Filed 7/17/15 P. v. Brittain CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E059654

v.                                                                       (Super.Ct.No. RIC354954)

JESSE BRITTAIN,                                                          OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.

Affirmed.

         Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, and Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff

and Respondent.




                                                             1
       In 2011, defendant Jesse Brittain1 admitted that he was a sexually violent predator

(SVP) and waived a trial on this issue. Accordingly, the trial court ordered him

committed as an SVP; however, because the relevant law was in flux at the time, it did

not determine the duration of the commitment.

       In 2013, defendant filed a motion to set aside his admission, based on alleged

duress. The trial court denied the motion, “without prejudice [to] rais[ing] this issue at a

later date with live testimony.” At the same time, because the law regarding the duration

of the commitment had since become settled, it ordered that defendant’s commitment be

“for an indeterminate term.”

       Defendant now contends:

       1. The trial court erred by denying defendant’s motion to set aside his admission.

       2. As a result of amendments to the Sexually Violent Predator Act (Act) that went

into effect on January 1, 2014, the Act violates due process and equal protection.

       We will hold that the trial court did not err by denying defendant’s motion without

prejudice. We will further hold that defendant cannot properly raise the constitutionality

of the Act as amended in this appeal. Hence, we will affirm.




       1      Defendant claims that this court has granted him protective disclosure,
ordering “that he be referred to as J.B.” He does not cite the order by date, and we have
not found any such order. Hence, we use his full name.



                                              2
                                               I

                      FACTUAL AND PROCEDURAL BACKGROUND

       On June 23, 1999, the People filed a petition to commit defendant as a sexually

violent predator.

       On July 7, 1999, the trial court found probable cause to believe that defendant was

likely to engage in sexually violent predatory behavior. It ordered him housed at a state

hospital pending trial.

       A jaw-dropping number of continuances followed. The case almost went to trial in

2003, but defendant moved to replace his appointed counsel; when that was denied, he

moved to represent himself, which was granted. The case almost went to trial again in

2009, but defendant suffered a heart attack.

       Meanwhile, in 2006, the Act was amended so as to change an SVP commitment

from a two-year term, which could be extended if the People proved that the person was

still an SVP, to an indefinite term, which can be terminated if the person proves that he or

she is no longer an SVP. (See People v. McKee (2010) 47 Cal.4th 1172, 1186-1188, and

authorities cited.)

       On April 11, 2011, defense counsel indicated that defendant intended to admit the

allegations of the petition and waive a trial. She also stated that he would be waiving his

personal appearance because “[h]e’s had three subsequent heart attacks and he can’t be

transported.”




                                               3
       On June 2, 2011, defendant filed a written admission that he was a sexually violent

predator. It included a waiver of his personal appearance.

       At a hearing on that same date, defense counsel stated that he had submitted a

proposed order to the effect that defendant “waives and stipulates [that] he meets the

criteria; however, proceedings are suspended pending the resolution of People versus

McKee . . . .”2

       The trial court observed, “We’ve actually made a determination if he fits within

the provisions of [Welfare and Institutions Code section] 6600, but the length of his

commitment is something that’s not determined.” The prosecutor and defense counsel



       2       On January 28, 2010, the California Supreme Court had issued its opinion
in People v. McKee, supra, 47 Cal.4th 1172. There, the defendant argued, among other
things, that the indefinite commitment of SVP’s, but not mentally disordered offenders
(MDO’s) or persons found not guilty by reason of insanity (NGI’s), violated equal
protection. (Id. at pp. 1183-1184.) The Supreme Court held that, for purposes of
indefinite commitment, SVP’s are similarly situated to MDO’s and NGI’s. (Id. at
pp. 1202-1207.) It remanded with directions “to determine whether the People . . . can
demonstrate the constitutional justification for imposing on SVP’s a greater burden than
is imposed on MDO’s and NGI’s in order to obtain release from commitment.” (Id. at
pp. 1208-1209, fn. omitted.)

        When defendant made his admission, the proceedings on remand in McKee were
still pending.

        On July 24, 2012, the Court of Appeal for the Fourth District, Division One issued
its opinion on remand in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II). It
held that the indefinite commitment of SVP’s did not violate equal protection, even under
strict scrutiny, because “the disparate treatment of SVP’s under the Act is necessary to
further the People’s compelling interests of public safety and humane treatment of the
mentally disordered.” (Id. at p. 1331; see also id. at pp. 1340-1348.) On October 10,
2012, the California Supreme Court denied review in McKee II (S204503).



                                             4
agreed with this. The trial court also stated, “I’ll just leave it to counsel to make sure you

put this back on the Court’s calendar . . . .”

       Accordingly, the trial court entered an order accepting defendant’s admission and

committing him to a state hospital. However, it also ordered that “further proceedings . . .

be suspended pending the finality of proceedings in . . . People vs Mc[K]ee . . . .”

       On July 29, 2013, defendant filed a motion to set aside his admission on the

ground that he had executed it under duress. The motion was supported by defendant’s

declaration. He stated that he suffered from “a chronic heart condition.” Back in 2011,

he stated, “I was told I would be transported to Riverside. My treating doctors at the time

advised against this. I requested the trial be conducted by video conference, but my

attorney advised the court and DA would not accommodate my request. I was advised the

only way I could avoid being transported was to sign an Admission and Waiver. . . . I

feel I really had no choice in the matter, to avoid transportation.” He added, “During

these 2 years my heart condition has improved, and I feel I am strong enough to deal with

the petition.”

       Defendant also testified — presumably by way of explaining why he had not

brought the motion sooner — “I was never advised by the Public Defender’s Office the

court had accepted the Admission and Waiver until June 2013.”




                                                 5
       In opposition to the motion, the prosecution argued that: (1) the trial court did not

have the authority to hear the motion because there was already a final judgment; (2) the

motion was untimely; (3) recitals in defendant’s admission contradicted his declaration;

and (4) defendant had only shown that he regretted making his admission.

       On August 23, 2013, at the hearing on the motion, the trial court outlined its

tentative ruling. It stated, “This gentleman is asking me to set aside an admission based

on his word in a declaration, not subject to cross-examination. You know, I would not be

adverse to setting it for a motion hearing with him here subject to cross-examination, but

my understanding is he doesn’t want to come down. [¶] . . . I’m inclined to deny this

without prejudice for us actually calendaring a motion. Let him have a motion, let [the

prosecutor] cross-examine . . . .”

       In the ensuing discussion, the trial court indicated that it had “just thought of” an

alternative reason for denying the motion: “[H]e raises an issue that could, I think, justify

a hearing. . . . [But] is this a hearing in the manner that we’re doing it, or is it a hearing

on something like a writ of habeas corpus?” “[H]e’s coming in to set aside a plea two

years after the fact. Isn’t that something for a writ of habeas corpus, and then if I find that

there is good grounds, we would then have a hearing and he could testify in that.”




                                               6
       At the end of the hearing, the trial court took the matter under submission; it

explained, “I want to do a little research . . . . I’m shooting a little from the hip right now

. . . .” Thereafter,3 the trial court denied the motion, without prejudice. It stated,

“[Defendant] may raise this issue at a later date with live testimony.”

       On August 27, 2013, the trial court ordered that defendant’s commitment be “for

an indeterminate term.”

                                               II

   THE DENIAL OF DEFENDANT’S MOTION TO SET ASIDE HIS ADMISSION

       Defendant contends that the trial court erred by denying his motion to set aside his

admission.

       A.     The Preclusive Effect of the 2011 Commitment Order.

       Preliminarily, the People argue (as they argued below) that the 2011 commitment

order was a final judgment, which therefore barred defendant’s motion to set aside his

admission.

       In deciding whether an order is a final judgment, “‘“[i]t is not the form of the

decree but the substance and effect of the adjudication which is determinative. As a

general test, which must be adapted to the particular circumstances of the individual case,

it may be said that where no issue is left for future consideration except the fact of

       3      Defendant takes the position that the trial court ruled on August 23 (i.e.,
later the same day). The People take the position that it ruled on August 27. The relevant
minute order is unclear on this point. We need not resolve this dispute, as we cannot see
how it is material in any way.



                                               7
compliance or noncompliance with the terms of the first decree, that decree is final, but

where anything further in the nature of judicial action on the part of the court is essential

to a final determination of the rights of the parties, the decree is interlocutory.”’

[Citation.]” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1,

5, italics omitted.)

       In 2011, the trial court stated, on the record, that it was determining that defendant

should be committed, but it was not determining how long he should be committed for.

The prosecution and defense counsel concurred. The trial court therefore ordered that

defendant be committed, but not for any particular period of time. It ordered that the

proceedings be suspended until McKee II became final; thus, the order expressly

contemplated further proceedings. Plainly, at least one crucial issue, the duration of the

commitment, was left for further consideration. Hence, the 2011 commitment order was

not a final judgment.4

       Even assuming the 2011 commitment order was a final judgment, defendant’s

motion still was not barred. “SVP trials are ‘“special proceedings of a civil nature,”’

wholly unrelated to any criminal case. [Citation.]” (Moore v. Superior Court (2010) 50

Cal.4th 802, 815.) In civil cases, “[d]uress has . . . been recognized as a ground justifying

relief from a final judgment. [Citations.]” (In re Marriage of Baltins (1989) 212



       4      It could be argued that the trial court erred by committing defendant without
determining the duration of the commitment. Even if so, however, the error was clearly
invited and/or forfeited. It does not change the effect of the order.



                                               8
Cal.App.3d 66, 83.) Moreover, even in criminal cases, a guilty plea can be withdrawn

based on duress (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416), and a motion to

withdraw a guilty plea can be brought after judgment. (People v. Castaneda (1995) 37

Cal.App.4th 1612, 1617; see also People v. Gari (2011) 199 Cal.App.4th 510, 522-523

[motion to withdraw plea after judgment is equivalent to a petition for writ of coram

nobis].)

       The People cite People v. Picklesimer (2010) 48 Cal.4th 330. That case, however,

dealt with a postjudgment motion for relief from the statutory sex offender registration

requirement. (Id. at p. 336.) It is not controlling in a civil proceeding. Moreover, the

court stated that “‘ . . . In most cases, after the judgment has become final, there is

nothing pending to which a motion may attach.’ [Citation.]” (Id. at p. 337, italics added.)

It acknowledged that “exceptions to the rule precluding postjudgment motions exist . . . .”

(Ibid.) Thus, Picklesimer cannot be understood as overruling long-standing authority that

a motion to withdraw a guilty plea can be brought after judgment.

       The People also argue that, in 2012, when the decision in McKee II became final, it

became clear that defendant’s commitment should be for an indefinite period; thus, the

trial court did not need to take any further action, and the 2011 commitment order became

final at that time. In 2011, however, the trial court had not specified that the commitment

was for an indefinite period. Moreover, it made it clear that it intended to take some

further action after McKee II became final; it noted that, at that time, counsel would have




                                               9
to put the case back on calendar. Its order could not magically become final in the

absence of the intended further action.

       We therefore conclude that defendant’s motion was not barred.

       B.     The Merits of the Denial.

       The parties seem to have different understandings of the trial court’s reasons for

denying the motion.

       Defendant claims the trial court “most likely” ruled that, because there was already

a final judgment, defendant’s only remedy was to file a habeas petition. If that had been

its reasoning, however, it would have either (1) denied the motion outright or (2) denied

the motion specifically without prejudice to a habeas petition. Instead, it denied the

motion without prejudice to “rais[ing] this issue at a later date with live testimony.” A

habeas petition may be summarily denied if it fails to make a prima facie showing of a

right to relief. (People v. Romero (1994) 8 Cal.4th 728, 737.) Thus, a habeas petition

does not necessarily entail live testimony. Indeed, in our experience, only a small

minority of habeas petitions result in an evidentiary hearing. Taking the trial court at its

word, then, it seems that it was concerned with defendant’s failure to present live

testimony, not with his failure to file a habeas petition.

       The People, on the other hand, argue that the trial court could properly deny the

motion because defendant failed to prove duress. Alternatively, they suggest that it could

properly deny the motion as untimely. Again, however, had the trial court actually denied




                                              10
the motion on these grounds, it would have denied the motion outright; it would not have

allowed defendant to renew it if supported by live testimony.

         The key issue, then is whether the trial court could properly deny the motion,

without prejudice, because it was not supported by live testimony. We conclude that it

could.

         “Evidence received at a law and motion hearing must be by declaration or request

for judicial notice without testimony or cross-examination, unless the court orders

otherwise for good cause shown.” (Cal. Rules of Court, rule 3.1306(a), italics added.)

We review a ruling with respect to the presentation of oral testimony on a motion for

abuse of discretion. (California School Employees Assn. v. Del Norte County Unified

Sch. Dist. (1992) 2 Cal.App.4th 1396, 1405.) “[A] trial court does not abuse its discretion

unless its decision is so irrational or arbitrary that no reasonable person could agree with

it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)

         Here, defendant’s declaration was conclusory. For example, it was not specific

about the nature of defendant’s “heart condition” (which, although “chronic,” had

recently “improved”). It was not clear how much of a threat transportation had really

posed to defendant’s health back in 2011. And, as the People point out, it was not clear

who had “advised” defendant that the only way he could avoid transportation was to sign




                                              11
the admission. The declaration implied that defendant’s doctor(s) and lawyer(s) could

support — or refute — his claims.5

       There was also significant ambiguity about the reason for defendant’s delay in

bringing the motion. He testified that his defense counsel had not told him until 2013 that

his admission had been accepted. However, he did not testify that he did not learn this

from some other source. He did not explain why he did not make an effort earlier to find

out what was going on with the admission. And he did not testify that this was actually

why he had not filed the motion sooner. Hence, the trial court could rationally choose to

require live testimony.

       Indeed, we question why defendant did not simply refile his motion with a request

for an evidentiary hearing. Defendant seems to suggest that it was an error for the trial

court not to set an evidentiary hearing on its own.6 Defense counsel, however, never

requested an evidentiary hearing. The trial court stated, “my understanding is [defendant]

doesn’t want to come down.” Defense counsel did not contradict this. Quite the contrary,

he suggested, “Why don’t we continue the motion for 30 days, I’ll write [to defendant]

and . . . suggest that he come down.” Thus, he indicated that, even assuming an

evidentiary hearing was necessary, defendant might choose not to avail himself of one.

       5      The declaration had the effect of waiving the physician-patient privilege
and the attorney-client privilege. (Evid. Code, § 912, subd. (a).)
       6        For example, defendant says, “[defendant] merely contends that his motion
in the trial court provided enough information to create the potential existence of good
cause such that an evidentiary hearing was required.”



                                            12
We cannot say that the trial court erred by not forcing defendant into an evidentiary

hearing if he did not want one.

       In our view, defendant still has the option of filing a new motion to set aside his

admission on remand, provided he offers to support it with live testimony. We do not

mean to suggest that this is his only option; it is conceivable that a habeas petition or a

coram nobis petition might also be an appropriate vehicle for defendant’s duress claim.

We also do not mean to suggest that such a motion should (or should not) be granted. For

example, with the passage of time, the issue of defendant’s diligence in bringing the

motion looms ever larger.

       In sum, then, we conclude that the trial court did not err by denying defendant’s

motion without prejudice.

                                              III

                      DUE PROCESS AND EQUAL PROTECTION

       According to defendant, under amendments to the Act that became effective on

January 1, 2014, a person committed as an SVP can petition for unconditional release

only if he or she has the concurrence of the Department of State Hospitals (Department).

Absent the Department’s concurrence, the person can only petition for conditional

release, and then, after a year of conditional release, for unconditional release.

       In addition, according to defendant, under the same amendments, when a person

committed as an SVP seeks conditional release with the concurrence of the Department,




                                              13
the People have the burden of proving unsuitability; absent the concurrence of the

Department, the person has the burden of proving suitability.

       Defendant contends that these amendments violate equal protection, because they

discriminate impermissibly between SVP’s on the one hand and MDO’s and NGI’s on the

other. He also contends that they violate due process when applied to a person who has

been committed indefinitely.

       We cannot reach any of these contentions because they were not raised below.7 As

a result, there is no ruling by the trial court presenting these issues for us to review.

       In 2013, the trial court ordered defendant committed for an indefinite term.

However, the relevant amendments to the Act had not yet gone into effect. Thus,

defendant does not contend that that order was erroneous when made; he merely contends

that his indefinite commitment has become unconstitutional since then.

       If the only problem were that defendant failed to raise the issue in the trial court, it

could be argued that we have discretion to reach it anyway, because it presents a pure

question of law on undisputed facts. (See, e.g., People v. Mitchell (2012) 209

Cal.App.4th 1364, 1370.) The problem, however, is more fundamental. It is that “[n]o

ruling was made below. Accordingly, no review can be conducted here. ‘[T]he absence




       7     This includes defendant’s contentions regarding the construction of the
amendments. In other words, we are not deciding whether the amendments do what
defendant says they do.



                                              14
of an adverse ruling precludes any appellate challenge.’ [Citation.]” (People v. Rowland

(1992) 4 Cal.4th 238, 259.)

       Defendant has not argued that he has no way of raising the issue in the trial court.

It would seem that all he has to do is file a petition for immediate unconditional

discharge, then raise his present arguments in that proceeding.8 In any event, we need not

definitively determine the appropriate procedural vehicle for defendant’s contentions.

Whatever it may be, it is not this appeal.

                                             IV

                                       DISPOSITION

       The order appealed from is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                RAMIREZ
                                                                                         P. J.

We concur:


MILLER
                           J.


CODRINGTON
                           J.


       8       This assumes, of course, that defendant is otherwise qualified for immediate
unconditional discharge — i.e., that he is no longer an SVP. If not, then he lacks standing
to raise his due process and equal protection arguments.



                                             15
