P. v. Rotroff

Filed 3/9/06 P. v. Rotroff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Denis Keith Rotroff appeals from an order of involuntary commitment as a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6000 et seq.).[1] One of the two predicate prior convictions supporting his commitment as an SVP was a 1980 conviction based upon a plea of no contest. (See § 6600.) His principal argument is that former subdivision (3) of Penal Code section 1016, which specified the legal effect of a no contest or nolo contendere plea, precluded the use of his 1980 conviction for purposes of committing him as an SVP. He further contends that Penal Code section 1016, subdivision (3), cannot be applied retroactively in the absence of express legislative authorization and any retroactive application would violate the due process clause of the United States Constitution. Lastly, he asserts that language in Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762 created a future expectation, protected by due process, that a no contest plea would have no adverse consequences beyond the criminal case.

We affirm based upon the Supreme Court's recent decision in People v. Yartz (2005) 37 Cal.4th 529.

A Procedural Background

On October 20, 2004, the Santa Clara District Attorney filed a petition to commit defendant as an SVP. (§ 6601.) The petition was supported by a declaration stating that appellant had a 1978 conviction for a violation of Penal Code section 288 (lewd or lascivious act upon child under 14) for which he was committed as a mentally disordered sex offender and a 1980 conviction for violation of former Penal Code section 261.3 (forcible rape) for which he received a determinate five-year term.

Evidence of those two predicate prior convictions was admitted at the probable cause hearing when it began on November 5, 2004. On November 9, 2004, defendant filed a demurrer to the SVP petition, arguing that the 1980 conviction by plea of no contest could not be used for the purposes of committing him as an SVP under section 1016, former subdivision (3). The court overruled the demurrer on the ground that the issue should be dealt with in the course of the probable cause hearing.

On December 3, 2004, at the conclusion of the probable cause hearing, the court determined that an SVP proceeding is "a special proceeding, different than the typical civil action" and therefore the conviction based upon a no contest plea qualified as a predicate prior conviction. The court determined there was sufficient evidence to find probable cause (§ 6602) and ordered a trial to be conducted to determine whether defendant was an SVP (§§ 6603-6604). Defendant then submitted the matter for a court trial based upon the exhibits admitted in the probable cause hearing. The court found the allegations in the petition to be true and ordered defendant to be committed as an SVP for two years "starting today."[2]

B. Penal Code section 1016, Former Subdivision (3)

Before its amendment in 1982, Penal Code section 1016, former subdivision (3), provided that a defendant's nolo contendere plea "and any admissions required by the court during any inquiry it makes as to the voluntariness of and factual basis for the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based." (Stats. 1976, ch. 1088, § 1, p. 4931, italics added.) Since its amendment in 1982, subdivision (3) of Penal Code section 1016 has provided in pertinent part that "[t]he legal effect of [a plea of nolo contendere], to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes." (Stats. 1982, ch. 390, § 3 p. 1725.)

The California Supreme Court has now determined that "an SVPA civil commitment proceeding is a special proceeding of a civil nature, and not a 'civil suit' under Penal Code section 1016, former subdivision (3)." (People v. Yartz, supra, 37 Cal.4th at p. 605.) It has concluded that "the SVPA provides sufficient safeguards to ensure that a defendant's conviction from a nolo contendere plea is reliable as evidence of the defendant's current mental disorder and future violent sexual behavior. [Citation.]" (Id. at p. 612.)

The Supreme Court thoroughly considered Cartwright v. Board of Chiropractic Examiners, supra, 16 Cal.3d 762 in Yartz. The court stated in Yartz: "Contrary to defendant's and the dissent's suggestion, Cartwright is not dispositive of the issue here. It did not rest its holding on Penal Code section 1016, former subdivision (3), much less critically examine its statutory language. Although the Cartwright majority may have implicitly rejected the argument that an administrative proceeding is not a 'civil suit' under former subdivision (3) (see Cartwright, supra, 16 Cal.3d at pp. 779-780 . . . (dis. opn. of Richardson, J.)), it did not therefore give 'civil suit' an expansive meaning to include a special proceeding of a civil nature. (See City of Oakland v. Public Employees' Retirement System (2002) 95 Cal.App.4th 29, 48, . . . [administrative proceeding is neither a 'civil action' nor 'special proceeding of a civil nature' for statute of limitations purposes].)" (Id. at p. 611.) The Supreme Court explained: "Moreover, Cartwright does not reasonably stand for the broad proposition that a conviction based on a nolo contendere plea cannot be used in any subsequent proceedings. (See Cartwright, supra, 16 Cal.3d at pp. 770-771 . . . , discussing Kirby, supra, 3 Cal.App.3d 209 . . . .) Kirby, on which the Cartwright majority extensively relied, made clear that it was concerned with the effect of a nolo contendere plea in an administrative proceeding in particular. (Kirby, supra, 3 Cal.App.3d at p. 219 . . . ['The collateral effect of a nolo contendere plea in an administrative proceeding is a subject that produces little unanimity of opinion in legal circles'].) Significantly, neither Cartwright nor the cases it relied on involved a sexual psychopathy-type proceeding, which we had already concluded was a special proceeding of a civil nature. (Gross, supra, 42 Cal.2d at p. 820 . . . .) A fair reading of Cartwright makes clear that the decision at most extended the reach of the bar against using the nolo contendere plea and conviction (see Pen. Code, § 1016, former subd. (3)) to administrative proceedings. Indeed, because our earlier holding in Gross strongly suggested that the limitations of Penal Code section 1016, former subdivision (3), would not apply in sexual psychopathy proceedings, Cartwright's main concern that defendants 'were entitled to rely upon the limitations announced by California decisions on subsequent uses of their pleas and the ensuing convictions' (Cartwright, supra, 16 Cal.3d at p. 773 . . . ), is not an issue in the SVPA context." (Ibid.)

Given the Supreme Court's analysis in Yartz, we conclude that Cartwright did not create a justifiable future expectation, protected by due process, that a no contest plea would not be used in a civil sexual psychopathy proceeding such as an SVP proceeding. In light of Yartz, defendant's claims are unavailing.

The December 3, 2004 order of commitment is affirmed.

______________________________

ELIA, J.

WE CONCUR:

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PREMO, Acting P. J.

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BAMATTRE-MANOUKIAN, J.

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

[2] We take judicial notice that the court subsequently amended the December 3, 2004 order of commitment to change the commencement date of the two-year term. (Evid. Code, § 452, subd. (d).) Defendant challenges that change in a separate appeal (H028582).