People v. Nguyen
| Decision Date | 22 April 2011 |
| Docket Number | No. E048880.,E048880. |
| Citation | 123 Cal.Rptr.3d 700,194 Cal.App.4th 774 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. VINH NGUYEN, Defendant and Appellant. |
Chris Truax, San Diego, 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, Barry Carlton, and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Vinh Nguyen, was found to be a sexually violent predator (SVP), and committed to the Department of Mental Health (DMH) for an indeterminate term following a petition for recommitment under the Sexually Violent Predators Act (SVPA). ( Welf. & Inst.Code,1 § 6600 et seq. ) He appeals the judgment and civil commitment on the grounds that (1) the trial court erred in allowing defendant's counsel to waive defendant's presence at trial, and (2) the indeterminate term for SVP's violates state and federal guarantees of equal protection. We affirm.
On or about November 18, 2005, the People filed a petition to recommit defendant as a SVP.2 Due to delays, a subsequent petition for recommitment was filed on January 17, 2008, prior to trial on the 2005 petition. On July 13, 2009, following a bench trial on the 2005 petition for recommitment, the trial court made a true finding that defendant remained a SVP. Defendant was not present at the trial; his counsel informed the court that his presence was waived. Defendant was committed to the DMH for an indeterminate term, and the 2008 petition was dismissed as moot. Defendant timely appealed.
Defendant claims his due process rights were violated when the trial on his recommitment petition was conducted in his absence, without a personal waiver of the right to be present from the defendant, after his attorney informed the court that defendant waived his right to be present. Some background is helpful to our analysis.
Of the approximate 37 hearings conducted between March 2006 and the date of the trial, defendant was transported to court once, inadvertently, on March 10, 2009, for the hearing on his motion to dismiss the recommitment petition. At that hearing, defendant's counsel explained that because of the inadvertent transportation of defendant to the hearing, he risked losing his bed at Coalinga State Hospital.
After the court denied the motion to dismiss the recommitment petition, the court set a new hearing date for the trial and the prosecutor inquired if defendant wanted to be present. Defendant responded, through his attorney, that he wanted to be present. The court ordered that defendant be transported back to court for the trial, which was set for May 4, 2009.
Because the minutes of the May 4, 2009, hearing are ambiguous as to defendant's presence, we augmented the record on our own motion to obtain the reporter's transcript of that hearing. The supplemental reporter's transcript reveals that defendant was not transported for the hearing, and his attorney represented that defendant waived his presence. In addition, counsel informed the court that defendant's presence at his trial was waived, but that in light of a new opinion, defendant might want to have a jury trial. A new date was selected for a trial readiness conference, June 18, 2009, and the court directed that "Defendant is to remain housed in Coalinga State Hospital."
On June 4, 2009, defendant filed a motion to continue the trial on the ground that defense counsel was in trial on another case. In the motion, defense counsel indicated defendant "has waived his presence at trial and waived a jury." On June 8, 2009, the court heard the motion to continue. The minutes are unclear as to whether defendant appeared, but we infer he did not because the record does not include a transportation order for that date and the minutes reflect that defendant was to remain housed at Coalinga State Hospital.
The matter was called for court trial on June 13, 2009, in defendant's absence. Defendant claims he is entitled to a reversal because his due process rights were violated by proceeding in his absence without a personal waiver of his presence. We disagree.
The SVPA provides for the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be SVP's. A "SVP" is a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. ( § 6600, subd. (a)(1).) Certain enumerated sex crimes constitute a sexually violent offense within the meaning of the SVPA, including a violation of Penal Code section 288, subdivision (a), when committed by force, violence, duress, menace, or fear of immediate unlawful bodily injury of the victim or another person. ( § 6600, subd. (b).)
SVPA proceedings have a nonpunitive purpose. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144, 81 Cal.Rptr.2d 492, 969 P.2d 584.) The act provides treatment for mental disorders from which SVP's currently suffer to reduce the threat of harm otherwise posed to the public. (Id. at pp. 1143–1144, 81 Cal.Rptr.2d 492, 969 P.2d 584; People v. Otto (2001) 26 Cal.4th 200, 205, 109 Cal.Rptr.2d 327, 26 P.3d 1061.) However, because a civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections. (Otto, at p. 209, 109 Cal.Rptr.2d 327, 26 P.3d 1061; Foucha v. Louisiana (1992) 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437; see also People v. Carlin (2007) 150 Cal.App.4th 322, 340, 58 Cal.Rptr.3d 495.)
To this end, section 6603 provides certain procedural rights, entitling the person to a trial by jury, the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).)
In arguing that defendant has a statutory right to be present at the SVP recommitment proceeding, defendant relies on section 6605. However, that section applies to proceedings related to a petition for conditional release. (§ 6605, subd. (b).) When the DMH determines that the person's condition has so changed that the person no longer qualifies as an SVP, or where it determines that conditional release to a less restrictive alternative is in the best interest of the person, the director may authorize the person to file a petition for conditional release. Upon receipt of that petition, the court shall order a show-cause hearing at which the court can consider the petition and any documentation provided by the medical director, the prosecutor, or the committed person. (§ 6605, subd. (b).) At that show-cause hearing, the committed person "shall have the right to be present and shall be entitled to the benefit of all the constitutional protections that were afforded to him or her at the initial commitment proceeding." (§ 6605, subd. (d).) Because the instant proceeding was not related to a petition for conditional release, the provisions of section 6605 are inapplicable. The right to be present at a recommitment hearing is not a statutorily guaranteed right under the SVPA.
Defendant asserts he has a constitutional due process right to be present at the hearing, relying on In re Watson (1979) 91 Cal.App.3d 455, 154 Cal.Rptr. 151 and People v. Fisher (2009) 172 Cal.App.4th 1006, 91 Cal.Rptr.3d 609. The court in Fisher noted that an MDO proceeding is civil, rather than criminal, and did not implicate all of the constitutional and procedural safeguards afforded to criminal defendants. (Fisher, at p. 1013, 91 Cal.Rptr.3d 609.) However, relying on Watson, supra, the court determined that in civil commitment proceedings, due process guarantees the right to be present during the presentation of evidence absence personal waiver or demonstrated inability to attend. (Fisher, at p. 1013, 91 Cal.Rptr.3d 609, citing Watson, at pp. 461–462, 154 Cal.Rptr. 151.)
The People argue that a party to a civil case does not have an absolute right to be personally present. (Citing Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 203–204, 216 Cal.Rptr. 425, 702 P.2d 583; Payne v. Superior Court (1976) 17 Cal.3d 908, 913, 132 Cal.Rptr. 405, 553 P.2d 565; and Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 338, 56 Cal.Rptr.2d 774.) These cases involved incarcerated persons who were sued for civil damages and sought access to the courts to defend those actions. We agree that parties in civil actions do not have an absolute right to be personally present. However, an SVP proceeding is a special proceeding of a civil nature and not a civil action. (See People v. Yartz (2005) 37 Cal.4th 529, 536–537, 36 Cal.Rptr.3d 328, 123 P.3d 604.) Given the significant deprivation of liberty resulting from an indeterminate commitment following an SVP determination, notwithstanding the lack of an express statutory right to be present at SVP proceedings, we agree with Fisher and Watson that the defendant had a due process right to be present at the trial.
The next question is whether defendant's counsel had authority to waive his presence. Defendant argues that counsel lacked the authority to waive his right to be personally present, relying on In re Watson, supra,
91 Cal.App.3d at pages 461–462, 154 Cal.Rptr. 151 and People v. Fisher, supra, 172 Cal.App.4th at page 1014, 91 Cal.Rptr.3d 609. The People argue that counsel may waive the committee's right to be present and to...
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