Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210963.
ELIA, J.
After a jury found that Robert Segura (Segura) is a sexually violent predator (SVP), the court committed him to the custody of the state Department of Mental Health (DMH) for two years.
At the time of Segura's commitment Welfare and Institutions Code section 6604 provided for a two-year commitment. (Welf. & Inst. Code, § 6604, added by Stats. 1995, ch. 763 (Assem. Bill 888), § 3. Amended by Stats. 2000, ch. 420 (Sen. Bill 2018), § 3, eff. Sept. 13, 2000.)
Segura appealed from his SVP commitment. On June 20, 2007, while the appeal was pending, the Santa Clara County District Attorney filed a motion to "Retroactively Apply an Indeterminate Term to [Segura]." The motion sought "judicial notice of automatic conversion to an indeterminate commitment."
The motion alleged that initially Segura had been committed as an SVP on June 21, 2006; and that due to changes in the law brought about by Senate Bill 1128 and Proposition 83, a retroactive indeterminate term was created. Segura filed a pleading in which he objected to the motion.
The People requested that this court take judicial notice of a series of documents that included the text of Proposition 83 and arguments in favor and against Proposition 83. This court granted the People's request on February 22, 2008.
On July 26, 2007, the court issued an order entitled "Order re: Indeterminate Term." The court ordered that Segura's term of commitment is "indeterminate retroactive to his initial order of commitment dated June 21, 2006."
Segura filed a timely notice of appeal on July 31, 2007. On March 14, 2008, in an unpublished opinion, this court reversed Segura's SVP commitment and remanded the matter to the trial court for a new SVP trial. (People v. Segura [2008 Cal.App. Unpub. LEXIS 2184, March 14, 2008] (Segura I).)
On March 14, 2008, in an unpublished opinion, this court reversed Segura's SVP commitment and remanded the matter to the trial court for a new SVP trial.
On appeal, Segura raises 11 issues only the first of which this court needs to address. Specifically, Segura contends that the trial court lacked jurisdiction to declare his previously adjudicated commitment to be indeterminate. Essentially, the People contend that this appeal has been rendered moot because the initial commitment order has been reversed. Accordingly, "there is no basis for application of the retroactive indeterminate term." For reasons that follow we agree that the lower court's July 26, 2007 order must be reversed.
Segura's remaining contentions are as follows: The amendment of his prior commitment order violates the separation of powers doctrine; legislation singling out a class of people for retroactive application would constitute an impermissible bill of attainder; indeterminate SVP commitment violates equal protection; the trial court lacked jurisdiction to extend his commitment because the amendments to the SVP law do not provide for extended commitment procedures; the trial court erred in applying the revisions to the SVPA retroactively to his case; an indeterminate commitment under the revised statute violates the due process clause of the Fourteenth Amendment because the revised statute improperly places the burden of proof on him to prove he should be released; the indeterminate commitment under the revised act violates the due process clause of the Fourteenth Amendment because the revised statute fails to provide for mandatory periodic hearings on the issue of whether continued commitment is warranted; the indeterminate commitment to the custody of the Department of Mental Health renders the SVPA punitive in nature and violates the ex post facto clause; the indeterminate commitment violates the double jeopardy clause of the Fifth Amendment; and the limitations placed on his right to petition the court for release under the revised version of the SVPA violates his First Amendment right to petition the courts for redress of grievances. In this case, these contentions are not ripe for adjudication because we reversed Segura's initial SVP commitment. "[I]t is well settled that matters that are not ripe for adjudication should ordinarily be left to a future forum." (People v. Ybarra (1988) 206 Cal.App.3d 546, 550.)
Discussion
Generally, in a criminal case, "The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur." (People v. Perez (1979) 23 Cal.3d 545, 554.) Thus, the filing of a valid notice of appeal deprives the trial court of jurisdiction to make any order affecting the judgment. (In re Osslo (1958) 51 Cal.2d 371, 379-380.) " '[A]n appeal from an order in a criminal case removes the subject matter of that order from the jurisdiction of the trial court.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1044.)
Similarly, in a civil case, except for limited situations not relevant here, the filing of a valid notice of appeal automatically stays the proceedings. (Code Civ. Proc., § 916, subd. (a).) Under Code of Civil Procedure section 916, " 'the trial court is divested of' subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal. [Citation.] 'The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court. . . .' [Citation.] Thus, 'that court is without power to proceed further as to any matter embraced therein until the appeal is determined.' [Citations.] And any 'proceedings taken after the notice of appeal was filed are a nullity.' [Citations.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-197, fn. omitted.)
However, a civil commitment proceeding under the SVPA is a "special proceeding." (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988; Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1684-1685; People v. Calhoun (2004) 118 Cal.App.4th 519, 525.)
Long ago, the California Supreme Court held, "Part 2 of the Code of Civil Procedure extends generally only to civil 'actions,' and not to 'special proceedings.' Unless the statutes establishing a 'special proceeding' expressly incorporate the appellate-stay provisions of Part 2, they are inapplicable, and a final order in the 'special proceeding' is not automatically stayed pending appeal. [Citation.]" (Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 707.) "The SVPA does not expressly incorporate Part 2 of the Code of Civil Procedure." (Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1173.)
"The terms 'action' and 'special proceeding' have been distinguished loosely in a number of contexts. However, for purposes of applicability of Part 2 of the Code of Civil Procedure, the definitions are those set forth in Code of Civil Procedure sections 22 and 23. [Citation.] There an 'action' is defined as 'an ordinary [judicial] proceeding . . . by which one party prosecutes another for the declaration, enforcement, or protection of a right or prevention of a wrong, or the punishment of a public offense.' [Citation.] '[S]pecial proceeding[s]' include '[e]very other remedy . . . .' [Citations.]" (Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc., supra, 43 Cal.3d at p. 707.)
In People v. Hedge (1999) 72 Cal.App.4th 1466 (Hedge), Division One of the Fourth District Court of Appeal rejected a claim by a person committed under the SVPA that the trial court had no jurisdiction to proceed on a second commitment petition while the appeal of the first commitment was still pending. In so doing, the court noted that the SVPA viewed as a whole " 'is . . . designed to ensure that the committed person does not "remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness." [Citation.] In general, each period of commitment is strictly limited and cannot be extended unless the state files a new petition and again proves, beyond a reasonable doubt that the person is dangerous and mentally impaired. [Citation.] Although committed for two years, the SVP is entitled each year to a new mental examination and to judicial review of the commitment to determine whether his condition has changed such that he no longer poses a danger to the health and safety of others. [Citation.] . . . The SVP is entitled to unconditional release and discharge if he prevails in this proceeding. [Citation.]' [Citation.]" (Id. at p. 1476.)
Accordingly, the Hedge court concluded, "The nature of the Act thus envisions a special civil commitment proceeding that is begun and then continues, changes or ends depending upon the current mental condition and dangerousness of the proposed or committed SVP at the time he or she is nearing release from the custody of the DOC. Although the same requirements or issues are involved in alleging any 'cause' filed via petition under the Act, the actual facts or circumstances comprising that 'cause' in a subsequent petition will necessarily be different due to the addition of new facts bearing on those issues based on the sheer passage of time which may support the release or commitment of the proposed SVP. Because of the short time periods involved for the commencement of proceedings and commitment durations and extensions under the Act, the Legislature certainly must have recognized that active civil appeals might often still be pending when a new petition or matter concerning the same alleged SVP comes before the trial court. We thus believe the Legislature intended the trial court to have continuing jurisdiction in such special civil proceedings, as in other civil commitment proceedings (see Conservatorship of James M. (1994) 30 Cal.App.4th 293, 297-299 . . .), to consider and review new matters involving the same person even when an earlier petition or matter is pending appeal." (Hedge, supra, 72 Cal.App.4th at pp. 1476-1477.)
Nevertheless, in this case we are not dealing with a subsequent petition to extend Segura's commitment. Rather, on motion of the People, the lower court converted Segura's initial two year commitment term to an indeterminate term based on the language of the newly enacted Welfare and Institutions Code sections 6604 and 6604.1, subdivision (a). We find two problems with this action by the lower court. First, as the People point out, this court reversed Segura's initial commitment. Therefore, there is no initial commitment order in this case. Second, recently this court held that amendments to the SVPA that provided for an indeterminate term of commitment, apply only prospectively, and not retroactively such that the People cannot file a motion to convert a defendant's initial two year commitment to an indeterminate term. (People v. Whaley (2008) 160 Cal.App.4th 779, 796-797; People v. Litmon (Apr. 23, 2008, H031348) ___Cal.App.4th ___.)
On September 20, 2006, the Governor signed into law the Sex Offender Punishment, Control and Containment Act of 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Stats. 2006, ch. 337, § ___, p. ____). At the November 7, 2006 General Election, the voters approved Proposition 83, an initiative measure. (See Deerings Ann. Welf. & Inst. Code (2007 supp) appen. foll. § 6604, p. 43.) The language of Welfare and Institutions Code section 6604 now reads as follows: "The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable. If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health. The facility shall be located on the grounds of an institution under the jurisdiction of the Department of Corrections." Welfare and Institutions Code section 6604.1, subdivision (a) states: "The indeterminate term of commitment provided for in Section 6604 shall commence on the date upon which the court issues the initial order of commitment pursuant to that section."
Accordingly, we are compelled to reverse the trial court's July 26, 2007 order.
Disposition
The lower court's July 26, 2007 order, imposing an indeterminate term of commitment as an SVP on Segura, is reversed.
WE CONCUR: RUSHING, P. J., PREMO, J.