Opinion
A130229
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO INIGUEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. CIV403953)
Defendant was committed to an indeterminate term of confinement as a sexually violent predator (SVP). He raises several constitutional challenges to the imposition of an indeterminate term. We reject the challenges that have already been resolved against him by the Supreme Court and suspend further proceedings regarding his equal protection claim pending finality of the proceedings in People v. McKee (2010) 47 Cal.4th 1172 (McKee).
I. BACKGROUND
Defendant has spent most of his adult life in and out of prison and mental health confinement. Starting at age 19 with a conviction for indecent exposure, he has committed more than 15 criminal sexual acts, often upon children. At some point in the 1990's he was found to be an SVP, and he appears to have been civilly confined since then.
In February 2006, the District Attorney of San Mateo County filed a petition to extend defendant's SVP confinement for two years, the maximum extension permitted by the law in effect at the time. Prior to a hearing on the petition, in September 2006, the district attorney filed an amended petition to seek defendant's commitment for an indeterminate term, pursuant to recently passed amendments to the governing statute. Following a jury trial in May 2010, defendant was found to be an SVP, and the trial court, applying the new law, committed him to an indeterminate term.
Because defendant raises no procedural or evidentiary errors on appeal, the details of the commitment proceeding are not pertinent.
II. DISCUSSION
Defendant contends for several reasons that his commitment for an indeterminate term is unconstitutional. As he acknowledges, with one exception the issues he raises have been decided against him by our Supreme Court, primarily in McKee. Because the Supreme Court has suggested that disposition of the unresolved issue, the constitutionality of the indeterminate term under the equal protection clause, should await its own ruling on the issue following further proceedings in McKee, we direct that proceedings in this case should be suspended until the Supreme Court has ruled.
As the court explained in McKee, the SVP statutes, Welfare and Institutions Code section 6600 et seq., originally established sequential two-year terms of confinement for persons found to be SVP's. Upon the expiration of each two-year term, the SVP's confinement ended unless, after a jury trial, he or she was again found beyond a reasonable doubt to satisfy the statutory criteria. (McKee, supra, 47 Cal.4th at p. 1185.) Upon the passage of Proposition 83 in 2006, the term of an SVP's confinement was changed from two years to an indeterminate period. Under Proposition 83, an SVP cannot obtain release from confinement, in the absence of the state's consent, without proving at trial he or she no longer meets the statutory definition. (McKee, at pp. 1186-1187.)
Among other issues, the defendant in McKee argued the imposition of an indeterminate term violated equal protection because it constituted significantly less favorable treatment than that provided to mentally disordered offenders (MDO's) and persons found not guilty by reason of insanity (NGI's). The court agreed with the defendant that NGI's and MDO's were similarly situated with SVP's for purposes of equal protection analysis (McKee, supra, 47 Cal.4th at pp. 1203-1207), but it concluded the state was entitled to an opportunity to prove that, notwithstanding the similarities, SVP's as a class constitute a substantially greater risk to society, thereby justifying the less favorable treatment. The court remanded the case to the trial court for a hearing on this issue. (Id. at p. 1208.)
Following its decision, the Supreme Court entered identical minute orders in each of the similar SVP appeals in which the court had issued grant-and-hold orders, remanding the cases and directing a suspension of proceedings pending its further ruling in McKee. An example is the following order from People v. Riffey (S164711, May 20, 2010):
"The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to vacate its decision and to reconsider the cause in light of [McKee]. (Cal. Rules of Court, rule 8.528(d).) In order to avoid an unnecessary multiplicity of proceedings, the court is additionally directed to suspend further proceedings pending finality of the proceedings on remand in McKee (see McKee, supra, 47 Cal.4th at pp. 1208-1210), including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters. 'Finality of the proceedings' shall include the finality of any subsequent appeal and any proceedings in this court."
In light of these orders, we direct a similar suspension of activity in this matter. Defendant argues we are not bound by the Supreme Court's orders in the grant-and-hold cases because they are minute orders, which are not binding precedent. We follow these orders not because we are bound to do so by the doctrine of stare decisis, but because they constitute an expression of the intent of the Supreme Court and represent an appropriate balance of the demands of due process and judicial economy. (See Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 125.) While we recognize the possibility of a due process violation if the delay extends too long, we see no prospect for such a violation. If we did not suspend proceedings, defendant's case would be remanded for the same type of hearing the Supreme Court has directed in McKee. That hearing likely would be followed by an appeal to this court and a petition for review in the Supreme Court. Because proceedings in McKee have presumably already progressed some way along the same path, any relief to which defendant might be entitled will be gained more quickly by awaiting the outcome of the McKee proceedings.
Defendant also raises, solely for the record, several challenges to his indeterminate sentence that have been resolved against his position in existing Supreme Court decisions. Accordingly, we reject the following arguments on the basis of the decisions cited in parentheses:
(1) the application of Proposition 83 to SVP commitment petitions pending at the time of its passage violates due process as a retroactive criminal sanction (People v. Castillo (2010) 49 Cal.4th 145, 162, fn. 18);
(2) requiring defendant to prove he is not an SVP to obtain release violates due process (McKee, supra, 47 Cal.4th at pp. 1188-1193); and
(3) the imposition of an indeterminate term violates the prohibition against ex post facto laws or constitutes double jeopardy (McKee, supra, 47 Cal.4th at pp. 1193-1195).
III. DISPOSITION
Defendant's arguments for relief on the basis of retroactivity, the due process clause, and the ex post facto clause are denied. In order to avoid an unnecessary multiplicity of proceedings, we suspend further proceedings with respect to defendant's contention under the equal protection clause pending finality of the proceedings in McKee, supra, 47 Cal.4th 1172.
Margulies, J.
We concur:
Marchiano, P.J.
Dondero, J.