People v. Dodd

THE PEOPLE, Plaintiff and Respondent, v. EMMETT EARL DODD, Defendant and Appellant.

F062324

Super. Ct. No. FP003569A

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed August 23, 2012

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Emmett Earl Dodd was recommitted as a sexually violent predator (SVP) on April 15, 2011, pursuant to the Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.).¹ He challenges his recommitment, contending (1) the trial court erred in denying his motion to dismiss because his federal constitutional rights to a speedy trial and due process were violated; (2) he was denied the right to present a defense when the trial court precluded a defense expert from opining that paraphilia not otherwise specified was an invalid SVP diagnosis; and (3) the case must be remanded and proceedings suspended in light of the decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee). We conclude Dodd's first two contentions fail. In accordance with McKee, we will remand the case to the trial court with directions that proceedings be suspended.

FACTUAL AND PROCEDURAL SUMMARY

Dodd was first committed as an SVP in April 2000. He was recommitted on two occasions. On January 8, 2008, the Kern County District Attorney filed a petition in superior court seeking to recommit Dodd as an SVP for an indeterminate term. At the time the petition was filed, Dodd's recommitment was due to expire on April 4, 2008.

On April 11, 2011, a jury trial began. At the time of trial, Dodd was housed in Coalinga State Hospital. Dodd had never participated in any treatment for his sexually deviant behavior. He did not believe he had a problem with sexual impulse control or that he needed treatment, and he declined to participate in the sex offender treatment program.

While subject to civil commitment, Dodd was cited twice for possessing inmate-manufactured alcohol. He had many outbursts and used profanity toward staff. He alsowas in several physical fights and touched female staff members inappropriately on four occasions.

The prosecution presented testimony from Drs. Wesley B. Maram and Christopher North, psychologists. Maram diagnosed Dodd as having paraphilia not otherwise specified (NOS). He testified Dodd's scores on psychopathy checklists showed an extreme form of antisocial personality disorder and scored as highly psychotic. He opined that individuals with Dodd's scores are likely to be violent in the future, exhibit poor judgment on parole, and are associated with sexual recidivism.

North diagnosed Dodd as having the mental disorders of paraphilia NOS and coercive or rape paraphilia, a personality disorder with antisocial features, and suffers from alcohol abuse. He opined that Dodd's mental disorders, combined with his refusal to accept treatment and his commission of rapes while on parole, made him likely to engage in sexually violent criminal behavior if released.

Drs. Robert L. Halon and Catherine Sanchez, psychologists, testified for the defense. Halon opined that rape is not a diagnosis in the DSM-IV-TR² manual and never has been. He also testified that Dodd did not suffer from paraphilia or antisocial personality disorder. He concluded there was no current evidence Dodd suffered from a mental disorder that predisposed him to acts of criminal sexual violence or that Dodd was unable to control himself.

Sanchez worked at Coalinga State Hospital. She noted in her reports that Dodd had no current overt behaviors of paraphilia.

On April 15, 2011, the jury found that Dodd met the criteria for commitment under the SVPA. That same day the superior court ordered Dodd recommitted; however, the court stayed the imposition of an indeterminate term pursuant to McKee.

DISCUSSION

Dodd raises three challenges to his recommitment order: (1) the trial court erred when it denied his motion to dismiss on the basis of a violation of his constitutional rights to due process and a speedy trial; (2) the trial court erred when it precluded a defense expert from testifying that paraphilia NOS was an invalid SVP diagnosis; and (3) the SVPA violates equal protection.

I. Motion to Dismiss

There are three primary reasons Dodd's motion to dismiss on the basis of a violation of his right to a speedy trial properly was denied by the trial court: (1) the motion to dismiss was procedurally improper; (2) the speedy trial right applies only in criminal, not civil, cases; and (3) the SVPA contains no time limit by which a trial must be held on a civil commitment petition.

Procedural analysis

Commitment proceedings under the SVPA are not criminal trials. Instead, an SVP proceeding is civil and nonpunitive in nature. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1166-1167 (Hubbart); People v. Talhelm (2000) 85 Cal.App.4th 400, 404 (Talhelm); In re Parker (1998) 60 Cal.App.4th 1453, 1461 (Parker); People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988 (Cheek).) "Accordingly, unless otherwise indicated on the face of the statute, rules of civil procedure will operate. [Citations.]" (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1128.) For example, civil discovery rules apply in SVP proceedings. (Leake v. Superior Court (2001) 87 Cal.App.4th 675, 679; Cheek, supra, at p. 988.)

As a threshold matter, it appears that Dodd's motion to dismiss was procedurally improper. Generally speaking, a motion to dismiss a civil action lies only for grounds specified in the Code of Civil Procedure, such as nonjoinder of necessary parties or failure to serve the summons timely. (Weil & Brown, Cal. Practice Guide: CivilProcedure Before Trial (The Rutter Group 2012) ¶ 7:370, p. 7(1)-86 (rev. #1, 2011); see also Gray v. Superior Court (2002) 95 Cal.App.4th 322, 330, fn. 15.)

Further, Dodd's motion to dismiss was not a demurrer, a motion for judgment on the pleadings, or a motion for summary judgment. It has been held that a nonstatutory motion to dismiss can serve the same function as a demurrer. (Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 299.) Yet, since it was not an attack on the pleadings, it does not seem that Dodd's motion could be regarded as equivalent to a demurrer. As for summary judgment, such a motion does not lie in an SVP proceeding. (Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1682.)

Speedy trial analysis

The state and federal Constitutions both guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1), and both guarantees operate in state criminal prosecutions (see Klopfer v. North Carolina (1967) 386 U.S. 213, 222-223 [holding that the 6th Amend.'s speedy trial guarantee applies to state criminal prosecutions]), but there are two important differences in the operation of the state and federal constitutional rights as construed by our courts.

The first difference concerns the point at which the speedy trial right attaches. Under the state Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. (People v. Hill (1984) 37 Cal.3d 491, 497, fn. 3; People v. Hannon (1977) 19 Cal.3d 588, 607-608.) Under the federal Constitution, however, the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. (Hannon, at pp. 605-606.) The United States Supreme Court has defined the point at which the federal speedy trial right begins to operate: "[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment." (United States v. Marion (1971) 404 U.S. 307, 320.)

The second difference is in the showing that a defendant must make to obtain a dismissal for violation of the speedy trial right. For the federal Constitution's speedy trial right, the United States Supreme Court has articulated a balancing test that requires consideration of the length of the delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defense caused by the delay. (Barker v. Wingo (1972) 407 U.S. 514, 530.) Because delay that is "uncommonly long" triggers a presumption of prejudice (Doggett v. United States (1992) 505 U.S. 647, 651, 652, 656-657), a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government's want of diligence prejudiced the defendant's ability to defend against the charge. (Moore v. Arizona (1973) 414 U.S. 25, 26.)

Under the state Constitution's speedy trial right, however, no presumption of prejudice arises from delay after the filing of a complaint and before arrest or formal accusation by indictment or information (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504, fn. 8); rather, in this situation, a defendant seeking dismissal must demonstrate prejudice affirmatively (Serna v. Superior Court (1985) 40 Cal.3d 239, 249).

Dodd cannot surmount even the first hurdle to invoking the right to a speedy trial; namely, that it be invoked in the context of a criminal proceeding. Commitment petitions under the SVPA institute civil, not criminal, proceedings. (Hubbart, supra, 19...