Leake v. Superior Court
| Decision Date | 06 March 2001 |
| Docket Number | No. C036542.,C036542. |
| Citation | 104 Cal.Rptr.2d 767,87 Cal.App.4th 675 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Terry Joseph LEAKE, Petitioner, v. The SUPERIOR COURT of Butte County, Respondent; The People, Real Party in Interest. |
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stan Cross, Supervising Deputy Attorney General, and Julie A. Hokans, Deputy Attorney General, for Real Party in Interest.
The People have commenced proceedings for the commitment of Terry Joseph Leake to a secure mental health facility pursuant to the Sexually Violent Predator Act (SVPA). (Welf. & Inst.Code, § 6600 et seq.; further section references are to the Welfare and Institutions Code unless otherwise specified.) Leake moved for a court order directing the exchange of expert witness information as a preliminary step toward deposing the People's two psychiatric experts. The People responded by requesting a protective order on the ground that Leake's motion was untimely. Concluding that civil discovery is not applicable in SVPA proceedings, the superior court denied Leake's motion. Hence, the court did not rule on the People's request for a protective order.
Leake now seeks a writ of mandate to compel the respondent superior court to grant his discovery motion. While appellate courts usually do not provide extraordinary relief concerning a pretrial discovery order, writ review is appropriate in this case because Leake has identified a significant issue of first impression and because the effect of the order is to deny him discovery to which he may be entitled. (Wagner v. Superior Court (1993) 12 Cal. App.4th 1314, 1317, 16 Cal.Rptr.2d 534; Appleton v. Superior Court (1988) 206 Cal. App.3d 632, 634, 253 Cal.Rptr. 762.)
As we will explain in the published portion of this opinion, we conclude that the Civil Discovery Act of 1986 applies to SVPA proceedings. Accordingly, we shall issue a peremptory writ of mandate directing the superior court to vacate its order denying Leake's discovery motion and to rule on the People's request for a protective order.
In the unpublished part of this opinion, we reject Leake's other requests for relief.
Leake was convicted of two counts of lewd or lascivious acts upon a child under the age of 14 years. (Pen.Code, § 288, subd. (a).) Prior to his release from state prison, Leake was referred by the Director of Corrections for evaluation pursuant to section 6601 of the SVPA to determine whether he is a sexually violent predator who should be committed to a secure facility for mental health treatment. (§ 6604.) Evaluations were conducted by two psychologists, Dr. Harry Goldberg and Dr. John Hupka, both of whom opined that Leake meets the statutory criteria as a sexually violent predator.
A petition was then filed in the superior court for Leake's commitment to the Department of Mental Health as a sexually violent predator. The court found probable cause to believe that Leake is a sexually violent predator, and ordered him committed to a secure facility pending trial. The record reflects that Dr. Goldberg was called as a witness at the probable cause hearing.
Thereafter, Leake served the district attorney with a demand for the exchange of expert witness information pursuant to Code of Civil Procedure section 2034. On the same day, Leake moved to compel the district attorney to produce the expert witness information immediately, in order to facilitate Leake's depositions of the expert witnesses. Leake conceded that the statutory deadline to demand an exchange of expert witness information had expired, but he argued the superior court should authorize a late exchange of expert witness information due to the liberty interest at stake and because deposing the experts would not interfere with the trial date.
The district attorney requested a protective order to quash Leake's demand for the exchange of expert witness information on the ground that it was untimely.
The superior court denied Leake's motion, reasoning that civil discovery procedures do not apply in SVPA proceedings, and concluding that the opportunity to cross-examine the People's psychiatric witnesses during the probable cause hearing protected Leake's right to due process. Consequently, the court did not rule on the People's request for a protective order.
Leake later moved to dismiss the SVPA petition or to change venue. He asserted in both motions that, as applied to him, the SVPA violates the ex post facto and double jeopardy clauses of the United States Constitution in that the conditions of his confinement are punitive. The superior court denied both motions.
Leake then filed a petition for writ of mandate in this court, challenging the orders denying his motions to compel an exchange of expert witness information, to dismiss the SVPA petition, and to change venue. After receiving informal opposition from the People, we stayed the pending trial on the SVPA petition and notified the parties that we were considering issuing a peremptory writ of mandate in the first instance. The time for further opposition has expired.
Due to the need for speedy resolution of the issues, the issuance of a peremptory writ in the first instance is appropriate in this case. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35,13 Cal.Rptr.2d 856, 840 P.2d 961.) And, having complied with the procedures required by Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 203 Cal.Rptr. 626, 681 P.2d 893, we are authorized to issue a peremptory writ in the first instance.
For reasons that follow, we agree with Leake that the Civil Discovery Act of 1986 (Code Civ. Proc, § 2016 et seq.) applies in SVPA proceedings.
"In establishing the statutory methods of obtaining discovery, it was the intent of the Legislature that discovery be allowed whenever consistent with justice and public policy." (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 738, 18 Cal.Rptr.2d 49.) Under the Civil Discovery Act of 1986, (Code Civ. Proc., § 2017, subd. (a).) Code of Civil Procedure section 2034 governs the procedure for deposing expert trial witnesses for "the action."
Judicial remedies are divided into two classes: actions and special proceedings. (Code Civ. Proc., § 21.)1 An "action" for purposes of the Civil Discovery Act of 1986 "includes a civil action and a special proceeding of a civil nature." (Code Civ. Proc., § 2016, subd. (b)(1).)
"An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." (Code Civ. Proc., § 22.) "Every other remedy is a special proceeding." (Code Civ. Proc., § 23.) "As a general rule, a special proceeding is confined to the type of case which was not, under the common law or equity practice, either an action at law or a suit in equity." (Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 822, 279 P.2d 35.) "Special proceedings are of statutory origin and do not proceed according to the course of the common law but give new rights and afford new remedies." (Le Louis v. Superior Court (1989) 209 Cal.App.3d 669, 678, 257 Cal.Rptr. 458.)
It is apparent that the Legislature designed the SVPA as a civil action or special proceeding of a civil nature because it set the SVPA in the Welfare and Institutions Code among other civil commitment statutory schemes. (See, e.g., § 5000 et seq. [Lanterman Petris Short Act]; former § 6300 et seq. [Mentally Disordered Sex Offenders Act]; § 6500 et seq. [Mentally Retarded Persons Law].) Courts have long described such proceedings as "civil in nature" (In re Bevill (1968) 68 Cal.2d 854, 858, 69 Cal.Rptr. 599, 442 P.2d 679 [Mentally Disordered Sex Offenders Act]) or as "special proceedings of a civil nature" (Gross v. Superior Court (1954) 42 Cal.2d 816, 820, 270 P.2d 1025 []; People v. Bachman (1955) 130 Cal.App.2d 445, 448, 279 P.2d 77 [same]).
Accordingly, courts have determined that an SVPA proceeding is civil in nature. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1142, 1171-1172, 81 Cal. Rptr.2d 492, 969 P.2d 584; People v. Leonard (2000) 78 Cal.App.4th 776, 789, 93 Cal.Rptr.2d 180; Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427, 91 Cal.Rptr.2d 752; In re Parker (1998) 60 Cal.App.4th 1453, 1461, 71 Cal.Rptr.2d 167.) Indeed, our Supreme Court has rejected a facial ex post facto challenge to the SVPA, concluding that the SVPA is a civil commitment statutory scheme which is not punitive in purpose or effect and, instead, is designed to provide treatment. (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1170-1179, 81 Cal.Rptr.2d 492, 969 P.2d 584.)
"The Legislature, of course, is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof." (People v. Harrison (1989) 48 Cal.3d 321, 329, 256 Cal.Rptr. 401, 768 P.2d 1078.) Thus, aware that the Civil Discovery Act of 1986 applies to civil actions and special proceedings of a civil nature, the Legislature necessarily intended to apply civil discovery to SVPA...
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