brown mistakenly thought he would be retaining his trial rights-and the record does not reflect this-the court's waiver of rights colloquy shows that any mistake would have been dispelled. The court asked Brown if he understood that by admitting to the petition he would be waiving his right to a trial, and Brown said he understood. The court then asked if he wanted to waive that right, and Brown said he did. The court then explained to Brown that the standard of proof at trial would be the reasonable doubt standard, and that Brown had the right to confront the witnesses against him, the right against self-incrimination, and the right to present his own evidence. Brown said he understood all those rights and waived them.
After the waiver of rights colloquy, the court asked Brown if he had any questions. Brown went into a long discourse about how "it's too bad we have to do this, because I don't get a chance at redemption. I don't get a chance to show that I'm not what I was once convicted of[.]" He said he had "thought very hard about this decision," and had decided to not go to trial because he felt "the deck was stacked against [him]" in a "nowin situation[.]" He said he wanted to get back to the hospital, contact his family, "and put this whole thing behind [him]." The court then officially asked Brown if he admitted to the petition, and Brown said yes. After the court wished Brown good luck, Brown thanked the court for "hearing [him] out" and said: "And I hope you're happy, everybody's happy here, you know. I just regret not getting a chance at redemption."
The sentencing colloquy and Brown's comments afterward affirmatively show he understood that admitting to the petition would end the trial court proceedings as there would be no trial. To use his own words, admitting the petition would allow him to "put this whole thing behind [him]."
We conclude, under the totality of the circumstances, that the record affirmatively shows Brown's admission to the petition was voluntary and intelligent. The commitment order must therefore be affirmed.
At oral argument, Brown's counsel mentioned possible appellate issues that would be based at least partially on evidence outside of the appellate record. If Brown wishes to pursue claims based on evidence outside of the record, he may consider filing a petition for a writ of habeas corpus. (§ 7250; People v. Johnson (2015) 235 Cal.App.4th 80, 83, 88 [SVP filed habeas petition arguing newly discovered evidence undermined jury's determination he was an SVP]; In re Kerins (2023) 89 Cal.App.5th 1084, 1110 [SVP filed habeas petition arguing ineffective assistance of counsel].)
DISPOSITION
The trial court's commitment order dated May 2, 2022, and filed January 30, 2023, is affirmed.
WE CONCUR: PENA, Acting P. J., MEEHAN, J.