Opinion
NOT TO BE PUBLISHED
Sonoma County Super Ct. No. SCR14631
Jones, P.J.
Sven Fjeld-Erichsen appeals from a judgment committing him to the State Department of Mental Health (Department) as a sexually violent predator (SVP). He contends the judgment must be reversed because (1) the psychologists who evaluated him prior to a probable cause hearing used an invalid “underground regulation”, and (2) the statutes under which he was committed are unconstitutional. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The precise facts of appellant’s underlying criminal offenses are not relevant to the issues that have been raised. It should suffice to say that appellant sexually molested three young boys, 8-year-old Brian, 11-year-old Shaun, and 14-year-old David. Appellant was sentenced to state prison with a release date of October 16, 2007.
On October 2, 2007, the Sonoma County District Attorney filed a petition to declare appellant an SVP. Attached to the petition were two lengthy evaluations prepared by two psychologists, both of whom concluded that appellant had a diagnosed mental disorder that made him a danger to the health and safety of others in that it was likely he would engage in sexually violent criminal behavior in the future.
The trial court conducted a probable cause hearing. It concluded there was probable cause to conclude appellant was an SVP.
The case proceeded to a jury trial. The jurors heard testimony from the psychologists who had prepared the earlier evaluations and testimony from appellant himself. After considering the evidence presented, the jurors concluded appellant was an SVP as that term is statutorily defined.
Subsequently, the court committed appellant to the Department for an indefinite term.
II. DISCUSSION
A. Underground Regulation Issues
Appellant contends his commitment to the Department must be reversed because it was based on psychological evaluations that were conducted pursuant to an invalid underground regulation. To put this argument in context, some background is necessary.
The Welfare and Institutions Code sets forth an elaborate procedure that must be followed in order to declare someone an SVP. First, if prison officials determine it is likely that an inmate would qualify as an SVP, they refer the inmate to the Department for an evaluation to determine whether he or she meets the statutory criteria. (Welf. & Inst. Code, § 6601, subd. (b).) Two mental health professionals designated by the Department must “evaluate the person in accordance with a standardized assessment protocol, developed and updated by the Department, to determine whether the person is a sexually violent predator as defined in this article. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (§ 6601, subd. (c).) If the evaluators agree the person meets those criteria, the director of the Department must forward a request for a commitment petition to the county where the offender was convicted. (§ 6601, subds. (d) & (i).)
Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.
If the county’s legal counsel agrees with the director’s recommendation, the district attorney or county counsel files a commitment petition in the superior court. (§ 6601, subd. (i).) “Once the petition is filed, a superior court judge must ‘review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that [the defendant] is likely to engage in sexually violent predatory criminal behavior upon his or her release.’ (§ 6601.5.) If the judge makes that determination from this facial review, the judge orders the defendant detained in a secure facility pending a probable cause hearing under section 6602.” (People v. Hayes (2006) 137 Cal.App.4th 34, 42-43.) If the trial court determines there is probable cause, the SVP petition proceeds to trial. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 245.) “Either party may demand a jury trial. The defendant has the right to the assistance of counsel, to retain experts, and to access to relevant psychological and medical reports. He can only be found to be an SVP by a standard of beyond a reasonable doubt, and any jury verdict must be unanimous.” (People v. Hayes, supra, 137 Cal.App.4th at p. 44.) If a person was found to be an SVP prior to September 20, 2006, he or she was committed to the Department’s custody for two years. (People v. Shields (2007) 155 Cal.App.4th 559, 562-563.) Effective September 20, 2006, a person found to be an SVP is committed to the Department’s custody for an indefinite term. (Ibid.)
The procedure set forth above was followed in this case. Prior to appellant’s release from prison, he was evaluated by two psychologists, Marianne Davis and Christopher North. Apparently using the August 2007 version of the “Clinical Evaluator Handbook and Standardized Assessment Protocol” adopted by the Department, Davis and North both prepared lengthy psychological evaluations. Both evaluations concluded appellant was an SVP as that term is statutorily defined. The Sonoma County District Attorney attached those evaluations to a petition asking that appellant be declared an SVP. The court ordered that appellant be housed in the county jail pending a probable cause hearing. The court conducted that hearing on November 26, 2007. It concluded there was probable cause to believe appellant was an SVP. The court ordered that appellant remain in the county jail and set the matter for a trial. After several continuances, a jury trial to determine whether appellant was an SVP began on August 27, 2008. After hearing testimony from Davis and North and from appellant himself, the jurors unanimously concluded appellant was an SVP. Subsequently the court committed appellant to the Department for an indefinite term.
Appellant now challenges one aspect of the procedure that was used to declare him an SVP. Appellant notes that on August 15, 2008, after his probable cause hearing before the beginning of his trial, the California Office of Administrative Law (OAL) issued a determination that the “Clinical Evaluator Handbook and Standardized Assessment Protocol” that Davis and North apparently had used when evaluating him prior to the probable cause hearing, was a “regulation” as that term is statutorily defined that should have been adopted pursuant to the Administrative Procedures Act. Because it was not, the standardized assessment protocol was an underground regulation as defined in California Code of Regulations, title 1, section 250. From this finding, appellant constructs the following four-part argument: “(1) the [Department of Mental Health’s] evaluation protocol was an illegally adopted underground regulation; (2) an illegally adopted underground regulation cannot qualify as a standardized assessment protocol within the meaning of the statute; (3) therefore, appellant was not found to qualify as a sexually violent predator by two evaluators pursuant to the required standardized assessment protocol; and (4) absent legally conducted evaluations, the district attorney lacked statutory authority to file [a] petition seeking appellant’s commitment.” In appellant's view, the statutory requirement of a "standardized assessment protocol" is a jurisdictional prerequisite to a petition for involuntary commitment, and therefore the trial court lacked the authority to hear appellant's case.
The first hurdle appellant faces is that he never raised this argument in the court below. Accordingly, he has forfeited the right to raise the issue on appeal. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) We also reject the argument on its merits.
Perhaps as a consequence of appellant's failure to raise this issue in the court below, we do not know what standardized assessment protocol the two psychologists designated by the Department actually did use when making their assessments.
The evaluations prepared prior to the filing of an SVP petition act as a procedural safeguard “to prevent meritless petitions from reaching trial.” (People v. Scott (2002) 100 Cal.App.4th 1060, 1063.) The People need not prove such reports at either the probable cause hearing or at any subsequent trial. (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130.)
Similarly, the sole purpose of the probable cause hearing is to weed out factually groundless SVP petitions. (Cooley v. Superior Court, supra, 29 Cal.4th at p. 247). The hearing “is analogous to a preliminary hearing in a criminal case....” (Ibid.) The judge must determine whether there is probable cause to conclude that a person is an SVP as that term is statutorily defined. (Ibid.) Once that determination is made, the matter proceeds to trial. (People v. Hayes, supra, 137 Cal.App.4th at p. 44.)
Because probable cause hearings in SVP proceedings are so similar to preliminary hearings in a criminal case, the courts have treated errors committed in connection with probable cause hearings like errors committed at preliminary hearings. (People v. Butler (1998) 68 Cal.App.4th 421, 435, People v. Hayes, supra, 137 Cal.App.4th at p. 51.) Irregularities are not jurisdictional (People v. Talhelm (2000) 85 Cal.App.4th 400, 405), and reversal is required only if the defendant can show he was deprived of a fair trial or otherwise suffered prejudice as a result of the error. (Ibid; People v. Hayes, supra, 137 Cal.App.4th at pp. 50-51.)
Our colleagues in Division One recently applied these principles to reject an argument that is similar to the one appellant makes here. In People v. Medina (2009) 171 Cal.App.4th 805, the appellant had been declared an SVP. He challenged that commitment on appeal arguing that the “Clinical Evaluator Handbook and Standardized Assessment Protocol” that had been used by his evaluating psychiatrists prior to his probable cause hearing had been declared invalid by the OAL. (Id. at pp. 814-815.) The Medina court rejected the argument as follows: “the probable cause hearing in a SVP proceeding is analogous to a preliminary hearing in a criminal case. Under the rule of People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, which has been regularly applied in SVPA appeals [citation], irregularities in a preliminary hearing require reversal only if a defendant can demonstrate that he or she was deprived of a fair trial or otherwise suffered prejudice [Citation]. As discussed below, defendant has not made the necessary showing.” (People v. Medina, supra, 171 Cal.App.4th at pp. 818-819.)
Subsequently, the court in People v. Taylor (2009) 174 Cal.App.4th 920, 937-938, rejected the precise argument appellant makes here ruling an SVP commitment was not invalid simply because the standardized assessment protocol that was used by the evaluating psychiatrists in connection with the probable cause hearing had been declared an invalid underground regulation by the OAL.
We reach a similar conclusion in this case. Even if we were to assume the Office of Administrative Law correctly determined that the 2007 standardized assessment protocol was an invalid underground regulation, any possible error was harmless. After the probable cause hearing, appellant was provided a full blown jury trial. At that trial, two psychologists Davis and North provided extensive testimony. Both concluded that based on their training and experience, appellant was an SVP as that term is statutorily defined. At the conclusion of that trial, the jurors concluded, beyond a reasonable doubt, that appellant was an SVP within the meaning of section 6600, subdivision (a)(1). Because appellant received a full and fair trial on the ultimate issue in this case, we conclude appellant was not prejudiced by the error he has alleged.
None of the arguments appellant advances convince us the underlying judgment must be reversed. First and primarily, appellant argues the psychologists’ use of the invalid underground regulation to evaluate him prior to the probable cause hearing deprived the court of the fundamental jurisdiction to proceed.
“Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) “A court has no jurisdiction to hear or determine a case where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision.” (Ibid.)
Here, appellant has not cited any case that holds the error he has alleged deprives the court of fundamental jurisdiction, and case law is directly to the contrary. As we have noted, several courts have held that errors committed in connection with the probable cause stage of an SVP proceeding are not jurisdictional. (See People v. Superior Court (Preciado), supra, 87 Cal.App.4th at pp. 1128-1130; People v. Talhelm, supra, 85 Cal.App.4th at p. 405.) Indeed, our colleagues in Division One have expressly ruled that the use of the standardized assessment protocol that is at issue here did not deprive the court of fundamental jurisdiction. (See People v. Medina, supra, 171 Cal.App.4th at p. 816.) Against, this background, we do not hesitate to conclude the court did not lack fundamental jurisdiction.
The cases appellant cites do not convince us the court here lacked fundamental jurisdiction. First, appellant relies on People v. Allen (2007) 42 Cal.4th 91; however there, a person was recommitted as a mentally disordered offender even though the petition seeking his commitment was not filed until after the prior commitment had expired. (Id. at p. 95.) Our Supreme Court ruled the statutory time limit was mandatory and that Allen “no longer falls under the jurisdiction of the MDO Act.” (Ibid.) Here, we are not dealing with the Mentally Disordered Offender Act and appellant does not contend that the petition seeking to declare him an SVP was untimely. Allen is not controlling.
Appellant also suggests the fundamental nature of the error he has alleged is supported by language contained in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888. In that case, our Supreme Court addressed many aspects of the Sexually Violent Predator Act (SVPA). While discussing the general structure of the SVPA, the court noted that “a petition for commitment or recommitment may not be filed unless two evaluators, appointed under the procedures specified in section 6601, subdivisions (d) and (e), have concurred that the person currently meets the criteria for commitment under the SVPA.” (Id. at p. 909.) While the language appellant cites does indicate that the filing of a petition supported by two evaluators is a critical stage of the SVP procedure, the court did not characterize that stage as fundamental, nor did it discuss what the consequences would be if some aspect of that procedure should be infected with legal error. Cases are not authority for propositions that are not considered. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 372.) Ghilotti is not controlling here.
We conclude appellant was not prejudiced by the error he has alleged.
Because we have rejected appellants argument on this point on the merits, we need not determine whether appellant’s trial counsel provided ineffective assistance because he failed to raise this issue in the court below.
B. Constitutional Challenges
As we have noted, if a person was found to be an SVP prior to September 20, 2006, he or she was committed to the Department’s custody for two years. (People v. Shields, supra, 155 Cal.App.4th at pp. 562-563.) Effective September 20, 2006, a person found to be an SVP is committed to the Department’s custody for an indefinite term. (Ibid.)
Appellant now contends the amended SVP Act is unconstitutional because it violates his equal protection, due process, ex post facto, and double jeopardy rights.
Appellant acknowledges that all of these arguments have been addressed and rejected by several appellate courts. (See People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008 (S162823); People v. Johnson (2008) 162 Cal.App.4th 1263, review granted Aug. 13, 2008 (S164388); (People v. Riffey (2008) 163 Cal.App.4th 474, review granted Aug. 20, 2008 (S164711); People v. Boyle (2008) 164 Cal.App.4th 1266, review granted Oct. 1, 2008 (S166167); People v. Garcia (2008) 165 Cal.App.4th 1120, review granted Oct. 16, 2008 (S166682); People v. Force (2009) 170 Cal.App.4th 797, review granted Apr. 15, 2009 (S170831).) He also concedes that our Supreme Court currently is considering the issues he advances. Acknowledging this background, appellant presents a “very brief argument” that is designed to preserve the issue for review.
Given appellant’s summary argument, a summary response is appropriate. It should suffice to say that we agree with the cases set forth above that have ruled the amended SVP Act is constitutional.
III. DISPOSITION
The order committing appellant to the State Department of Mental Health is affirmed.
We concur: Simons, J., Needham, J.