Opinion
D057288
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. REYNALDO DELROSARIO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. MH102691)
APPEAL from an order of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed in part, reversed in part, and remanded with directions.
I.
INTRODUCTION
Defendant Reynaldo Delrosario appeals from an order of commitment to the California Department of Mental Health for an indeterminate term after a jury found him to be a sexually violent predator within the meaning of Welfare and Institutions Code section 6600 et seq. (Sexually Violent Predators Act (SVPA)). Delrosario contends that the current version of the SVPA violates his right to the equal protection of the law and due process, under both the federal and state Constitutions, and that it also violates the prohibitions against double jeopardy and ex post facto laws. The majority of Delrosario's contentions have already been decided against him by the Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee).With respect to Delrosario's single remaining contention—i.e., that his indefinite commitment violates the equal protection clause—we reverse the trial court's judgment as to that claim and remand the case to the trial court with directions to suspend further proceedings until McKee is finally resolved, and, at that time, to conduct further proceedings consistent with the final resolution of that case. In all other respects, we affirm the order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
A sexually violent predator (SVP) is a person who has previously been convicted of a sexually violent offense and "who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1).) A sexually violent offense can be a forcible sexual act or any lewd act with a child under the age of 14, whether forcible or not. (Id., subd. (b); see Pen. Code, § 288.)
On September 22, 1998, Delrosario pled guilty to two counts of forcible lewd acts on a child under 14 years of age. He was sentenced to 12 years in state prison.
Prosecution experts evaluated Delrosario prior to his release date from prison. Licensed clinical psychologist Craig Teofilo, Ph.D., considered Delrosario's criminal convictions, whether Delrosario suffered from a mental disorder predisposing him to commit sexual crimes, and the likelihood of Delrosario reoffending if released into the community.
Dr. Teofilo noted that Delrosario had been convicted of two counts of forcible lewd acts on a child under 14 years of age, involving his biological daughter when she was between the ages of four and nine. Delrosario was also convicted of child molestation arising out of an incident in which he fondled a 10-year-old girl in 1986. In addition, Delrosario's records indicated that he had forced a minor girl to have intercourse with him 20-25 times, although he did not suffer a criminal conviction in relation to this conduct. Dr. Teofilo diagnosed Delrosario as suffering from pedophilia.
Dr. Teofilo testified that in his opinion, Delrosario was predisposed to commit criminal sexual acts, was likely to commit predatory, sexually violent acts in the future, and was a danger to the health and safety of others. Dr. Teofilo based this opinion on an actuarial assessment of future dangerousness of individuals with a history and diagnosis similar to Delrosario's. Dr. Teofilo concluded that there was a well-founded, substantial, serious risk that Delrosario will engage in similar conduct if he is released into the community.
Clinical psychologist Bruce Yanofsky also diagnosed Delrosario as a pedophile. Dr. Yanofsky noted that Delrosario had incurred two qualifying SVP prior convictions for forcible lewd acts upon a child under the age of 14, related to his daughter, and that he had engaged in similar conduct with other children. Delrosario had been involved in a long-term relationship with a girl who was a minor. After a few years, he fathered a daughter with the girl, only to later molest the daughter, as well. Dr. Yanofsky concluded that Delrosario posed a risk to the community because is it likely that he will continue to engage in sexually violent predatory behavior if released.
The defense presented the testimony of a psychiatrist, Dr. Clark Smith. Dr. Smith also diagnosed Delrosario as a pedophile. According to Dr. Smith, Delrosario did not fall within the group of individuals who have the highest risk of reoffending. Based on a number of factors, including the fact that Delrosario's mental disorder did not emerge until after his teenage years and that Delrosario had maintained a relationship with a woman for more than two years, Dr. Smith considered Delrosario to be a pedophile who has only a moderate risk of reoffending. B. Procedural background
In a petition filed July 9, 2008, the People alleged that Delrosario was an SVP within the meaning of Welfare and Institutions Code section 6600 et seq., and should be committed for an indeterminate term to the California Department of Mental Health (CDMH). The petition alleged that Delrosario had suffered two qualifying convictions for violations of Penal Code section 288, subdivision (b)(1) and (b)(2) (forcible lewd acts on a child).
On August 6, 2009, a jury found Delrosario to be an SVP. The trial court committed Delrosario to the CDMH for an indeterminate term.
Delrosario constructively filed a notice of appeal on May 17, 2010, after this court granted Delrosario's motion to be permitted to do so. (See In re Benoit (1973) 10 Cal.3d 72.)
III.
DISCUSSION
Delrosario challenges the SVPA on three grounds: (1) that it violates his right to equal protection by treating persons committed as SVPs differently from persons committed as mentally disordered offenders and persons found not guilty by reason of insanity; (2) that it violates his due process rights by "permit[ting] him to be committed indefinitely while placing the burden of proof on him to prove he no longer qualifies as an SVP"; and (3) that it violates the constitutional prohibition against ex post facto laws and the prohibition against double jeopardy because it is punitive and because it applies to conduct that he engaged in prior to its enactment, and for which he has already been punished. Delrosario concedes that each of his claims is governed by controlling authority, and requests that this court remand the matter for further proceedings in the trial court. (See McKee, supra, 47 Cal.4th 1172.)
The People concur generally in the view that Delrosario's claims are governed by the Supreme Court's decision in McKee, supra, 47 Cal.4th 1172. However, the People argue that Delrosario waived or forfeited his constitutional objections by failing to raise them in the trial court. Because the claims that Delrosario raises implicate fundamental constitutional rights, we may consider his claims on their merits, despite Delrosario's failure to raise these claims in the trial court. (See People v. Vera (1997) 15 Cal.4th 269, 276-277 [a defendant is not precluded from raising a claim asserting the deprivation of fundamental constitutional rights for the first time on appeal].) A. Due process and double jeopardy/ex post facto claims
Delrosario contends that the indefinite SVPA commitment violates his right to due process of law, and that the application of the SVPA to him violates double jeopardy and ex post facto principles. As Delrosario acknowledges, however, his due process and double jeopardy/ ex post facto challenges to the amended version of the SVPA were rejected in McKee, supra, 47 Cal.4th at pages 1188 through 1195, and we are bound by that holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). B. Equal Protection claim
Delrosario contends that the case must be remanded for a resolution of his equal protection challenge to the SVPA. (See McKee, supra, 47 Cal.4th at pp. 1196-1211.) The People request that this court suspend further proceedings, rather than remand the matter to the trial court. We conclude that the more appropriate course under the circumstances is to reverse the superior court's judgment as to Delrosario's claim that his indeterminate term violates equal protection, remand the matter to the superior court, and direct the superior court to suspend further proceedings on the claim until the McKee case is finally resolved. At that time, the superior court shall conduct further proceedings consistent with the final resolution in McKee.
IV.
DISPOSITION
The order is reversed solely as to the McKee equal protection claim. The matter is remanded to the superior court with the direction to suspend further proceedings on the McKee equal protection claim until McKee is finally resolved. This direction does not preclude the superior court from consolidating or coordinating this case with other cases raising similar equal protection claims, or from taking other steps necessary for the efficient administration of the superior court proceedings. Once the McKee case is finally resolved, the superior court is directed to conduct further proceedings consistent with the final resolution. In all other respects, the order is affirmed.
AARON, J. WE CONCUR:
BENKE, Acting P. J.
IRION, J.