P. v. Redding

Filed 5/1/06 P. v. Redding CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Billy Redding waived his right to a jury trial on a petition alleging that he qualified as a sexually violent predator (SVP) and submitted his case on the basis of psychological reports prepared by the state's mental health examiners. (Welf. & Inst. Code, § 6600 et seq.) He contends the order committing him to Atascadero State Hospital for two years must be reversed because: (1) he was not fully advised of the consequences of submitting his case to the court; (2) judicial estoppel precluded the state from filing an SVP petition when it did not provide him with mental health treatment in prison; and (3) the SVP Act violates the ex post facto and equal protection clauses of the state and federal constitutions. We affirm.

BACKGROUND

Appellant was convicted of forcible rape in 1974 and of forcible rape and rape in concert in 1980. He had no prior relationship with the victim of either crime and he served prison sentences for both offenses. In 1992, appellant was sentenced to prison for 26 years after he was convicted of two counts of assault with intent to rape, again against a stranger. Before his parole date in 2004, the Ventura County District Attorney filed a petition to commit him for involuntary treatment as an SVP.

Psychologists Jeremy Coles, Ph.D. and Mark Miculian, Ph.D. evaluated appellant on behalf of the state. Both doctors concluded that appellant suffered from paraphilia and met the SVP criteria in that he had been convicted of a qualifying sexually violent offense against two or more victims and presented a danger to others because he had a diagnosed mental disorder that made it likely he would engage in sexually violent predatory behavior if released. (Welf & Inst. Code, § 6600, subd. (a)(1).)

Appellant waived his right to a probable cause hearing and a jury trial and agreed that the case would be submitted to the court based on the written reports of Drs. Coles and Miculian.^[1] The district attorney presented the psychologists' reports and appellant made a statement in which he argued that it was unfair of the state to have kept him in prison without treatment and to have filed the SVP petition so shortly before his parole date. The court ruled that appellant qualified as an SVP and ordered him committed for two years.

DISCUSSION

Advisement on Consequence of Slow Plea

Appellant equates the submission of the case on the basis of the psychologists' reports to a "slow plea" in a criminal case. He argues that the submission was tantamount to a guilty plea and required a knowing and voluntary waiver of various constitutional rights, as well as an advisement that the petition would probably be found true if the procedure was followed. Appellant contends the true finding on the petition must be reversed because the court failed to comply with this latter requirement. We disagree.

The slow plea procedure of submitting a criminal case on the basis of the preliminary hearing transcript requires the advisement of various constitutional rights when it is tantamount to a guilty plea. In Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, the Supreme Court held, "[I]n all cases in which the defendant seeks to submit his case for decision on the transcript or to plead guilty, the record shall reflect that he has been advised of his right to a jury trial, to confront and cross-examine witnesses, and against self-incrimination." If the defendant does not reserve the right to present evidence and does not contest his guilt in an argument to the court, he must also "be advised of the probability that the submission will result in a conviction of the offense or offenses charged." (Ibid.)

Bunnell involved a plea to criminal charges rather than a civil commitment under the SVP law. It also involved a case in which the defendant did not contest his guilt in an argument before the court. (Bunnell v. Superior Court, supra, 13 Cal.3d 592.) But even if we assume that the rules applying to slow pleas ought to adhere in an SVP proceeding, and that the hearing in this case was the equivalent of a slow plea, reversal is not required. Appellant was fully advised of his constitutional rights and waived them before the hearing commenced. The court's omission, if any, was in failing to specifically advise appellant that if he submitted the case on the reports, he would probably be committed as an SVP. The lack of an advisement on this point requires reversal only where the defendant is prejudiced by the omission. (People v. Smith (1977) 70 Cal.App.3d 306, 314.)

Appellant was represented by experienced counsel, who understood that in light of the psychologists' opinions, the court was likely to find the statutory criteria of an SVP were met. Counsel's strategy was to argue on appeal that the SVP statutes were unconstitutional and that the law should not be applied to a defendant who was not offered treatment in prison. Appellant made this latter argument in his statement to the court. While he might have harbored some hope that the court would not commit him, there is nothing in the record to suggest that a specific advisement by the court on the likelihood of commitment would have changed the defense strategy or caused appellant to forego the abbreviated hearing on the petition. It is not reasonably probable that an advisement would have changed the result of the SVP proceeding. (People v. Rowell (2005) 133 Cal.App.4th 447, 454.)

Judicial Estoppel

Appellant argues that his SVP commitment is precluded by the doctrine of judicial estoppel, which may prevent a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.) He observes that the Department of Corrections was statutorily obligated to screen him while he was incarcerated to determine whether he needed mental health care (Pen. Code, §§ 2684, 2962; Cal. Code Regs., tit. 15, § 3360), but it never made a determination that he was in need of treatment under these provisions. Appellant reasons that it is inconsistent for the state to assert that he suffers from a mental disorder that would qualify him for a commitment under the SVP statute when it did not give him treatment in prison. We reject the claim.

The purpose of judicial estoppel is to prevent a party from gaining an advantage through the use of incompatible positions and to thus maintain the integrity of the judicial system. (Aguilar v. Lerner, supra, 32 Cal.4th at p. 986.) It applies when: "'(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.'" (Id. at pp. 986-987.)

The record on appeal contains no information about appellant's mental health treatment, or lack thereof, while in state prison. He asks us to assume that he received no treatment and to conclude from this that the state necessarily prevailed in a quasi-judicial proceeding in which it asserted he did not need treatment. This stretches too far the inferences that may reasonably be drawn from the record. Assuming the Department of Corrections and the district attorney that filed the SVP petition are the same party for purposes of judicial estoppel, the record does not support appellant's claim that his lack of treatment in prison was the result of any formal proceeding as opposed to a failure to identify appellant as a person who would benefit from such treatment. A position taken as a result of ignorance does not warrant judicial estoppel. (Aguilar v. Lerner, supra, 32 Cal.4th at pp. 986-987.)

Constitutionality of SVP Act

Appellant argues that the SVP Act is a punitive statute that operates unconstitutionally as an ex post facto law. This argument was rejected by our Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-1179, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellant also contends the SVP Act violates equal protection principles because its standard for commitment is less stringent than those under the mentally disordered offenders law and because no treatment is required prior to an SVP commitment. The first part of the argument was rejected in Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1168-1170, by which we are bound. We reject the second part of the argument for the reasons stated in People v. Hubbart (2001) 88 Cal.App.4th 1202, 1217-1219.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Herbert Curtis III, Judge

Superior Court County of Ventura

______________________________

Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Appellant signed and initialed the individual paragraphs of a written form containing the following language: "I, Billy Redding, understand that the Office of the District Attorney, County of Ventura has filed a Petition to Commit me to Atascadero State Hospital for [a] two (2) year period pursuant to Welfare and Institutions Code, section 6600. [¶] I understand I have a right to a Probable Cause Hearing And a Jury Trial to determine whether . . . I meet the criteria set forth in Welfare and Institutions Code 6600. [¶] I understand that the Probable Cause Hearing and Jury Trial would be without cost to me, and that I would have the following rights: [¶] . . . 1. To be represented by an attorney, and that if I am unable to afford an attorney, that one would be provided for me by the Court; [¶] 2. To be confronted by evidence and witnesses against me in open Court; [¶] 3. To cross-examine any witness who testifies against me; [¶] 4. To present any defense I may have; [¶] 5. To call any witness I may desire to assist in my defense or to overcome the evidence presented by the prosecutor; [¶] 6. To have the aid of the Court in compelling the attendance of my witnesses without cost to me; [¶] 7. To testify on my own behalf."