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Name: People v. Landau
Case #: G042008
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/07/2013

Appellant was convicted of committing sex offenses against children and sentenced to state prison. Prior to his release on parole the prosecution filed a petition to commit him as a sexually violent predatory (SVP). Seven years after the filing of the initial petition, and after two mistrials, a jury found he met the criteria for commitment as an SVP. Landau raised numerous issues on appeal. Held: Affirmed.

The Fourth Amendment exclusionary rule does not apply in SVP proceedings. Without a warrant, the prosecution obtained documents appellant mailed to a friend to hold for him, and used them in his SVP trial. Appellant raised a Fourth Amendment challenge to the trial court’s admission of this evidence. “For the rule to apply, its deterrent effect must outweigh its substantial social costs.” Application of the rule in criminal cases is a sufficient deterrent for law enforcement officials seeking evidence in support of a criminal charge. An SVP proceeding is not a criminal action and does not seek to punish. Such proceedings do not present a compelling need for deterrence against illegal searches in addition to that provided in criminal cases.

Appellant was not denied procedural due process by excessive pretrial delay. An SVP has a due process right to a timely trial on an SVP petition. Here, the trial court failed to accord appellant a timely trial. However, applying the balancing test set forth in Mathews v. Eldrigde (1976) 424 U.S. 319, and the criteria in Barker v. Wingo (1972) 407 U.S. 514, appellant was not denied procedural due process because he requested or consented to the majority of the continuances. Further, he suffered no prejudice from the unconsented-to delay.

The 2006 change to the SVPA, allowing indefinite commitments, is constitutional. The provision for an indefinite commitment does not render the SVPA criminal in nature and does not violate double jeopardy. Further, although SVPs are similarly situated to MDOs, and SVPs are treated more harshly by virtue of the indefinite commitment, “[t]he state has a compelling state interest in protecting society from dangerous persons and in its treatment of those confined due to mental illness.”

Where an appellant fails to mount a pre-trial challenge to the use of underground regulations, prejudice must be shown to obtain relief. Landau claimed he was denied due process because his initial psychological evaluations were conducted pursuant to an unlawful “underground regulation,” i.e., a protocol that was implemented without compliance with the Administrative Procedure Act. Even so, Landau failed to raise the issue prior to trial and therefore had to show prejudice to obtain relief. He did not claim the evidence was insufficient to support the jury’s finding, so he failed to demonstrate prejudice resulting from the use of unlawful regulations. His attorneys were not ineffective for failing to challenge the protocol prior to trial because the determination the regulations were invalid was not published until after his trial.