Opinion
D071035
02-01-2017
In re JOSE LUIS ZAVALA on Habeas Corpus.
Randy Mize, Public Defender, Troy A. Britt, Deputy Public Defender, for Petitioner. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr., Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego County Super. Ct. No. SCD134883) ORIGINAL PROCEEDING in habeas corpus. Petition denied. Randy Mize, Public Defender, Troy A. Britt, Deputy Public Defender, for Petitioner. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr., Deputy Attorney General, for Respondent.
Petitioner Jose Luis Zavala pleaded guilty to felony grand theft person in 1998. After he served his three-year prison term, he was civilly committed to a state hospital as a mentally disordered offender (MDO), a designation that required an underlying conviction on a qualifying felony offense. Zavala's offense qualified and he has been committed ever since.
In 2014, the electorate enacted Proposition 47, which reclassified certain nonserious, nonviolent, and drug-related offenses from felonies to misdemeanors and allowed qualifying felony offenders to seek redesignation of their offenses to misdemeanors on a retroactive basis. (Pen. Code., § 1170.18, subd. (a); see Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1216 (Alejandro).) Zavala successfully petitioned the superior court to have his underlying felony theft conviction redesignated as a misdemeanor. He then filed a petition for writ of habeas corpus in the superior court on the ground that because his underlying felony conviction had been redesignated as a misdemeanor, he no longer qualified for an MDO commitment. The superior court denied his petition.
Undesignated statutory references are to the Penal Code. All citations to section 1170.18 are to the version that was in effect until December 31, 2016.
Zavala then filed a petition for writ of habeas corpus in this court renewing his argument that the redesignation of his original offense as a misdemeanor means he no longer meets the criteria for an initial commitment as an MDO, and, consequently, he also no longer meets the criteria for recommitment as an MDO. We issued an order to show cause and the parties fully briefed the matter. In the meantime, our court issued a published decision in People v. Goodrich (Jan. 17, 2017, D069515) ___ Cal.App.5th ___ (Goodrich), which addressed and rejected the same argument Zavala advances here. We will follow Goodrich and deny Zavala's petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, Zavala was charged with one count of robbery by force or fear (§ 211), a felony. He ultimately pleaded guilty to the lesser included offense of grand theft from the person of another (§ 487, subd. (c)), also a felony. Zavala was granted probation, but it was revoked in May 1999 and he was sentenced to three years in state prison. After Zavala completed his prison term in 2002, he was committed to a state hospital as an MDO. He has been recommitted annually as an MDO ever since.
In November 2014, Zavala filed a petition in the superior court under section 1170.18, subdivision (f), seeking to have his felony theft conviction redesignated as a misdemeanor. The court denied the application on the basis, among others, that Zavala's status as an MDO rendered him ineligible to seek redesignation of his offense under Proposition 47. Zavala appealed.
In a nonpublished opinion, we reversed. We concluded Zavala "is not excluded from the category of persons who may seek relief under Proposition 47, solely by reason of his status as an MDO who is subject to civil commitment and potential recommitment." (People v. Zavala (Feb. 25, 2016, D067558).) However, we noted the record was incomplete with respect to whether Zavala established he would otherwise have been entitled to redesignation of his underlying theft offense under Proposition 47; specifically, whether he had shown the value of the stolen property was under $950. (Zavala, supra.) We remanded with directions that Zavala be allowed to reapply for redesignation so that he could attempt to make this showing. (Zavala, supra.) We noted the limited scope of our ruling: "We do not have before us the question of whether an MDO recommitment may survive a Proposition 47 reclassification order that operates to remove its foundational element, a felony, since [Zavala] has not yet achieved reclassification and his recommitment order is not now on appeal." (Ibid.)
Following remand, Zavala filed an amended petition seeking to redesignate his felony conviction as a misdemeanor. He supported the petition with evidence establishing the value of the stolen property was less than $900. The People stipulated to the value of the stolen property. On that basis, the court redesignated Zavala's underlying theft conviction as a misdemeanor.
Zavala then filed a petition for writ of habeas corpus in the superior court asserting his commitment as an MDO is unlawful because the redesignation of his theft conviction as a misdemeanor invalidates his initial commitment and all subsequent recommitments. The superior court denied the petition.
Zavala then commenced this writ proceeding. We issued an order to show cause why we should not grant the requested relief. The People filed a return; Zavala filed a traverse.
DISCUSSION
I. Relevant Legal Principles
A. MDO Overview
" 'The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment . . . until their mental disorder can be kept in remission. (Pen. Code, § 2960 et seq.)' [Citation.] The MDO Act is not penal or punitive, but is instead designed to 'protect the public' from offenders with severe mental illness and 'provide mental health treatment until the severe mental disorder which was one of the causes of or was an aggravating factor in the person's prior criminal behavior is in remission and can be kept in remission.' (§ 2960.) The MDO Act has the dual purpose of protecting the public while treating severely mentally ill offenders." (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061 (Lopez), disapproved on other grounds in People v. Harrison (2013) 57 Cal.4th 1211, 1230, fn. 2 (Harrison).)
"Commitment as an MDO is not indefinite; instead, '[a]n MDO is committed for . . . one-year period[s] and thereafter has the right to be released unless the People prove beyond a reasonable doubt that he or she should be recommitted for another year.' " (Lopez, supra, 50 Cal.4th at p. 1063.)
Six criteria must be satisfied to establish the initial MDO commitment: "[(1)] that the prisoner has a severe mental disorder, [(2)] that the disorder is not in remission or cannot be kept in remission without treatment, [(3)] that the disorder was a cause of or an aggravating factor in an enumerated crime [(4)] for which the prisoner was sentenced to prison, [(5)] that the prisoner has been in treatment for the disorder for 90 days or more in the year preceding release on parole, and [(6)] that the prisoner represents a substantial danger of physical harm to others because of the disorder." (Harrison, supra, 57 Cal.4th at p. 1218, citing § 2962, subd. (d)(1).)
"Three of the six criteria to establish MDO status—that an offender suffers from a severe mental disorder, that the illness is not or cannot be kept in remission, and that the offender poses a risk of danger to others—are dynamic, in the sense of being 'capable of change over time, and must be established at each annual review of the commitment.' " (People v. J.S. (2014) 229 Cal.App.4th 163, 169-170; see Lopez, supra, 50 Cal.4th at p. 1062; People v. Cobb (2010) 48 Cal.4th 243, 252, citing § 2972, subd. (c).) "The other three—that the offender's severe mental disorder was a cause or aggravating factor in the commission of the underlying crime, that the offender was treated for at least 90 days preceding his or her release, and that the underlying crime was a violent crime as enumerated in section 2962, subdivision (e)—'are considered "static" or "foundational" factors in that they "concern past events that once established, are incapable of change." ' " (People v. J.S., at p. 170; see Lopez, at p. 1062.) "The practical effect of this distinction is that the three criteria concerning past events need only be proven once, while the [Board of Parole Hearings (Board)] must find that the parolee meets the other three criteria at the time of the annual hearing in order to continue treatment for an additional year." (People v. Merfield (2007) 147 Cal.App.4th 1071, 1075-1076 (Merfield); § 5075, subd. (a) [all statutory references to the Board of Prison Terms now refer to the Board of Parole Hearings].)
B. Proposition 47 Overview
In November 2014, the electorate enacted Proposition 47, the Safe Neighborhoods and Schools Act, which had the effect of reducing certain drug- and theft-related felony offenses to misdemeanors. (Alejandro, supra, 238 Cal.App.4th at p. 1222.) "[T]he express intent of Proposition 47 is to 'reduce[ ] penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes.' " (People v. Acosta (2015) 242 Cal.App.4th 521, 526, italics omitted.) A related purpose was " 'to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs.' " (People v. Scarbrough (2015) 240 Cal.App.4th 916, 928.)
"In addition to reclassifying certain felonies as misdemeanors, Proposition 47 also added section 1170.18 to the Penal Code. Section 1170.18 provides an opportunity for qualifying offenders who incurred their felony convictions before the effective date of the Act to benefit from the Act's reclassification provisions." (Alejandro, supra, 238 Cal.App.4th at p. 1222.) "Subdivisions (a) and (b) of section 1170.18 provide that a 'person currently serving a sentence for a conviction' of a felony that would have been a misdemeanor under the Act can petition for resentencing based on the misdemeanor classification, and the court is required to resentence the petitioner unless he or she 'would pose an unreasonable risk of danger to public safety.' " (Id. at pp. 1222-1223.)
Subdivisions (a) and (b) of section 1170.18 state: "(a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act. [¶] (b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those sections have been amended or added by this act, unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety. . . ."
"As to a person 'who has completed his or her sentence for a conviction' of a felony, subdivisions (f), (g), and (h) of section 1170.18 provide that the person may petition the court to have the felony conviction designated as a misdemeanor." (Alejandro, supra, 238 Cal.App.4th at p. 1223, quoting § 1170.18, subd. (f).)
Section 1170.18, subdivisions (f) and (g) state: "(f) A person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors. [¶] (g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
Subdivision (k) of section 1170.18 provides that "[a]ny felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6." (Italics added.)
Section 1170.18 does not apply to persons with any prior conviction for "super strike" offenses or an offense requiring sex offender registration pursuant to section 290, subdivision (c). (§ 1170.18, subd. (i).)
II. Analysis
Zavala contends "[t]he MDO statute no longer applies to [him]" because an initial MDO commitment requires an underlying felony conviction, and the superior court redesignated his underlying theft offense as a misdemeanor "for all purposes" under Proposition 47. We disagree.
Our court recently rejected the same argument in Goodrich, supra, 2017 Cal.App. LEXIS 27. There we explained that the classification of the underlying MDO offense—one of the so-called "static" factors—has no bearing on the recommitment stage of an MDO proceeding. (Goodrich, supra, 2017 Cal.App. LEXIS 27, at p. *13.) That is, although classification of the offense is one of the six factors that must be established for an initial MDO commitment (Harrison, supra, 57 Cal.4th at p. 1218; § 2962, subd. (d)(1)), it is not one of the three "dynamic" factors that must be established for an MDO recommitment (Merfield, supra, 147 Cal.App.4th at pp. 1075-1076; see Lopez, supra, 50 Cal.4th at p. 1062; § 2972, subd. (c)). We find this reasoning persuasive and adopt it.
Zavala does not dispute that at the time of his initial MDO commitment, all six factors—which include the classification of his theft offense—were satisfied. Nor does he dispute that at the time of his most recent MDO recommitment, the three dynamic factors—which do not include the classification of his underlying theft offense—were satisfied. Thus, because Zavala's initial commitment and subsequent recommitments were proper, his challenge fails under Goodrich.
We are not persuaded by Zavala's argument that this court's decision in Alejandro, supra, 238 Cal.App.4th 1209 compels a different outcome. There, we held a juvenile offender was entitled to have his DNA profile expunged from a data bank because the statute authorizing collection of DNA samples required commission of a felony, and his underlying felony offense had since been redesignated as a misdemeanor under Proposition 47. (Alejandro, at pp. 1226-1229.) However, the DNA expungement statute at issue in Alejandro (section 299) expressly made the status of the offender's underlying conviction a relevant factor in the expungement analysis. Indeed, as our court noted in Alejandro, "Section 299 provides for DNA expungement when a person 'has no past or present offense or pending charge which qualifies that person for inclusion within' the DNA data bank . . . ." (Alejandro, at p. 1228.) By contrast, the statute that governs MDO recommitments is unconcerned with the classification or status of the underlying offense. (§ 2972, subd. (c).) That factor is relevant only at the initial commitment stage (§ 2962), which occurred for Zavala in 2002.
Section 299 provides in part: "(a) A person whose DNA profile has been included in the databank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the databank program pursuant to the procedures set forth in subdivision (b) if the person has no past or present offense or pending charge which qualifies that person for inclusion within the state's DNA and Forensic Identification Database and Databank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile. [¶] (b) Pursuant to subdivision (a), a person who has no past or present qualifying offense, and for whom there otherwise is no legal basis for retaining the specimen or sample or searchable profile, may make a written request to have his or her specimen and sample destroyed and searchable database profile expunged from the databank program if any of the following apply: [¶] (1) Following arrest, no accusatory pleading has been filed within the applicable period allowed by law, charging the person with a qualifying offense as set forth in subdivision (a) of Section 296 or if the charges which served as the basis for including the DNA profile in the state's DNA and Forensic Identification Database and Databank Program have been dismissed prior to adjudication by a trier of fact; [¶] (2) The underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed; [¶] (3) The person has been found factually innocent of the underlying offense pursuant to Section 851.8, or Section 781.5 of the Welfare and Institutions Code; or [¶] (4) The defendant has been found not guilty or the defendant has been acquitted of the underlying offense."
To attack his recommitment, Zavala implicitly attacks his initial commitment by citing People v. Crivello (2011) 200 Cal.App.4th 612 to support the proposition that " 'if a defendant cannot be committed under section 2962, based on a failure of proof of the static criteria, he cannot later be recommitted under section 2970." (Id. at p. 617, italics added.) Crivello is inapposite. The MDO recommitment in Crivello failed because the offender had never been initially committed as an MDO at all. (Id. at p. 614.) Zavala does not contend that is the case here. Moreover, as relevant to the issue before us, the Crivello court observed that "[i]f the People's burden is met as to all six criteria at the initial proceedings, and extensions of the commitment are later sought, the static criteria"—which include the classification of the underlying offense—"do not have to be reestablished." (Id. at p. 617.) There is no question here that the People met their burden on all six factors at the initial MDO commitment proceeding. Thus, Crivello is unhelpful to Zavala.
Zavala also cites People v. Hayes (2003) 105 Cal.App.4th 1287 (Hayes), in which the appellate court reversed the trial court's MDO recommitment on the basis that the initial commitment was not supported at the outset by a qualifying offense under the MDO Act. (Hayes, at pp. 1289, 1291-1292.) Because the initial commitment was improper, the court reasoned the subsequent recommitment was also improper. (Ibid.)
The principle common to Crivello and Hayes is that a person committed as an MDO can attack the validity of an initial commitment at the recommitment stage only when the initial commitment was legally improper at the time it was made. The interplay between the MDO Act and Proposition 47 does not fit within this framework because an initial MDO commitment premised on a then-qualifying felony that was subsequently redesignated a misdemeanor was not legally improper at the time it was made. Rather, the nature of the qualifying offense was merely later reclassified. Cases allowing challenges to MDO recommitments based on improprieties in the initial commitment proceedings do not justify allowing challenges when—as is the case with the interplay between the MDO Act and Proposition 47—no such improprieties exist.
Our conclusion is consistent with the public policy underlying Proposition 47. "One aspect of the express intent of Proposition 47 is to 'reduce[] penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes.' " (People v. Acosta, supra, 242 Cal.App.4th at p. 526, italics added, original italics omitted.) "Voters were assured [Proposition 47] would keep dangerous criminals locked up . . . ." (People v. Ruff (2016) 244 Cal.App.4th 935, 945, review granted May 11, 2016, S233201.) But an MDO "is, by definition, a person who not only has a 'severe mental disorder,' but who has served a prison sentence as a result of committing a serious or violent offense punishable by prison (i.e., one of the statute's serious or violent enumerated offenses or any other felony offense that involved violence or serious threats), and who continues to represent a 'substantial danger of physical harm to others' because of the disorder. (§ 2962, subds. (d) & (e).)" (Goodrich, supra, 2017 Cal.App. LEXIS 27, at p. *15.) Indeed, Zavala submitted on the People's most recent petition for recommitment, thereby acknowledging he then still "represent[ed] a substantial danger of physical harm to others." (§ 2972, subd. (c).) Allowing the release of an admittedly dangerous MDO like Zavala would be at odds with the underlying policy of Proposition 47 and the assurance to voters that dangerous offenders would remained locked up after its enactment.
As a separate argument, Zavala contends that upholding his MDO recommitment despite redesignation of his underlying offense violates his right to equal protection because he "will continue to be involuntarily committed based on his misdemeanor conviction while an identical offender with the same offense will be free to walk the streets." We disagree. The California Supreme Court repeatedly has rejected claims that the equal protection clause is violated where classes of criminal defendants are treated differently based on the effective date of a statute lessening the punishment for a particular offense. (See, e.g., People v. Morales (2016) 63 Cal.4th 399, 408-409; People v. Floyd (2003) 31 Cal.4th 179, 188, 191.) Our court has applied this principle to reject equal protection challenges in the analogous context of prison-prior sentence enhancements imposed before enactment of Proposition 47 for offenses that would no longer constitute qualifying felonies after enactment of Proposition 47. (See People v. Valenzuela (2016) 244 Cal.App.4th 692, 711, review granted Mar. 30, 2016, S232900; People v. Carrea (2016) 244 Cal.App.4th 966, review granted Apr. 27, 2016, S233011.) Relying on these cases for their persuasive value only (see Cal. Rules of Court, rule 8.1115(e)(1)), we likewise conclude Zavala's equal protection rights have not been violated merely because a criminal defendant who committed the same theft offense after enactment of Proposition 47 that Zavala committed before its enactment would no longer be eligible for commitment as an MDO.
DISPOSITION
The petition for writ of habeas corpus is denied.
HALLER, J. I CONCUR: BENKE, Acting P. J. I CONCUR IN THE RESULT: HUFFMAN, J.