People v. Segura

THE PEOPLE, Plaintiff and Respondent, v. ROBERT K. SEGURA, Defendant and Appellant.

H037194

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date: September 26, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County

Super. Ct. No. 210963)

Defendant Robert K. Segura appeals from a judgment subjecting him to a commitment of indefinite duration as a sexually violent predator (SVP). He contends that the governing statutes deprive him of equal protection insofar as they subject him to harsher treatment than is received by persons civilly committed under other statutes, who are entitled to periodic review and renewal of their commitment orders. He also contends that the commitment order here denied him due process insofar as it rested on an invalid assessment protocol. Finally, he contends that he was deprived of the equal protection of the laws, again by comparison to persons committed under other laws, when the trial court required him to testify over his assertion of a right not to do so. We find no error with respect to the first two contentions. We do not reach the merits of the thirdcontention because we find the record insufficient to sustain the necessary premise that the error, if any, was prejudicial. Accordingly, we affirm the order of commitment.

BACKGROUND

In October 1977, defendant¹ was convicted by plea on two counts of lewd and lascivious conduct upon a child, arising from incidents involving a nine-year old victim and an 11-year old victim. Both offenses were alleged to have occurred about two months after defendant's 18th birthday. By an order dated April 19, 1978, the court found him to be a Mentally Disorder Sex Offender (MDSO) under former sections 6300 et sequitur of the Welfare and Institutions Code, and committed him to a state hospital under those provisions.

In August 1997, defendant was convicted by a jury on four counts of lewd and lascivious conduct upon a single victim over a two-year period commencing when the victim was 13 years old. Defendant was sentenced to state prison for 17 years. He was due to complete his prison term on June 18, 2005. In anticipation of that event, the district attorney filed a petition to commit defendant under the Sexually Violent Predator Act, Welfare and Institutions Code sections 6600 et sequitur.² After a jury trial in June 2006, the court entered a two-year commitment order, which this court reversed in June 2008 on grounds of the erroneous exclusion of evidence. (People v. Segura (Mar. 14,2008, H030416) [nonpub. opn.].)³ On remand, the trial court conducted a second probable cause hearing, at which it received testimony from two evaluators, each of whom testified—if in one case only by implication—that his opinion was based upon an evaluation he had conducted under a Department of Mental Health protocol promulgated in February 2009. The court found probable cause and ordered a trial.

On July 9, 2010, defendant moved to dismiss the petition on the ground that the February 2009 protocol was invalid and that the evaluators' reliance on it violated defendant's statutory and constitutional rights, including the right to due process of law. The court denied the motion.

In anticipation of trial, plaintiff filed motions in limine asserting numerous propositions of law, including that "the People are entitled to call [defendant] as a witness" and, in doing so, to "question [him] as if under cross-examination" and to "impeach [him] with his felonies of moral turpitude." Defendant submitted a similar filing, contending among other things that he had "a right under the equal protection clause not to be called to testify against his will." The trial court denied the defense motion, and plaintiff was permitted to call defendant to testify in its case in chief.

The jury heard evidence over the course of five days. On July 14, 2011, after deliberating for one hour and 20 minutes, the jury returned a verdict sustaining the allegations of the petition. The court ordered defendant committed to the custody of the Department of Mental Health for an indefinite term, "subject to the ultimate decision in People vs McKee, (2010) 47 Cal.4th 1172." This timely appeal followed.

DISCUSSION

I. Validity of SVP Act

A. Equal Protection

Defendant contends that the SVP Act violates his right to equal protection of the laws because of the disparity between the indeterminate commitment to which it subjects him and the finite commitments to which persons are subjected under otherwise similar civil commitment schemes, specifically those governing mentally disordered offenders (MDOs) and persons committed by virtue of a verdict of not guilty by reason of insanity (NGIs).

This issue has been widely litigated. It reached the California Supreme Court in People v. McKee, supra, 47 Cal.4th 1172 (McKee I), where the court found that two threshold requirements for a successful equal protection claim were present, i.e., that SVPs are similarly situated to MDOs and NGIs, and that their commitment for an indefinite term constitutes injuriously disparate treatment. (Id. at pp. 1203, 1202, 1207.) As a result, it was incumbent upon the state to provide a justification for the difference in treatment, which it had yet to do. (Id. at p. 1207.) The court ordered the matter remanded to the trial court for further proceedings to determine whether an adequate justification exists. (Id. at pp. 1208-1211.) On remand the trial court concluded that the state had presented evidence sufficient to justify the challenged disparities. The Court of Appeal affirmed that judgment, and the Supreme Court denied review. (People v. McKee (2012) 207 Cal.App.4th 1325, review denied Oct. 10, 2012 (McKee II).)

Defendant filed his opening brief here after the Supreme Court issued McKee I but before the Fourth Appellate District issued McKee II. At that time there was no citable appellate authority either way on the question whether the challenged disparities could withstand equal protection scrutiny. Accordingly, defendant urged us to remand this matter to the court below for further proceedings like those ordered in McKee I. After theFourth Appellate District issued McKee II, defendant sought and received permission to file a supplemental brief arguing that the case had been wrongly decided. We have concluded that the decision in that case must be deemed dispositive unless and until the Supreme Court directs otherwise.

It appears that the Supreme Court intended the determination on remand following McKee I, to be dispositive if affirmed on appeal, as to all cases raising the issues addressed there. In a number of other cases that raised substantially the same issues, the court granted review and retransferred the matters to the originating Courts of Appeal "with directions to vacate their prior opinions and suspend further proceedings until the McKee I remand proceedings were final, 'in order to avoid an unnecessary multiplicity of proceedings.' [Citations.]" (People v. McKnight (2012) 212 Cal.App.4th 860, 863 (McKnight); see People v. McDonald (2013) 214 Cal.App.4th 1367, 1378 (McDonald).) This has led courts to conclude that the Supreme Court intended a final determination in McKee "not to be restricted to Mr. McKee alone," but to "appl[y] to the class of SVP's as a whole." (McKnight, supra, at pp. 863-864; McDonald, supra, 214 Cal.App.4th at p. 1378.) We further note that the high court's transfer orders in the cases cited in McKnight—and in other similar cases, including several in this court—contemplated potential review by the Supreme Court itself. That is, they abated the proceedings therein until the judgment in McKee had become final after "any proceedings in this court." (See People v. Johnson (2008) 162 Cal.App.4th 1263, review granted Aug. 13, 2008, S164377, People v. Riffey, review granted Aug. 20, 2008, S164711; People v. Boyle (2008) 164 Cal.App.4th 1266, review granted Oct. 1, 2008, S166167; People v. Garcia (2008) 165 Cal.App.4th 1120, review granted Oct. 16, 2008, S166682; People v. Glenn (2009) 178 Cal.App.4th 778, review granted Feb. 10, 2010, S178140; People v. Rotroff, review granted May 20, 2010, S178455; People v. Schuler, review granted Sept. 1, 2010,S183062; People v. Gomberg, review granted Oct. 20, 2010, S185107; People v. Purcell, review granted Dec. 1, 2010, S186979.) This directive seems to contemplate that the lower courts in McKee would render a decision which, if not taken up by the Supreme Court for review, would itself decide on a statewide basis the issues addressed by them.

Given this background, it appears to us that the Supreme Court's denial of review in McKee II must be construed, in the absence of any indication to the contrary, as a tacit endorsement of that decision. The court itself has said that a denial of review is not "without significance." (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 178.) Here the significance is magnified by the court's directive to this court, and other courts entertaining similar challenges, to suspend proceedings until after "any proceedings in this court" in McKee. Where the court itself has acknowledged the statewide significance of a case by explicitly making its disposition a predicate for further proceedings in other matters around the state, we can hardly suppose that the court would deny review in that case if it doubted the correctness of its determination of the issues it had in common with those other cases.

We therefore reject defendant's constitutional challenges to the SVP act insofar as the same issues were addressed and decided in McKee.

B. Other Challenges to Act

In his opening brief defendant challenged th...