People v. Landau

• Citation: 214 Cal.App.4th 1,154 Cal.Rptr.3d 1
• Decision Date: 22 May 2013
• Docket Number: G042008
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sidney Nathaniel LANDAU, Defendant and Appellant.

214 Cal.App.4th 1

154 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,

v.Sidney Nathaniel LANDAU, Defendant and Appellant.

G042008

Court of Appeal, Fourth District, Division 3, California.

Filed February 7, 2013

Review Denied May 22, 2013

Affirmed.

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 159 et seq.

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed. (Super. Ct. No. M9094)

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley A. Weinreb and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

MOORE, J.

OPINION

Prior to appellant Sidney Nathaniel Landau's release on parole after his latest convictions for sex offenses committed on a child under 14 years of age, the Orange County District Attorney filed a petition to have appellant Sidney Nathaniel Landau committed as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA), Welfare and Institutions Code section 6600 et seq.¹ More than seven years after the filing of the petition, the third jury to hear the matter found appellant met the criteria for commitment as an SVP. Appellant raises a multitude of issues on appeal, including inter alia, that he was denied due process when he was not brought to trial in a timely manner, he was denied due process when his initial SVP evaluators used unlawful underground regulations, he was denied effective assistance of counsel, the court should have suppressed evidence obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures, the court prejudicially erred when it ordered appellant to submit to mental examinations by experts retained by the district attorney, and the present SVPA violates equal protection, due process, ex post facto, and double jeopardy.

While the appeal was pending, the California Supreme Court decided People v. McKee (2010) 47 Cal.4th 1172, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee I ). The court found SVP's are similarly situated with individuals found not guilty by reason of insanity (NGI's) and mentally disordered offenders (MDO's) for equal protection purposes. The court then remanded the matter to the trial court to hold a hearing to determine whether the People could justify “the differences between SVP and NGI commitment statutes.” ( Id. at p. 1207, 104 Cal.Rptr.3d 427, 223 P.3d 566.) We suspended further proceedings in this appeal pending the remand in McKee I and the finality of an appellate court decision reviewing the hearing to be held on remand.

The San Diego Superior Court found the People carried their burden and found no equal protection violation. Our brethren in Division One affirmed the finding ( People v. McKee (2012) 207 Cal.App.4th 1325, 1350, 144 Cal.Rptr.3d 308 ( McKee II ), and the Supreme Court denied review. After McKee II became final, we asked for and obtained supplemental briefs from the parties on the equal protection issue. We now affirm.

I PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background

Prior to appellant's parole release date, the California Department of Corrections requested the State Department of Mental Health (DMH) to evaluate appellant for purposes of determining whether he qualified as an SVP. Philip Trompetter, Ph.D., and Jon French, Ph.D., each concluded appellant was an SVP and DMH referred the matter to the Orange County District Attorney to consider filing a petition to commit appellant pursuant to the SVPA.

The district attorney filed the petition on October 19, 2000. A declaration attached to the petition averred that appellant: (1) was convicted on May 5, 1982, of two counts of orally copulating a child under 14 years of age (Pen.Code, § 288a, subd. (c)), David D., and sentenced to six years in prison; and (2) was convicted on June 10, 1988, of 18 counts of committing a lewd act on a child under 14 years of age (Pen.Code, § 288, subd. (a)), including orally copulating Gregory S., and was sentenced to 17 years in state prison. The declaration further stated two independent mental health professionals evaluated appellant and determined he has a diagnosed mental disorder and is likely to engage in acts of sexual violence without appropriate care and custody.

Appellant appeared in court with counsel on November 9, 2000. Eight days later he waived his right to a probable cause hearing. The court set the trial for March 26, 2001. From March 26, 2001, until May 2006 a trial date was set and vacated a number of times, but mostly the matter was continued time and again without setting a trial date. At least 16 of the continuances were at the request of appellant's counsel or stipulated to by counsel. During this same time period, appellant had a number of attorneys, appointed and retained. One of appellant's eventual trial attorneys, Leonard Levine, substituted in as counsel of record on June 27, 2003. His other trial attorney, Michael Aye, appeared later.

The matter was eventually scheduled for trial in November 2005. On November 4, 2005, Deputy District Attorney Andrew Do informed the court an expert on the case had changed his opinion, a “recent development” in the case, and that it was therefore necessary to continue the trial. On December 12, 2005, Do asked the court to vacate the trial date and to set the matter for a January 13, 2006 pretrial. Defense counsel waived time for trial.

The first trial on appellant's case did not begin until June 6, 2006, when the court ruled on a number of preliminary evidentiary issues. In the interim, appellant made motions for immediate assignment for trial or dismissal of the petition for lack of a timely trial. The motions were denied.² Another deputy district attorney, Andrea Burke, tried the matter for the People. On June 21, 2006, the court declared a mistrial when the jury was unable to reach a verdict, having split 11 to one for finding the petition not true. A second trial was scheduled for August 14, 2006.

On July 3, 2006, Burke filed a motion to require appellant to participate in interviews for updated SVP evaluations. (§ 6603, subd. (c)(1).) The deputy district attorney also requested an order requiring appellant to submit to an interview by the district attorney's retained expert, Dr. Arnold. The court granted the requests over appellant's opposition.

On August 14, 2006, the date set for trial, the district attorney's office requested a continuance to further prepare for trial, and filed an application for an order requiring appellant to show cause why the district attorney should not be permitted to access, copy, and review materials appellant mailed to himself and addressed to a location in Orange, California. The district attorney had come into possession of 18 sealed boxes of material appellant mailed to himself from the state hospital, and wanted to search the boxes before going to trial. The boxes were mailed to Donald Galbraith's business. The district attorney alleged the boxes were obtained with Galbraith's consent. Appellant opposed the district attorney's requests. His attorney asserted the boxes were appellant's property, that an order to show cause was not the proper procedure for searching the boxes, and that the district attorney should proceed by way of a search warrant or a subpoena duces tecum. On September 1, 2006, the court held the boxes were properly seized and ordered the district attorney to open the boxes, inspect, copy, and use any materials found in the boxes.

The case was sent out for retrial on December 4, 2007, but appellant filed a Code of Civil Procedure section 170.6 challenge to the assigned judge, and the case continued to trail. On December 11, 2007, appellant filed another motion to dismiss for lack of a timely trial. That motion was denied the next day. The second trial finally began on December 18, 2007, when Judge King started pretrial motions. Deputy District Attorney Amy Pope tried the case on behalf of the People. Jury selection began on January 2, 2008, and another mistrial was declared on February 6, 2008, when the second jury was unable to reach a verdict.

Yet another deputy district attorney, Dan Wagner, was assigned to appellant's matter after the second mistrial. On March 17, 2008, both sides answered ready for the third trial. Wagner also moved to for an order directing appellant to submit to mental evaluations by his retained experts, Drs. Veronica Thomas and Park Dietz. The court found good cause to reopen discovery and for one mental health evaluation. In May 2008, appellant again made a motion to dismiss and the court denied it. The case was not assigned to a trial court until June 23, 2008, when it was transferred to Judge Donahue's courtroom. Once the case was assigned out for trial, appellant again unsuccessfully moved to dismiss the petition. Jury selection began on June 30, 2008. Appellant's motion to exclude evidence obtained as a result of the search of defendant's sealed boxes was denied.

B. Facts from the Third Trial

The sordid details of appellant's underlying convictions, uncharged molestations, and conduct whereby he groomed young boys to have sex with, as well as his actions to ingratiate himself to boys' parents to allow him greater access to his victims, are not important to the issues presented in this appeal. As a result, these facts are not set forth in great detail. The short version is that appellant repeatedly molested a number of boys, including Jerry T., Scott C., Sid S., and David D., and Greg S. In 1982, he pled guilty to two counts of orally copulating a child under the age of 14 (David D.) and in 1988, he pled guilty to 18 counts of lewd acts with a child under the age of 14 (Greg S.). Appellant's trial strategy was to...