Opinion
2d Crim. No. B223500
11-21-2011
THE PEOPLE, Plaintiff and Respondent, v. SCOTT EMERSON FELIX, Defendant and Appellant.
Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster, Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F383996)
(San Luis Obispo County)
Scott Emerson Felix appeals from his conviction after pleading no contest to one count of assault with force likely to produce great bodily injury upon a fellow patient at Atascadero State Hospital (ASH). (Pen. Code, § 245, subd. (a)(1).) He admitted that he personally inflicted great bodily injury, and that he had suffered one prior strike conviction. (§§ 12022.7, 667, subds. (b) & (i), 1170.12, subds. (a) & (d).) The court sentenced him to nine years in state prison. (§§ 245, subd. (a)(1); 667, subd. (d) & (e); 12022.7.) In a separate proceeding, his commitment to ASH as a sexually violent predator (SVP) was extended. (San Francisco Superior Court, Case No. 109100.)
All statutory references are to the Penal Code unless otherwise stated.
We previously granted appellant's request to take judicial notice of the San Francisco Superior Court's records in this case.
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Appellant contends that his prosecution is barred by the doctrine of judicial estoppel because the People took an inconsistent position in the SVP proceeding when the SVP prosecutor argued that he was unable to control his anger. Appellant waived this contention when he pled no contest. (People v. Hoffard (1995) 10 Cal.4th 1170, 1178.) Moreover, the People did not take an inconsistent position in the SVP proceeding. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1982, appellant suffered convictions in San Francisco for forcible rape, forcible oral copulation, and assault with intent to commit rape. (§§ 261.2; 288a, subd. (c); 220.) He served a prison sentence and, when paroled, committed additional criminal offenses. In 1996, the court revoked his parole and committed him to ASH as an SVP. (Welf. & Inst. Code, §§ 6600, 6601 & 6604.) His commitment was extended more than once based on a continuing risk of reoffending. (People v. Felix (2008) 169 Cal.App.4th 607, 611.)
While at ASH, appellant had regular behavior problems and, in April 2005, he assaulted a fellow patient. Based on that assault, the San Luis Obispo District Attorney's office charged appellant in this case. Meanwhile, in San Francisco, another petition was pending to extend appellant's SVP commitment.
On the petition to extend commitment, a San Francisco jury found that appellant was an SVP and he was recommitted for an indefinite term. (People v. Felix, supra, 169 Cal.App.4th at p. 613.) In this case, appellant filed a demurrer to the information. He argued that the criminal prosecution was barred by the doctrine of judicial estoppel because the State recommitted him based on his inability to control his behavior, a position that was inconsistent with criminal punishment for a willful criminal act. The court overruled the demurrer.
Appellant then pled no contest to the charged assault in exchange for dismissal of the remaining charges. The court issued a certificate of probable cause and this appeal followed.
DISCUSSION
A guilty plea or plea of no contest is an admission of every element of the crime and waives all errors concerning guilt or innocence. Review is limited to errors going to the jurisdiction of the court or the legality of the proceedings. (People v. Hoffard, supra, 10 Cal.4th at p. 1178.) Appellant's contention that the prosecution is barred by the doctrine of judicial estoppel is not cognizable on appeal because it does not go to the jurisdiction of the court or the legality of the proceedings. The filing of a certificate of probable cause cannot expand the scope of review to include a non-cognizable issue. (Ibid.)
In a supplemental letter brief, appellant argues that the doctrine of judicial estoppel concerns the legality of the proceedings and is therefore not barred by his plea. We disagree. His claim went directly to the determination of his guilt or innocence because he sought a judicial determination, based on the successful prosecution of the SVP petition, that he did not have a criminally culpable state of mind when he attacked his fellow inmate. Appellant's claim is unlike those raised in the cases upon which he relies. (People v. Moore (2003) 105 Cal.App.4th 94, 100 [discriminatory prosecution], People v. Durrett (1985) 164 Cal.App.3d 947 [prosecution's failure to seek restitution before filing welfare fraud charges], People v. Padfield (1982) 136 Cal.App.3d 218, 228 [denial of pre-trial diversion].) Each of those claims raised procedural issues that had nothing to do with the determination of guilt or innocence.
The fact that appellant's claim has a constitutional dimension does not preserve it. A constitutional claim for violation of the federal due process clause may arise where a prosecutor, intentionally and in bad faith, asserts totally inconsistent factual positions in two proceedings thereby rendering the trial fundamentally unfair. (In re Sakarias (2005) 35 Cal.4th 140, 160-161.) But a federal due process claim is not preserved after a no contest plea when it relates to determination of guilt and does not go to the legality of the proceedings. (People v. Krotter (1984) 162 Cal.App.3d 643, 648 [due process challenge to denial of change of venue motion was waived by no contest plea].) Like the motion for change of venue in Krotter, appellant's demurrer "relate[d] to the issue of guilt or innocence, i.e., the defendant's interest in receiving a fair trial," (ibid.) and the fact that application of judicial estoppel in a criminal proceeding "is designed to protect the fundamental right to a fair trial does not compel the conclusion that it is reviewable on appeal." (Ibid.)
The result would be no different on the merits because the prosecutor did not take an inconsistent position in the SVP trial. The SVP proceedings established that appellant had a mental condition affecting his emotional or volitional capacity, predisposing him to commission of criminal sexual acts (Welf. & Inst. Code, § 6600, subd. (c)), but mental disease is not a defense to a general intent crime such as assault, and irresistible impulses do not absolve anyone of criminal responsibility for their conduct. (§ 28, subd. (a) & (b).)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J. We concur:
GILBERT, P.J.
YEGAN, J.
John A. Trice, Judge
Superior Court County of San Luis Obispo
Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jamie L. Fuster, Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.