People v. Johnson

• Decision Date: 14 May 2008
• Docket Number: No. D050751.,D050751.
• Citation: 76 Cal. Rptr. 3d 882,162 Cal.App.4th 1263
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. FRANK WILLIAM JOHNSON, Defendant and Appellant.

162 Cal.App.4th 1263

76 Cal. Rptr. 3d 882

THE PEOPLE, Plaintiff and Respondent, v. FRANK WILLIAM JOHNSON, Defendant and Appellant.

No. D050751.

Court of Appeals of California, Fourth District, Division One.

May 14, 2008.

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McCONNELL, P. J.

Frank William Johnson challenges an order declaring him to be a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVP Act) (Welf. & Inst. Code, § 6600 et seq.).¹ He contends he was not lawfully in custody at the time the district attorney filed the petition and that his indeterminate commitment is unconstitutional because it violates his rights of due process and equal protection, and the prohibitions against ex post facto laws and double jeopardy. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Johnson was scheduled to be released from prison on December 2, 2005. The Department of Corrections and Rehabilitation (the Department) began screening Johnson for SVP status by April 2005 and forwarded screening documents to the Board of Prison Terms (now Board of Parole Hearings; hereafter Board) in early May 2005. The Board completed its screening in early October 2005, determined Johnson was a likely SVP and forwarded the matter to the State Department of Mental Health (DMH) for evaluation.

On November 10, 2005, DMH wrote to the San Diego County District Attorney's Office recommending that an SVP petition be filed against Johnson.

On December 1, 2005, the day before Johnson's scheduled release date, a hearing was held before the Board. The hearing officer explained the "sole purpose" of the hearing was to determine if there was probable cause to believe Johnson was an SVP within the meaning of the SVP Act and, if so, then to place a 45-day hold on Johnson. The hearing officer made a finding there was probable cause to believe Johnson was an SVP and imposed the 45-day hold. He noted the "45 days will allow the completion of the case by DMH, . . . referral to the county, . . . and a decision by the [district attorney], whether or not [it] want[ed] to file petition as an SVP."

The district attorney's office filed an SVP petition against Johnson on December 7, 2005.

DISCUSSION

I Custody Requirement

(1) The SVP Act applies to a defendant who is in custody at the time the petition is filed. (§ 6601, subd. (a)(1).) The Department is generally required to start the process of screening a defendant for the likelihood of being an SVP² at least six months before the anticipated release date. (§ 6601, subd. (a)(1).) If the Department determines the defendant is a likely SVP, the defendant is referred to DMH for a full evaluation. (§ 6601, subd. (b).) If two mental health professionals at DMH agree the defendant "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the director of DMH forwards a request for a petition for civil commitment to the county in which the defendant was convicted. (§ 6601, subd. (d).)

The designated counsel in the county, often the district attorney as in this case, reviews the director of DMH's request. (§ 6601, subds. (h), (i).) Counsel is required to notify DMH "of its decision regarding the filing of a petition for commitment within 15 days of making that decision." (§ 6601, subd. (l).) If counsel agrees with the recommendation to file a petition, then counsel files a petition for civil commitment in the superior court. (§ 6601, subds. (d), (i); People v. Hayes (2006) 137 Cal.App.4th 34, 42 .)

(2) A defendant's period of custody may be extended for 45 days on a showing of good cause "for full evaluation . . . ." (§ 6601.3.) Challenges to the lawfulness of the defendant's custody should be raised by an administrative appeal or by a petition for a writ of habeas corpus, rather than at the judicial proceedings on an SVP Act petition. (People v. Hedge (1999) 72 Cal.App.4th 1466, 1478-1479 ; see also People v. Talhelm (2000) 85 Cal.App.4th 400, 405 [stating "it is well settled that one may file a petition for writ of habeas corpus in order to challenge confinement at a mental institution pursuant to several other involuntary commitment statutes"].)

The fact that a defendant was not legally in custody when an SVP petition was filed does not in and of itself require dismissal of the petition. The SVP Act states a petition "shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law." (§ 6601, subd. (a)(2).) "Thus, the Legislature has made it absolutely clear that . . . lawful custody [is not] a jurisdictional prerequisite to filing an SVP petition; a later judicial or administrative proceeding determination the custody was unlawful does not deprive the court of the power to proceed on an SVP petition if the custody status when the petition was filed was a result of a good faith mistake of law or fact." (People v. Wakefield (2000) 81 Cal.App.4th 893, 898 ; see People v. Hubbart (2001) 88 Cal.App.4th 1202, 1228 .) The defendant bears the burden of showing his custodial status was the result of bad faith. (People v. Hubbart, at pp. 1228-1229.)

(3) Here, we initially note that during the hearing on the 45-day hold, Johnson, who was represented by counsel, did not object to the imposition of the hold. As a general rule, a defendant waives errors by failing to bring a timely challenge. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060 .) This rule is designed to prevent the errors that could have been remedied had the issue been timely raised. (People v. Simon (2001) 25 Cal.4th 1082, 1103 [108 Cal.Rptr.2d 385, 25 P.3d 598].) Had Johnson raised the issue, the district attorney would have had some opportunity to file the petition before Johnson's scheduled release date and could have presented evidence to justify an extension. By not raising an objection at the hearing, Johnson essentially conceded that the Board had good cause to extend his commitment by 45 days.

Moreover, even if we were to conclude that Johnson did not waive the issue by failing to raise it at the hearing or by filing an administrative appeal or petition for a writ of habeas corpus, we would not reverse. Again, the deadlines stated in the SVP Act are not jurisdictional and Johnson was not entitled to dismissal of the petition unless the 45-day hold was ordered in bad faith. There was no bad faith here. The hearing officer, after finding there was probable cause to believe Johnson was an SVP, stated two reasons for imposing the 45-day hold: (1) completion of a full evaluation, and (2) providing the district attorney sufficient time to review and file a petition. Johnson argues with some persuasiveness that a "full evaluation" had already been completed because both the Department and DMH had completed their evaluations.³ However, section 6601.3 states that an individual may be retained in custody for up to 45 days beyond the "scheduled release date for full evaluation pursuant to subdivisions (c) to (i), inclusive, of Section 6601" (italics added), and subdivisions (h) and (i) of section 6601 address the designated attorney's review and decision to file a petition. Thus, the term "full evaluation" appears to encompass not only evaluation by DMH but also by the designated attorney. Moreover, even if the term "full evaluation" does not include the designated attorney's review, at worst the record shows a mistake of law or fact by the hearing officer in concluding that it could extend the release date to allow the designated attorney time for review. It appears the district attorney had not yet completed its review. Moreover, we find no bad faith in the hearing officer's decision to provide additional time to the district attorney since DMH did not send its recommendation to the district attorney until November 10, only three weeks before Johnson's scheduled release date, during a period when there were holidays.

II Due Process

Johnson contends that imposition of an indeterminate commitment violates the constitutional guarantee of due process. He acknowledges the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 [81 Cal.Rptr.2d 492, 969 P.2d 584] (Hubbart) held the SVP Act meets due process requirements, but he asserts Hubbart is no longer good law because subsequent amendments to the SVP Act have replaced the renewable two-year commitment with an indeterminate commitment and require the involuntarily committed individual to bear the burden of proving he is no longer mentally ill.⁴ Basically, Johnson argues there must be periodic, automatic judicial reviews where the People bear the burden of proving that the committed individual continues to be a mentally ill and dangerous SVP.⁵

The SVP Act

(4) Prior to amendments in 2006, the SVP Act required the People to file a new petition for commitment every two years and to prove beyond a reasonable doubt that the defendant was an SVP. (Former §§ 6601, subd. (i), 6604, 6604.1; People v. Munoz (2005) 129 Cal.App.4th 421, 429 .) The Legislature amended the SVP Act to provide for indeterminate commitment terms for persons determined to be SVP's. (Stats. 2006, ch. 337, §§ 55, 56, 62.) The voters in the November 2006 general election approved Proposition 83, which also provided for indeterminate terms of commitment for SVP's. As a result of the 2006 amendments to the SVP Act, if the People bring a petition and prove beyond a reasonable doubt that an individual is an SVP, the individual is committed for an indefinite term. (Bourquez v....