Opinion
A158899
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. JIMMIE DALE OTTO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FC30931)
Defendant and appellant Jimmie Dale Otto (Appellant), involuntarily committed as a sexually violent predator (SVP), appeals from the trial court's order denying his petition for unconditional discharge. He contends the court was without authority to reconsider a prior determination of probable cause for a trial on the petition. We affirm.
BACKGROUND
In August 1991, the Solano County District Attorney filed an information charging Appellant with nine counts of lewd or lascivious acts upon a child under the age of 14 (Pen. Code § 288, subd. (a)) and one count of continuous sexual abuse of a child (Pen. Code § 288.5). Appellant pled guilty (or no contest) to four of the lewd acts counts and he was sentenced to prison for 12 years.
The details of the underlying offenses are not relevant to the issues on appeal and are not summarized herein.
In August 2009, Appellant was found to be an SVP (Welf. & Inst. Code § 6600 et seq. (SVPA)) and committed to the Department of State Hospitals (DSH).
All undesignated statutory references are to the Welfare and Institutions Code.
In May 2018, forensic psychologist Nancy Webber completed an annual psychological evaluation of Appellant pursuant to section 6604.9. Dr. Webber noted Appellant had been diagnosed with pedophilic disorder, multiple substance abuse disorders, post-traumatic stress disorder, and a depressive disorder. Nevertheless, Dr. Webber opined he no longer presented "a serious and well-founded risk to sexually reoffend" because he fell "in the below average risk category for sexual recidivism." Dr. Webber based that opinion on Appellant's age (67 years old) and the circumstance that he had been diagnosed with terminal bladder cancer and other medical conditions "which likely impact his ability and motivation to sexually reoffend." Dr. Webber opined that Appellant "no longer meets the statutory definition of" an SVP and that he should be "considered for unconditional discharge." The Medical Director of the DSH hospital in Coalinga expressed agreement with Dr. Webber's findings and recommendation in his June 2018 annual report to the trial court.
In August 2018, Appellant petitioned for unconditional release pursuant to sections 6604.9 and 6605. In December, the trial court found that, in light of the recommendation in the DSH annual report, probable cause existed to conduct a jury trial pursuant to section 6605, subdivision (a)(3) to determine whether Appellant is entitled to unconditional discharge.
In May 2019, before trial, the Solano County District Attorney moved for reconsideration of the probable cause finding and for dismissal of the petition for unconditional discharge based on a change in circumstances. Specifically, Dr. Webber had conducted a subsequent annual psychological evaluation and determined that, due to recent developments, Appellant was an SVP likely to engage in future sexually violent behavior. Her report detailed that Appellant's cancer had responded to medical treatment and "resolved," that he had been using illegal substances while hospitalized, and that he had engaged in aggressive behavior towards staff and other patients. Dr. Webber stated that Appellant's "medical condition [that] previously mitigated his risk to sexually reoffend is no longer present." She opined, "At this time, neither conditional nor unconditional release is appropriate." The DSH medical director expressed agreement with Dr. Webber's findings and recommendations in his May 2019 annual report to the trial court.
Appellant opposed the motion, arguing the trial court lacked authority to reconsider its probable cause determination.
In October 2019, the trial court denied Appellant's petition for unconditional release because the change in the DSH recommendation meant Appellant was no longer authorized to petition for unconditional discharge.
This appeal followed.
DISCUSSION
Appellant contends the trial court was without authority to reconsider its determination of probable cause. We reject the claim.
A. Statutory Background
"Under the SVPA, an offender who is determined to be an SVP is subject to involuntary civil commitment for an indeterminate term ' "immediately upon release from prison." ' [Citations.] To establish that an offender is an SVP, the People must prove beyond a reasonable doubt that the offender (1) has been convicted of a sexually violent offense against at least one victim and (2) 'has a diagnosed mental disorder that makes [him or her] 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.' (§§ 6600, subd. (a)(1), 6604.) The SVPA is designed ' "to provide 'treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior" ' and to keep them confined until they no longer pose a threat to the public. [Citation.] Thus, '[t]he SVPA is not punitive in purpose or effect,' and proceedings under it are ' "special proceedings of a civil nature." ' " (People v. Putney (2016) 1 Cal.App.5th 1058, 1065 (Putney); accord People v. Smith (2020) 49 Cal.App.5th 445, 451 (Smith).)
" '[O]nce a person is committed as an SVP, he [or she] remains in custody until he [or she] successfully bears the burden of proving he [or she] is no longer an SVP'—through a petition for unconditional discharge under section 6605 or conditional release under section 6608—'or the [Department of State Hospitals] determines he [or she] no longer meets the definition of an SVP.' " (Putney, supra, 1 Cal.App.5th at p. 1066; accord Smith, supra, 49 Cal.App.5th at p. 451.)
Section 6604.9 requires the DSH to examine the mental condition of a committed SVP on an annual basis and submit a report to the court that ordered the commitment. Section 6604.9, subdivision (d), provides that if the DSH determines that "the person's condition has so changed that the person no longer meets the definition of a sexually violent predator and should, therefore, be considered for unconditional discharge," then "the director shall authorize the person to petition the court for . . . unconditional discharge."
Section 6604.9, subdivision (d) also references the possibility of conditional discharge, which is not at issue in the present case.
"Section 6605, subdivision (a), provides that, when a court receives a petition for unconditional discharge, it holds a hearing to determine whether 'probable cause exists to believe that the committed person's diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged . . . .' " (Smith, supra, 49 Cal.App.5th at p. 452.) Section 6605, subdivision (a)(2) provides that, if the trial court "determines that probable cause exists to believe that the committed person's diagnosed mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal behavior if discharged, then the court shall set a hearing on the issue." In that instance, section 6605, subdivision (a)(3) provides the committed person "the right to demand a jury trial and to have experts evaluate him or her on his or her behalf." At trial, the burden of proof is "on the state to prove beyond a reasonable doubt that the committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged." (Ibid.)
The trial court's probable cause determination is reviewed for substantial evidence. (People v. Hardacre (2001) 90 Cal.App.4th 1392, 1402.)
B. Analysis
Appellant contends that, once the trial court made a determination in December 2018 that there existed probable cause under section 6605, the court was without authority to reconsider that finding in light of subsequent developments. He argues, "The SVP statute imposes mandatory duties that are immediately triggered after a probable cause finding. . . . Under section 6605, sub[division] (a)(2), it is clear the court 'shall set a hearing on the issue . . . .' " The trial court complied with that requirement when, after finding probable cause in December 2018, it set the matter for the hearing provided for in section 6605, subdivision (a)(3). But nothing in the plain language of the statute prohibits a court from reconsidering the determination if new information demonstrates probable cause no longer exists.
We also reject Appellant's suggestion that the December 2018 ruling was "a final order or judgment" that " 'may not be corrected except pursuant to statutory procedures' or on the limited grounds available for a collateral attack." (People v. DeLouize (2004) 32 Cal.4th 1223, 1231.) In DeLouize, the Supreme Court concluded a trial court had authority to reconsider grant of a new trial, observing, "Because new trials substantially prolong criminal proceedings, allowing trial courts some authority to reconsider and to vacate orders granting new trials may lead to earlier resolution of the matter and thereby promote the interests underlying judicial finality rules." (Id. at p. 1232.) The same reasoning applies to the trial court's reconsideration of its probable cause determination.
Appellant's argument on appeal is at its root an assertion that nothing expressly authorized the trial court to reconsider the probable cause determination. However, Appellant points to no statute or case authority that prohibited the court from reconsidering its determination. The California Supreme Court has "often recognized the 'inherent powers of the court . . . to insure the orderly administration of justice.' [Citations.] Although some of these powers are set out by statute [citation], it is established that the inherent powers of the courts are derived from the Constitution (art. VI, § 1 [reserving judicial power to courts]; [citations]), and are not confined by or dependent on statute [citations]." (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267; accord In re Reno (2012) 55 Cal.4th 428, 522; People v. Castello (1998) 65 Cal.App.4th 1242, 1247.) In Castello, the court held those "wide" inherent powers "include authority to rehear or reconsider rulings." (Castello, at p. 1248; see also In re Estate of Jessup (1889) 81 Cal. 408, 468, disapproved on another ground in In re Lund's Estate (1945) 26 Cal.2d 472, 493 ["[T]he power to grant rehearings is inherent, [it] is an essential ingredient of jurisdiction, and ends only with the loss of jurisdiction."].) The procedural context in Castello differed—there it involved reconsideration of a finding regarding a prior conviction as relevant to the three strikes law. (Castello, at p. 1245.) But Appellant provides no reason why the trial court's inherent powers do not extend to reconsideration of the probable cause determination in the present case.
Appellant references section 1008 of the Code of Civil Procedure, which imposes statutory limitations on motions to reconsider. However, that provision is in Part 2 of the Code of Civil Procedure, which does not apply to SVP proceedings. (People v. Evans (2005) 132 Cal.App.4th 950, 956.) We do not understand Appellant to argue to the contrary.
Appellant has not shown the trial court lacked authority to reconsider the probable cause determination in light of the information in the May 2019 annual report. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 ["[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment."].)
Finally, Appellant also argues in passing, "Even assuming that the trial court possessed some inherent authority to reconsider its probable cause determination, it did so for the wrong reason. The statute again is abundantly clear. The determination is to be based on a change in the diagnosed mental disorder, not the fortuity of an individual's physical health circumstances." We need not determine whether it would have been proper for the trial court to reconsider its probable cause determination solely on the basis of his improved diagnosis, because the court also had evidence before it that Appellant had engaged in illegal drug use and aggressive behaviors. Appellant does not address on appeal whether the entirety of the circumstances was sufficient to uphold the court's determination on reconsideration; neither does Appellant address the trial court's reasoning that the changed DSH recommendation meant Appellant no longer had authorization to seek unconditional discharge. Any arguments on those points have been forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
For the first time in his reply brief, Appellant contends the trial court did not comply with section 6603, subdivision (c), governing continuances of trials involving SVPs. We do not consider arguments made for the first time in a reply brief. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.)
DISPOSITION
The trial court's order is affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
BURNS, J.