P. v. McKnight 4/22/10 CA1/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A123119

Case Date: 07/29/2010

Preview:Filed 4/22/10 P. v. McKnight CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY MCKNIGHT, Defendant and Appellant. (San Mateo County Super. Ct. No. 407542) A123119

Defendant Timothy McKnight appeals after a jury trial resulted in his recommitment as a sexually violent predator (SVP) under Welfare and Institutions Code sections 6600 et seq.1 (SVPA, or the Act). He contends the trial court committed Batson/Wheeler error; that the psychiatric evaluations underlying the recommitment petition were invalid because they were based on an invalid regulation; and that the Act, as amended to impose indeterminate commitments, violates his constitutional rights to procedural due process and equal protection and is an invalid ex-post facto law. We order the case remanded for further proceedings on McKnights equal protection claim pursuant to People v. McKee (2010) 47 Cal.4th 1172. We find no merit in any of McKnights other contentions, and accordingly affirm the judgment in all other respects.

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All further statutory references are to the Welfare and Institutions Code unless otherwise designated. 1

BACKGROUND The crimes that led to defendants initial commitment as a sexually violent predator are discussed in our prior opinion affirming that commitment. (People v. McKnight (May 31, 2002, A094449 [nonpub. opn.].) Their discussion is not relevant to the issues raised in this appeal. The issues presented here arise from the district attorneys petition to extend defendants commitment under the SVPA filed on October 2, 2006. Defendant moved to strike the petition on the ground that the statute, as amended in 2006 to authorize commitment for an indeterminate term, violated principles of due process, equal protection, ex post facto and double jeopardy. He also asserted the protocol used by the Department of Mental Health (the Department) to evaluate potential sexually violent predators is an unlawful "underground" regulation, and on that ground moved to dismiss the petition. The court denied both motions. The jury found defendant to be a sexually violent predator. The court committed him to the custody of the Department for treatment and confinement for an indeterminate term. This appeal timely followed. DISCUSSION I. Wheeler/Batson Error Defendant contends the court erred in rejecting his Batson/Wheeler challenge to the prosecutors excusal of an alternate juror. We disagree. A. Background The prosecutor used her sixth and last peremptory challenge against prospective juror Mr. B., whose seat was filled by prospective juror Ms. B., whom defendant excused, and then by juror No. 11, to complete the selection of 12 jurors. The parties then began selection of two alternate jurors. The prosecutor used her first peremptory challenge against Mr. E., the sole African-American man in the original venire from which the 12 jurors were selected. In response to a juror questionnaire that asked prospective jurors about their prior experiences with crime, Mr. E. reported that his 2

house was burglarized five years earlier and the burglar was never apprehended. In addition, one of Mr. E.s relatives had been accused of a crime the previous year. Charges were brought against his relative, but Mr. E. did not know the outcome. About three years earlier Mr. E. and the same relative had been stopped for jaywalking and the relative was arrested for evading the police. Mr. E. felt the police handled the situation fairly and appropriately. He had no strong feelings for or against law enforcement as a result of these situations and believed he could fairly judge defendants case. Defense counsel argued that the prosecutors challenge to Mr. E. was racially discriminatory in violation of Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258. Counsel asserted the prosecutors challenge lacked raceneutral reasons, particularly in light of "what appeared to me to be similar answers from other individuals who were not challenged." The prosecutor responded that Mr. E. had at least two prior police contacts, and that she had been forced to accept certain jurors she would otherwise have excused from the main jury because she had run out of peremptory challenges. She also stated that Mr. E.s race could be seen as favorable by the prosecution because some of defendants victims were African-American. The trial court found defendant had not made a prima facie case of discrimination and that the prosecutor had lawful, race-neutral reasons for challenging Mr. E. It therefore denied defendants Batson/Wheeler motion. B. Analysis "Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity. [Citations.] When the defense raises such a challenge, these procedures apply: ,,First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citation.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. 3

[Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination." [Citation.] " (People v. Davis (2009) 46 Cal.4th 539, 582.) We review the trial courts ruling for substantial evidence.2 (People v. Alvarez (1996) 14 Cal.4th 155, 196.) Defendants contention that the court erred when it denied his challenge to the excuse of an alternate juror fails at the outset for the simple reason that no alternate jurors ultimately served on the jury. Accordingly, there is no possibility that Batson/Wheeler error, were there such, resulted in prejudice. (People v. Turner (1994) 8 Cal.4th 137, 172; People v. Roldan (2005) 35 Cal.4th 646, 703; see also People v. Gray (2005) 37 Cal.4th 168, 185.) In any event, the record supports the trial courts finding of raceneutral reasons for the strike. Mr. E. had a family member who had been charged with a crime, and himself had been stopped by police with that relative when the relative was arrested. Mr. E. had also been the victim of a break-in that the police were unable to solve. These experiences with law enforcement were a permissible basis for exclusion. Defendants attempt to show the prosecutors reasons for striking Mr. E. were pretextual through a comparative juror analysis is unpersuasive. Defendant argues that juror No. 11, who filled the last vacant seat on the jury, also reported negative contacts with law enforcement officers. Therefore, he maintains, it is clear that something other than Mr. E.s responses prompted the prosecutors decision to challenge him. Precisely
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The Supreme Court recently noted an exception to the substantial evidence rule of Batson/Wheeler rulings when "it is unclear whether the trial court used the recently disapproved ,,strong likelihood standard, rather than the correct ,,reasonable inference standard." In such cases, appellate courts review the record independently to determine whether it supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis. (People v. Davis, supra, 46 Cal.4th 539, 582-583.) The record here contains no indication that the court applied the wrong standard, and defendant raises no such claim. However, out of what is perhaps an excess of caution we have satisfied ourselves that the courts ruling withstands review under either standard. 4

so. As the prosecutor explained to the court, she did not strike juror No. 11 from the main jury only because she had no peremptory strikes remaining when juror No. 11 qualified. When it came time to choose the alternate jurors, the prosecutor was allotted two additional peremptory challenges. (Code Civ. Proc.,

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