Opinion
D050022
8-8-2008
THE PEOPLE, Plaintiff and Respondent, v. JACKIE ROBINSON, Defendant and Appellant. In re JACKIE ROBINSON on Habeas Corpus. D051941
Not to be Published
In this consolidated appeal and petition for writ of habeas corpus, Jackie Robinson challenges an order involuntarily committing him for an indeterminate term to the custody of the California Department of Mental Health (DMH) under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) (hereafter the SVPA or the Act) as amended in 2006. In April 2003 the District Attorney of San Diego County filed a petition under the SVPA (SVPA petition or petition) alleging Robinson was a sexually violent predator (SVP) based on (1) his January 24, 1992 conviction of four counts of committing lewd and lascivious acts upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) against four young boys, and (2) his January 24, 2001 conviction of failing to register as a sex offender (Pen. Code, § 290, subd. (g)(2)).
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
At a June 2003 probable cause hearing on the SVPA petition, Robinson stipulated he sustained the prior convictions alleged in the petition, and the court continued the trial on the petition and ordered Robinson released from the custody of the San Diego County Sheriff to the custody of the San Bernardino County Sheriff to face charges in San Bernardino that he had annoyed or molested a minor (Pen. Code, § 647.6, subd. (a)). Robinson waived time for trial on the SVPA petition and thereafter agreed to a long series of continuances of that trial to September 15, 2006. On that date, the court heard and denied Robinsons motion for an order dismissing the petition pursuant to an alleged plea agreement in which Robinson, who pleaded no contest in the San Bernardino case, claimed he had entered into a plea agreement at the probable cause hearing on the SVPA petition under which the petition would be dismissed if he were convicted and sentenced to prison in the San Bernardino case.
In late September 2006, following a jury trial on the SVPA petition, the court declared a mistrial after determining the jury was hopelessly deadlocked. The District Attorney of San Diego County thereafter filed an amended petition under the SVPA as amended in 2006 (amended SVPA petition or amended petition) seeking an indeterminate term of commitment to the custody of the DMH for appropriate treatment and confinement in a secure facility.
In December 2006, following a trial on the amended SVPA petition, a jury unanimously found Robinson was an SVP. The court thereafter ordered Robinson committed to the DMH for an indeterminate term.
In his appeal, Robinson contends (1) the court abused its discretion and violated his due process rights under the Fifth and Fourteenth Amendments to the federal Constitution by failing to specifically enforce his plea agreement; and (2) his indeterminate commitment to the custody of the DMH (a) violated his federal constitutional right to due process, (b) rendered the amended SVPA punitive in nature in violation of the ex post facto clause of the federal Constitution, (c) rendered the amended SVPA punitive in nature in violation of the prohibition against cruel and unusual punishment in the federal and state Constitutions, and (d) violated the equal protection clause of the Fourteenth Amendment to the federal Constitution by providing limited review of his indeterminate commitment to the custody of the DMH.
Robinson also contends on appeal that (3) the judgment must be reversed because Proposition 83, which amended the SVPA in 2006, violated the single subject rule applicable to California ballot initiatives; (4) by failing to grant a continuance or mistrial when his key witness, Marcus L., failed to testify, the court deprived him of his constitutional rights to due process, a fair trial, and the right to present a defense under the Fifth, Sixth and Fourteenth Amendments to the federal Constitution; (5) the court violated his constitutional rights by denying his motions in limine to exclude inflammatory evidence, including (a) over three years of sexual acts with Jason C. and Jimmy G., (b) expert testimony on the ultimate issue of the case, (c) the probation report in San Diego County Superior Court case No. 128888 that detailed the multiple counts charged against Robinson, (d) his prior burglaries, (e) his failure to register as a sex offender in July 2000, and (f) his parole violation; and (6) cumulative error requires reversal of the judgment.
In his habeas corpus petition, which he filed in propria persona, Robinson essentially repeats his contention on appeal that the court violated his due process rights under the Fourteenth Amendment to the federal Constitution by failing to specifically enforce a plea agreement the parties entered into at the June 2003 probable cause hearing on the SVPA petition under which the San Diego County District Attorney would dismiss the petition if Robinson were convicted in the San Bernardino case. Robinson also contends in his habeas corpus petition that litigation of the SVPA petition is barred by the doctrines of promissory estoppel and judicial estoppel because the People represented at the June 2003 probable cause hearing that they would dismiss the petition, and his defense counsel provided ineffective assistance by never raising before trial on the amended SVPA petition the issue that Robinson never had a "[f]ull" probable cause hearing on the petition.
For reasons we shall explain, we reject all of Robinsons contentions. Accordingly, we affirm the judgment and deny his writ of habeas corpus petition.
FACTUAL BACKGROUND
A. The Peoples Case
Drs. Clark Clipson and Harry Goldberg, licensed psychologists, evaluated Robinson. Clipson and Goldberg learned that in 1992, Robinson, who was then 18 years of age, pleaded guilty to four counts of committing lewd and lascivious acts (Pen. Code, § 288, subd. (a)) against four boys under the age of 14 years.
The first victim, Jason, a nine-year-old who lived next door to Robinson, visited Robinson to play Nintendo games, but Robinsons mother eventually told Jason he was too young to "hang around" there with Robinson. Jason then started coming over there when Robinsons mother was not at home. On about 20 occasions Robinson had Jason lie on his stomach, pulled down Jasons pants, and sodomized him. On three other occasions Robinson digitally penetrated Jasons anus.
The second victim, Jimmy G., was an 11-year-old who played video games at Robinsons home. Jimmy belonged to Robinsons bike club called "Expeditioners" in which young boys, most under the age of 14 years, could earn points by allowing Robinson to commit sexual acts with them. Increased sexual activity was rewarded with higher points, which the boys could exchange for video games and other items. Robinson started by grinding his hips against Jimmy in a circular motion. Jimmy would earn 10 points by allowing Robinson to grind on him, 50 points by allowing Robinson to digitally penetrate his anus, 100 points by allowing Robinson to take off his pants, and 1,000 points by allowing Robinson to do anything he wanted to Jimmy. Robinson also created a manual titled "The Book of Jackie," which explained the rules of the club and code words the boys could use so that no one else could understand their communications. Robinson and Jimmy became close friends over the course of three years. Robinson taught Jimmy how to steal, burglarize homes, use a computer, change his grades at school, lie to his parents, and write in secret code on the ground. Jimmy ended the relationship in May 1991 when he began having nightmares.
The third victim, Thomas S., was a 10-year-old. Thomas reported that as he was sleeping in a separate bed in Robinsons bedroom, Robinson woke him up by coming over to his bed in the middle of the night, putting him in a headlock, turning him on his stomach, putting his hand over Thomass mouth, pulling down his underwear and sodomizing him. During a Childrens Hospital interview, Thomas said this had happened before and whenever he wanted Robinson to give him some money, Robinson would tell him he would have to get "humped" first. Each time Robinson sodomized Thomas, he would give Thomas money, food or treats.
The fourth victim, nine-year-old Mark H., met Robinson through other club members. During his evaluation at Childrens Hospital, Mark reported that Robinson had fondled him by putting his finger on Marks buttocks, had once pulled off Marks pants and pinned him up against the bed, and had pulled his underpants down and smelled and touched his buttocks.
After he was released from prison on parole in August 1993, Robinson remained out of custody for two years until 1995 when he committed a nonsexual offense, for which he was returned to custody until August 1999. Robinson failed to report to his parole officer upon his release in August 1999, failed to register as a sex offender when released from custody, absconded, and was apprehended in December 1999 for violating parole and failing to register. During the next four months Robinson lived in a homeless shelter under an alias and a false Social Security number, and then resisted arrest when officers eventually contacted him.
Robinson was again released from custody in June 2002, but in January 2003 he was returned to custody after he violated his parole by leaving San Diego County and going to San Bernardino without first obtaining the permission of his parole agent. In violation of his parole conditions, Robinson had been corresponding with Marcus, who was 16 years of age, in an online chat room for purposes of having sex. After Robinson and Marcus met at a liquor store in San Bernardino, Robinson bought Marcus a video game. They went to a secluded area where they began kissing and fondling one another. After driving to a more remote area, Robinsons car became stuck in the sand. When a deputy sheriff stopped to assist them, Robinson and Marcus lied about their relationship, telling the deputy they were cousins. Upon further investigation, the deputy determined that Robinson and Marcus were not related, and they had been kissing and touching each others genitals. The deputy testified that when he encountered Robinson and Marcus, Marcus looked young, between the ages of 14 and 16.
Robinsons contact with Marcus in San Bernardino involved several probation violations, including traveling more than 50 miles away without permission from the parole officer, using a computer, having access to video games, and having contact with a minor. Robinson pleaded guilty to the charge of annoying or molesting a minor with a prior sexual offense and was taken into custody in mid-January 2003.
Robinson told Clipson he thought Marcus was a 19-year-old adult when he and Marcus were communicating online. Clipson learned, however, that Marcus had told the police that he told Robinson he was 16 and sent Robinson a picture of himself. Clipson also learned that Robinson had lied to the deputy by telling him Marcus was his cousin. Robinson also lied to Clipson by telling him he had permission from his parole officer to go to San Bernardino.
In 2003, upon evaluating Robinson a second time, both Clipson and Goldsberg determined that Robinson met the SVP criteria. First, they both determined that the sexual offenses to which Robinson pleaded guilty in 1992 (discussed, ante) qualified as predicate priors for purposes of the SVPA. They both also concluded that Robinson suffered from the diagnosed mental disorders of pedophilia and antisocial personality disorder. With respect to the latter disorder, Robinson met several criteria including failure to conform to social norms, deceitfulness, reckless disregard for the safety of others, irresponsibility, failure to abide by the conditions of his parole, and lack of remorse. In addition, both Clipson and Goldsberg concluded that as a result of his diagnosed mental disorders, Robinson was likely to reoffend. The doctors noted that Robinson has difficulty controlling his sexual interests due to the fact that he started offending during adolescence, committed a new sexual offense while under community supervision, failed to undergo any meaningful sex offender treatment and had no relapse prevention strategy, lacked social contacts, lacked a support system, and lacked a plan to avoid the Internet and avoid meeting people online. Under the Static-99 actuarial risk assessment tool, Robinson scored a 6, indicating a high risk of reoffending. The Static-99 proved accurate in Robinsons case because he committed a sex offense, against Marcus, within five years of being released from prison.
Clipson and Goldsberg also concluded that Robinsons sexual offenses were predatory in nature because he established a relationship with the victim for the primary purpose of victimization. The doctors opined that Robinsons future offenses would likely be predatory in nature.
B. The Defense Case
Robinson called his own expert, Dr. Ted Donaldson, a psychologist, who interviewed Robinson and opined Robinson never had a sexual preference for children, he was not a pedophile and not an SVP, and who challenged the reliability of the Static-99 actuarial instrument. He concluded that Robinson did not meet the requirements for a diagnosable mental disorder, and thus the risk assessment was moot.
Robinson testified on his own behalf. He pleaded guilty in 1992 to accept responsibility and prevent the boys from having to sit through a trial. He stated he never committed sodomy, but did grind or hump one of the boys. The "Book of Jackie" was an autobiography for a high school project and had nothing to do with how to molest children. Upon his release into the community, he became a manager of a KFC restaurant and studied at home for a bachelors degree in business administration, which he received in 1998. When he lived in a homeless shelter, he believed he was not required to register as a sex offender because he did not have a residence, and he thought he was no longer on parole because he had served his prison term.
Robinson also testified he met Marcus on the Internet in a Gay 20s chat room. Robinson was looking to have sexual relations with an adult. Robinson, who was 29, told Marcus he was 26, and Marcus told Robinson he was 19. Robinson stated his parole officer gave him permission to go to San Bernardino to contest a traffic ticket that a friend got after borrowing Robinsons car. In San Bernardino, Robinson arranged to finally meet Marcus. He picked up Marcus, who had facial hair and appeared to be 19, at a liquor store. He bought a video game for Marcus, drove to a desolate area, and touched and fondled each other. Robinsons car got stuck and a deputy sheriff offered to assist him. Marcus told him he was only 16, and Robinson and Marcus told the officer they were cousins.
Robinson stated he initially refused to interview with Clipson because he was in prison for fraud and did not think that Clipson had the right person. Robinson had an interest in children in 1991, but he no longer thinks about them. He is bisexual, and at the time of trial had been open about his sexual orientation for about 10 years.
DISCUSSION
I. APPEAL
A. Plea Agreement Claim
Robinson asserts the court abused its discretion and violated his due process rights under the Fifth and Fourteenth Amendments to the federal Constitution by failing to specifically enforce the plea agreement he claims he and the People entered into at the June 4, 2003 SVPA probable cause hearing under which the petition would be dismissed if he were convicted and sentenced to prison in the San Bernardino case. We reject this contention.
1. Applicable legal principles
In People v. Shelton (2006) 37 Cal.4th 759, 767, the California Supreme Court explained that "[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] `The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.] On the other hand, "[i]f the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it." [Citations.] [Citation.] `The mutual intention to which the courts give effect is determined by objective manifestations of the parties intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties. [Citations.] [Citations.]"
2. Background
The factual and procedural background of this dispute is lengthy and convoluted.
a. Robinsons arrest in San Bernardino, and the San Diego SVPA petition
On January 9, 2003, Robinson was arrested in San Bernardino for annoying or molesting a minor under the age of 18 (Marcus) in violation of the terms of his parole. Because of the parole violation, Robinsons parole was revoked and he was sentenced to prison.
In early April 2003, the San Diego County District Attorney filed the SVPA petition, alleging Robinson was an SVP. That petition was based not on the San Bernardino charges, which would not be filed until late June of that year, but on Robinsons 1992 convictions on four counts of committing a lewd and lascivious act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and on his January 2001 conviction of failing to register as a sex offender.
b. June 2003 San Diego County SVPA probable cause hearing
On June 4, 2003, at the beginning of Robinsons SVPA petition probable cause hearing, defense counsel Victor Eriksen acknowledged the San Bernardino case did not "necessarily trump" Robinsons San Diego County SVPA proceedings. Eriksen also stated, "what we have agreed to do is submit this matter on the petition and the doctors reports while admitting identity as to the priors, and presumably there would be a holdover, if were calling it that, [SVP] cases today [sic]." (Italics added.) In another proceeding in September 2006 (discussed, post), Eriksen testified that when he stated "what we have agreed to do" (italics added) at the June 2003 probable cause hearing, he was referring to Robinson and himself.
At the SVPA probable cause hearing, Eriksen then asked the court to sign a transport order allowing Robinson to be transferred to San Bernardino County "so he can get going on that now." Eriksen also stated, "we would waive time in these two cases for trial," and suggested that the court set the SVPA petition case "for a status conference or further proceeding around December[ 2003]."
Almost immediately thereafter, Eriksen — not the prosecutor, Kathryn Gayle — commented as follows that the San Diego SVPA petition could become "moot": "[T]hat way[,] by December[,] well know hopefully what the progress is of the San Bernardino criminal prosecution, and at that time we can report to the court because obviously, if there is a conviction in that case I think this SVP conviction will be moot." (Italics added.)
We presume defense counsel misspoke and meant to say "I think this SVP petition will be moot." (Italics added.)
Following a break in the proceeding, the court expressed concern about the time waiver, and then addressed the possibility that a new SVPA petition might be filed against Robinson: "[I]f he had a new princip[al] commit that was verified and that would be off calendar because as soon as hes done his time on that new prison commit there would be a new—." (Italics added.) Before the court could finish that sentence, however, Gayle interrupted the court and interjected: "—I would dismiss this petition." Both Eriksen and Gayle later testified (in September 2006, discussed, post) to their belief that the court had intended to say "there would be a new petition." (Italics added.)
After the court read and considered the reports prepared by Drs. Goldberg and Clipson in support of the petition, the defense stipulated that Robinson had suffered the convictions alleged in the petition. The court sustained the petition and ordered the San Diego County Sheriff to release Robinson to the custody of the San Bernardino County Sheriff. Robinson waived time and the court set the trial date on the petition for December 2, 2003, "with the understanding that [Robinson is] not going to go to trial."
c. Continuance of the December 2003 SVPA trial and subsequent continuances
On December 2, 2003, the date set for the trial call on the SVPA petition, defense counsel Eriksen informed the court that Robinson was still in custody in the San Bernardino "third strike case," which was set for "pretrial" on December 12. The prosecutor, Phyllis Shess, noted that the prosecution and the defense had talked about continuing the SVPA trial until after the "Three Strikes matter" in San Bernardino was resolved, indicating such resolution "would probably resolve this one."
Expressing agreement, Eriksen stated, "This one will probably be moot unless [Robinson] beats that case" and suggested putting the SVPA petition trial call over to early March 2004 "to let that [San Bernardino] case clear." The court continued the SVPA petition trial to March 1, 2004. Robinson thereafter repeatedly waived time for trial on the petition and agreed to a series of continuances of that trial to March 25, 2005.
d. Robinsons August 2004 nolo contendere plea in the San Bernardino case
Meanwhile, in late July 2004, Robinson signed a change of plea form in the San Bernardino case, pleading nolo contendere to one count of annoying a minor under the age of 18 years (Pen. Code, § 647.6, subd. (a)(1)), and admitting a prior strike conviction allegation. Under the plea agreement, sentencing would be continued to a date after the November 2004 elections so that the sentencing would reflect the post-election law under a ballot measure, Proposition 66, that had the potential of affecting Robinsons sentence. Robinson would receive a two-year prison term without a strike enhancement if Proposition 66 passed, or a four-year term with a strike enhancement if Proposition 66 did not pass.
When the San Bernardino court took Robinsons plea on August 27, 2004, it went through the change of plea form with him. Robinson stated he understood each of his rights and had discussed them with his attorney, and no one had made any promises of a lesser sentence, probation, reward, immunity or anything else that caused him to change his plea. Robinsons counsel acknowledged going through the plea form with him, having adequate time to discuss all issues, and being satisfied Robinson understood his rights.
Proposition 66 did not pass. Robinsons sentencing was eventually set for March 4, 2005.
e. March 2005 sentencing in the San Bernardino case
On March 4, 2005, Robinson represented himself at the sentencing hearing in the San Bernardino case. Robinson moved to withdraw his plea based on claims of coercion and duress.
Following a pause in the proceedings, the court noted the prosecution had offered to modify the plea agreement from four years to the low term of 16 months, doubled to 32 months in state prison. During the ensuing discussion about whether he would accept the plea agreement as modified, Robinson brought up the SVPA matter pending in San Diego County. Specifically, Robinson attempted to tie the San Bernardino prosecutors modified plea offer to the instant San Diego SVPA case, stating, "[I]n addition, your Honor, I had another request that I was going to make in addition to the sentencing scheme." He acknowledged he was facing trial in "the SVP matter in San Diego," and requested that he be transferred to the custody of the San Diego County Sheriff to "face that case." Robinson told the court, "I am pretty sure whatever outcome of that would result in me going to the Department of Corrections to complete the sentence in any case." When the court indicated its understanding that the San Diego SVP case was dismissed, Robinson replied, "No, it was never dismissed. It was placed on hold, pending an outcome of this case. Its always been the same case, however, its just been trailing this case. And what they have been doing is just rescheduling the trial date."
The San Bernardino prosecutor, Victoria Cameron, informed the court she was standing in for the prosecutor who had negotiated the plea agreement in the San Bernardino case, and her reason for offering to modify that agreement and reduce Robinsons sentence was "to end [it] today" and avoid "com[ing] back and forth and back and forth and back and forth," which was taking resources of the court and the district attorneys office. Cameron also stated, "If its not going to end today, then there is no offer. My goal today is get him sentenced and sent to state prison."
After pausing the proceedings to afford Robinson the opportunity to further consider the offer to modify the plea agreement, the San Bernardino court informed him there were no conditions or strings to the offer and asked him whether he wanted to accept it. Robinson replied, "Yes. Yes." Robinson withdrew his motion to withdraw his plea, the court went through the terms of the modified plea agreement, and Robinson accepted it.
Robinson then waived all appeal rights and arraignment for the purpose of sentencing. The court then sentenced Robinson to the negotiated mitigated prison term of 32 months.
f. Continuance of the March 2005 SVP trial
Three weeks later, on March 25, 2005, the date set for the SVPA petition trial, the prosecutor, Phyllis Shess, informed the court that Robinson was in prison as a result of the sentencing in the San Bernardino County case. When the court suggested the San Bernardino case may have rendered the San Diego SVPA petition moot, the prosecutor disagreed and expressed her belief it was necessary to move forward on the petition. She informed the court she had taken steps to obtain expedited updates on the evaluations of Robinson that had been done in 2003 and asked the court to order the updated evaluations.
Robinsons counsel, Richard Gates, noted there had been no movement on the case for two years, he had not yet met with Robinson, he wanted new evaluators to conduct new evaluations of Robinson in San Bernardino County, and he wanted the court to dismiss the petition. Defense counsel also stated, "[T]he understanding that I have from reading the file is if he received a new state prison commitment, the petition was going to be dismissed."
When the court asked the prosecutor to explain why that was not happening, she replied, "the parties have all agreed to the continuance, and it was our thought that depending on the sentence [Robinson] received in San Bernardino, this petition might become moot and it might be appropriate for San Bernardino then to do whatever it deemed appropriate following a new [SVP] analysis." She explained that Robinson received a 32-month prison sentence, and he was "taken into the prison with[] 1,178 days custody. So the court can do the math. He, basically, is a turnaround." (Italics added.) She also stated, "So we now are in a position of needing to protect the community, as was our intention initially. [¶] Both of the parties were aware that this was going to trail behind San Bernardino. . . . [¶]. . . [¶] But our goal, of course, is to continue on the petition that is still alive and well in this court. Theres no basis for dismissal." (Italics added.)
The court found there had been good cause for the continuances to date. The court also found good cause for a further continuance "so that the case can proceed in a sensible fashion and, at the very least, thats going to require updated evaluations so that the trier of fact . . . can have some basis to conclude what [Robinsons] status is now."
The court ruled it was not going to dismiss the petition, denied defense counsels request for new evaluators, and ordered updated evaluations from the state hospital doctors. The court continued the matter to April 8, 2005 for trial on the petition. Robinson thereafter repeatedly waived time for trial on the SVPA petition and agreed to a series of continuances of that trial to September 15, 2006.
g. Robinsons motion to enforce the alleged plea agreement to dismiss the petition
On September 15, 2006, the date set for trial on the SVPA petition, Robinson filed a written motion to enforce an agreement he claimed he entered into at the June 4, 2003 probable cause hearing in this matter (discussed, ante), under which the SVPA petition would be dismissed if he were convicted and sentenced to prison in the San Bernardino case. In his motion, Robinson also argued he reasonably and detrimentally relied on the promise of dismissal, and thus the promise should be enforced under the doctrine of equitable estoppel.
On September 15 and 18, 2006, the court held an evidentiary hearing on Robinsons motion. At that hearing, Robinson, Eriksen, and Gayle testified.
Robinson testified to his understanding after the June 4, 2003 SVPA probable cause hearing that if he received any prison time in the San Bernardino case, the SVPA petition would be dismissed. He received a letter dated December 2, 2003 from his attorney, Eriksen, which reinforced his belief that if he served any prison time in San Bernardino, the San Diego SVP petition would be dismissed. Robinson testified he would not have pleaded no contest in the San Bernardino case if he had not had that understanding. On cross-examination, Robinson was asked how he thought the court at that probable cause hearing was going to finish its sentence when it said, "[I]f he had a new principal commit that was verified and that would be off calendar because as soon as hes done his time on that new prison commit, there would be a new—." (Italics added.) Indicating he did not want to speculate, Robinson replied, "I believe the court may have intended to say `a petition."
The record shows that, in his December 2, 2003 letter to Robinson, Eriksen wrote: "I appeared this morning for trial call on your SVP case here. The trial was continued to March 1, 2004 at 9:00 a.m. in Department 11, with ten days remaining. The judge ordered but held a no-bail bench warrant until that date, in order to preserve jurisdiction over you. The DA agrees that if you receive ANY prison term in the San Bernardino case, the SVP petition will be moot and they will move to dismiss it." (Italics added.)
Eriksen testified he had an understanding with the district attorneys office that the San Bernardino case should be handled first, and they "would all agree, with the Courts blessing, to send [Robinson] to San Bernardino County to have that case adjudicated one way or another. And if it [were] adjudicated in such a fashion that it resulted in a conviction, by plea or verdict, with a state prison term imposed, that the instant petition here, the SVP petition, would be dismissed." He stated that in his December 2, 2003 letter to Robinson (see fn. 3, ante), he reiterated that "the DA agrees that if you receive any prison time in the San Bernardino case, the . . . petition here would be moot and dismissed."
On cross-examination, Eriksen was asked what he thought the next word was going to be when the court at the SVPA probable cause hearing said, "because as soon as hes done his time on that new prison commit there would be a new—." (Italics added.) Eriksen replied, "[A]s I look at it now, it screams out the word `petition." He was also asked to whom he was referring at the June 2003 SVPA probable cause hearing — himself and Robinson or himself and the prosecutor (Gayle) — when he used the term "we" in the sentence, "So what we have agreed to do is submit this matter on the petition." (Italics added.) Eriksen replied, "Looking at the rest of the sentence, I meant me and my client at that point."
During her testimony, Gayle was asked what the term "moot" meant when Eriksen said during the June 2003 probable cause hearing, "[a]t that time we could report to the court because[,] obviously, if theres a conviction in that [San Bernardino] case I think this SVP [petition] would be moot." (Italics added.) Gayle replied, "It meant to me that the SVP proceeding that was then underway would be unnecessary in the event that [Robinson] was convicted in San Bernardino." When asked why the petition in San Diego would be unnecessary if Robinson were convicted in San Bernardino, Gayle responded, "Because the purpose of the SVP proceeding was to protect the public by ensuring that [Robinson] was confined for treatment at the state hospital until it was determined that he didnt pose a danger or a threat. [¶] And . . . I knew that the charges and enhancements that [Robinson] was facing in San Bernardino could subject him to [a] 25[-]year[-]to[-]life sentence. And I felt if he were convicted and sentenced to that term, then . . . it wouldnt be necessary to . . . have the petition found true with respect to the SVP status."
Gayle was also asked what she believed the next word after the word "new" was going to be when she interrupted the court at the probable cause hearing after it said, "[I]f he had a new principal commit that was verified, that would be off calendar, because as soon as hes done his time on that new prison commit, there would be a new—." (Italics added.) Gayle replied that she believed the courts next word would have been "petition." Gayle then stated that when the court referred to "new petition" and she said "I would dismiss this petition," she meant "in light of the new petition."
Gayle testified that when she stated at the probable cause hearing that she would dismiss the petition, she did not intend to guarantee a dismissal of the San Diego petition, nor did she intend that Robinson would enter a plea in the San Bernardino case based upon what he anticipated was a promise to dismiss the SVPA petition. Gayle stated that when she mentioned dismissing the petition, she was "agreeing to dismiss [the San Diego petition] in the event that [Robinson] was facing a new petition as a result of a future prison commit from San Bernardino County." (Italics added.) She also testified that when the judge "indicated his understanding that after a prison commit, [Robinson] would be facing a new petition, that immediately preceded my statement of my intent in the future in that event, I would dismiss the current petition." (Italics added.) She also explained that in her experience with the SVPA procedures in place at that time, she often dealt with overlapping petitions "because the SVP trial on one petition wouldnt be concluded before a second petition was filed . . . ."
Following argument by both counsel, the court denied Robinsons motion on the grounds the elements of equitable estoppel against a governmental agency enunciated in City of Long Beach v. Mansell (1970) 3 Cal.3d 462 (Mansell) and County of Orange v. Carl D. (1999) 76 Cal.App.4th 429 (Carl D.), had not been met, and the claimed agreement did not exist.
In Mansell, the Supreme Court explained: " Generally speaking, four elements must be present in order to apply the doctrine of equitable estoppel: (1) the party to be estopped must be apprised of the facts; (2)he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury." (Mansell, supra, 3 Cal.3d at p. 489, quoting Driscoll v. City of Los Angeles (1967) 67 Cal.2d 297, 305, italics added.) The Mansell court also explained that "the proper rule governing equitable estoppel against the government is the following: The government may be bound by an equitable estoppel in the same manner as a private party when the elements requisite to such an estoppel against a private party are present and, in the considered view of a court of equity, the injustice which would result from a failure to uphold an estoppel is of sufficient dimension to justify any effect upon public interest or policy which would result from the raising of an estoppel." (Id. at pp. 496-497.) In Carl D., supra, 76 Cal.App.4th at page 438, the Court of Appeal stated that "[t]here is a higher standard for estoppel against a public entity," and explained that "in the equitable estoppel balancing process, justice and right to the individual must outweigh the negative impact upon the public. Estoppel will not stand against a government agency `"if the result will be the frustration of a strong public policy." [Citation.]" (Fn. omitted.)
With respect to the equitable estoppel claim, the court stated, "I dont think that the elements of estoppel have been met on several grounds." First, the court found that the party to be estopped — the District Attorneys office — was not apprised of any facts other than that the court and Robinson believed during the SVPA probable cause hearing that if a new SVPA petition were filed in response to a "new principal commit in San Bernardino," then the current San Diego SVPA petition would be moot and the District Attorney would dismiss it. The court noted that during the probable cause hearing in San Diego, Robinsons counsel first raised the question of what would happen to the SVPA petition in the event Robinson were convicted in San Bernardino, and counsel believed they would know by December 2003 the progress of the San Bernardino criminal prosecution, and at that time he could report to the San Diego court. The court found there was no mention at the probable cause hearing of any promise or any agreement to dismiss the SVPA petition. The court stated, "It seems to me what was understood, at best, was that if the current SVP petition [were] moot, it would be dismissed. And mootness could come about in different ways, but on the record it seems to suggest there would be mootness if there [were] a new commit and a new petition [in San Bernardino]." (Italics added.)
Second, the court found the requisite intent for establishing equitable estoppel did not exist. The court found that the District Attorney had no intention that Robinson do anything, such as plead guilty in the San Bernardino case, and did not act in a way that gave Robinson a right to believe that any "prison commit" in San Bernardino would result in a dismissal of the San Diego SVPA petition. The court stated that the best Robinson "could assume from the hearing is that there wouldnt be two petitions filed at the same time and that this one [in San Diego County] would be mooted if there [were] a subsequent petition filed or, if there [were] a sentence . . . so long that it would render it a moot point."
Third, the court found the record did not establish that Robinson was ignorant of the true state of the facts. The court found that in Robinsons mind, and in the mind of a reasonable person, "it was an ambiguous situation, at best, but certainly not language that ironclad promises had been made or any firm understanding or enforceable understanding of what had transpired."
Last, with respect to the balancing of interests, the court found that the strong public polices embodied in the SVPA "certainly would not warrant estopping the government in this case from proceeding on the petition."
3. Analysis
Robinson contends he and the prosecution entered into an oral "plea agreement" at the June 4, 2003 SVPA probable cause hearing under which the petition would be dismissed if he were convicted and sentenced to prison in the San Bernardino case. He also contends the court abused its discretion and violated his federal due process rights by denying his motion to enforce that agreement. These contentions are meritless.
In denying Robinsons motion, the court found the prosecution made no promises to the defense and the claimed agreement did not exist. Substantial evidence supports the courts findings, and we conclude the court acted well within its discretion when it refused to enforce the claimed agreement. The record is devoid of any express or implied "plea agreement" either offered or accepted at the SVPA probable cause hearing, and Robinson is not claiming ambiguity in the terms of any such agreement. It is undisputed there was no written agreement. Also lacking are any oral words of agreement or any other objective manifestation of any plea agreement or promise by the prosecution at that hearing.
Furthermore, the reporters transcript of the probable cause hearing shows that Robinsons counsel, Eriksen, acknowledged at the outset that the San Bernardino case "doesnt necessarily trump" the San Diego SVPA proceedings against his client. Immediately thereafter, Eriksen told the court, "what we have agreed to do is submit this matter on the petition and the doctors reports while admitting identity as to the priors, and presumably there would be a holdover, if were calling it that, SVP cases today [sic]." (Italics added.)
The record shows the agreement to which Eriksen was referring was not an agreement between the prosecution and the defense. When Eriksen later testified at the September 2006 hearing on Robinsons motion to enforce the claimed agreement, Eriksen indicated that when he used the word "we" in the phrase "what we have agreed to do" at the beginning of the June 2003 probable cause hearing, he was referring to Robinson and himself.
The reporters transcript of the probable cause hearing also shows that it was Eriksen, not the prosecutor (Gayle), who suggested the SVPA petition would be "moot" in the event Robinson were convicted in the San Bernardino case. Eriksen did not offer any explanation as to how or why the petition would be rendered moot, and the court did not ask for an explanation.
Following a break in the probable cause hearing, as the court was attempting to address the possibility that a new SVPA petition might be filed against Robinson, Gayle interrupted the court and opened the proverbial door to Robinsons unavailing claim that he entered into a plea agreement at that hearing. The court said: "[I]f he had a new princip[al] commit that was verified and that would be off calendar because as soon as hes done his time on that new prison commit there would be a new—." (Italics added.) Before the court could finish that sentence, Gayle interjected: "—I would dismiss this petition."
Substantial extrinsic evidence shows that the court was addressing the possibility that a new SVPA petition might be filed against Robinson, and that Gayle was attempting to assert she would dismiss the pending petition if a new petition were filed. Specifically, the record shows that both Eriksen and Gayle testified at the September 2006 hearing on Robinsons motion to enforce the claimed agreement that they believed the court intended to say "there would be a new [petition]" when Gayle interjected her dismissal comment. Even Robinson, who also testified at the hearing on his motion, stated he believed the court may have intended to finish its sentence with the words "new petition."
Of greater import is Gayles testimony at the hearing on Robinsons motion to enforce when she was asked about the meaning of the term "moot" that Eriksen had used at the SVPA probable cause hearing. Gayle explained that she "knew" at the time of the probable cause hearing that the charges and enhancements Robinson was facing in San Bernardino could subject him to a 25-year-to-life sentence, and if he were convicted and sentenced to that term, the current SVPA petition would be unnecessary, or "moot," because such confinement would protect the public. She also indicated that when the court referred to a "new petition" at the probable cause hearing, and she interjected "I would dismiss this petition," she meant "in light of the new petition." (Italics added.)
Robinsons own subsequent conduct shows the claimed plea agreement did not exist. Specifically, when the San Bernardino court took his nolo contendere plea on August 27, 2004, it carefully went through the change of plea form with him. Robinson replied, "No," when the court asked him, "Has anyone made any promises of lesser sentence, probation, reward, immunity or anything else that causes you to change your plea?" (Italics added.) Such conduct contradicted his contention in his motion to enforce the claimed plea agreement that he detrimentally relied on that alleged agreement when he pleaded no contest in the San Bernardino case.
Robinsons reliance on Eriksens December 2, 2003 letter, in which Eriksen wrote to Robinson that "[t]he DA agrees that if you receive ANY prison term in the San Bernardino case, the SVP petition will be moot and they will move to dismiss it" (italics added), is unavailing. The court heard and considered testimony by both Robinson and Eriksen regarding the text of this letter before it found the claimed agreement did not exist. In making its finding, the court credited Gayles testimony over that of Robinson and Eriksen. On appeal, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Poe (1999) 74 Cal.App.4th 826, 830.)
Robinson also relies on an e-mail dated December 1, 2003, that Andrea Freshwater at the district attorneys office sent to Eriksen, stating: "Im in contact [with] the [deputy district attorney] in [San Bernardino]. Obviously[,] if there is a conviction and he goes to prison (3k, right?), then well dismiss. Otherwise, well be pressing ahead." Robinsons reliance on this e-mail is also unavailing. Robinson is again asking this court to reweigh, and resolve conflicts in, the evidence. This we will not do. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; People v. Poe, supra, 74 Cal.App.4th at p. 830.)
In sum, we conclude the ambiguous oral statements made by counsel and the court at the June 2003 probable cause hearing, when construed in light of the substantial extrinsic evidence credited by the court, show that the claimed plea agreement did not exist. At most, the objective circumstances established that if Robinsons admitted San Bernardino offense resulted in the filing of a new SVPA petition or a lengthy prison commitment, the pending SVPA petition at issue here might be dismissed as moot.
We also conclude the court did not abuse its discretion when it rejected Robinsons claim of equitable estoppel. The court found that the district attorney had no intention that Robinson do anything, such as plead guilty in the San Bernardino case, and did not act in a way that gave Robinson a right to believe that any "prison commit" in San Bernardino would result in a dismissal of the San Diego SVPA petition; thus, the requisite intent for establishing equitable estoppel did not exist. Substantial evidence supports the courts finding. At the hearing on Robinsons motion to enforce the claimed agreement, Gayle testified she did not intend that Robinson would enter a plea in the San Bernardino case based upon what he anticipated was a promise to dismiss the SVPA petition.
B. Due Process
Robinson also contends his indeterminate commitment to the custody of the DMH violated his federal constitutional right to due process. Specifically, Robinson makes a two-prong attack on his indeterminate commitment. First, he contends that because his first trial on the original petition resulted in a mistrial before the 2006 amendments to the SVPA took effect in November of that year, his retrial (which started in December 2006) on the amended petition should have been governed by the law as it existed prior to the mistrial. Thus, he asserts, if his first trial had not ended with a deadlocked jury, he would have been committed to a two-year term. Second, he contends the SVPA as amended by Proposition 83 violates due process of law because it provides "inadequate mechanisms for judicial review" of his confinement. We reject these contentions.
1. Retrial under the amended SVPA
Robinsons claim he should have been committed to a two-year term of confinement under the pre-amendment SVPA, rather than to an indeterminate term under the amended SVPA, following his retrial is unavailing. In an SVPA proceeding, the statutory law that applies is that which is in effect at the time of trial. (People v. Carlin (2007) 150 Cal.App.4th 322, 328, fn. 2 ["We apply the statute in effect at the time of appellants trial"].) Passage of Proposition 83 by California voters amended the SVPA effective November 8, 2006. (Carlin, supra, 150 Cal.App.4th at p. 328, fn. 2.)
Here, Robinsons retrial commenced on December 4, 2006, after the amended SVPA took effect. Because the amended SVPA and its provision for an indeterminate term of confinement were in effect at the time of Robinsons retrial, we conclude the court properly ordered Robinson committed to the custody of the DMH for an indeterminate term under the amended SVPA based on the jurys verdict that Robinson was an SVP.
2. Adequacy of amended SVPAs mechanisms for judicial review
Robinson also claims the SVPA as amended in 2006 violated his federal constitutional right to due process because it provides for an indeterminate term to the custody of the DMH, and the mechanisms for judicial review under sections 6605, subdivision (b), and 6608 of the committed persons confinement are constitutionally inadequate.
In People v. Johnson (2008) 162 Cal.App.4th 1263 (Johnson), this court addressed and rejected these arguments and concluded the SVPA, as amended in 2006, does not violate a committed persons federal constitutional right to due process. (Johnson, supra, 162 Cal.App.4th at pp. 1276-1283.) We continue to find the reasoning in Johnson persuasive.
Robinsons reliance on Foucha v. Louisiana (1992) 504 U.S. 71 (Foucha) and OConnor v. Donaldson (1975) 422 U.S. 563 (OConnor) for the proposition that the 2006 amendments to the SVPA render the Act unconstitutional is misplaced. Foucha is factually and legally distinguishable because it involved a Louisiana statutory scheme that allowed a defendant in a criminal case found not guilty by reason of insanity to be committed to a psychiatric hospital unless he proved he was not dangerous to himself or others, even though he did not suffer from any mental illness. (Foucha, supra, 504 U.S. at p. 73.) The uncontested facts in Foucha established that the committed acquitee was not suffering from a mental disease or illness. (Id. at p. 79.) In Foucha, the United States Supreme Court recognized its prior holding that a state may not civilly commit a person unless it proves by clear and convincing evidence that the person is mentally ill and dangerous. (Id. at pp. 75-76, 86, citing Addington v. Texas (1979) 441 U.S. 418, 425-433.) Foucha also recognized the high courts prior holding in Jones v. United States (1983) 463 U.S. 354 that a person found not guilty by reason of insanity may be automatically confined without a separate hearing to determine whether he or she is currently mentally ill or dangerous because the verdict is presumed to have shown those requirements, but that an insanity acquitee is entitled to release when he or she is no longer mentally ill or dangerous. (Foucha, supra, 504 U.S. at pp. 76-78, citing Jones, supra, 463 U.S. pp. 363, 368, 370.) Because the evidence presented at a review hearing established that the insanity acquitee in Foucha was not currently mentally ill, the Supreme Court held that his continued confinement violated his constitutional right to due process. (Foucha, supra, 504 U.S. at p. 79.)
Here, in contrast, expert testimony showed that Robinson suffers from the diagnosed mental disorders of pedophilia and antisocial personality disorder. Because at Robinsons SVP commitment trial his mental illness and dangerousness were proved beyond a reasonable doubt, Foucha does not support his assertion that his civil commitment to the DMH for an indeterminate term (subject to potential petitions for release under sections 6605 and 6608) violated his federal constitutional right to due process. In addition, Foucha did not address periodic commitment review hearings at which the committed person has the burden of proving by a preponderance of the evidence that he or she is entitled to release on the ground he or she is not currently mentally ill or dangerous.
OConnor is also distinguishable. Like Foucha, OConnor did not involve an alleged SVP. OConnor involved an action for damages under section 1983 of title 42 of the United States Code by a former mental patient who had been civilly committed to confinement in Florida state hospital and held against his will for 15 years on the ground he was suffering from paranoid schizophrenia. (OConnor, supra, 422 U.S. at pp. 564-565.) The jury found he was neither dangerous to himself nor dangerous to others. (Id. at p. 573.) Upholding an award of damages, the OConnor court held as a matter of due process that it was unconstitutional for a state to continue to confine a harmless, mentally ill person. (Id. at p. 575; see also Foucha, supra, 504 U.S. at p. 77.) Here, the evidence showed that Robinson was both mentally ill and dangerous.
C. Ex Post Facto Clause
Robinson maintains his indeterminate commitment to the custody of the DMH rendered the amended SVPA punitive in nature in violation of the ex post facto clause of the federal Constitution. We addressed and rejected this argument in Johnson, supra, 162 Cal.App.4th at pages 1287-1289. We continue to find the reasoning in Johnson persuasive.
D. Cruel and Unusual Punishment
Robinson also contends his indeterminate commitment to the custody of the DMH rendered the amended SVPA punitive in nature in violation of the prohibition against cruel and unusual punishment in the federal and state Constitutions. We reject this contention. For reasons already discussed, we have concluded the amended SVPA is not punitive in nature. (See Johnson, supra, 162 Cal.App.4th at p. 1289.)
E. Equal Protection
Robinson claims his indeterminate commitment to the custody of the DMH violated the equal protection clause of the Fourteenth Amendment to the federal Constitution by providing limited review of his custodial status. We reject this claim.
"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but `whether they are similarly situated for purposes of the law challenged. [Citation.]" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) "If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold. [Citation.]" (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)
Here, Robinson contends the treatment of SVPs as compared to the treatment of persons committed under other statutory civil commitment schemes violates the constitutional guarantee of equal protection. Specifically, he contends SVPs are similarly situated to mentally disordered offenders committed under section 2970 et seq., and persons found not guilty by reason of insanity committed under section 1026 et seq. We addressed and rejected this contention in Johnson, supra, 162 Cal.App.4th at pages 1283-1286. We continue to find the reasoning in Johnson persuasive.
F. Single Subject Rule
Robinson contends the judgment must be reversed because Proposition 83, which amended the SVPA in 2006, violated the single subject rule applicable to California ballot initiatives. We reject this contention.
1. Applicable legal principles
Article II, section 8, subdivision (d) of the California Constitution provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect."
In Senate of State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1157, the California Supreme Court explained the relevant principles governing whether an initiative measure violates the single-subject rule: "In articulating the proper standard to guide analysis in this context, the governing decisions establish that `"`[a]n initiative measure does not violate the single-subject requirement if, despite its varied collateral effects, all of its parts are "reasonably germane" to each other, and to the general purpose or object of the initiative." [Citation, original italics.] As we recently have explained, `the single-subject provision does not require that each of the provisions of a measure effectively interlock in a functional relationship. [Citation.] It is enough that the various provisions are reasonably related to a common theme or purpose. [Citation.] Accordingly, we have upheld initiative measures `" . . . which fairly disclose a reasonable and common sense relationship among their various components in furtherance of a common purpose." [Citation.] [Citation, italics added.]"
The high state court has also explained that "[t]he common purpose to which the initiatives various provisions relate, however, cannot be `"so broad that a virtually unlimited array of provisions could be considered germane thereto and joined in this proposition, essentially obliterating the constitutional requirement." [Citation.] [Citation.]" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 575 (Manduley).)
2. Analysis
Robinson asserts that Proposition 83 was "fatally flawed because it combined too many disparate topics which only had a broad and amorphous theme of dealing with sex offenders." He also maintains that "[t]he most serious flaw of Proposition 83 is the inclusion of provisions modifying civil, criminal, and regulatory matters." Claiming further that Proposition 83 "insured voter confusion by combining a civil confinement scheme with amendments to penal statutes and implementation of regulatory measures in a single initiative," he speculates that "[i]t was unlikely the public understood the SVP proceedings were civil in nature with fundamentally different rights for defendants than the rights accorded criminal defendants."
Robinsons challenge to the constitutionality of Proposition 83 under the single-subject rule is unavailing. In Manduley, supra, 27 Cal.4th 537, the California Supreme Court rejected a claim that Proposition 21 — the Gang Violence and Juvenile Crime Prevention Act of 1998, which the voters approved at the March 7, 2000 Primary Election — violated the single-subject rule. (Manduley, supra, at pp. 544-545, 573, 581.) As the high court noted, Proposition 21 addressed three subjects: gang violence, the sentencing of repeat offenders, and juvenile crime. (Manduley, supra, at p. 575.) The Manduley petitioners claimed that each subject was distinct, the subjects were unrelated to one another, and although the subjects might be related to the general goal of reducing crime, that goal was too broad to satisfy the requirements of the single-subject rule. (Ibid.) The Supreme Court found that the purpose of Proposition 21 was narrower than that identified by the petitioners, and that the general purpose of the initiative was not to reduce crime generally, but to address the problem of violent crime committed by juveniles and gangs. (Manduley, supra, at pp. 575-576.) The Manduley court explained that "the provisions of Proposition 21 that change laws regarding gang-related crime and the juvenile justice system are reasonably germane to each other and to the initiatives common purpose of addressing violent crime committed by juveniles and gangs. This subject or goal clearly is not so broad that an unlimited array of provisions could be considered relevant thereto. Indeed, . . . in previous decisions we have upheld initiatives containing various provisions related to even broader goals in the criminal justice system. [Citations.]" (Manduley, supra, at p. 576.)
Here, the common purpose of Proposition 83, like that of Proposition 21, is not so broad that an unlimited array of provisions could be considered relevant thereto in violation of the single-subject rule. The official summary of Proposition 83 prepared by the Attorney General, which is supported by the analysis of the measure by the Legislative Analyst, clearly summarizes the provisions of the initiative. The Attorney Generals summary states that Proposition 83 (1) "[i]ncreases penalties for violent and habitual sex offenders and child molesters"; (2) "[p]rohibits registered sex offenders from residing within 2,000 feet of any school or park"; (3) "[r]equires lifetime Global Positioning System monitoring of felony registered sex offenders"; (4) "[e]xpands definition of a sexually violent predator"; and (5) "[c]hanges current two-year involuntary commitment for a sexually violent predator to an indeterminate commitment, subject to annual review by the Director of Mental Health and subsequent ability of sexually violent predator to petition court for sexually violent predators conditional release or unconditional discharge." (Ballot Pamp., Gen. Elec. (November 7, 2006) summary of Prop. 83 by Attorney General, p. 42.) The Legislative Analyst then describes in greater detail each of the changes proposed by Proposition 83. (Id., analysis by the Legislative Analyst, pp. 43-44.)
The text of Proposition 83 expressly addressed the purpose of the initiative and the intent of the People in enacting it. Section 2, subdivision (e) provides: "With these changes, Californians will be in a better position to keep themselves, their children, and their communities safe from the threat posed by sex offenders." (Ballot Pamp., supra, text of Prop. 83, § 2, subd. (e), p. 127.) Subdivision (h) of that section provides: "California must also take additional steps to monitor sex offenders, to protect the public from them, and to provide adequate penalties for and safeguards against sex offenders, particularly those who prey on children. Existing laws that punish aggravated sexual assault, habitual sexual offenders, and child molesters must be strengthened and improved. In addition, existing laws that provide for the commitment and control of sexually violent predators must be strengthened and improved." (Id., § 2, subd. (h), p. 127.)
The foregoing shows that the common purpose of the provisions of Proposition 83 is to protect the public from sex offenders, particularly those like Robinson who prey on children. We conclude that Proposition 83s purpose of protecting the public from sex offenders is no broader than Proposition 21s purpose of protecting the public against gang-related and juvenile crime.
We also conclude the provisions of Proposition 83 that punish sex offenders — such as those increasing penalties for violent and habitual sex offenders — and the Proposition 83 provisions that control sex offenders — such as those restricting where registered sex offenders can live, requiring lifetime Global Positioning System monitoring of registered felony sex offenders, expanding the definition of an SVP, and changing an SVPs commitment term from a two-year term to an indeterminate term (subject to annual review by the director of DMH and the subsequent ability of an SVP to petition for conditional release or unconditional discharge) — are reasonably germane to each other and to the general purpose of Proposition 83 in that all of the provisions are aimed toward protecting the public in California from the threat posed by sex offenders. Accordingly, we reject Robinsons claim that Proposition 83 violated the single subject rule.
G. Denial of a Continuance or Mistrial
Robinson next contends the court deprived him of his constitutional rights to due process, a fair trial, and the right to present a defense under the Fifth, Sixth and Fourteenth Amendments to the federal Constitution by failing to grant a continuance or mistrial when his "key witness," Marcus, failed to testify. We reject this contention.
1. Background
Marcus, the victim of Robinsons admitted San Bernardino offense, was subpoenaed to appear, and did appear, at trial on December 4, 2006; and the court ordered him to return on December 11 of that year to testify. Marcus failed to appear on that date, and the court issued a bench warrant for his arrest.
Following Robinsons testimony, his counsel made a motion for mistrial on the ground Marcus failed to appear to testify. Counsel argued that Marcus would have testified to the consensual nature of his relationship with Robinson; that the jury would have had an opportunity to see what Marcus looked like and to see that he did not look like a child and that the jurors from the earlier mistrial had indicated they wanted to see Marcus.
The court denied the mistrial motion, finding the jury had heard unequivocal testimony that Robinsons contact with Marcus was consensual. The record shows, and on appeal Robinson acknowledges, the defense did not request a continuance.
2. Applicable legal principles
A motion for a mistrial should be granted if there is prejudice to the defendant that is incurable by admonition or instruction. (People v. Cox (2003) 30 Cal.4th 916, 953.) Because the question of whether a particular incident is incurably prejudicial is speculative by its nature, the trial court is vested with considerable discretion in ruling on a mistrial motion. (Ibid.) We review a trial courts denial of a mistrial motion under the deferential abuse of discretion standard. (Ibid.)
3. Analysis
Because Robinson did not request a continuance, we conclude his claim that he should have been granted a continuance is deemed forfeited. (People v. Morrison (2004) 34 Cal.4th 698, 714.)
We also conclude that even if we were to conclude he did not forfeit this claim, Robinson has failed to show the court abused its discretion. At trial, Dr. Clipson testified that Robinson told him he thought Marcus was a 19-year-old adult when he and Marcus were communicating online. The testimony of Cesar Chacon, a deputy with the San Bernardino County Sheriffs Department, indicated he learned from Marcus that he was only 16 years of age. Nothing in the record substantiates Robinsons speculation that Marcus might have testified that he told Robinson over the Internet that he was 19 years of age.
Robinson also speculates that Marcuss testimony would have "clarified that he engaged in sexual acts with [Robinson] because of his desire, not because [Robinson] tempted him with material goods," and thus, absent Marcuss testimony, the jury was "left to speculate" that their relationship was not consensual. Robinsons speculation is unavailing. Deputy Chacon testified that he learned from both Robinson and Marcus that they had kissed and touched each others genitals. Deputy Chacon also testified that Marcus told him he was not afraid of Robinson, and what happened between them was consensual. We conclude that Marcuss anticipated testimony would have been cumulative, and his failure to testify was not prejudicial to Robinson with respect to the issue of consent.
Robinson also speculates that Marcuss testimony about what he looked like at the time of Robinsons San Bernardino offense could have impeached Deputy Chacons testimony that Marcus appeared young, between the ages of 14 and 16. The record shows that Robinson committed the San Bernardino offense in January 2003, and Marcus failed to appear to testify in December 2006, almost four years later. Even if Marcus had appeared to testify, the jury would not have been able to see what he looked like at the time of the offense. Robinsons trial counsel had an opportunity at trial to cross-examine Deputy Chacon and Robinson about Marcuss physical appearance at the time of the offense. We conclude that Marcuss failure to testify was not prejudicial to Robinson under any standard with respect to the issue of how young Marcus appeared to be at the time Robinson committed the San Bernardino offense. In sum, Robinson has failed to show the court prejudicially abused its discretion in denying his mistrial motion.
H. Denial of Robinsons In Limine Motions To Exclude "Inflammatory" Evidence
Robinson next contends the court violated his constitutional rights to due process and a fair trial by denying his motions in limine under Evidence Code section 352 to exclude inflammatory evidence, including (1) over three years of sexual acts with Jason and Jimmy, (2) expert testimony of the ultimate issue of the case, (3) the probation report in San Diego County Superior Court case No. 128888 that detailed the multiple counts charged against Robinson, (4) his prior burglaries, (5) his failure to register as a sex offender in July 2000, and (6) his parole violation. We reject this contention.
1. Applicable legal principles
"Under Evidence Code section 352, the trial court has broad discretion in assessing `whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] The trial courts exercise of that discretion `must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citations.]" (People v. Fulcher (2006) 136 Cal.App.4th 41, 58, italics omitted.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
Error in the admission or exclusion of evidence following an exercise of discretion under Evidence Code section 352 is tested for prejudice under the Watson harmless error test. (See People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Under the Watson test, the trial courts judgment may be overturned only if "it is reasonably probable that a result more favorable to the [defendant] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Analysis
Robinsons contention that the court abused its discretion under Evidence Code section 352 is unavailing. The prosecution had the burden of proving Robinson was an SVP. As already discussed, section 6600, subdivision (a)(1) provides: "Sexually violent predator means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior."
We need not address whether the court abused its discretion under Evidence Code section 352 as to each category of evidence that unsuccessfully Robinson sought to exclude. Assuming, without deciding, the court did abuse its discretion, we conclude Robinson has failed to meet his burden under People v. Watson, supra, 46 Cal.2d 818, of showing a reasonable probability that a result more favorable to him would have been reached in the absence of any such error. Robinson largely ignores all of the other evidence detailed, ante, in the factual background of this opinion, particularly the unchallenged portions of the expert opinion testimony of Drs. Clipson and Goldberg, much of which is as "inflammatory" as the evidence he challenges, showing beyond a reasonable doubt that Robinson is an SVP.
I. Cumulative Error Claim
Robinson maintains in a conclusory manner that the "cumulative prejudicial impact" of the "above errors" requires reversal of the judgment. We reject this contention as Robinson has failed to meet his burden of showing any such errors or prejudice.
III. PETITION FOR WRIT OF HABEAS CORPUS
A. Plea Agreement Claim
In his habeas corpus petition, which he filed in propria persona, Robinson essentially repeats his claim on appeal that the court violated his due process rights under the Fourteenth Amendment to the federal Constitution by failing to specifically enforce a plea agreement the parties entered into at the June 2003 probable cause hearing on the SVPA petition under which the San Diego County District Attorney would dismiss the petition if Robinson were convicted in the San Bernardino case.
We reject this claim. For reasons discussed, ante, we have concluded the court properly found no such agreement existed, properly rejected Robinsons equitable estoppel claim, and properly denied his motion to enforce the claimed agreement.
B. Promissory Estoppel and Judicial Estoppel Claims
Robinson also claims in his habeas corpus petition that litigation of the SVPA petition is barred by the doctrines of promissory estoppel and judicial estoppel because the People represented at the June 2003 probable cause hearing that they would dismiss the petition. We reject these claims, both of which are expressly premised on the unsupported assumptions that the prosecution promised to dismiss the SVPA petition, and Robinson justifiably relied on such a promise by pleading nolo contendere in the San Bernardino case. For reasons already discussed, we have concluded the court properly found no such promise was made. Furthermore, as we have also discussed, the record shows that when Robinson changed his plea in the San Bernardino case, he informed the court that no one had made any promises that caused him to change his plea.
C. Ineffective Assistance of Counsel
Last, Robinson contends his defense counsel provided ineffective assistance by never raising before trial on the amended SVPA petition the issue that Robinson never had a "[f]ull" probable cause hearing on the petition. This contention is unavailing.
A defendant claiming ineffective assistance of counsel has the burden to show: (1) Counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 218.)
The record shows that Robinson was present at the June 4, 2003 probable cause hearing. At the beginning of the hearing, Robinsons counsel, Eriksen, argued that the San Bernardino case did not "necessarily trump" the SVPA proceeding, and then informed the court that "what we have agreed to do is submit this matter on the petition and the doctors reports while admitting identity as to the priors." (Italics added.) As we have already discussed, Eriksen testified in another proceeding in September 2006 that when he stated "we have agreed" at the June 2003 probable cause hearing, he was referring to Robinson and himself. Robinson easily could have objected, but did not do so. The record thus shows Robinson agreed to submit on the matter without a "[f]ull" probable cause hearing. We conclude Robinson has failed to meet his burden of showing his counsels performance was deficient. Even if counsels performance had been deficient, Robinson has failed to show he was prejudiced under any standard.
DISPOSITION
The judgment is affirmed; the petition for writ of habeas corpus is denied.
We Concur:
McDONALD, J.
OROURKE, J.