Opinion
G062780
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT EDWIN MARTIN, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. M-19797, Robert A. Knox, Judge. Appeal affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Defendant and Respondent.
OPINION
SANCHEZ, J.
INTRODUCTION
A jury found Robert Edwin Martin to be a sexually violent predator pursuant to the Sexually Violent Predator Act. (Welf. &Inst. Code, § 6600 et seq.; SVPA). The trial court ordered him committed to the State Department of State Hospitals for an indeterminate term. Martin appeals from the order of commitment. Appointed counsel filed a brief requesting this court conduct an independent review pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). We issued an order citing Wende and granting Martin 30 days in which to file a supplemental brief on his own behalf. He did not do so, and the matter was submitted.
We later issued an order vacating submission and notifying Martin and his counsel that Wende review is not available in an appeal from an adjudication under the SVPA that a defendant is a sexually violent predator. (People v. Kisling (2015) 239 Cal.App.4th 288 (Kisling).) We granted Martin 30 additional days in which to file a supplemental brief and warned him that the appeal may be dismissed as abandoned if he did not file a supplemental brief.
Martin filed a supplemental brief. We have read and fully considered Martin's supplemental brief and conclude it raises no arguable issues. Although we are not required to do so, we have exercised our discretion to conduct an independent review of the entire record and found no arguable issues. We therefore affirm.
PROCEDURE IN "NO ISSUE" SVPA APPEALS
In deciding this appeal, we are following procedures and safeguards that are an amalgam of three cases: Kisling, supra, 239 Cal.App.4th at page 290; Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.); and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).
In Kisling, the Court of Appeal held: "Wende applies only to 'appointed appellate counsel's representation of an indigent criminal defendant in his first appeal as of right.' [Citation.] Since proceedings under the [SVPA] [citation] are civil matters [citation], it follows that the proceeding in this appeal does not directly implicate Wende." (Kisling, supra, 239 Cal.App.4th at p. 290.) "While commitment as a sexually violent predator implicates significant liberty interests, . . . the SVPA contains procedural safeguards that mitigate the risk of erroneous resolution on appeal, including the beyond a reasonable doubt standard [citation], the right to a probable cause hearing at which the person is entitled to the assistance of counsel [citation], the right to a jury trial and a unanimous verdict, defense experts, access to all records [citation], and the right to appellate counsel." (Id. at p. 291.)
Because an order of commitment under the SVPA is akin to an involuntary conservatorship, we also turn for guidance to Ben C., supra, 40 Cal.4th 529. (See Kisling, supra, 239 Cal.App.4th at pp. 291-292 [following procedures of Ben C.].) In Ben C., the California Supreme Court laid out the following procedure for Wende-type review of civil involuntary commitment orders. "If appointed counsel . . . finds no arguable issues, counsel . . . should (1) inform the court he or she has found no arguable issues to be pursued on appeal; and (2) file a brief setting out the applicable facts and the law." (Ben C., at p. 544.) "The conservatee is to be provided a copy of the brief and informed of the right to file a supplemental brief." (Id. at p. 544, fn. 6.) The appellate court may then dismiss the appeal if there are no arguable issues. (Id. at p. 544.)
To the procedure set forth in Ben C., we incorporate safeguards from Delgadillo. In Delgadillo, the California Supreme Court held that the procedures set forth in Wende and Anders do not apply to an appeal from an order denying a petition for resentencing under Penal Code section 1172.6. (Delgadillo, supra, 14 Cal.5th at p. 226.) The court concluded that when appointed counsel finds no arguable issues to be pursued on appeal, counsel should file a brief informing the court that counsel found no arguable issues and including a concise narration of facts. (Id. at p. 231.) The reviewing court should send a copy of the brief to the defendant with notice that the defendant may file a supplemental brief or letter within 30 days, and if the defendant does not, the court may dismiss the appeal. (Id. at pp. 231-232.) "If the defendant . . . files a supplemental brief or letter, the Court of Appeal is required to evaluate the specific arguments presented.... The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised issues." (Id. at p. 232.) If the defendant does not file a supplemental brief or letter, the court may dismiss the appeal without issuing an opinion. (Ibid.) Our initial order inviting Martin to file a supplemental brief did not warn him that the appeal may be dismissed as abandoned if no supplemental brief was filed. In conformance with Delgadillo, we vacated submission and served an order granting Martin 30 additional days to file any supplemental brief deemed necessary and warning him that if no such supplemental brief was filed, the court may dismiss the appeal as abandoned. Because Martin has filed a supplemental brief, we evaluate the specific arguments he presents.
ARGUMENTS PRESENTED IN MARTIN'S SUPPLEMENTAL BRIEF
I. Scope of the Appeal
Martin's supplemental brief makes 26 separate points and includes a "Motion for Involuntary Non-Suit." Many of those points, however, are not cognizable on appeal.
Because this matter is a direct appeal from an order of commitment under the SVPA, review is limited to the record on appeal. (People v. Barnett (1998) 17 Cal.4th 1044, 1183.) In this case, the record on appeal consists of the clerk's transcript, the clerk's supplemental transcript, and the reporter's transcript.
We do not address points 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 14, 17, 19, 21, 24, and 26 in Martin's supplemental brief because they are dependent upon evidence and matters not reflected in the clerk's transcript, the clerk's supplemental transcript or the reporter's transcript. Those points therefore are outside the scope of this appeal.
Many of the points raised by Martin challenge his prior criminal convictions, evidence of which was admitted into evidence to prove he had committed a sexually violent offense. (Welf. &Inst. Code, § 6600, subd. (a)(1).) In particular, he argues illegal wiretaps were used to secure one of those criminal convictions. Martin's criminal convictions have long since become final, and Martin's collateral attack on them is beyond the scope of this appeal. Further, at trial, Martin's counsel was willing to stipulate to the qualifying convictions and argued to the jury that those convictions were not in dispute.
Martin has attached seven exhibits (exhibits A-G) to his supplemental brief. We decline to consider those exhibits because they consist of materials which are not part of the record on appeal in this case. Only exhibits "admitted in evidence, refused, or lodged" may be included in the record on appeal. (Cal. Rules of Court, rules 8.122(b)(3)(B), 8.224(a)(1).) We decline to accept the exhibits attached to Martin's supplemental brief as additional evidence under Code of Civil Procedure section 909 because our authority to do so must be used sparingly, only in exceptional circumstances, and only to affirm. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1213; City of Petaluma v. Cohen (2015) 238 Cal.App.4th 1430, 1438, fn. 7.) Martin's exhibits do not meet those standards.
II. Response to Points 1, 10, 13, 15, 16, 18, 20, 22, 23, and 25 of the Supplemental Brief
The following are our responses to those points raised in Martin's supplemental brief that are cognizable on appeal.
1. The first point is moot because this court has accepted Martin's supplemental brief for filing.
10. Martin argues Assistant District Attorney Jeremy Hudson violated the trial court's order not to use inadmissible evidence. Martin suggests that Hudson used evidence of a wiretap. Martin provides no citations to the appellate record in support of this argument. During the first day of trial, the trial court ruled on motions in limine and made orders regarding the admissibility of evidence. No mention was made of wiretap evidence. Hudson stated he would not be calling the investigator from one of Martin's criminal cases as a witness and would not be introducing evidence of statements made by Martin to the investigator.
13. Martin argues Hudson was estopped by section 2515 of title 18 of the United States Code and Penal Code section 632 from calling E.J. (one of Martin's molestation victims) as a witness based on Martin's claim of an illegal wiretap. The record on appeal contains no evidence of a wiretap, and no objection was made to E.J. testifying on the ground of estoppel.
15. Martin challenges E.J.'s testimony during the trial in this case on the ground E.J. "lied to the jury hundreds of times." Determination of witness credibility is the exclusive province of the jury in a jury trial. (People v. Mumin (2023) 15 Cal.5th 176, 202; People v. Thomas (2023) 14 Cal.5th 327, 366.) Martin claims we need not accept the jury's determination of credibility because E.J.'s testimony was physically impossible or apparently false without resort to inference or deductions. "[U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) There is nothing in the record to support a conclusion that E.J.'s testimony was physically impossible or inherently improbable.
16. Martin argues that Hudson "displayed evidence for the jury on a large viewing screen: previous 'legal documents' regarding the defendant" and the evidence displayed was "determined by the [California] Secretary of State as 'being fraudulent and without jurisdiction.'" In support of that argument, Martin cites to a corporation status inquiry report from the California Secretary of State, attached to his supplemental brief as exhibit A, which is not part of the record on appeal. The corporation status inquiry report is outside the scope of the record on appeal and, in any case, has no relevance to the summary of Martin's arrests and convictions displayed to the jury. At trial, Hudson used an ELMO brand document camera projection system to display to the jury a summary of Martin's arrests and convictions and the consequences of those arrests and convictions. There is nothing in the record on appeal to support a conclusion that the evidence displayed to the jury by means of the ELMO was in any way false or fraudulent.
18. Martin claims Hudson referred to him during trial as a pedophile without defining that term. At page 152 of the reporter's transcript, Hudson argued: "The mental diagnosis that [Martin] has is called pedophilic disorder. He's a pedophile, which means he's sexually attracted to little boys, prepubescent boys." Martin also argues that use of the word "pedophile" was prejudicial because it is not common English and is not part of the definition of sexually violent predator. The word pedophile was defined at trial. The jury was correctly instructed on the meaning of sexually violent predator and the elements the district attorney was required to prove beyond a reasonable doubt for the jury to find Martin to be a sexually violent predator. One of those elements was "[h]e has a diagnosed mental disorder." Pedophilic disorder was Martin's diagnosed mental disorder.
Martin also contends Hudson "weapon[ized]" and misused the word "pedophile." According to Martin, the word pedophile has the innocent meaning of one who loves children, just as an audiophile loves sound reproduction and a cinephile loves movies. The commonly understood meaning of the word pedophile is more than just a literal combination of its two Greek roots (child + love). The dictionary definition of pedophile is "one affected with pedophilia." (Merriam-Webster's 11th Collegiate Dict. (2004) p. 913 cl. 2.) Martin's own expert defined pedophilia as "the sexual arousal pattern or sexual attraction to prepubescent children." Hudson correctly defined and used the words pedophile and pedophilia during trial.
20. Martin contends the SVPA is unconstitutional because it violates Penal Code sections 181 (infringement of personal liberty), 182 (criminal conspiracy), and 368, subdivisions (a) and (f) (crimes against elders). The SVPA violates none of those statutes.
22. Martin contends the SVPA violates Civil Code section 52 (action for damages for civil rights violation) and Penal Code section 422.77 (action for damages for violation of order issued under Civ. Code, § 52.1) because the SVPA "plac[es] a suspect class in harm's way based only on a perceived mental condition and psychic predictions." Assuming that sexually violent predators are a "special class," the state has a compelling interest justifying the SVPA. (See People v. McKee (2012) 207 Cal.App.4th 1325, 1335.) "The SVPA does not violate equal protection under the federal constitution or state constitution. [Citations.] The SVPA does not violate the due process clause or the ex post facto clause of either the federal constitution or the state constitution. [Citations.] Commitment under the SVPA does not constitute double jeopardy." (People v. Orey (2021) 63 Cal.App.5th 529, 572.) The SVPA is not a "hate crime," as Martin contends, nor does it violate the First Amendment to the United States Constitution. One does not have a right to engage in predatory sexual behavior.
23. Martin questions whether one of the SVPA evaluators, Dr. Christopher Fisher, was licensed in the State of California. Dr. Fisher, who was called as a witness by Martin, testified he is a clinical forensic psychologist licensed in the State of California.
25. Martin argues that during closing argument, Hudson falsely told the jury that "'Martin told his evaluators that he would continue with this Chakra contact therapy with children if he were released.'" The precise statement was, "[Martin] tells this person Erika Kis that he will continue to do his Chakra work if he's released." (Kis was an expert who interviewed Martin for two hours and 15 minutes in May 2022). Substantial evidence established that Hudson's statement was accurate and that Martin's "Chakra work" involved molesting boys.
III. Martin's Involuntary Motion for Nonsuit
Martin's supplemental brief includes an involuntary motion for nonsuit. It is far too late to bring a motion for nonsuit. (See Code Civ. Proc., § 581c.) All but two points made in the motion are dependent upon evidence and matters not reflected in the clerk's transcript and therefore are beyond the scope of this appeal. We address those two points.
First, Martin argues he suffered a due process violation because the request for a petition for commitment under the SVPA was filed nearly six years after he was released from prison, which he claims was in September 2016. A request from the director of State Hospitals for the filing of a petition for commitment must be forwarded to the appropriate county no less than 20 days before the defendant's scheduled release from prison date. (Welf. &Inst. Code, § 6601, subd. (h)(1).) The request for a commitment petition does not appear in the appellate record. The record on appeal shows Martin's prison release date to have been July 16, 2022. On the face of the petition for commitment, which was filed on June 10, 2022, is the statement "Estimated Prison Release: 07/16/2022." The record thus shows that the SVPA proceedings were timely.
Second, Martin contends he was not given a "show cause hearing" required by Welfare and Institutions Code section 6605. Welfare and Institutions Code section 6605 applies to petitions for unconditional discharge, not to initial petitions for commitment. Welfare and Institutions Code section 6602, subdivision (a), requires the superior court to hold a "probable cause hearing" as an initial step in the judicial process for commitment. The court docket, which is part of the clerk's transcript, shows that the trial court conducted a probable cause hearing on July 22, 2022. Martin was present in court and represented by counsel. Witnesses testified and exhibits were received into evidence. At the conclusion of the hearing, the trial court determined that probable cause supported the petition for commitment and held Martin over for trial.
INDEPENDENT RECORD REVIEW
Under Delgadillo, we are not required to undertake an independent review of the record on appeal. (Delgadillo, supra, 14 Cal.5th at p. 232.) We nonetheless have conducted an independent review of the record on appeal. We have found no arguable issues.
DISPOSITION
The order of commitment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P.J., GOODING, J.