People v. Paniagua

• Decision Date: 20 September 2012
• Docket Number: No. A123926.,A123926.
• Citation: 2012 Daily Journal D.A.R. 13280,12 Cal. Daily Op. Serv. 10946,146 Cal.Rptr.3d 871,209 Cal.App.4th 499
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carlos PANIAGUA, Defendant and Appellant.

209 Cal.App.4th 499

146 Cal.Rptr.3d 871

12 Cal. Daily Op. Serv. 10,946

2012 Daily Journal D.A.R. 13,280

The PEOPLE, Plaintiff and Respondent,

v.Carlos PANIAGUA, Defendant and Appellant.

No. A123926.

Court of Appeal, First District, Division 2, California.

Sept. 20, 2012.

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 153 et seq.

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

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General; Seth K. Schalit, Supervising Deputy Attorney General, Bridget Billeter, and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent.

RICHMAN, J.

Defendant Carlos Paniagua appeals from the order committing him to the Department of Mental Health for an indeterminate term, which order followed a jury's determination that defendant qualified as a sexually violent predator (SVP)—a determination made after three days of deliberation. Defendant makes seven arguments on appeal. The first claims the petition for his commitment was procedurally defective. The next four claim evidentiary and instructional error. And the final two claim the amended version of the SVP commitment scheme (Welf. & Inst.Code, § 6600 et seq.) ¹ that extended the length of commitment from two years to an indeterminate term is unconstitutional, on two separate bases.

We reject defendant's procedural argument. But we agree with one of his evidentiary arguments, that the trial court committed prejudicial error in admitting evidence that defendant returned from Thailand on United Airlines flight number 842. The evidence had been the subject of a motion in limine, and vigorous dispute, and was admitted over defendant's Evidence Code section 352 objection—without any section 352 analysis. And even after the true facts revealed, as the People stipulated, that United Airlines did not have such a flight, the evidence remained and was argued. We thus reverse, with no need to reach defendant's constitutional challenges.

BACKGROUND

In 1998, 15 years after a warrant was issued for his arrest, defendant surrendered to face 120 counts of sodomizing and molesting two boys under the age of 14. After pleading guilty to one count of each of these types of offenses, defendant was sentenced to state prison for a term of eight years, this sentence being concurrent to one from Los Angeles.²

Defendant's scheduled release date from the California Department of Corrections (CDC) (before its name was changed to Department of Correction and Rehabilitation) was December 24, 2002. Prior to his scheduled release, defendant was evaluated by a Department of Mental Health (DMH) psychologist and identified as a potential SVP. Pursuant to section 6601.3, defendant's release date was extended by the Board of Prison Terms (Board) for 45 days, that is, until February 6, 2003.³ However, it was not until February 11 that the district attorney of San Francisco filed a “Petition For Involuntary Commitment As Sexually Violent Predator,” and defendant was ordered “detained in a secure facility until a formal probable cause hearingpursuant to ... Section 6602 is conducted....” ⁴

That hearing was originally set for February 10, 2003, but with defendant's acquiescence it was repeatedly continued until 2003 had passed. The hearing began on January 30, 2004, resumed on April 23, and concluded on September 10, 2004. After listening to almost 230 pages of testimony and argument, the court ruled that good cause under section 6601 (see fn. 3, ante ) had been shown.

The District Attorney's first attempt to have defendant declared an SVP ended with a mistrial in September 2006.

The second trial, that involved here, began on July 17, 2008. As is common in SVP trials, defendant did not testify, and both sides relied primarily on the testimony of expert witnesses. There being no genuine dispute about the underlying crimes, the primary point of contention between the experts was whether defendant was likely to pose a danger to the safety of others because he was a sexually violent predator. And how defendant scored on the STATIC–99 test ⁵ was central to each expert's diagnosis. The prosecution case relied on two experts, Dr. Dawn Starr and Dr. Kathleen Longwell, both of whom testified that defendant's score of 6 on that test placed him in the high-risk-to-reoffend category. Defendant presented three experts, Drs. Howard Barbaree, Brian Abbott, and Theodore Donaldson, each of whom scored or would score defendant at 3, and thus significantly less likely to reoffend. A significant factor for the lower score was defendant's age—64 at the time of trial—and there was an issue whether a reduction for that fact was scientifically reliable.

Yet this was only the tip of the iceberg. The experts' disagreement was virtually total.⁶ They drew different conclusions as to, among other things, whether defendant had pedophilia; whether he had a narcissistic personality; and whether he had a primarily heterosexual orientation and thus merely a “situational” or “opportunistic” molester. An enormous amount of time was occupied with the methodology of the tests used by the experts.

On August 26, after three full days of deliberations,⁷ the jury returned a verdict that defendant was an SVP, whereupon the trial court committed him to a state hospital. Defendant filed his notice of appeal two days later.

DISCUSSION

The Petition Was Not Jurisdictionally Defective

Defendant's first contention is based on missed deadlines. He argues: “The petition seeking to commit appellant as an SVP was not timely filed. The petition was filed on February 11, 2003. Appellant's CDC release date was December 24, 2002. The Board of Prison Terms did not grant a 45–day extension until December 30, 2002. Further, this 45–day extension was not supported by good cause. Therefore, the order does not excuse the late filing of the petition. However, even if the 45–day extension was valid, the extension expired at midnight, February 6, 2003. Therefore, the trial court lacked jurisdiction to proceed....”

This record does not show the Board in the best light. The Attorney General expressly or implicitly concedes most of defendant's arguments, namely that: (1) defendant's release date was December 24, 2002; (2) the 45–day extension was not declared until December 30, six days after defendant's release date; and (3) the 45–day extension would expire on February 6, 2003.

As already mentioned, section 6601.3 (quoted at fn. 3, ante ) allows the Board to put a 45–day “hold” on a person upon a showing of “good cause.” The statute now has a definition of “good cause,” but that definition was not added until after all proceedings in the trial court had been concluded. (Stats.2010, ch. 710, § 5.) Prior to this amendment of section 6601.3, the only definition of what constituted “good cause” was in a regulation.⁸ During the pendency of this appeal, our Supreme Court held that this regulation was invalid, but that the Board's reliance on it was in good faith, thus excusing and validating petitions filed after the inmate's scheduled release date. ( In re Lucas (2012) 53 Cal.4th 839, 844–845, 137 Cal.Rptr.3d 595, 269 P.3d 1160; see § 6601, subd. (a)(2) [“A petition shall not be dismissed on the basis ... that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law”].) The parties have filed letter briefs discussing the impact of this decision.

Lucas establishes that the mere chronological fact that one or more periods, particularly the 45–day hold period, may have elapsed prior to filing of the petition for commitment does not ipso facto invalidate the petition and require its dismissal. This is consistent with decisions holding that missed SVP Act deadlines are not jurisdictional. (E.g., In re Smith (2008) 42 Cal.4th 1251, 1261, 73 Cal.Rptr.3d 469, 178 P.3d 446 [“ ‘petitions to commit dangerous sex offenders to mental health facilities after their terms have expired cannot be dismissed simply because ... a prisoner's term was mistakenly extended.’ ... [¶] ‘... sexually violent predators are not to be unleashed on society simply because “the constable has blundered.” ’ ”]; People v. Taylor (2009) 174 Cal.App.4th 920, 934, 94 Cal.Rptr.3d 756 [“An individual is not automatically entitled to release upon expiration of a term of commitment, even if a timely petition to extend the commitment is not filed. [Citations.] In other words, unlawfulness of an individual's custodial status (due to expiration of his or her determinate term or expiration of his or her prior commitment) does not divest the trial court of jurisdiction to proceed on a petition for commitment or recommitment”]; People v. Hubbart (2001) 88 Cal.App.4th 1202, 1228–1229, 106 Cal.Rptr.2d 490 [“A number of published cases have rejected the argument that lawful custody was a jurisdictional prerequisite to the filing of an SVPA petition prior to the amendment of section 6601. [Citations.] We agree with the analysis of those courts.”]; Garcetti v. Superior Court (1998) 68 Cal.App.4th 1105, 1114, 80 Cal.Rptr.2d 724 [“a determination of lawful custody is [not] a jurisdictional prerequisite to the filing of a petition under the SVP Act for civil commitment”].)

Moreover, the Legislature has taken the same view. When it amended section 6601 in 1999 to add the language in subdivision (a)(2) concerning good faith mistake, the Legislature made the following uncodified finding: “The Legislature finds and declares that paragraph (2) of subdivision (a) of section 6601 is declaratory of existing law. The Sexually Violent Predator Act authorizes civil commitment of persons who pose a danger as a result of mental disorder if released from custody. Therefore, where a petition for commitment of a sexually violent predator has been filed, it is not the intent of the Legislature that a person be released based upon a subsequent...