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People v. Ganoe

California Court of Appeals, Fifth District
Mar 7, 2008
No. F051808 (Cal. Ct. App. Mar. 7, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. KURT ALLEN GANOE, Defendant and Appellant. F051808 California Court of Appeal, Fifth District March 7, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Tulare County Super. Ct. No. VCF012917-93. Gerald F. Sevier, Judge.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CORNELL, J.

Appellant Kurt Allen Ganoe challenges his commitment as a sexually violent predator (SVP) pursuant to the Sexually Violent Predators Act (SVPA), Welfare and Institutions Code section 6600 et seq. Ganoe contends his constitutional rights were violated when he was sentenced to an indeterminate term based upon an amendment to section 6604 that went into effect after the commitment petition was filed, but before the commitment order was issued. He also contends the prosecutor committed misconduct during the trial and the commitment order erroneously states he admitted the allegations.

All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

We will direct the commitment order be corrected to reflect Ganoe contested the petition. In all other respects the order will be affirmed.

DISCUSSION

In 1978 Ganoe was convicted of two counts of lewd conduct on a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a). Following these convictions, Ganoe was committed civilly as a mentally disordered sex offender. He remained at Atascadero State Hospital for a period of five years, where staff determined he was not amendable to treatment.

In 1988 Ganoe was convicted of engaging in unlawful sex with a 15-year-old girl. Ganoe was convicted in 1997 of committing a lewd act on a child under the age of 14 years, in violation of Penal Code section 288, subdivision (a).

In 2002 Ganoe first was committed civilly as an SVP. In December 2005, the Department of Mental Health (the Department), where Ganoe was committed in Coalinga State Hospital, notified the Tulare County District Attorney’s Office that Ganoe’s commitment was due to expire May 22, 2006, and that the staff believed Ganoe continued to meet all the legal and clinical criteria for civil commitment.

On January 23, 2006, a petition to recommit Ganoe was filed in Tulare County. Accompanying the petition was the letter from the Department recommending Ganoe remain civilly committed and two evaluations concluding that Ganoe suffered from a mental disorder and was at substantial risk of committing another sexually violent offense if released. At an April 4, 2006, probable cause hearing, the trial court found probable cause and set a date for the hearing on the petition to recommit.

A jury trial on the civil recommitment was held on October 24 through October 27, 2006. The jury found the allegations of the recommitment petition to be true. On November 20, 2006, Ganoe was ordered civilly committed for an indeterminate term pursuant to section 6600.

DISCUSSION

Ganoe contends the trial court erred when it ordered him committed for an indeterminate term instead of a two-year term. He also argues that commitment for an indeterminate term violated his constitutional right to fair notice, due process, and equal protection. Ganoe further claims that the prosecutor committed misconduct by stating facts not in evidence. Finally, he contends the commitment order must be corrected because it erroneously states he admitted the allegations of the petition.

I. Constitutional Challenges

Ganoe contends his commitment is invalid because of constitutional infirmities in the statutory scheme and the procedures used in his case. We will discuss them individually.

Application of Amended Section 6604 to Pending Petitions

Prior to September 20, 2006, section 6604 provided for a two-year term of commitment if a person was found to be an SVP. On September 20, 2006, the Governor signed Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Stats. 2006, ch. 337), which amended section 6604 to provide for an indeterminate term. (Stats. 2006, ch. 337, § 55). The legislation was signed as an emergency measure and became effective immediately. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280 (Bourquez).)

Thereafter, at the general election on November 7, 2006, voters approved Proposition 83, which became effective November 8, 2006. Proposition 83 also provides for an indeterminate term. It does not provide for retroactive application. (Bourquez, supra, 156 Cal.App.4th at pp. 1281, 1288.)

In determining whether a law has retroactive application, “‘the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute’s effective date.’” (Ibid.) Because the last event necessary to trigger application of the SVPA occurs at the time of commitment, not when the recommitment petition is filed, the court in Bourquez held that applying the provisions of section 6604 as amended “to pending petitions to extend commitment under the SVPA to make any future extended commitment for an indeterminate term is not a retroactive application.” (Bourquez, supra, 156 Cal.App.4th at p. 1289.)

Here, although the petition to recommit Ganoe as an SVP was filed on January 23, 2006, the hearing on the petition was held in October 2006. The jury returned its findings on October 27, 2006, more than a month after the effective date of the legislative amendments to section 6604. The recommitment order was issued November 20, 2006, two months after the legislative amendments to section 6604 became effective and 12 days after Proposition 83 became effective. (People v. Carroll (2007) 158 Cal.App.4th 503, 509 & fn. 3 (Carroll).)

The significant point for retroactivity is the trial and adjudication. (Carroll, supra, 158 Cal.App.4th at p. 514.) Therefore, the trial court did not err in applying the amended version of section 6604 and imposing an indeterminate term of civil commitment. (Bourquez, supra, 156 Cal.App.4th at p. 1289.)

Fair Notice

Ganoe claims that he lacked fair notice of the potential sentence, an indeterminate term, because the recommitment petition alleged the commitment should be extended for another two years. Ganoe’s contention is not supported by the record. The petition to recommit Ganoe as an SVP requested that he be recommitted pursuant to the provisions of section 6600 et seq.; no term of commitment was specified in the petition.

At trial Ganoe did not contend that he lacked fair notice of the possibility of imposition of an indeterminate term or that the change in law affected his ability to defend against the petition. Ganoe’s counsel specifically stated he was not making an argument based on lack of notice. Ganoe was given the opportunity to brief the issue of the applicability of the new statutory scheme to him and argue it at a separate hearing. A right, even a constitutional right, may be forfeited by failure to assert it in a timely manner. (People v. Barnum (2003) 29 Cal.4th 1210, 1224.) Ganoe forfeited any claim of lack of fair notice.

Due Process

Ganoe also contends that the imposition of an indeterminate term, subject only to limited review as set forth in sections 6605 and 6608, violates his due process rights. Ganoe’s contentions previously have been addressed and rejected by California courts and the United States Supreme Court.

A civil commitment for an indeterminate term does not violate due process. In Kansas v. Hendricks (1997) 521 U.S. 346, 353 (Hendricks), the United States Supreme Court upheld the constitutionality of a statute that provided for an indeterminate commitment of an SVP “‘until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.’ [Citation.]” The Kansas scheme provided for an annual review to determine whether continued commitment was warranted; the committed person also could file a petition seeking to be released. (Ibid.) Because of the requirement of an annual review, the commitment period is “only potentially indefinite.” (Id. at p. 364.)

Like the Kansas scheme, California’s SVP scheme provides for an annual review and allows the committee to petition for release. Section 6605 provides that a current mental health examination shall be conducted each year to determine whether the person currently meets the definition of an SVP. (§ Id., subd. (a).) The results are to be filed with the court and served on the committed person. (Ibid.) If it is determined that the person no longer meets the definition of an SVP, or if the person can be conditionally released, then a petition for such discharge or conditional release is to be filed. (§ Id., subd. (b).)

If the Department of Mental Health does not certify that the person should be discharged or conditionally released, the committed person can file a petition pursuant to section 6608 for conditional release or discharge. (§ Id., subd. (a).) Section 6608, subdivision (i) provides that in any hearing on a petition filed under this section, the petitioner has the burden of proof by a preponderance of the evidence.

Ganoe complains that the limited review available under the California scheme is constitutionally inadequate and violates due process because it does not guarantee that a committed person has the right tocourt-appointed medical experts and it places the burden of proof on the committed person.

Contrary to Ganoe’s contention, the review available under the SVPA is not limited. If at any time the Department of Mental Health believes a person committed as an SVP no longer qualifies as an SVP, the Department of Mental Health must seek judicial review of the commitment. (§ 6605, subd. (f).) At a minimum, a current evaluation must be conducted at least once a year. (§ Id., subd. (a).) A person committed as an SVP also may seek discharge or conditional release pursuant to sections 6607 and 6608. (People v. Grassini (2003) 113 Cal.App.4th 765, 781.) In addition, a committed person has the right to seek release by way of a petition for writ of habeas corpus. (People v. Talhelm (2000) 85 Cal.App.4th 400, 404-405 (Talhelm).)

The annual review and the numerous methods by which a committed person may seek discharge or conditional release under California’s scheme assure that an individual remains committed only as long as he or she meets the statutory qualifications as an SVP. These procedural safeguards assure that commitment as an SVP is only potentially indeterminate and that constitutional requirements are satisfied. (See Hendricks, supra, 521 U.S. at pp. 364-365.)

Furthermore, the provisions of the statute challenged by Ganoe are not new; they were in effect prior to the 2006 amendments. The constitutionality of the statutory scheme adopted by California for treating SVP’s has been upheld by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138. The court in Hubbart first comprehensively summarized the many provisions in the scheme, including noting that a person filing a petition for discharge or conditional release had the burden of proof by a preponderance of the evidence. (Id. at p. 1148 & fn. 14.) The Hubbart court then analyzed, and rejected, a due process challenge to the statutory scheme. (Id. at pp. 1151-1167.)

As SVP commitment proceedings are civil in nature, we do not apply principles applicable to criminal proceedings. (People v. Collins (2003) 110 Cal.App.4th 340, 348 (Collins).) Because commitment as an SVP involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process. The protections afforded, however, are measured by the standard applicable to civil, not criminal proceedings. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 738.) “Due process is a flexible concept that calls for ‘“such procedural protections as the particular situation demands.”’ [Citation.]” (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1399 (Hardacre).)

Regarding medical experts, the committed person “may retain, or if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person.” (§ 6605, subd. (a).) Section 6605, subdivision (a) applies to the annual review process. At least one appellate court has held that the lack of an absolute entitlement to appointment of a medical expert does not constitute a due process violation. (Hardacre, supra, 90 Cal.App.4th at p. 1401.) Furthermore, civil discovery rules applicable to SVP proceedings provide a committed person access to all of his or her medical and psychological records. (Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1687.)

Also, as the action instituted by such a petition is civil in nature, rules of civil procedure apply to petitions for discharge or conditional release filed by a committed person pursuant to section 6608. (Collins, supra, 110 Cal.App.4th at p. 348.) The burden of proof in a civil action is on the moving party and is a preponderance of the evidence. (Ibid.; § 6608, subd. (i); Evid. Code, § 115.) Section 6608, subdivision (i) specifically provides for a civil burden of proof to apply.

Ganoe was committed to an indeterminate term after it was determined beyond a reasonable doubt that he qualified as an SVP. (§ 6604.) If Ganoe believes that his mental condition has changed such that he no longer qualifies as an SVP and can be discharged, or conditionally released, he has the right to file a petition under section 6608, to have counsel appointed to represent him, and to seek the appointment of medical experts to evaluate him. (§§ 6608, subd. (a), 6605, subd. (a).) He also has the ability to seek discharge or conditional release by way of a petition for writ of habeas corpus. (Talhelm, supra, 85 Cal.App.4th at pp. 404-405.) His contention that his commitment for an indeterminate term violates due process fails.

Equal Protection

Ganoe contends his commitment as an SVP violates equal protection because similarly situated groups are treated in an unequal manner. Specifically, Ganoe points to those confined as mentally disordered offenders (MDO), Penal Code section 2960 et seq., and those committed to the Department of Mental Health by virtue of a criminal verdict of not guilty by reason of insanity as similarly situated groups whose treatment differs from that accorded those determined to be SVP’s.

Several California appellate cases already have addressed, and rejected, the equal protection challenges with respect to commitment as an SVP that are raised by Ganoe. (People v. Calderon (2004) 124 Cal.App.4th 80, 94 [MDO’s and SVP’s are not similarly situated]; People v. Lopez (2004) 123 Cal.App.4th 1306, 1314-1315 [rejects claim of equal protection violation after analyzing MDO and SVP schemes]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1218-1219 [the SVPA does not violate equal protection]; People v. Calhoun (2004) 118 Cal.App.4th 519, 529-530 [SVP’s and criminal defendants are not similarly situated, thus no equal protection violation].)

Additionally, the Ninth Circuit has held that California’s statutory scheme for treatment of SVP’s does not violate equal protection. (Hubbart v. Knapp (9th Cir. 2004) 379 F.3d 773, 782 [no constitutionally significant distinction between MDO and SVP statutes].)

We agree with the cited authority and reject Ganoe’s equal protection claim.

II. Prosecutorial Misconduct

In closing argument, the prosecutor stated, “The Department of Mental Health already determined that Mr. Ganoe fit the qualifications of the -- the sexually violent predator program.” At that point, defense counsel objected, asserting that the argument suggested the Department was giving testimony. The trial court impliedly overruled the objection by telling defense counsel he could argue the point to the jury.

The SVPA refers to the Department of Mental Health throughout as the entity charged with evaluating a person to determine whether that person qualifies as an SVP and recommending commitment or release. (See, e.g., §§ 6601, subd. (b), 6604.1, subd. (b), 6605, subd. (a), 6608, subd. (a).)

Furthermore, a letter from the Department was attached to the petition for recommitment. That letter states, in relevant part, “the Department of Mental Health recommends that a petition for extension of commitment be filed” because “[s]tate hospital treatment staff believes that this patient is a person who continues to meet all the legal and clinical criteria” of an SVP.

The SVPA contemplates that the Department of Mental Health will make an initial determination as to whether a person meets the criteria of an SVP. That determination was made in Ganoe’s case and the Department so stated in writing. The prosecutor did not commit misconduct by referring to the Department’s role in the case.

III. Correction to Commitment Order

Ganoe contends the commitment order erroneously states he admitted the allegations of the recommitment petition. He is correct and the People concede the error. Ganoe did not admit the allegations of the petition; the allegations were found true by a jury.

DISPOSITION

The trial court is directed to prepare and issue a corrected commitment order reflecting that Ganoe contested the allegations of the petition. In all other respects the commitment order filed November 20, 2006, is affirmed.

WE CONCUR: VARTABEDIAN, Acting P.J., GOMES, J.


Summaries of

People v. Ganoe

California Court of Appeals, Fifth District
Mar 7, 2008
No. F051808 (Cal. Ct. App. Mar. 7, 2008)
Case details for

People v. Ganoe

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KURT ALLEN GANOE, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Mar 7, 2008

Citations

No. F051808 (Cal. Ct. App. Mar. 7, 2008)