Opinion
F084034
01-26-2024
SCOTT EMERSON FELIX, Plaintiff and Appellant, v. STEPHANIE CLENDENIN et al., Defendants and Respondents
Scott Emerson Felix, in pro. per., for Plaintiff and Appellant. Rob Bonta, Attorney General, Cheryl L. Feiner, Gregory D. Brown, and Grant Lien, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 20CECG03123. Gabriel L. Brickey, Judge.
Scott Emerson Felix, in pro. per., for Plaintiff and Appellant.
Rob Bonta, Attorney General, Cheryl L. Feiner, Gregory D. Brown, and Grant Lien, Deputy Attorneys General, for Defendant and Respondent.
OPINION
SMITH, J.
Appellant Scott Emerson Felix, a self-represented civil detainee, was previously adjudicated a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. &Inst. Code, § 6600, et. seq.) At all times relevant, he has been under the charge of the California Department of State Hospitals (DSH) and housed at a DSH facility located in Coalinga, California (DSH-C).
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Felix appeals from an order of the superior court denying his petition for a writ of mandate under Code of Civil Procedure section 1085 (the "2020 petition") in which he sought an order directing respondents-each of whom were administrators and/or medical professionals employed by, or under contract with, the DSH and/or DSH-C-to restore and resume certain types and manner of treatment under DSH's "Sex Offender Treatment Program" and to declare the SVPA unconstitutional.
Felix utilized Judicial Council form HC-001, titled Petition for Writ of Habeas Corpus, to draft his 2020 petition. In it, he referenced and attached his Petition for Writ of Mandate, and Request for Declaratory Relief for nearly all substantive allegations of the 2020 petition. He has stated in a declaration filed in response to respondents' answer to the 2020 petition that his filing should not be treated as a petition for a writ of habeas corpus and, instead, should be treated as a petition for writ of mandate.
The named respondents are, as follows: Stephanie Clendenin, Director DSH; Brandon Price, Executive Director DSH-C; Francis Hicks, Clinical Administrator DSH-C; Dr. Robert Withrow, Medical Director DSH-C; Dr. Cory Fulton, Chief Psychologist DSH-C; and Dr. Travis Griffith, Director, Sex Offender Treatment Program.
We affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
I. The SVPA
"The SVPA provides for the involuntary civil commitment of certain sex offenders before the end of their prison or parole revocation terms. (§ 6601.) 'In describing the underlying purpose' of the SVPA, 'the Legislature expressed concern over a select group of criminal offenders who are extremely dangerous as the result of mental impairment, and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes.' [Citation.] '[T]o the extent such persons are currently incarcerated and readily identifiable,' the Legislature has indicated that 'commitment under the SVPA is warranted immediately upon their release from prison.' [Citation.] The Act provides these individuals with 'treatment for mental disorders from which they currently suffer and reduces the threat of harm otherwise posed to the public.' [Citation.] SVPs are committed 'for an indeterminate term to the custody of [DSH] for appropriate treatment and confinement in a secure facility.'" (Walker v. Superior Court (2021) 12 Cal.5th 177, 190.) "[T]he SVPA is a civil commitment scheme, and therefore, we should not construe the consequence of commitment as 'criminal' or 'punitive' in nature." (Cooley v. Superior Court (2002) 29 Cal.4th 228, 252, italics omitted.)
II. Felix's Convictions and SVPA Commitment
The following background facts are drawn, in part, from numerous published and nonpublished appellate opinions rendered in connection with Felix's challenges to one of his criminal convictions, his confinement as an SVP, and the DSH's administration of the Sex Offender Treatment Program (SOTP).
We quote from, and cite to, relevant unpublished opinions to" 'explain the factual background of the case and not as legal authority,'" a practice permitted under California Rules of Court, rule 8.1115(b)(1). (In re W.R. (2018) 22 Cal.App.5th 284, 286, fn. 2.)
A. Felix's 1982 Conviction and Subsequent Civil Commitment
"In 1982, [Felix] was convicted of three counts of false imprisonment [citation] against three separate victims, two counts of oral copulation and one count of rape against two additional victims, and one count of assault with the intent to commit rape against a sixth victim.... For these crimes, Felix was sentenced to 19 years four months in prison." (People v. Felix (2008) 169 Cal.App.4th 607, 610-611.)
"Felix was released on parole sometime before 1993." (People v. Felix, supra, 169 Cal.App.4th at p. 611.) Thereafter, Felix violated the terms of his parole on more than one occasion and, while on parole, was charged with several crimes. (Ibid.) While in custody on revocation of his parole, "the People [of the State of California] filed a petition to commit him as a[n SVP] pursuant to the [SVPA]." (Ibid.) "Felix was found to be an SVP [and] was committed to a two-year term." (Ibid.) The People petitioned to extend his commitment on more than one occasion and, ultimately, he was committed to an indeterminate term of confinement as an SVP. (Id. at pp. 611-613.)
Prior to September 20, 2006, the SVPA authorized a two-year term of commitment for a person adjudicated an SVP. (Former §§ 6604, 6604.1.) In 2006, the Legislature amended the SVPA and changed the authorized term of commitment from a two-year term to an indeterminate term. (Stats. 2006, ch. 337, §§ 55, 56, eff. Sept. 20, 2006 (Sen. Bill No. 1128); §§ 6604, 6604.1.)
B. Felix's Subsequent Conviction for a 2005 Assault
In 2005, while in confinement at the Atascadero State Hospital, Felix assaulted a fellow patient. (People v. Felix (Nov. 21, 2011, B223500) [nonpub. opn.] [2011 WL 5830331, p. *1].) He was criminally charged, pleaded no contest to a single count of assault with force likely to produce great bodily injury, and was sentenced to a term of nine years in state prison. (Ibid.)
C. Felix's Previous Challenges to His Confinement Under the SVPA and to the Hospital's Administration of its SOTP
Felix reached the end of his prison term in December 2013 and was transferred to DSH-C as a civil detainee under the SVPA. (Felix v. Department of State Hospitals Coalinga (Jun. 14, 2023, F081766) [nonpub. opn.] [2023 WL 3987848, p. *1].)
On or about February 24, 2014, Felix petitioned for a writ of mandate "assert[ing] he [was] entitled to an evaluation under the SVPA each year to determine whether he meets the definition of [an SVP]" and alleging he "never received an annual evaluation in accordance with the statute and due process." (Felix v. Superior Court (Jun. 18, 2020, F078523) [nonpub. opn.] [2020 WL 3286873, p. *1].) His petition was dismissed for "fail[ure] to effect proper service within the three-year period specified in Code of Civil Procedure section 583.210." (Ibid., fn. omitted.)
"Since February 2014, Felix has been filing writ petitions . . . seeking immediate release from his SVP commitment .. .. In 2014, he filed multiple petitions for writs of mandate in San Francisco County Superior Court (which ordered his SVP commitments), San Luis Obispo County Superior Court (where his assault conviction occurred), and Fresno County Superior Court (based on his confinement at [DSH-C], in Fresno County); as well as appeals and original writ petitions in their respective Courts of Appeal and in the California Supreme Court. In 2019, Felix filed two habeas petitions in San Francisco Superior Court contesting other aspects of his SVP commitment proceedings. And in 2022, through counsel appointed in his ongoing San Francisco SVP commitment case, Felix filed two habeas petitions with the First District Court of Appeal, invoking its original jurisdiction." (Felix v. Department of State Hospitals Coalinga, supra, [nonpub. opn.] [2023 WL 3987848, p. *3, fn. omitted].) Another habeas petition filed in September 2020 was denied in October 2021. (Ibid.)
III. The SOTP and its Modification Following Governor Newsom's State of Emergency Declaration and Executive Orders Pertaining to COVID-19
A. The SOTP
"The purpose of the SOTP,"-as described in an August 2, 2021 declaration by DSH-C's Senior Psychologist Supervisor, respondent Travis Griffith, Ph.D., who oversees the program-"is to equip patients to acquire the skills to prevent recurrence of a sexual offense. The program is structured into four modules. In Module I, patients are first introduced to the design of the program and its purpose. In Module II, patients begin cognitive behavioral therapy and learn skills to enable them to safely rejoin the community. In Module III, patients develop personal community reintegration plans, which consider the patient's likely release scenario, relevant risk factors, and potentially activating situations they may face in the community. Patients continue the cognitive behavioral therapy and fine-tuning of skills to manage risk factors. In Module IV, patients continue to prepare for community reintegration and potential conditional release and continue cognitive behavioral therapy and reinforcement of the skills learned through the SOTP."
B. The Governor's COVID-19 Proclamation and Related Executive Order
In late 2019 or early 2020, the COVID-19 pandemic reached the United States which led Governor Newsom to proclaim a state of emergency and issue related executive orders in March 2020. One such executive order authorized the director of DSH to waive provisions of the Welfare and Institutions Code and the Penal Code related to the "care, custody, and treatment" of patients under their charge. (Governor's Exec. Order No. N-35-20 (Mar. 21, 2020), pp. 2-3.) In response, Dr. Griffith stated, DSH-C "implemented changes to the SOTP to reduce the risk of spreading COVID-19 in the facility."
Coronavirus disease 2019.
In March 2020, Governor Newsom issued a "Proclamation of a State of Emergency," in which he found, among other things, that "strict compliance with various statutes and regulations specified in [the proclamation] would prevent, hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19." (Governor's Proclamation of a State of Emergency (Mar. 4, 2020), unnecessary emphasis omitted.) Later that same month, Governor Newsom issued an executive order in which he stated "COVID-19 continues to spread and is impacting nearly all sectors of California." (Governor's Exec. Order No. N-35-20 (Mar. 21, 2020), p. 1.) In it, he determined "state institutions housing vulnerable populations, such as those operated by the [DSH] . . . require special measures to protect those populations from COVID-19 and ensure continuity of care." (Ibid.) The executive order provided, in relevant part, "the Director of [DSH] may issue directives waiving any provision or requirement of the Welfare and Institutions Code; any provision or requirement of the Penal Code that affects the execution of laws relating to care, custody, and treatment of persons with mental illness committed to or in the custody of the [DSH]; and the accompanying regulations of Title 9, Division 1 of the California Code of Regulations." (Id. at pp. 2-3.)
C. DSH-C's Modification of the SOTP
On March 18, 2020, respondent and Executive Director of DSH-C, Brandon Price, issued a memorandum to DSH-C staff which stated DSH-C "will be rolling out a Social Distancing Program as recommended by the Centers for Disease Control . • and California Department of Public Health .... Social distancing at a minimum of six (6) feet is important to minimize the spread of COVID-19. In order to accomplish the guidance, it will require minimizing the amount of off-unit time for each unit." The memorandum continued:
"SOTP groups will continue as long as proper social distancing is exercised, and the group size does not exceed a total of 10 people. There will be instances w[h]ere SOTP groups are scheduled or split up due to the size of the group."
On March 25, 2020, Executive Director Price sent an email titled "COVID-19 Update" to DSH-C staff in which he advised staff concerning decisions made to minimize the risk of spreading COVID-19 to DSH-C patients. Relevant to the present matter are the following statements:
"Mall/Groups: All off unit groups have been suspended at this time. All activities or groups on the unit shall practice appropriate social distancing[.] [¶] ••• [¶]
"Social Distancing: All departments and hospital areas are encouraged to implement as much physical distancing as possible while maintaining social connections."
D. Module II Group Therapy-Before and After Modification
Felix's claims primarily concern DSH-C's modification of Module II's group therapy component. The following description of Module II's group therapy component both before and after Governor Newsom's emergency orders is taken from the August 2021 declaration of Dr. Griffith who oversees the SOTP.
"Before the pandemic struck and Governor Newsom's state of emergency orders were issued •, the treatment under Module II largely consisted of cognitive behavioral therapy through group meetings of about nine to ten patients in a small classroom, meeting twice a week with one psychologist or social worker, and one behavioral specialist or rehabilitation therapist. These group meetings included patients from different units and were known as mall groups or off-unit groups. Patients would also independently work on written assignments and discuss and receive feedback at the group meetings. Psychologists would typically provide risk assessments upon the patients' transition to the next module. Polygraphs would be conducted as referred and as needed, depending on each patient's development.
"After Governor Newsom's orders were issued . . ., DSH-[C] implemented changes to the SOTP to reduce the risk of spreading COVID-19 in the facility and to comply with guidelines from the Centers for Disease Control and Prevention and California Department of Public Health. Group meetings were suspended temporarily, but patients were encouraged to continue with the individual written assignments. Risk assessments were still ongoing, as well as any needed polygraphs."
"On June 1, 2020, DSH-[C] began modified support therapy groups, in which patients of the same living units meet every other week, in groups of six or less, in a social-distanced environment. The groups are led by the unit treatment staff, which generally consists of a psychologist, social worker, and rehabilitation therapist. Patients are still encouraged to continue the individual written assignments. Facilitators (psychologist, social worker, behavioral specialist or rehabilitation therapist) also meet with patients individually. Risk assessments and polygraphs are conducted as usual."
Dr. Griffith stated, "The SOTP was never fully suspended due to the pandemic, and patients are still able to progress and advance through SOTP. Treatment has continuously been available to Felix this year but he has declined to participate in the inunit group. The staff continue to meet weekly to discuss safety precautions and adjustments to SOTP. [DSH-C] will continue monitoring the safety concerns and adjusting the SOTP as necessary during the pandemic."
IV. The 2020 Petition, the Trial Court's Denial of Same, and the Current Appeal
A. The 2020 Petition
Felix filed his 2020 petition on October 15, 2020. In it, he raised claims in connection with DSH-C's alleged suspension of certain aspects of the SOTP program during the COVID-19 pandemic. He sought restoration of "the patients' (court ordered), structured [SOTP] individualized groups, with their primary clinicians." (Unnecessary capitalization omitted.) In his prayer for relief, Felix requested an order directing DSH-C to (1) restore the SOTP; (2) conduct SOTP group therapy in certain designated areas of DSH-C; (3) provide one-on-one, individualized treatment for patients with learning disabilities; (4) provide him with "[one-on-one] SOTP treatment . . . for two hours twice a week until he is advanced to Module-In." Felix also requested the appointment of a "special court monitor/master" to ensure compliance with orders issued pursuant to the 2020 petition and an order declaring the SVPA unconstitutional.
In his 2020 petition, Felix also alleged he was "denied all his constitutional procedural rights under the [SVPA], in accordance with . . . [section] 6600 ..., and brought back to [DSH-C], on a[n] illegal, and unlawful detainer for treatment." This latter claim was previously adjudicated against Felix. (People v. Felix, supra, 169 Cal.App.4th 607.) Except, perhaps, to the extent Felix seeks a declaration that the SVPA is unconstitutional, the 2020 petition does not request relief on grounds his commitment is unlawful.
Felix contended he is being denied court ordered sex offender treatment as a result of the modifications to the SOTP in violation of (1) section 6600, subdivision (a); (2) Title 9, section 880 et seq. of the California Code of Regulations; and (3) DSH policies and procedures, and that his statutory and constitutional rights are being violated. Felix alleged the suspension of SOTP individualized group therapy was "arbitrary, capricious, and [constituted] acts of deliberate indifference" and that "multiple alternatives . . . are [and were] available for providing treatment."
Felix further alleged DSH-C is required to provide its patients with an individualized treatment plan to aid patients in meeting "specific criterion for their release." He explained that a patient's individualized treatment plan takes into account specific risk factors and focuses on "treatment objectives" and "interventions" designed to meet "the patients' needs, strengths, and commitment types" by the "patients' treatment team members." The treatment team "tracks each patient's progr[e]ss" which is shared with various state officials and their attorneys "for preparation of reviews . . . called []treatment conferences." (Unnecessary capitalization omitted.) As alleged, the treatment conferences are conducted quarterly and biannually for the purpose of evaluating a patient's progress and may lead to the approval of a patient's release by the court and his or her placement in less restrictive housing.
The "commitment types" referred to by Felix include patients that have been civilly committed "for the sole purpose of treatment, and then release back into the community," as well as criminal defendants found not guilty by reason of insanity and persons identified as "offenders with mental health disorders."
With regard to his treatment at DSH-C, Felix alleged that since 2013, "he has actively participated in the . . . SOTP, under [a] structure protocol" and "under the current direction" of respondent Dr. Griffith.
Felix alleged he has completed Module-I and Module-II of the SOTP and the required testing necessary to advance to Module-III for which he currently is awaiting approval. He contended, "[t]he reality is [his] only hope" for release from SVPA confinement is through the SOTP, and his completion of SOTP Module-I through Module-IV. He alleged he is being denied required SOTP treatment and, as a result, is being "denied the opportunity to be released" and the opportunity to be approved for DSH's Forensic Conditional Release Program-statutorily described as a system of "mental health treatment and supervision in the community for judicially committed persons." (§ 4360, subd. (a) &(b).)
In a May 1, 2020 declaration in support of his 2020 petition, Felix said he has been an active participant in the SOTP program at DSH-C and has completed all clinical assessments available to him but received no SOTP treatment for the past six months. He stated his treatment team told him SOTP was suspended due to DSH-C being on lockdown but, he contended, other DSH-C patients continued to receive SOTP treatment. He said he requested his SOTP treatment (including individualized treatment) resume and indicated his willingness to socially distance and wear a mask. Felix said he was advised that, instead of resuming "structured SOTP group" therapy, DSH-C was starting a new "check in group" as an alternative. However, he argued, this alternative does not provide individualized, confidential treatment as does the unmodified SOTP. As a result of the suspension of the SOTP program (or aspects of it), Felix claimed he is unable to continue his treatment and advance to the next module, i.e., Module-III.
Felix's use of the term "check in group" appears to be a reference to the "inunit groups" referred to by Dr. Griffith in his August 2021 declaration.
In his memorandum of points and authorities in support of his 2020 petition, Felix asserted four causes of action: (1) for a writ of mandate; (2) for violation of the equal protection clause (U.S. Const., 14th Amend.); (3) for discrimination under Title II of the Americans With Disabilities Act (42 U.S.C. 12101 et seq.) (ADA); and (4) for declaratory relief.
In that same memorandum, Felix argued that the alternative check in groups meet "once a week for ten (10) minute periods without any structured SOTP syllabus" and that there is no structured treatment. Rather, patients are merely asked to "write in their workbooks and to journal without any direction." Conversely, he stated, SOTP participants "must divulge an in-depth sexual history, give details of their criminal and deviant offenses, and present, and process their work in a group setting." He claimed he was in a group that had been together for years and that he "developed trust with his peers and facilitators, and ... is now being denied his right to participate in [t]his group to the detriment of his mental progress."
According to Dr. Griffith, who oversees the SOTP, Felix refused to participate in modified SOTP group therapy "out of concern that [doing so] would jeopardize this lawsuit." Felix stated in his opening brief that he never refused to participate in the SOTP, which, presumably, is a reference to his group therapy treatments prior to modification of the SOTP due to COVID-19 concerns. Felix did decline treatment under the modified SOTP at least at one point in time, as was subsequently confirmed in his October 21, 2021 letter to addressed to Dr. Cory Fulton, Chief Psychologist, DSH-Coalinga Unit-4 Treatment Team, a respondent herein.
B . The Trial Court Denied the 2020 Petition
On December 8, 2021, the trial court held a hearing on the 2020 petition. Felix, acting in propria persona, and respondents' counsel appeared at the hearing remotely. Upon conclusion of the hearing, the court took the matter under advisement.
On December 9, 2021, the trial court issued its "Tentative and Proposed Order Denying Petition for Writ of Mandate." The court found in favor of respondents on all claims and causes of action asserted by Felix.
The tentative order advised the parties that, pursuant to Code of Civil Procedure section 632 and California Rules of Court, rule 3.1590, "any objections to the Court's tentative and proposed statement of decision shall be served and filed within 15 days after [its] service." It further advised the parties that, "[i]f no timely objections are made, this tentative and proposed statement of decision will be the statement of decision of the Court, and the Respondents are] directed to submit a form of judgment to the Court for signature." On December 10, 2021, the trial court's clerk of court mailed notice of entry of the tentative and proposed order denying the 2020 petition to Felix and respondents' counsel.
No timely objections were filed in connection with the trial court's Tentative and Proposed Order Denying Petition for Writ of Mandate and, by its own terms, it became the order of the court (the "subject order").
C . Felix Files a Notice of Appeal, Motion for Reconsideration, and Request To Be Heard
On February 17, 2022, Felix timely filed a notice of appeal of the subject order.As part of that same notice of appeal, Felix also sought the trial court's reconsideration of the 2020 petition and a hearing on the same. On March 10, 2022, the court summarily denied Felix's request for hearing on reconsideration.
Subsequent to his filing the notice of appeal, Felix moved this court to appoint counsel to represent him in the appeal pursuant to Smith v. Ogbuehi (2019) 38 Cal.App.5th 453; under its own authority; and for the efficiency of the court due process." We denied Felix's motion. See related discussion in section V.C., post.
DISCUSSION
I. The Subject Order Is Appealable
Although the trial court, in the subject order, directed respondents to "submit a form ofjudgment to the Court for signature"-which was not done-we nevertheless conclude the subject order is appealable. "[A]n order granting or denying a petition for an extraordinary writ constitutes a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment." (Public Defenders' Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409.)"' "[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final." (Id. at p. 1410.) The subject order denying Felix's 2020 petition resolved all issues before the court. It is a final order subject to appeal.
II. Excessive Exhibits Attached to Reply Brief Are Ordered Stricken
When Felix filed his appellant's reply brief, he attached over 400 pages of exhibits to it. These exhibits are in addition to the 1,134 pages designated as part of the record on appeal by Felix and included in the clerk's transcript, and the 158 pages of exhibits attached to Felix's opening brief. As a result, this court notified Felix that the number of attachments "far exceeds the number of pages that can be attached to a brief." We advised him that "any decision on whether this court will consider or strike the excessive exhibits [would be] deferred pending consideration of the appeal on the merits."
In response, Felix wrote the clerk of court and argued this court should not strike the exhibits "on the grounds each separate piece of evidence submitted is relied upon to prove [DSH-C's] failure to provide not just adequate, but reasonable professional treatment." He explained he is "a layman at law, and has acted in good faith in providing the court, the necessary materials to brief the court on the merits of the case." We do not question Felix's good faith in providing this court with the exhibits.
"[M]ere self-representation is not a ground for exceptionally lenient treatment.... A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) An appellant who is self-represented "must follow the rules of appellate procedure." (County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861.)
California Rules of Court, rule 8.204(d) provides: "A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible. These attachments must not exceed a combined total of 10 pages, but on application the presiding justice may permit additional pages of attachments for good cause. A copy of an opinion required to be attached to the brief under rule 8.1115(c) does not count toward this 10-page limit."
Treating Felix's responsive letter as an application to authorize additional pages of attachment, we conclude Felix has not demonstrated good cause to consider them and, therefore, deny the application.
Moreover, we decline to take judicial notice of the documents as requested by Felix. We are unable to determine whether any of the documents were ever presented to the trial court. The documents are not file-stamped and contain no prior proofs of service. "Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered. '" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) On the other hand, if these documents were presented to the trial court, Felix has provided no good cause explanation as to why they were not included in his designation of the record on appeal. Absent good cause, a reviewing court generally will not consider matters raised for the first time in a reply brief. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214.)
The exhibits attached to Felix's reply brief in excess of the 10 page limit are ordered stricken.
III. Request for Judicial Notice in Support of Opening Brief
Felix has requested this court take judicial notice of the 158 pages attached to his opening brief. We have reviewed these exhibits and judicially notice the following documents: Exhibit 1 (2006 San Francisco Superior Court order of commitment); Exhibit 6 (Cal. DSH -Treatment Plan dated July 26, 2018); Exhibit 8 (DSH-C Admin. Directive No. 446, eff. Sept. 22, 2021); Exhibit 9 (DSH-C Admin. Directive No. 440, eff. Feb. 8, 2022); Exhibit 10 (DSH-C Admin. Directive No. 438, eff. Feb. 16, 2021); Exhibit 11 (DSH-C Admin. Directive No. 434, eff. Feb. 8, 2022); Exhibit 12 (DSH-C Admin. Directive No. 430, eff. Dec. 14, 2021); Exhibit 12 (DSH-C Admin. Directive No. 510, eff. Mar. 22, 2022); Exhibit 13 (DSH-C Admin. Directive No. 510, eff. Mar. 22, 2022); Exhibit 14 (DSH-C Admin. Directive No. 554, eff May 11, 2021); Exhibit 15 (DSH-C Admin. Directive No. 589, eff. May 11, 2021); Exhibit 16 (DSH-C Admin. Directive No. 422, eff. Sep. 22, 2021); Exhibit 17 (DSH-C Admin. Directive No. 426, eff. Jul. 13, 2021); Exhibit 18 (DSH-C Admin. Directive No. 428, eff. Oct. 19, 2021); Exhibit 19 (DSH-C Admin. Directive No. 212, eff. Jul. 13, 2021); Exhibit 20 (DSH-C Admin. Directive No. 405, eff. Jun. 15, 2021); Exhibit 21 (Notices of Detainer dated November 6, 2009 &April 14, 2010, Abstract of Judgment dated March 26, 2010, and related detainer summary and acknowledgement of detainer receipt). These documents are judicially noticeable as official acts of three branches of state government (Evid. Code, § 452, subd. (c)), or records of courts of this state (id., at subd. (d)). We decline to take judicial notice of other exhibits subject to the request.
Although some of the documents postdate the subject order, we take judicial notice of them nonetheless because Felix considers them relevant to his opening argument on appeal and respondents did not oppose the request.
We decline to take judicial notice of the following exhibits attached to Felix's opening brief on the following grounds: Exhibits 2 and 3 (Felix's Cal. Voter's Registration Form and a 2007 summons for jury service); and Exhibit 5 (DSH-C memorandum re: avoiding copyright infringement) are denied as not relevant to the current appeal. (Town of Atherton v. California HighSpeed Rail Authority (2014) 228 Cal.App.4th 314, 341): Exhibit 4 (Scott E. Felix Community Release Plan & Relapse Prevention Plan, authorship unknown) and Exhibit 7 (unfiled declaration of Felix) are denied on grounds they are not proper subjects ofjudicial notice. (Evid. Code, §§ 451, 452.):
IV. Standard of Review and Appellant's Burden
"Generally, a writ of ordinary mandate will lie when (1) there is no plain, speedy and adequate alternative remedy, (2) the public official has a legal and usually ministerial duty to perform and (3) the petitioner has a clear and beneficial right to performance. [Citation.] When reviewing a trial court's judgment on a petition for ordinary mandate, we apply the substantial evidence test to the trial court's findings of fact and exercise our independent judgment on legal issues, such as the interpretation of statutory or regulatory requirements." (Menefield v. Foreman (2014) 231 Cal.App.4th 211, 216-217.) "Mandamus may issue to correct the exercise of discretionary legislative power, but only if the action taken is so palpably unreasonable and arbitrary as to show an abuse of discretion as a matter of law. This is a highly deferential test." (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1265.)
"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. '" (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609; see Cal. Const., art. VI, § 13.)" 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court.'" (Jameson, at p. 609.)
V. Resolution of Felix's Contentions on Appeal
It is difficult at times for this court to clearly identify Felix's contentions of error on appeal. We do our best at identifying and addressing them below.
A. Credibility Issues Are the Province of the Trial Court
In his opening brief of appeal, Felix makes a number of contentions attacking the veracity of Dr. Griffith. He contends Dr. Griffith committed perjury in submitting a declaration in opposition to the 2020 petition. Generally speaking, "[a]s a reviewing court, we can neither reweigh evidence nor reevaluate a witness's credibility." (People v. Davis (2023) 87 Cal.App.5th 771, 779; McCordv. Smith (2020) 51 Cal.App.5th 358, 364; Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786 [appellate court bound by trial court's credibility determinations unless testimony is" 'inherently improbable or incredible' "].)
Felix does not specify in his appellate brief which statements of Dr. Griffith he contends are perjurious." 'The appellate court is not required to search the record on its own seeking error.'" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) In any event, we have reviewed Dr. Griffith's declaration and do not find its averments inherently improbable or incredible.
To the extent the trial court credited statements in Dr. Griffith's declaration, it was entitled to do so. These contentions do not demonstrate prejudicial error on the part of the trial court.
B. New Claims Cannot Be Litigated for the First Time on Appeal
In his opening brief, Felix contends DSH-C "provide[s] no due process, or equal protection in challenging the inter-disciplinary notations . . . or serious incident reports." (Unnecessary capitalization omitted.) He also contends DSH-C failed to provide him with annual evaluations and court ordered review for the past seven years. Felix also makes the following factual claims: that DSH-C "refuses to permit patients[] . . . to have their [annual evaluations], and/or [treatment team hearings], tape recorded, or attended by counsel of record to conceal the truth, and factual evidence"; and that DSH-C personnel "create false records, and give prejudicial] testimony" in connection with annual evaluations under the SVPA. (Unnecessary capitalization omitted.)
These claims were not part of Felix's 2020 petition and were not raised before the trial court. "Failure to raise specific challenges in the trial court forfeits the claim on appeal. '" '[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.' Thus, 'we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.'" '" (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)
Because these claims were not raised in the trial court, we do not consider them. They cannot be litigated for the first time on appeal.
C. Felix Was Not Entitled to Appointed Counsel In This Matter
Felix appears to challenge the trial court's denial of his request for appointed counsel. The Sixth Amendment right to counsel applies to criminal proceedings. (U.S. Const., 6th Amend. ["In all criminal prosecutions, the accused shall enjoy the right .. to have the Assistance of Counsel for his defense."].) The Sixth Amendment does not provide a right to counsel in proceedings under the SVPA. (People v. Orey (2021) 63 Cal.App.5th 529, 567.) Although there are statutory rights to counsel provided by the SVPA, those statutory rights adhere to commitment proceedings (including related probable cause hearings and petitions for conditional release or unconditional discharge) and not petitions seeking a particular form of treatment. (§§ 6602, subd. (a), 6603, subd. (a), 6605, subd. (a)(3), 6608, subd. (a).) The trial court did not err by not appointing counsel to assist Felix in prosecuting his 2020 petition.
D. Felix Was Not Denied a Hearing on His 2020 Petition
Felix contends the trial court erred by not holding a hearing regarding his claim that he is being denied individualized sex offender treatment under the SOTP. This contention cannot be squared with the record on appeal. The minute order that issued on or about December 8, 2021, states that the 2020 petition was heard on that date and that plaintiff actually appeared (remotely) at the hearing. Moreover, Felix's own notice of appeal expressly states, the matter of the 2020 petition "was taken under the court[']s submission after oral arguments by each party on the 8th of December 2021." (Italics added.)" 'In a law and motion, writ of mandate hearing, the trial court has broad discretion to decide a case on the basis of declarations and other documents rather than live, oral testimony.'" (American Federation of State, County &Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 263; Cal. Rules of Court, rules 3.1103(a)(2), 3.1306(a).) Thus, the claim of error has no merit.
E. Felix's Equal Protection Claims Lack Merit
Felix contends "patients[] that are classified as openly gay or bi-sexual are advanced, through the [SOTP] 90% faster than their [heterosexual] counterparts." His citation to the record consists of a single citation to "Volume-1 Page-418 through Pages 677; Inclusive with each of [Felix's] attached (EXHIBITS), as evidence"-i.e., more than 250 pages including several of Felix's own declarations, the order of detainment, internal emails of the DSH and DSH-C, a complaint form filled out by Felix, Felix's own medical records, letters from Felix to a deputy attorney general and DSH/DSH-C officials, newspaper articles, DSH-C publications, Department of Mental Health publications, law review articles, documents provided by DSH in response to public record requests, and numerous declarations from other detainees.
An appellant must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) It is" 'the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.'" (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1, italics omitted.) A block citation to hundreds of pages "frustrates this court's ability to evaluate which facts a party believes support his position, particularly when a large portion of that citation referred to points that appeared to be irrelevant." (Ibid.) "It is not our place to comb the record seeking support for assertions parties fail to substantiate." (Howard v. American National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 534.) Notwithstanding, our review of those pages has not revealed competent evidence to support Felix's contention that detainees who are homosexual are advancing 90 percent faster than their heterosexual counterparts.
In his declaration dated September 13, 2021, Felix alleges certain personnel of DSH-C are homosexual, that "90% of the patient population is both homosexual, and child molesters," and that these facts "play a key role in both treatment, advancement, and prejudice against male heterosexual patients[] that are receiving SOTP Treatment." Again, we are unable to discern any foundation for these factual allegations.
The trial court's determination that "[t]here is no evidence before the court that [Felix] was treated any differently than any other civil detainee similarly situated" appears correct and Felix has not directed this court to anything in the record indicating otherwise. As a result, Felix has not met his burden of demonstrating prejudicial error on the part of the trial court.
F. The Trial Court Did Not Err in Denying Felix's Claim Under the Americans With Disabilities Act
The trial court's determination that evidence did not support Felix's claim he was treated differently than other similarly situated civil detainees is tantamount to a finding that Felix was not discriminated against. After making this finding, the court continued: "Further, [Felix's] claim under the Americans with Disabilities Act also fails because [Felix] did not prove he had a qualifying disability."
In his opening brief on appeal, Felix did not challenge the trial court's determination with respect to his ADA claims. However, respondents addressed the issue in their respondents' brief, arguing Felix "does not have a qualifying disability under the ADA" and "cannot show he was discriminated against on the basis of his alleged qualifying disability." (Unnecessary emphasis omitted.) In his reply brief, Felix argued that his status as an SVP qualifies him as disabled for ADA purposes. The basis for Felix's argument appears to be that an SVP, by definition, is a person who, among other things, "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." (§ 6600, subd. (a)(1).)
The term "disability" under the ADA "means, with respect to an individual-[¶] (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; [¶] (B) a record of such an impairment; or [¶] (C) being regarded as having such an impairment . _." (42 U.S.C. § 12102, subd. (1).) As one court stated, "[e]ngaging in sexually violent criminal behavior is not a major life activity, and a mental disorder that impedes refraining therefrom does not substantially limit one or more of the major life activities of the person. Additionally, people who pose a significant risk to the health or safety of others that cannot be ameliorated by means of a reasonable modification are not 'qualified individuals' covered by Title II." (Johnson v. Santa Clara County (N.D. Cal. 2003) 2003 U.S. Dist. LEXIS 28484, *13.) In the court below and on appeal, Felix has failed to demonstrate that one or more of his major life activities were limited by a disability.
"An individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." (42 U.S.C. § 12102, subd. (3)(A).) However, as discussed post, Felix did not establish he was subject to an action prohibited under the ADA.
In addition, to prevail on this claim, Felix was required to show that "by reason of [a qualifying] disability [he was] excluded from participation in or [was] denied the benefits of the services, programs, or activities of a public entity, or [was] subjected to discrimination by any such entity." (42 U.S.C. 12132.) However, as previously discussed, the trial court found insufficient evidence to support Felix's claim that he was discriminated against. Felix has not demonstrated otherwise. Accordingly, his ADA claim must fail.
G. Modifications to the SOTP Are Not Unconstitutional, Arbitrary, or Unreasonable
The only remaining issue adequately raised by Felix on appeal is whether mandamus should issue to require respondents to restore group therapy treatment under the SOTP as it existed pre-pandemic.
In his opening brief, Felix contends he has been denied his constitutional and legislatively mandated right to treatment. Felix's claim appears to be that he is entitled to SOTP group therapy treatment as it existed prior to modification.
In addition, Felix raised questions of constitutionality in connection with new claims not presented to the trial court and with respect to his claim of entitlement to appointed counsel in these proceedings. As mentioned, we decline to consider the former claims and, as to the latter claim, we have addressed it within this opinion.
1. Modification of SOTP Group Therapy Is Not, of Itself, a Constitutional Violation
The trial court determined the modification to SOTP group therapy constitutional under the reasoning of Jacobsen v. Massachusetts (1905) 197 U.S. 11, 26 S.Ct. 358 (Jacobsen). We agree.
In Jacobsen, the U.S. Supreme Court upheld the constitutionality of a Massachusetts law requiring adults to be vaccinated in instances where a local board of health determined it necessary to public health and safety. (Jacobsen, supra, 197 U.S. at p. 12.) In 1902, the city of Cambridge, Massachusetts issued a regulation requiring adults be vaccinated for smallpox after its board of health determined the disease had gained prevalence in the city. (Ibid.) The plaintiff in error challenged the law on grounds it violated the Fourteenth Amendment and, in particular, its provisions stating, "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Id. at p. 14; U.S. Const. Amend. 14.)
The high court upheld the law noting that "the police power of a State must be held to embrace, at least, such reasonable regulations . . . as will protect the public health and the public safety." (Jacobsen, supra, 197 U.S. at p. 25.) The court further stated, "the state may invest local bodies . . . with authority in some appropriate way to safeguard the public health and the public safety." (Ibid.) Such authority is subject to judicial interference only when it is "exercised in . . . an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public." (Id. at p. 28; Coachella Valley Unified School Dist. v. State of California (2009) 176 Cal.App.4th 93, 113 [mandamus may issue where exercise of discretionary power "amounts to an abuse of discretion as a matter of law because it is so palpably unreasonable and arbitrary"].)
The decision of DSH and DSH-C to modify the SOTP group therapy treatment in response to the COVID-19 pandemic and in accordance with guidance from the Centers for Disease Control and Prevention and California Department of Public Health is not, in and of itself, unconstitutional.
2. Modification of SOTP Group Therapy Was Not Arbitrary or Unreasonable
"A party may seek relief by way of ordinary or traditional mandamus 'to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station....' [Citation.] Thus mandate will lie to compel the performance of a clear, present and ministerial duty on the part of the respondent where the petitioner has a beneficial right to performance of that duty. [Citations.] A ministerial act is one that a public functionary '" 'is required to perform in a prescribed manner in obedience to the mandate of legal authority,'"' without regard to his or her own judgment or opinion concerning the propriety of such act. [Citation.] And, while a party may not invoke the remedy to force a public entity to exercise discretionary powers in any particular manner, if the entity refuses to act, mandate is available to compel the exercise of those discretionary powers in some way. [Citation.] Finally, mandamus may also issue to correct the exercise of discretionary legislative power, but only where the action amounts to an abuse of discretion as a matter of law because it is so palpably unreasonable and arbitrary." (Coachella Valley Unified School Dist. v. State of California (2009) 176 Cal.App.4th 93, 113.) "This is a highly deferential test." (Carrancho v. California Air Resources Board, supra, 111 Cal.App.4th at p. 1265.)
It was Felix's burden to prove he was entitled to a writ of mandate in this matter. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153; California Teachers Assn. v. Pasadena Unified School Dist. (1978) 79 Cal.App.3d 556, 558.) The trial court determined he did not meet his burden. "Where an issue subject to appellate review turns on a failure of proof at trial, the question for a reviewing court is whether the evidence compels a finding in favor of the appellant as a matter of law. [Citation.] The finding is compelled if the appellant's evidence was' "uncontradicted and unimpeached"' and' "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 390.)
Subdivision (a) of section 6606 provides that an SVP "shall be provided with programming by the [DSH] which shall afford the person with treatment for his or her diagnosed mental disorder." "Treatment does not mean that the treatment be successful or potentially successful, not does it mean that the person must recognize his or her problem and willingly participate in the treatment program." (§ 6606, subd. (b).) "The programming ... shall be consistent with current institutional standards for the treatment of sex offenders, and shall be based on a structured treatment protocol developed by the [DSH]." (Id. at subd. (c).)
Generally, an SVP has "[a] right to receive treatment for a diagnosed mental disorder." (Cal. Code Regs., tit. 9, § 883, subd. (b)(2).) The right is provided to "Non-LPS Patients," who are patients committed "pursuant to legal authority other than the Lanterman-Petris-Short (LPS) Act, commencing with Section 5000, of Part 1, Division 5 of the Welfare and Institutions Code." (Cal. Code Regs., tit. 9, § 881, subds. (o) &(r).)" 'Treatment' means clinical intervention and action that is devised and implemented based on comprehensive assessment of the patient by the interdisciplinary team and that is designed to improve or stabilize a diagnosed mental and/or physical condition." (Cal. Code Regs., tit. 9, § 881, subd. (z).) A" 'Treatment Plan' means the method developed by the interdisciplinary team to implement treatment for the patient on an ongoing basis. The treatment plan is documented in writing in the patient's medical record, includes specific goals and objectives, identifies a continuum of care, and is reviewed and modified at frequent intervals by the interdisciplinary team." (Id. at subd. (aa).)
"[T]o the extent a state attempts to assist in the recovery of persons who are permissibly confined for mental health reasons, it enjoys 'wide latitude' in developing appropriate treatment programs." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1165, fn. 27, citing Kansas v. Hendricks (1997) 521 U.S. 346, 368, fn. 4.) The SVPA contemplates, however, that SVP detainees may not be willing to participate in the particular type of treatment devised by the DSH to treat the SVP's mental disorder. (§ 6606, subd. (b).) The SVPA does not require DSH to provide treatment that is amenable to the SVP. (Ibid.)
The Legislature vested DSH with discretion to develop and provide appropriate treatment to an SVP. Here, according to Dr. Griffith, who oversees the SOTP, DSH-C modified its SOTP program in response to the Governor's State of Emergency Proclamation and the Governor's Executive Order No. N-35-20. Thereafter, it worked diligently to modify its SOTP group therapy in accordance with guidance from the Centers for Disease Control and Prevention and the California Department of Public Health.
Government Code section 8625 empowers the Governor of the State of California to proclaim a state of emergency whenever "conditions of disaster or of extreme peril to the safety of persons and property within the state" are determined to exist. (Gov. Code, §§ 8625, subd. (a); 8558, subd. (b).) Epidemics are among the type of emergencies expressly enumerated as potential causes of such conditions. (Gov. Code, § 8558, subd. (b).)
The trial court credited Dr. Griffith's statements in his August 2021 declaration that "while 'off unit' meetings were suspended to reduce the spread of COVID-19, patients were encouraged to continue with individual written assignments"; that "risk assessments continued as well as polygraph testing"; that Felix was "offered modified group therapy sessions, in groups of six or less, which included patients housed at the same location"; that "group treatment sessions are usually led by a psychologist, a social worker and/or a rehabilitation therapist"; and that individual meetings with detainees are facilitated by trained staff. The court also credited the statement of Dr. Griffith that Felix has refused modified SOTP treatment. Ultimately, the court concluded Felix did not prove respondents were "compelled to provide a specific method of treatment at [Felix's] choosing."
"All issues of credibility are within the province of the trier of fact. [Citation.] The testimony of a single witness will constitute substantial evidence for the purpose of appeal." (Gregory v. Hamilton (1978) 77 Cal.App.3d 213, 220-221.) We have previously concluded that Dr. Griffith's statements were not inherently improbable or incredible. Thus, the trial court was entitled to credit Dr. Griffith's description of the modified SOTP.
Although Felix broadly contends the treatment provided under the modified SOTP group therapy does not provide him with treatment that is "consistent with current institutional standards for the treatment of sex offenders," he has not demonstrated an inconsistency. Moreover, his claim that the modified SOTP does not provide SVPs with individualized treatment is directly refuted by Dr. Griffith's statement that, under the modified SOTP program, patients are encouraged to continue their individual written assignments, and continue to meet individually with a "psychologist, social worker, behavioral specialist or rehabilitation therapist." Group therapy continues under the modified SOTP program-albeit in a modified form (i.e., it consists of smaller groups comprised of individuals in the same unit).
As noted, DSH has broad authority to develop the type of treatment it provides to SVP civil detainees. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1165, fn. 27.) Felix has not demonstrated that these modifications are "so palpably unreasonable and arbitrary" as to constitute an abuse of discretion as a matter of law.
DISPOSITION
The subject order is affirmed in its entirety. Costs on appeal are awarded to respondents.
WE CONCUR: HILL, P. J. DE SANTOS, J.