The People v. Lewis

• Decision Date: 01 December 2010
• Docket Number: E049010,No. RIC354396,RIC354396
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAMES ANTHONY LEWIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.JAMES ANTHONY LEWIS, Defendant and Appellant.

E049010

No. RIC354396

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

Filed 12/1/10

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. Affirmed in part; reversed in part with directions.

Rudy Kraft, 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.

1. Introduction

James Anthony Lewis (defendant)¹ was convicted of various child molestation offenses, and in 2004, found to be a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600 et seq., ² also known as the Sexually Violent Predator Act (the SVPA). In a previous appeal, this court affirmed his two-year commitment to a state mental institution (case No. E035947). Defendant was admitted to Coalinga State Hospital in 2004.

An amended commitment petition was filed in 2006, seeking to subject defendant to an indeterminate term under the amended SVPA. The 2006 petition was consolidated with a 2008 petition also seeking continued indeterminate commitment of Lewis as an SVP. Following a bench trial on the consolidated petitions, the court ordered defendant committed indefinitely as an SVP. (§ 6600, et seq.)

Defendant appeals the order, arguing that he was committed on the basis of invalid evaluation regulations. Alternatively, defendant argues that his trial attorney provided prejudicial ineffective assistance of counsel. He also claims that the SVPA, as amended by Proposition 83 in 2006, violates due process, ex post facto, double jeopardy and equal protection principles under the state and federal Constitutions.

We reject defendant's contentions, with the exception of his challenge to the indeterminate commitment on equal protection grounds. Based on the California Supreme Court's recent ruling in People v. McKee (2010) 47 Cal.4th 1172 (McKee), holding that the 2006 amendments to the SVPA may violate equal protection, we affirm in part and reverse in part the trial court's order of commitment. On remand, we direct the trial court to suspend further proceedings in this case pending finality of the proceedings on remand in McKee.

2. Factual and Procedural Background

Because defendant does not challenge the sufficiency of evidence in this appeal, we incorporate only a brief summary of the facts provided in defendant's previous appeal in this matter, as follows:

"In 1984 defendant was convicted of molesting a 10-year-old girl (Pen. Code, § 288, subd. (a)), and was sentenced to two years in jail, including probation. Defendant violated his probation by running off with a 14-year-old girl and was sentenced to three years in prison. In 1988, defendant was charged with having sexual intercourse with a 15-year-old girl and his probation was again revoked and he was sent to prison. Defendant was released in 1989.

"While at a birthday party in 1991, defendant took pornographic pictures of the vagina of Jenny, a three year old. He also touched the vaginal area of Jeannette, who was seven years old. Defendant was convicted in 1992 of molesting these girls in violation of section 288, subdivision (a). Defendant was sentenced to 17 years in prison.

"In February 2001, shortly before defendant's state prison release date, the Peoplefiled an SVP commitment petition, with a probable cause hearing commencing in March 2001. (§ 6604.) The court found probable cause....

"During defendant's civil commitment jury trial in May 2004, two prosecution psychological experts... diagnosed him as a pedophile and likely to reoffend. The defense expert... concluded defendant suffered from a borderline personality disorder and was sexually attracted to children. She believed defendant's nonexclusive pedophilia could be successfully treated once his personality disorder was addressed.

"The jury found defendant was a sexually violent predator within the meaning of section 6600 et seq. and subject to an involuntary two-year commitment. The trial court ordered defendant committed to Atascadero State Hospital as an SVP." (People v. Lewis (Oct. 6, 2005, E035947) [unpub. opn.].)

During the bench trial on the consolidated 2006 and 2008 petitions, the court found defendant had a current diagnosable mental disorder, pedophilia, which makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent predatory criminal behavior if released.

Psychiatrist Shoba Sreenivasan evaluated defendant in 2005, 2007, 2008, and March and May of 2009. Dr. Sreenivasan diagnosed defendant as a pedophile, with a personality disorder NOS (not otherwise specified), and as having a bipolar disorder presently in remission. Dr. Sreenivasan further determined that, as a result of defendant's mental disorder, he was likely to reoffend if released.

3. Reliance on Underground Regulations in the Assessment Protocol Evaluation

Defendant argues that, because he was evaluated pursuant to an illegalunderground regulation, this court should reverse the judgment on the consolidated 2006/2008 commitment petitions and order his immediate release. We reject this argument.

The People argue defendant forfeited this contention because it was not raised in the trial court, and even if preserved, defendant cannot demonstrate any prejudice by the State Department of Mental Health's use of the underground illegal protocol. In August 2008, the Office of Administrative Law (OAL) issued a determination that the 2007 assessment protocol was an underground regulation and thus invalid. (In re Ronje (2009) 179 Cal.App.4th 509, 515 (Ronje)) The bench trial on the consolidated 2006 and 2008 petitions for commitment took place in June 2009 under the revised SVPA.³

Defendant's objection that the protocol relied on in filing the 2006 petition was an "underground regulation" is raised for the first time on appeal. The OAL issued its determination the protocol was invalid, about a year before the 2009 commitment trial in this case. Defendant thus had the opportunity to raise the objection in the trial court but failed to do so. Defendant therefore forfeited the objection. (People v. Medina (2009) 171 Cal.App.4th 805, 817-818 (Medina); People v. Taylor (2009) 174 Cal.App.4th 920, 937-938 [Fourth Dist, Div. Two] (Taylor).) Even if it has not been forfeited, use of the protocol does not constitute prejudicial error that infects the validity of defendant's commitment.

Before the People could file the 2006 petition for subsequent commitment of defendant as an SVP, the Department of Mental Health was required to evaluate defendant "in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health." (§ 6601, subd. (c).) The OAL, however, determined that the 2007 version of the protocol, which is essentially the same as the 2004 version relied upon by the People's experts in this case, is an invalid, "underground regulation." (Medina, supra, 171 Cal.App.4th at pp. 813-814, Ronje, supra, 179 Cal.App.4th at p. 516.)

The court in Medina, explained that "A regulation found not to have been properly adopted is termed an 'underground regulation.' '"An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA]."' [Citations.] An OAL determination that a particular guideline constitutes an underground regulation is not binding on the courts, but it is entitled to deference. [Citations.]" (Medina, supra, 171 Cal.App.4th at pp. 813-814.)

Defendant argues that his commitment is invalid because he was not properly found to qualify as an SVP by two evaluators as required by statute. Defendant claims that, absent a legally conducted evaluation, the district attorney lacked authority to file the SVP petition and, as a consequence, the court lacked fundamental jurisdiction tocommit defendant under the SVPA. At a minimum, defendant argues, this court must remand the matter for a new probable cause hearing and direct the trial court to order new evaluations in accordance with Ronje, supra, 179 Cal.App.4th 509.

Defendant acknowledges that this issue was addressed in Taylor, supra, 174 Cal.App.4th 920, Medina, supra, 171 Cal.App.4th at page 816, and Ronje, supra, 179 Cal.App.4th at page 518. The courts in all three cases rejected the contention that the failure to use a properly adopted protocol deprived the trial court of fundamental jurisdiction to hear the case. (Taylor, supra; Medina, at p. 816; Ronje, at p. 518.)

As the court in Ronje, supra, 179 Cal.App.4th at page 518, explained: "The term 'jurisdictional in the fundamental sense' means the 'legal power to hear and determine a cause.' [Citation.] 'Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' [Citation.]" Here, there was not an absence of subject matter jurisdiction or personal jurisdiction over the parties. (Ibid.; Medina, supra, 171 Cal.App.4th at p. 816.)

In Ronje, supra, 179 Cal.App.4th at page 518, the court "concluded that use of the evaluations conducted pursuant to the invalid assessment protocol did not deprive the trial court of the legal power to hear and determine the subsequently filed SVPA commitment petition, and...