P. v. Cheek

Filed 10/12/06 P. v. Cheek CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Michael Thomas Cheek appeals from an order of the trial court recommitting him to the Department of Mental Health for a period of two years under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)[1]

In his opening brief, Cheek contends that the recommitment order must be reversed because (1) the March 26, 2003 petition to extend commitment was not supported by two evaluations by a qualified psychologist or psychiatrist, as required by section 6604.1, subdivision (b); (2) the principles of collateral estoppel and res judicata bar the proceedings to recommit Cheek under the SVPA because in 1981 Cheek was found not to be a mentally disordered sex offender (MDSO) (former section 6300 et seq.); and (3) the trial court abused its discretion in ordering consolidation of three pending petitions to extend commitment over Cheek’s objection.[2]

For reasons that we will explain, we find no reversible error and therefore we will affirm the recommitment order.

II. THE STATUTORY SCHEME

We begin by briefly reviewing the pertinent elements of the SVPA. “The SVPA provides for ‘the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be [sexually violent predators] because they have previously been convicted of sexually violent crimes and currently suffer diagnosed mental disorders which make them dangerous in that they are likely to engage in sexually violent criminal behavior.’ [Citation.]” (People v. Roberge (2003) 29 Cal.4th 979, 984.)

As this court has previously noted, “[t]he twin goals of the SVPA are to identify and segregate those persons who, by virtue of their mental disorders, pose a significant danger to society, but to do so in a way that enhances the accuracy of the determination that a person is in fact an SVP [sexually violent predator] and minimizes the chance of erroneous confinement.” (Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1168 (Litmon) To decrease the risk of erroneous confinement, the SVPA incorporates a number of procedural safeguards. (Id. at p. 1167.)

In Litmon, we summarized the procedural safeguards that are relevant to recommitment proceedings under the SVPA, as follows. “An original petition for commitment as an SVP may be filed only if two psychologists or psychiatrists concur that the person meets the criteria for commitment. (§ 6601, subd. (d).) Then the person has a right to a probable cause hearing. (§ 6602, subd. (a).) If the court finds probable cause to believe the person is an SVP, the judge shall order a trial, either by court or jury at the SVP's request, at which the People must prove beyond a reasonable doubt that the person is an SVP. (§§ 6602, 6603, subd.(a).)” (Litmon, supra, 123 Cal.App.4th at pp. 1167-1168.)

“The original commitment lasts two years. (§ 6604.) Any petition to recommit the person for an additional two-year period must be filed before the expiration of the original commitment. (§ 6604, § 6604.1, subd. (a).) ‘ “The filing of the petition triggers a new round of proceedings under the Act.” ‘ [Citation.] Like the original petition for commitment, a petition for recommitment requires the concurrence of two psychologists or psychiatrists that the person continues to meet the criteria for commitment as an SVP. (§ 6604.1, subd. (b); [Citation].) Thereafter, the court must hold a probable cause hearing. ‘ “If no probable cause is found, the petition is dismissed.”. . . [Citation.]’ [Citation.] If probable cause is found to exist, and the person contests the finding, the court must hold a trial by court or jury, at which the person is entitled to all the rights accorded at the original probable cause hearing and trial. (§§ 6604.1, subd. (b), 6601, subd.(c)-(i), 6603.)” (Litmon, supra, 123 Cal.App.4th at p. 1168.)

III. FACTUAL AND PROCEDURAL BACKGROUND

A. Predicate Sex Offenses

The petitions to commit Cheek under the SVPA have alleged two predicate sex offenses. In 1980, Cheek was convicted of kidnap, forcible rape, and oral copulation, with the special allegation of use of a firearm. In 1981, Cheek was convicted of forcible rape with the special allegation of use of a firearm and furnishing a controlled substance to a minor.

The 1980 convictions stem from an incident that occurred on April 15, 1980, in Santa Cruz. After encountering the 21-year-old victim at a beach, Cheek forced her at gunpoint to drive him to the parking lot at another beach, where he tried to get her to touch him. When the victim screamed, Cheek put his mouth over hers. She bit his tongue and Cheek almost strangled her. After they struggled the victim attempted to escape, but Cheek prevented the escape and tried to force her to orally copulate him. Cheek then drove the victim to the mountains while holding the gun under his thigh.

Eventually, Cheek stopped the car at a turnout and walked the victim down a path, put a blanket down and forced her to have sexual intercourse with him twice while holding the gun in her mouth. Afterwards, Cheek returned the victim to the beach where he had found her. Before releasing the victim, Cheek told her that he had done this to other girls and that if she tried to prove that he had done it to her, he would beat her up or kill her and her family.

Cheek was sentenced to a total term of 20 years for the 1980 offenses. However, he escaped from custody in 1981 and committed another rape while he was at large. On May 12, 1981, Cheek approached the 15-year-old victim as she sat on a park bench in Lake County. He enlisted her aid in selling drugs from his van. The victim got in the van and Cheek drove to a location where he wanted to meet a man who owed him money for marijuana. After a few minutes, Cheek drove back and let the victim out of the van. However, when she started to walk away, Cheek followed her in his van and offered to give her a ride.

After the victim got back into the van and snorted some “crank,” Cheek drove down a dirt road where he stopped and told the victim to get in the back. He then pointed a gun at her and told her to take off her clothes. After the victim stripped, Cheek gave her a sheet to wrap around herself. Cheek then told the victim to get out of the van and they walked to a spot about 30 feet away, where Cheek made her lie on the sheet in various poses. After threatening anal intercourse if the victim did not do as she was told, Cheek forced her to have vaginal intercourse.

When they returned to the van, Cheek made the victim touch his penis and again had sexual intercourse with her. Cheek then arranged the victim so her legs were in the doorway of the van and had sexual intercourse with her while she was in that position and he was outside the van. Cheek left the gun on the mattress in the van while he sexually assaulted the victim. The total term imposed for the offenses involving this victim was 11 years, four months, consecutive to the Santa Cruz County sentence. (People v. Superior Court (Cheek) (2002) 103 Cal.App.4th 520, 522)

B. Background--SVPA Proceedings

At the end of Cheek’s prison term, the District Attorney of Santa Cruz County instituted commitment proceedings under the SVPA. On July 14, 1997, Cheek was found to be a sexually violent predator and committed to the Department of Mental Health for two years. The California Supreme Court upheld that commitment in People v. Cheek (2001) 25 Cal.4th 894.

A petition to extend Cheek’s commitment for two more years (from July 14, 1999, to July 13, 2001) was filed on May 27, 1999. This court determined that the petition was deficient because it was not supported by two psychological evaluations and ordered dismissal of the petition. (Butler v. Superior Court (2000) 78 Cal.App.4th 1171.) The district attorney subsequently filed a new petition for extended commitment that complied with the requirement of two psychological evaluations. Cheek sought writ review of the legality of the new petition and this court determined that the district attorney could proceed. (People v. Superior Court (Butler) (2000) 83 Cal.App.4th 951.)

The trial on the new recommitment petition was delayed by various litigation issues and eventually resulted in a mistrial. (Cheek v. Superior Court, supra, 103 Cal.App.4th at p. 523.)[3] On March 20, 2001, the district attorney filed a petition to commit Cheek for a third two-year period (from July 14, 2001 to July 13, 2003). Both petitions to extend Cheek’s commitment remained pending, and in May 2001 the district attorney moved to consolidate the two petitions for jury trial. The trial court granted the motion for consolidation over Cheek’s objection on May 17, 2001. The jury trial held in August and September of 2001 resulted in another mistrial.

On January 30, 2002, Cheek filed a motion to dismiss the pending petitions for extended commitment, on the ground that Santa Cruz County did not have jurisdiction. The trial court refused to dismiss the petitions, instead ordering that the matter be transferred to Lake County. Cheek sought writ review in this court. In Cheek v. Superior Court, supra, 103 Cal.App.4th 520, we concluded that the petitions for recommitment could be properly filed in any of the three counties where Cheek had been committed to prison, including Santa Cruz County, and directed the trial court to reconsider its transfer order.

The matter remained in Santa Cruz County and on March 26, 2003, the district attorney filed a petition to extend Cheek’s commitment for a fourth two-year period (from July 14, 2003, to July 14, 2005). At that point, the three petitions to extend commitment all remained pending. The district attorney moved to consolidate all three petitions for jury trial, and the trial court granted the motion over Cheek’s objection on April 18, 2003. A probable cause hearing was held in July 2003. On July 2, 2003, the trial court determined that there was probable cause for Cheek to be held in a secure facility because he was likely to engage in sexually violent conduct and was not amenable to voluntary treatment if released.

Thereafter, on November 26, 2003, Cheek filed a motion to dismiss the petitions to extend commitment. He argued that the proceedings to commit him as a sexually violent predator under the SVPA were barred by the principles of res judicata and collateral estoppel because a court had determined in 1981 that he was not a mentally disordered sex offender under former section 6300. On January 5, 2004, the trial court denied the motion to dismiss. Cheek filed a petition for a writ of mandate in this court in which he sought relief from the trial court’s order. We summarily denied the writ petition.

Subsequently, on August 31, 2004, Cheek filed a motion to dismiss the March 26, 2003, petition to extend commitment and to vacate the finding of probable cause. Cheek contended that the petition was improperly supported by one evaluator’s opinion, instead of the two required by section 6604.1, subdivision (b), because one of the two evaluators was Charles W. Jackson, Ph.D., who did not meet the SVPA’s requirements for an evaluator. The trial court denied the motion to dismiss on September 9, 2004. The district attorney then moved to reopen the probable cause hearing, and a probable cause hearing was subsequently held at which three expert witnesses other than Dr. Jackson testified, including Craig Updegrove and Jack Vognsen for the People and John Hupka for the defense. On December 20, 2004, the trial court made a finding of probable cause.

On January 12, 2005, the district attorney filed a petition to extend Cheek’s commitment for a fifth two-year period (from July 14, 2005, to July 14, 2007).[4] The district attorney then moved for consolidation of all four pending recommitment petitions. The trial court denied the motion for consolidation and set a trial date for the three previously consolidated petitions.

C. Jury Trial

A 14-day jury trial was held in April and May 2005. Both sides presented evidence through the testimony of expert and lay witnesses. The following is a brief summary of the witness testimony.

The People’s Witnesses

The People’s expert witnesses included Dawn Starr, Dale Arnold, and Jack Vognsen.

Dawn Starr testified that she has a Ph.D. in psychology and was retained by the Department of Mental Health to evaluate Cheek and determine if he met the criteria for recommitment as a sexually violent predator. In 2001, Dr. Starr interviewed Cheek and reviewed his records, including medical, criminal and prison records and the records of Cheek’s commitment at Atascadero State Hospital. Dr. Starr reevaluated Cheek in 2002, 2003, and 2005, by reviewing records generated after her previous evaluation. In 2003, Dr. Starr interviewed Cheek again.

Dr. Starr diagnosed Cheek as currently suffering from three mental disorders, paraphilia not otherwise specified (sexual deviance), polysubstance dependence in a controlled environment, and personality disorder not otherwise specified, with antisocial and narcissistic features. Based in part on the results of the Hare Psychopathy Checklist and the Static 99 actuarial tool regarding the probability of reoffense, Dr. Starr concluded that Cheek is likely to commit future sexually violent predatory offenses without appropriate treatment in custody.

Dale Arnold also testified that he has a Ph.D. in psychology. He is under contract to the Department of Mental Health to provide sexually violent predator evaluations. In that capacity, Dr. Arnold evaluated Cheek in 1999, 2001, 2002, 2003, 2004, and 2005 including an interview with Cheek in 2002. The sources that Dr. Arnold reviewed in order to form his opinions included the medical and psychiatric records of Atascadero State Hospital, which contain information about Cheek’s social, criminal and substance abuse history.

Dr. Arnold diagnosed Cheek as currently suffering from three mental disorders that predispose him to commit sexually violent offenses, including paraphilia not otherwise specified, polysubstance dependence, and antisocial personality disorder. In addition, Dr. Arnold relied upon the results of the Static 99 actuarial tool and the Minnesota Sexual Offender Screening Tool, which placed Cheek in a high risk category, to conclude that Cheek is likely to commit another sexually violent, predatory act if he is released to the community.

Jack Vognsen testified that he has a Ph.D. in psychology and has conducted sexually violent predator evaluations under contract to the Department of Mental Health since 1997. He prepared an initial recommitment evaluation of Cheek in September 2004 and an updated evaluation in March 2005. In connection with his evaluation, Dr. Vognsen reviewed other sexually violent predator evaluations of Cheek, Cheek’s statements to other evaluators, his Department of Corrections history, probation officers’ reports, and the records of Atascadero State Hospital.

Dr. Vognsen’s opinions regarding Cheek were very similar to the opinions of Dr. Starr and Dr. Arnold. Dr. Vognsen diagnosed Cheek as currently suffering from three mental disorders that predispose him to the commission of criminal sexual acts, including paraphilia, meaning a sadistic sexual attraction to nonconsenting women; substance abuse; and antisocial personality disorder. Dr. Vognsen further concluded that there is a serious and well-founded risk that Cheek would commit sexually violent offenses if he were free in the community. The basis for his opinion also included the application of risk assessment tools, including the Static 99 actuarial tool and the Rapid Risk Assessment for Sexual Offender Recidivism tool.

The lay witnesses who testified for the People included Darren Kerr, a sheriff’s deputy for Santa Cruz County. He testified in regard to an incident of April 12, 2005, involving Cheek. Deputy Kerr was assigned to work as a courtroom bailiff on that day. As part of his duties, he was responsible for removing prisoners from the holding cells below the courtroom and being present while they dressed in a suit and tie for court proceedings. Deputy Kerr looked into a holding cell and saw Cheek drawing the leather strap that connected his shackles and hand cuffs back and forth on the threaded portion of a bolt that protruded from the holding cell wall. He inspected the leather strap and observed that it was slightly abraded.

Cheek’s Witnesses

Cheek presented three expert witnesses, Jay Jackman, John Hupka, and Michael Kania, as well as several lay witnesses. He also testified on his own behalf.

Jay Jackman testified that he is a psychiatrist with a law degree who works as an expert witness in criminal cases. He performed a psychiatric evaluation of Cheek, which included reviewing psychological reports dating back to 1979, previous sexually violent predator evaluations, Atascadero State Hospital records, and interviewing Cheek’s wife and family members. Dr. Jackman also interviewed Cheek in 2001 and 2005.

Dr. Jackman diagnosed Cheek as suffering from two mental disorders, polysubstance abuse and antisocial personality disorder. He disagreed with the People’s experts regarding the diagnosis of paraphilia. According to Dr. Jackman, Cheek does not suffer from paraphilia because the rapes he committed were “garden variety rapes” that reflected antisocial behavior rather than sexual deviance such as sexual sadism. Dr. Jackman also determined that Cheek did not have a history of other sexual offenses and his sexual relations with his wife did not indicate paraphilia. Regarding the risk of reoffense, Dr. Jackman testified that Cheek, at age 53, was much less likely to commit a sex offense than a 25-year-old rapist, because the risk of reoffense diminishes with age.

John Hupka testified that he has a Ph.D. in clinical psychology and has conducted sexually violent predator evaluations since 1996, including an evaluation of Cheek in 2004. Dr. Hupka reviewed Cheek’s records from the Department of Corrections, his psychiatric records, the records of Atascadero State Hospital, and previous sexually violent predator evaluations. After completing his review, Dr. Hupka concluded that Cheek does not have a mental illness diagnosis that predisposes him to engage in sexually violent criminal behavior. While Dr. Hupka determined that Cheek suffers from two mental illnesses, polysubstance abuse and antisocial personality disorder, he ruled out a diagnosis of paraphilia because Cheek did not have a history of sexual deviance. However, Dr. Hupka found that Cheek is in a high risk category to reoffend both criminally and sexually.

Cheek’s third expert witness was Michael Kania, who testified that he is a psychologist in private practice who was formerly under contract to conduct sexually violent predator evaluations for the Department of Mental Health. Dr. Kania evaluated Cheek in 1997, when Cheek was incarcerated at Calipatria State Prison, at the request of the Department of Mental Health in order to determine if Cheek was a sexually violent predator. In the course of the evaluation, Dr. Kania reviewed Cheek’s medical and prison records and interviewed Cheek. Dr. Kania determined that Cheek had a history of chronic and severe substance abuse and suffered from a diagnosis of antisocial personality disorder, but not paraphilia. In Dr. Kania’s opinion, Cheek’s sex offenses were the result of taking drugs, which increased his sexual interest, and his antisocial personality disorder, which caused him to “do what he wanted.”

Cheek’s lay witnesses included, among others, three psychiatric technicians employed by Atascadero State Hospital, Juanita Zuniga, Jill Haas, and Michael Ross. All three employees testified that they had contact with Cheek when he was housed on their ward at Atascadero State Hospital, and they had never seen him do anything inappropriate. Two Atascadero State Hospital police officers, Lori Jensen and Donald Woodard, similarly testified that they were not aware of Cheek engaging in inappropriate behavior. An Atascadero State Hospital Police Sergeant, Lloyd Hatfield II, stated that to his knowledge Cheek had never been found in possession of narcotics at the hospital.

Cheek’s wife, Lori Cheek, testified that she married Cheek while he was in prison in 1986. They had a relationship in high school and during that time Lori gave birth to their child. Lori acknowledged that she is a former user of methamphetamine and marijuana, but stated that she quit drugs in 1991 at her husband’s request. When Cheek was incarcerated in Folsom State Prison, they had conjugal visits. Lori recalled that their sexual relationship was normal and not violent. However, they have not had any conjugal visits since 1996.

Cheek’s testimony began with a description of his past drug use, and his move away from drugs and towards exercise and art while in prison. Regarding his sex offenses, Cheek recalled that he had been drinking and using drugs before he raped the victims. Cheek admitted that the rapes had occurred, but had little recall of the details of the offenses. After the second rape, he went to trial and there was a determination that there was nothing wrong with him psychologically and for that reason he went to prison rather than a hospital.

Rebuttal

The People presented one rebuttal witness, psychologist Dana Putnam. Dr. Putnam interviewed Cheek in 1997 at Atascadero State Hospital as part of a sexually violent predator evaluation. During the interview, Cheek told Dr. Putnam that he had raped both victims and the rapes were “part of a pattern of impulsive behavior that he had engaged in over a period of about five years” and that “he was a violent predator for sex and robberies at the time, and drugs.”

C. Jury Verdict

On May 24, 2005, the jury returned its verdict. The jury found true the allegation that Cheek has a “diagnosed mental disorder [that] makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility.”

IV. DISCUSSION

A. Motion to Dismiss the May 26, 2003 Petition to Extend Commitment

Cheek’s first contention on appeal is that the trial court erred in denying his motion to dismiss the May 26, 2003, petition to extend commitment and vacate the finding of probable cause because the petition was not supported by two valid sexually violent predator evaluations.

This court determined in Butler v. Superior Court, supra, 78 Cal.App.4th at pp. 1179-1180, that although the Legislature, at that time, had not provided any specific procedures for the filing of a petition to extend commitment, the SVPA should be construed to provide that those procedures are the same as the procedures for obtaining an initial commitment. Accordingly, we ruled that before the district attorney may file a petition to extend commitment, the Department of Mental Health “must conduct a ‘full evaluation’ of the person subject to the petition as provided in section 6601 [subdivision (d)],[5] which includes evaluation of the person ‘by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist.’ “ (Id. at p. 1182.)

In response to our decision in Butler v. Superior Court, supra, 78 Cal.App.4th 1171, the Legislature enacted urgency legislation amending section 6604.1 (Stats. 2000, ch. 420, § 4, eff. Sept. 13, 2000) that “essentially codified” our ruling that a full evaluation pursuant to section 6601, subdivision (d) “is required before the People can file a petition for extended commitment under the SVPA.” (People v. Superior Court (Butler), supra, 83 Cal.App.4th at p. 957.) Section 6604.1, subdivision (b), now reads:

“The person shall be evaluated by two practicing psychologists or psychiatrists, or by one practicing psychologist and one practicing psychiatrist, designated by the State Department of Mental Health. The provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to evaluations performed pursuant to a trial conducted pursuant to subdivision (f) of Section 6605. The rights, requirements, and procedures set forth in Section 6603 shall apply to all commitment proceedings.” (Italics added.)

Cheek contends that the May 26, 2003, petition to extend commitment failed to comply with the requirement of section 6604.1, subdivision (b), that the petition be supported by two evaluations because one of the evaluators, Charles W. Jackson, Ph.D., did not meet the statutory requirement of being either a practicing psychologist or a practicing psychiatrist. In his motion to dismiss the May 26, 2003, petition, Cheek submitted a declaration by trial counsel stating that “I am informed and believe that the Department of Mental Health has removed Mr. Jackson from its panel of evaluators. I am informed and believe that the Department of Mental Health concedes that Mr. Jackson is not qualified to conduct psychological evaluations for purposes of [the SVPA].” Dr. Jackson’s qualifications were discussed in In re Wright (2005) 128 Cal.App.4th 663, 672, where our colleagues in the Fourth District noted that “[a] certificate from the University of South Carolina shows that Dr. Jackson holds a doctorate degree in philosophy, with a major in education.”

According to Cheek, the May 26, 2003, petition was therefore deficient and the trial court should have granted his motion and dismissed the petition. Cheek also asserts that because a new petition supported by two valid evaluations was not filed before the July 14, 2001 to July 14, 2003, commitment period expired, the recommitment order should be reversed and he should be released.

The People reject Cheek’s contention on three grounds. First, they assert that Cheek has not established prejudicial error. Alternatively, the People maintain that Dr. Jackson was qualified to act as an evaluator under section 6601, subdivision (d), because the record shows that Dr. Jackson is a psychologist licensed and practicing in California. The People also claim that any defect was cured when the People responded to the challenge to Dr. Jackson’s qualifications by obtaining a replacement evaluator and then, when the replacement evaluator reported that Cheek was not a sexually violent predator, obtaining two additional evaluations as required by section 6601, subdivision (e), which agreed that Cheek did meet the criteria for commitment under the SVPA. Moreover, the People note that the probable cause hearing was reopened at their request, and that the two additional evaluators, Dr. Updegrove and Dr. Vognsen, rather than Dr. Jackson, testified in support of a finding of probable cause.

We need not enter the debate as to whether Dr. Jackson is qualified to conduct evaluations under the SVPA because, for reasons that we will explain, we find it dispositive that Cheek has not established prejudicial error. As we have previously determined, where the trial court errs in proceeding on a petition for extended commitment that fails to comply with the requirement of a “full evaluation,” because the petition is supported by only one evaluation by a psychologist or psychiatrist, the error is procedural. (People v. Superior Court (Butler), supra, 83 Cal.App.4th at pp. 961-962; see also People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130 [requirement for evaluations is a collateral procedural condition].) To obtain reversal on the basis of a procedural error, the appellant must meet the standard set forth in the California Constitution, Article VI, section 13, and Code of Civil Procedure section 475.

Under the California Constitution, “ ‘No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) “This provision ‘is amplified by Code of Civil Procedure section 475, which states that trial court error is reversible only where it affects “. . . the substantial rights of the parties . . . ,” and the appellant “sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed.” Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred. [Citations.]’ “ (Ibid., italics omitted.)

Thus, in People v. Butler, supra, 68 Cal.App.4th at page 435, we concluded that the trial court’s procedural error in failing to provide a full evidentiary hearing on probable cause did not require reversal, because Butler had made “ ‘no showing that he was denied a fair trial or otherwise suffered prejudice, . . .’ [Citation.]” Similarly, where the trial court erred in conducting the probable cause hearing after the trial the procedural error was deemed harmless, in light of the evidence and the jury’s verdict, because the defendant failed to show that he had been prejudiced by the irregular proceedings. (People v. Hayes (2006) 137 Cal.App.4th 34, 51.)

In the case most similar to the case at bar, In re Wright, supra, 128 Cal.App.4th 663, the record showed that Dr. Jackson had provided an additional evaluation, pursuant to section 6601, subdivision (e),[6] after one of the two initial evaluators found that the defendant did not meet the criteria for a sexually violent predator. (Id. at p. 671.) Dr. Jackson’s evaluation was arguably defective, since he did not appear to meet the statutory requirement, set forth in section 6601, subdivision (g),[7] that the additional evaluation be conducted by an “independent professional,” which includes “psychiatrists and licensed psychologists who have a doctoral degree in psychology.” (In re Wright, supra, 128 Cal.App.4th at p. 672.) The issue raised on appeal was whether the Wright was deprived of due process where one of two evaluations supporting the petition for commitment was defective, but the matter had proceeded to trial on the merits after a probable cause finding. (In re Wright, supra, 128 Cal.App.4th at p. 673.)

The court in Wright determined that “[i]llegalities in pretrial commitment proceedings that are not ‘jurisdictional in the fundamental sense,’ are not reversible error per se on appeal from the subsequent trial.” (In re Wright, supra, 128 Cal.App.43th at p. 673.) Thus, to obtain reversal Wright was required to show that he was denied a fair trial or otherwise suffered prejudice. (Ibid.) The appellate court found that Wright had failed to make that showing, where the facts showed that he had been represented by counsel at trial, had presented his own expert witness, had cross-examined the People’s witnesses, and had not argued on appeal that the trial was unfair. “The only possible prejudice Wright could have suffered was in the fact that the petition actually proceeded to trial . . . .” (Ibid.) However, the appellate court concluded, “the fact that Wright was compelled to ‘participate in an otherwise fair trial’ does not demonstrate prejudice. [Citation.]” (Id. at pp. 673-674.)

We believe the analysis in Wright, supra, 128 Cal.App.4th 663, is applicable in the present case. Even assuming that Dr. Jackson was not eligible to conduct sexually violent predator evaluations under the SVPA, and therefore the May 26, 2006, petition to extend commitment failed to meet the requirement of section 6604.1, subdivision (b), that the petition be supported by two evaluations, the trial court’s error in proceeding on a defective petition does not compel reversal of the recommitment order. As we have discussed, proceeding on a defective petition is a procedural error (People v. Superior Court (Butler), supra, 83 Cal.App.4th at p. 961-962) and therefore Cheek must show that the error was prejudicial in order to obtain reversal.

Having reviewed the record on appeal, we observe that Cheek was represented by counsel at trial, that he presented three expert witnesses who each testified that he did not meet the statutory criteria for commitment as a sexually violent predator, that he also presented lay witnesses and cross-examined the People’s witnesses, and that he was committed after receiving a trial on the merits. There is nothing in the record to indicate that the trial was unfair or that Cheek was prejudiced by the defective petition to extend commitment, and Cheek does not argue otherwise. Therefore, we reject Cheek’s contention that the procedural error arguably occasioned by Dr. Jackson’s participation as an evaluator in connection with the May 26, 2003 petition to extend commitment constitutes reversible error.

We also reject Cheek’s contention that the People’s failure to file a new petition to extend commitment with two valid evaluations prior to the expiration of the July 14, 2001, to July 14, 2003, commitment period warrants reversal of the recommitment order. We reiterate the general rule that a procedural irregularity in the pretrial commitment proceedings does not constitute reversible error in the absence of a showing of prejudice. Cheek does not attempt to show prejudice as a result of the lack of a new petition, and as we have discussed, no prejudice is reflected in the record on appeal. As the People point out, the probable cause hearing was reopened and two qualified evaluators testified that Cheek was a sexually violent predator under the criteria set forth in the SVPA. At trial, three psychologists also testified that Cheek met the sexually violent predator criteria. Accordingly, we conclude that the People’s failure to file a new petition prior to the expiration of the July 14, 2001, to July 14, 2003, commitment period did not result in an unfair trial or any other prejudice that would require reversal of the commitment order.

B. Motion to Dismiss--Res Judicata and Collateral Estoppel

Cheek contends that the trial court erred in denying his motion to dismiss the consolidated petitions on the grounds of res judicata and collateral estoppel. He explains that proceedings to commit him as a sexually violent predator under the SVPA are barred because in 1981 a court found that he was not a mentally disordered sex offender (MDSO).

As a threshold matter, we note there is a difference between res judicata and collateral estoppel. “ ‘Where res judicata operates to prevent relitigation of a cause of action once adjudicated, collateral estoppel operates (in the second of two actions which do not involve identical causes of action) to obviate the need to relitigate issues already adjudicated in the first action. [Citation.]’ “ (Syufy Enterprises, L.P. v. City of Oakland (2002) 104 Cal.App.4th 869, 878.) In the present case, Cheek claims that the issue of whether he is “a continuing threat to society because of a mental disorder” was litigated in the MDSO proceeding and thereafter improperly relitigated in the SVPA proceedings. Therefore, only collateral estoppel, or issue preclusion, has potential application here.[8]

Cheek acknowledges that his collateral estoppel argument was rejected by our colleagues in the Third District in People v. Carmony (2002) 99 Cal.App.4th 317 (Carmony). The court in Carmony ruled that “a prior finding that defendant was not an MDSO is relevant, but not conclusive, on the question whether defendant suffers from a currently diagnosed mental disorder for purposes of the SVPA.” (Carmony, supra, 99 Cal.App.4th at p. 326.) However, Cheek insists that Carmony was wrongly decided and invites us to disagree. We decline to do so.

In Carmony, the defendant appealed from an order committing him as a sexually violent predator on the ground that a 1982 finding that he was not an MDSO barred relitigation of the issue of his mental health in SVPA proceedings. (Carmony, supra, 99 Cal.App.4th at p. 320.) The Carmony court determined that “[a]lthough there are similarities in the findings made under the [MDSO Act] and the SVPA . . . the different statutory purposes and procedural settings create different circumstances that require litigation of defendant’s current mental condition in the SVPA proceedings.” (Id. at p. 323.) The purpose of the MDSO Act (former § 6300 et seq.)[9] was to protect the public by confining and treating a mentally disordered sex offender after conviction but prior to sentencing, while the purpose of the SVPA Act is to confine and treat sexually violent predators after they have served their prison term and prior to release on parole. (Id. at p. 324; see also People v. Green (2000) 79 Cal.App.4th 921, 925-927 [describing and comparing the MDSO and SVPA statutory schemes].)

Additionally, MDSO proceedings were triggered by the defendant’s “most recent criminal conduct.” In contrast, SVPA proceedings are triggered “by the Department of Corrections’ determination that the inmate is [a sexually violent predator], which necessarily includes his or her prior conviction of a sexually violent offense or offenses against two or more victims (§§ 6600, subd. (a)(1), 6601, subd. (a)(1).)” (Carmony, supra, 99 Cal.App.4th at p. 325.) These predicate offenses “need not include those for which the inmate is currently serving a prison sentence.” (Ibid.) Predicate offenses play “a limited role” in SVPA proceedings because jurors must be admonished that they may not find a person to be a sexually violent predator solely on the basis of prior offenses. (Ibid.) “Indeed, if the SVPA did not place pivotal emphasis on the person’s current mental condition and dangerousness, it would likely be found unconstitutional.” (Ibid.)

The court in Carmony further determined that “[i]n light of the changeable nature of a person’s mental health and dangerousness, and the SVPA’s emphasis on a person’s current mental condition and continuing threat to society, we believe it inconsistent with the legislative intent to give a 20-year-old MDSO finding conclusive effect in the current SVPA proceeding.” (Carmony, supra, 99 Cal.App.4th at pp. 325-326.) Thus, the court concluded, “[t]he prior [MDSO] finding does not bar determination of defendant’s present mental condition in this case.” (Id. at p. 326.)

The same reasoning applies in the case before us. The 1981 finding that Cheek was not an MDSO does not have collateral estoppel effect barring subsequent SVPA proceedings because, while Cheek’s mental health was generally at issue in both proceedings, the specific mental health issue in each proceeding was not identical. In the SVPA proceedings, the trier of fact decided whether Cheek currently suffers from a diagnosed mental disorder that makes him dangerous in that he is “ ‘likely to engage in sexually violent criminal behavior.’ [Citation.]” (People v. Roberge, supra, 29 Cal.4th at p. 984.) In contrast, “[a] person determined to be an MDSO, by definition, is one ‘who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.’ (Former § 6300 [fn. omitted].)” (Garcetti v. Superior Court (2000) 85 Cal.App.4th 1113, 1123-1124. “Thus, the class of persons subject to commitment under the MDSO Act was somewhat broader than those subject to the SVP Act, which is aimed at sexually violent predators. (Former § 6300; § 6600.)” (Ibid.)

Moreover, the passage of time prevents the 1981 MDSO ruling from having preclusive effect in the SVPA proceedings that were first instituted against Cheek 16 years later in 1997. As the court in Carmony noted, “[w]hen a fact, condition, status, right or title is not fixed and permanent in nature, then an adjudication is conclusive as to the issue at the time of its rendition, but is not conclusive as to that issue at some later time.” (People v. Carmony, supra, 99 Cal.App.4th at p. 322; Lunt v. Boris (1948) 87 Cal.App.2d 694, 695.) Mental health “diagnoses can change in light of treatment, severity of mental disorder, changed circumstances, and the passage of time.” (Albertson v. Superior Court (2001) 25 Cal.4th 796, 802.)

Thus, it has been held that a prior determination that a person is a sexually violent offender under the SVPA does not have preclusive effect in a subsequent recommitment proceeding, because “each recommitment requires [the People to] independently prove that the defendant has a currently diagnosed mental disorder making him or her a danger.” (People v. Munoz (2005) 129 Cal.App.4th 421, 430; italics added.) For the same reason, the finding that Cheek was not an MDSO in 1981 is not conclusive as to the SVPA issue of whether he has a currently diagnosed mental disorder making him a danger in that he is likely to commit sexually violent offenses.

Cheek relies on the decisions in People v. Parham (2003) 111 Cal.App.4th 1178 (Parham) and Turner v. Superior Court (2003) 105 Cal.App.4th 1046 (Turner), as support for his contention that “[i]t does not make sense that a defendant who was found not to be an MDSO could later be accused of being an SVP” because “[w]hile a person’s mental health may change, the experts are relying on the exact same qualifying offenses and historical information in both the MDSO and SVP contexts.” We do not believe that the decisions in Parham and Turner support Cheek’s position. Instead, we determine that these decisions are consistent with the reasoning of Carmony.

In Parham, the appellate court ruled that a prior finding that the defendant was not a mentally disordered offender (MDO) (Pen. Code, § 2962) barred, under res judicata principles, retrying the defendant as an MDO based on the same offense. (Parham, supra, 111 Cal.App.4th at p. 1180.) The basis for the Parham court’s ruling was its determination that the issue presented in an MDO proceeding--whether the defendant’s “severe mental disorder was one of the causes of or was an aggravating factor” in the qualifying offense--is “incapable of change.” (Id. at pp. 1181-1182.) The Parham court noted, however, that “the issue as to whether Parham has a severe mental disorder may change over time. Therefore res judicata and collateral estoppel do not apply to it. [Citation.]” (Id. at p. 1181.)

In Turner, the issue was whether a prior finding that the defendant was not a sexually violent predator precluded a subsequent SPVA proceeding where the defendant had been released and then returned to custody for a parole violation. (Turner, supra, 105 Cal.App.4th at p. 1055.) The appellate court observed that “courts generally hold that an adjudication of status or mental health issues is not conclusive as to the same status as a later date.” (Turner, supra, 105 Cal.App.4th at pp. 1058-1059.) Therefore, the court determined that the issue of the defendant’s current “mental health and his resulting danger to others” was not identical to the issue litigated in the prior SVPA proceeding. (Id. at p. 1058.) On that basis, the Turner court rejected the application of collateral estoppel, ruling that “under collateral estoppel principles, a prior jury finding that an individual was not an SVP does not absolutely bar a later petition seeking to show that the person is an SVP at a later time (after a new determinate prison sentence or parole revocation custody).” (Id. at p. 1059.)

Thus, the decisions in Parham and Turner are consistent with the reasoning in Carmony. Because a defendant’s mental health is subject to change over time, a prior finding that a defendant was not an MDSO is not conclusive on the issue of whether the defendant suffers from a currently diagnosed mental disorder for purposes of the SVPA. (Carmony, supra, 99 Cal.App.4th at p. 326.) These decisions also support our finding in the present case that the principle of collateral estoppel does not bar proceedings to commit Cheek under the SVPA more than 16 years after a court found that he was not an MDSO. Therefore, we conclude that the trial court properly denied Cheek’s motion to dismiss.

C. Consolidation of Three Petitions to Extend Commitment

Cheek’s final contention on appeal is that the trial court abused its discretion when on April 18, 2003, the court granted the People’s motion to consolidate for trial the three pending petitions to extend commitment, which were filed on May 27, 1999, March 20, 2001, and March 26, 2003, and therefore the recommitment order should be reversed.

As Cheek points out, this court addressed the issue of whether the trial court has the power to consolidate successive petitions to extend commitment in Litmon v. Superior Court, supra, 123 Cal.App.4th 1156 (Litmon). In Litmon, as in the case at bar, the trial court consolidated over defense objections successive petitions to extend commitment that had not been tried due to delays in the SVPA proceedings. We determined that “the courts’ ‘inherent power to create new procedures if necessary in pending cases’ encompasses the power to consolidate recommitment petitions under the SVPA in the proper case.” (Litmon, supra, 123 Cal.App.4th at p. 1175.)

However, “because the SVPA evidences a legislative intent to provide a trial on every filed recommitment petition as close in time to the expiration of the prior commitment as practicable,” we further determined that the power to consolidate is limited. “[A] motion to consolidate successive petitions should not be granted unless the SVP consents to consolidation or the consolidation will not delay the trial of the earlier petition.” (Litmon, supra, 123 Cal.App.4th at pp. 1176-1177.) We also held that consolidation is permissible only where “consolidation will not prejudice the SVP’s right to a fair trial . . . .” (Ibid.)

In the present case, the People argue that the consolidation order does not constitute reversible error because Cheek has failed to either establish prejudice or show that the consolidation order delayed his trial on the earlier petitions to extend commitment. The People further contend that the issue is moot in any event because the two-year-commitment periods on all of the three consolidated petitions have expired.

We agree that the issue of whether the trial court abused its discretion in ordering consolidation is moot because Cheek has already served the commitment periods on all three petitions to extend commitment, since the third recommitment period expired on June 14, 2005. (See People v. Cheek, supra, 25 Cal.4th at pp. 897-898; Litmon, supra, 123 Cal.App.4th at p. 1166.) However, even assuming the issue is not moot, we would find that Cheek’s claim of reversible error lacks merit.

As we have discussed, where, as here, there is a claim on appeal of procedural error in pretrial SVPA proceedings, the error is not reversible unless the defendant shows that the trial was unfair (In re Wright, supra, 128 Cal.App.43th at p. 673) or the defendant suffered prejudice because he or she “ ‘ “sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed.” ‘ “ (Paterno v. State of California, supra, 74 Cal.App.4th at p. 105; Code Civ. Proc., § 475.)

Thus, the appellant’s burden includes the “duty to tender a proper prejudice argument.” (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) A proper prejudice argument spells out “exactly how the error caused a miscarriage of justice.” (Ibid.) Thus, “[a]n appellate court is not required to examine undeveloped claims, nor to make arguments for the parties.” (Ibid.) Our task is to determine whether Cheek’s prejudice argument satisfies his burden on appeal.

First, Cheek argues that the trial court’s consolidation order constitutes reversible error because he was prejudiced by the six-year delay from the expiration of his original commitment in 1999 to the 2005 trial on the consolidated petitions. However, Cheek does not blame the People for the delay in his recommitment proceedings, or address the cause of the delay. This is understandable because, as summarized above, the record reflects that Cheek initiated three writ proceedings in this court during the course of his recommitment proceedings, which necessarily caused some of delay.

Second, Cheek asserts that he did not receive a fair trial because “the consolidat[ion] of [the] three petitions allowed the prosecution to present stale evaluations and pile up evidence regarding distant events that did not really relate to [his] current mental state and merely served to prejudice him.” However, Cheek does not identify the “stale evaluations“ or the “evidence regarding distant events” that he contends were improperly presented at trial due to consolidation, or describe how such evidence prejudiced him.

Thus, Cheek’s conclusory, undeveloped prejudice argument does not meet his burden on appeal to show exactly how the consolidation order caused a miscarriage of justice. We have reviewed the entire record on appeal for prejudice and we find that no prejudice resulted from consolidation. As we have discussed, Cheek’s own expert witnesses relied on Cheek’s past history, as set forth in his criminal, medical, correctional, and Atascadero State Hospital records (including previous SVPA evaluations), in forming their opinions as to Cheek’s currently diagnosed mental disorders and the probability that he would commit sexually violent offenses in the future.

For these reasons, we find no merit in Cheek’s claim that the consolidation order constitutes reversible error.

V. DISPOSITION

The order committing Michael Thomas Cheek to the Department of Mental Health as a sexually violent predator is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

duffy, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Cheek did not file a reply brief in this appeal.

[3] Our decisions concerning Cheek’s commitment under the SVPA also include People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, in which we generally determined that the defendant has a right to notice depositions in SVPA proceedings.

[4] The petition to extend Cheek’s commitment for a fifth two-year period, filed January 12, 2005, is not before us in this appeal.

[5] Section 6601, subdivision (d), provides, “Pursuant to subdivision (c), the person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director of Mental Health. If both evaluators concur that the person 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 Mental Health shall forward a request for a petition for commitment under Section 6602 to the county designated in subdivision (i). Copies of the evaluation reports and any other supporting documents shall be made available to the attorney designated by the county pursuant to subdivision (i) who may file a petition for commitment.”

[6] Section 6601, subdivision (e), provides, “If one of the professionals performing the evaluation pursuant to subdivision (d) does not concur that the person meets the criteria specified in subdivision (d), but the other professional concludes that the person meets those criteria, the Director of Mental Health shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g).”

[7] Section 6601, subdivision (g), provides, “Any independent professional who is designated by the Director of Corrections or the Director of Mental Health for purposes of this section shall not be a state government employee, shall have at least five years of experience in the diagnosis and treatment of mental disorders, and shall include psychiatrists and licensed psychologists who have a doctoral degree in psychology. The requirements set forth in this section also shall apply to any professionals appointed by the court to evaluate the person for purposes of any other proceedings under this article.”