Supreme Court of California Justia
Docket No. S117964A
People v. Yartz

Filed 12/5/05 (reposted to add omitted filing date)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S117964
v.
) Ct.App.
3
C035317
NORMAN YARTZ,
San Joaquin County
Defendant and Appellant.
) Super.
Ct.
No.
12248C

We must decide whether a 1978 conviction based on a nolo contendere, or
no contest, plea may serve as a predicate prior conviction in a civil commitment
proceeding under the Sexually Violent Predators Act (SVPA or Act). (Welf. &
Inst. Code,1 §§ 6600 et seq.) Before its 1982 amendment, Penal Code section
1016, former subdivision (3), provided that a defendant’s nolo contendere plea
“may not be used against the defendant as an admission in any civil suit based
upon or growing out of the act upon which the criminal prosecution is based.”
(Stats. 1976, ch. 1088, § 1, p. 4931.) The issue is whether an SVPA proceeding is
a “civil suit” for purposes of this former subdivision.

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


For reasons that follow, we conclude that an SVPA civil commitment
proceeding is a special proceeding of a civil nature, and not a “civil suit” under
Penal Code section 1016, former subdivision (3). As such, defendant Norman
Yartz’s 1978 conviction for child molestation may be used as a predicate prior
conviction to support his SVPA civil commitment. (§ 6600, subd. (a)(1).)
Thus, we reverse the judgment of the Court of Appeal, which held to the
contrary.
FACTUAL AND PROCEDURAL BACKGROUND
In 1978, defendant pled no contest to, and was convicted of, committing a
lewd or lascivious act on a child under the age of 14. (Pen. Code, § 288.) The
victim was a 10-year-old girl who was living with her mother and defendant at
defendant’s residence for several weeks. He admitted molesting the victim over a
period of one week. He was committed to Atascadero State Hospital as a mentally
disordered sex offender (MDSO). After the medical director determined
defendant was not amenable to treatment, defendant’s MDSO commitment was
terminated. On January 22, 1980, a superior court sentenced defendant to five
years in state prison. In 1985, defendant was again convicted of violating Penal
Code section 288 involving another victim, an eight-year-old girl who was a friend
of defendant’s daughter. Defendant was sentenced to 22 years in state prison.
On May 16, 1997, the San Joaquin County District Attorney petitioned to
commit defendant as a sexually violent predator (SVP) under the Act. (§ 6601.)
The petition alleged that defendant had two prior convictions for sexually violent
offenses against two separate victims, one in 1978 and the other in 1985.
Defendant moved to exclude evidence of his 1978 conviction. He argued that this
conviction was based on his no contest plea, which at the time was governed by
Penal Code section 1016, former subdivision (3). This former subdivision,
2
defendant maintained, prohibited the use of his no contest plea in a later civil suit,
including an SVPA civil commitment proceeding.
The trial court denied the motion. A jury found defendant to be a sexually
violent predator and the court committed him to the Department of Mental Health
for two years. Defendant appealed. The Court of Appeal reversed.
Citing Leake v. Superior Court (2001) 87 Cal.App.4th 675, 680 (Leake),
which concluded that an SVPA proceeding is a “civil action or a special
proceeding of a civil nature,” the Court of Appeal agreed with defendant that his
1978 conviction was subject to the limitation of Penal Code section 1016, former
subdivision (3): “Certainly, it must be said that an SVP proceeding which relies in
part on defendant’s earlier conviction for violating [Penal Code] section 288
necessarily is a civil action based upon or growing out of the act upon which that
criminal prosecution was based.” In addition, the Court of Appeal concluded that
the 1982 amendment to Penal Code section 1016, subdivision (3), which made a
no contest plea to a felony charge “the same as that of a plea of guilty for all
purposes,” did not apply to defendant’s 1978 conviction to permit its use in the
current SVPA proceeding. “In effect, what the People seek is an impermissible
retroactive application of the amendment to section 1016 in 1982.”
Based on the foregoing, the Court of Appeal concluded defendant’s 1978
conviction based on his no contest plea could not be used as a predicate offense to
support his civil commitment under the SVPA. (§ 6600, subd. (a).) It reversed the
trial court’s commitment order. We granted review.
DISCUSSION
Relying on Penal Code section 1016, former subdivision (3), defendant
argues that his 1978 conviction based on his nolo contendere plea may not support
3
his civil commitment as an SVP. From 1976 to 1982, Penal Code section 1016,
former subdivision (3), governed nolo contendere pleas.2 “The legal effect of [a
nolo contendere] plea shall be the same as that of a plea of guilty, but the plea and
any admission required by the court during any inquiry it makes as to the
voluntariness of and factual basis for the plea may not be used against the
defendant as an admission in any civil suit based upon or growing out of the act
upon which the criminal prosecution is based.” (Stats. 1976, ch. 1088, § 1, p.
4931, italics added.) At issue here is whether an SVPA commitment proceeding is
a “civil suit” for purposes of Penal Code section 1016, former subdivision (3). We
begin with a discussion of the SVPA.
A. The SVPA
“The SVPA provides for the involuntary civil commitment of an offender
immediately upon release from prison, for a two-year period, if the offender is
found to be an SVP.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 243
(Cooley).) To establish that an offender is a “[s]exually violent predator,” the
prosecution must prove beyond a reasonable doubt that the person (1) “has been
convicted of a sexually violent offense against two or more victims,” and (2) “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), 6604.)3

2
“ ‘Throughout its history . . . the plea of nolo contendere has been viewed
not as an express admission of guilt but as a consent by the defendant that he may
be punished as if he were guilty and a prayer for leniency.’ ” (Cartwright v. Board
of Chiropractic Examiners
(1976) 16 Cal.3d 762, 773, fn. 7 (Cartwright), quoting
North Carolina v. Alford (1970) 400 U.S. 25, 36, fn. 8.)
3
The only issue before this court is whether an SVPA proceeding is a “civil
suit” under Penal Code section 1016, former subdivision (3). As such, we do not

(footnote continued on next page)
4


The SVPA is not punitive in purpose or effect. (Hubbart v. Superior Court
(1999) 19 Cal.4th 1138, 1166, 1171 (Hubbart).) Its proceedings are “civil in
nature . . . .” (Cooley, supra, 29 Cal.4th at p. 250, citing Hubbart, supra, 19
Cal.4th at p. 1172; People v. Superior Court (Preciado) (2001) 87 Cal.App.4th
1122, 1128.) More than 40 years before the SVPA’s 1995 enactment, we
concluded that “[s]exual psychopathy proceedings are special proceedings of a
civil nature which are collateral to the criminal case. [Citations.]” (Gross v.
Superior Court (1954) 42 Cal.2d 816, 820 (Gross) [former § 5500 et seq.,
recodified as former § 6300 et seq.]; see also In re Gary W. (1971) 5 Cal.3d 296,
309 [§ 1800 “[c]ommitment proceedings are ‘special proceedings of a civil
nature’ ”].)
Relying in part on Hubbart, several Courts of Appeal have described an
SVPA commitment proceeding as a “special proceeding of a civil nature.”
(People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988 (Cheek); see
Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1685 (Bagration)
[following Cheek]; see also Leake, supra, 87 Cal.App.4th at p. 680; People v.
Hedge (1999) 72 Cal.App.4th 1466, 1477.) However, the Leake Court of Appeal
also concluded that the Legislature enacted the SVPA “as a civil action.” (Leake,
supra, 87 Cal.App.4th at p. 680.) Based on Leake, the Court of Appeal here
declared that an SVPA proceeding is a civil action, and as such, concluded that
Penal Code section 1016, former subdivision (3), prohibited the use of defendant’s

(footnote continued from previous page)

discuss whether the prosecution has satisfied other requirements to establish that
defendant is a “[s]exually violent predator.” (§ 6600, subd. (a).)
5


1978 conviction. We conclude that Leake incorrectly implied that an SVPA
proceeding is a civil action. (See Gross, supra, 42 Cal.2d at p. 820.)
In Leake, the Court of Appeal held that the Civil Discovery Act of 1986
(Code Civ. Proc., § 2016 et seq.) applies to SVPA proceedings. (Leake, supra, 87
Cal.App.4th at p. 679.) In so holding, the Court of Appeal first noted the 1986 act
applies to an “action,” which includes “a civil action and a special proceeding of a
civil nature” under Code of Civil Procedure section 2016, subdivision (b)(1).
(Leake, supra, 87 Cal.App.4th at p. 679.) Citing several civil commitment
schemes as support, the court next concluded: “It is apparent that the Legislature
designed the SVPA as a civil action or special proceeding of a civil nature because
it set the SVPA in the Welfare and Institutions Code among other civil
commitment statutory schemes.” (Leake, supra, 87 Cal.App.4th at p. 680 [citing
Lanterman-Petris-Short Act (LPS Act) (§ 5000 et seq.), Mentally Disordered Sex
Offenders Act (former § 6300 et seq., repealed in 1981), Mentally Retarded
Persons Law (§ 6500 et seq.)].)
However, in correlating a civil action with a special proceeding, the Leake
Court of Appeal incorrectly suggested that proceedings under one or more of the
civil commitment schemes constituted “civil actions.” (See Bagration, supra, 110
Cal.App.4th at p. 1685, fn. 7 [“special proceedings” include proceedings under
LPS Act and § 6500]; People v. Succop (1967) 67 Cal.2d 785, 789 [former § 5500
et seq. “establish special proceedings of a civil nature relating to mentally
disordered sex offenders”].) Contrary to Leake’s suggestion, there is a critical
distinction between a civil action and a special proceeding of a civil nature; by
definition, they are mutually exclusive.
Since 1872, judicial remedies have been divided into two classes: actions
and special proceedings. (Code Civ. Proc., § 21.) An “action” is defined as “an
ordinary proceeding in a court of justice by which one party prosecutes another for
6
the declaration, enforcement, or protection of a right, the redress or prevention of a
wrong, or the punishment of a public offense.” (Id., § 22; see id. § 30 [defining
“civil action”].) A “special proceeding” is “[e]very other remedy” that is not an
“action.” (Code Civ. Proc., § 23; Tide Water Assoc. Oil Co. v. Superior Court
(1955) 43 Cal.2d 815, 822 [“As a general rule, a special proceeding is confined to
the type of case which was not, under the common law or equity practice, either an
action at law or a suit in equity”].) With respect to civil actions, “an ‘action’
means the same thing as a ‘suit.’ [Citation.]” (3 Witkin, Cal. Procedure (4th ed.
1996), Actions, § 11, p. 64, italics omitted; 1 Am.Jur.2d (2005) Actions, § 4, p.
798.) Indeed, the Legislature used the terms “civil action” and “civil suit”
interchangeably in this context. Evidence Code former section 1300 (Stats. 1965,
ch. 299, § 2, p. 1345), which used the term “civil action,” reflected Penal Code
section 1016, former subdivision (3)’s policy of limiting the use of a nolo
contendere plea in a “civil suit.” (Cartwright, supra, 16 Cal.3d at p. 774, fn. 9.)
Thus, as the Cheek Court of Appeal correctly concluded, “an SVPA
commitment proceeding is a special proceeding of a civil nature, because it is
neither an action at law nor a suit in equity, but instead is a civil commitment
proceeding commenced by petition independently of a pending action.” (Cheek,
supra, 94 Cal.App.4th at p. 988.) To the extent it suggests that an SVPA
proceeding is a civil action, we disapprove Leake, supra, 87 Cal.App.4th 675.4

4
Indeed, the Leake Court of Appeal’s conclusion that an SVPA is a civil
action was unnecessary to its holding because the 1986 Civil Discovery Act
applies to either a civil action or a special proceeding. (Code Civ. Proc., § 2016,
subd. (b)(1); see Cheek, supra, 94 Cal.App.4th at p. 988 [Civil Discovery Act
applies to an SVPA proceeding because it is “a special proceeding of a civil
nature”].)
7


B. Penal Code Section 1016, Former Subdivision (3)
Defendant, however, argues that even if the SVPA civil commitment
proceeding is not a civil action but a special proceeding of a civil nature, the
definition of “civil suit” under Penal Code section 1016, former subdivision (3), is
broader than a civil action, encompassing “all actions at law, actions in equity and
special proceedings.” The Attorney General, however, maintains an action is the
same thing as a suit; therefore, the provision does not apply to an SVPA
proceeding and defendant’s 1978 conviction may be used to support his civil
commitment.5
Penal Code section 1016, former subdivision (3), provided in part that a
nolo contendere plea “may not be used against the defendant as an admission in
any civil suit based upon or growing out of the act upon which the criminal
prosecution is based.” (Stats. 1976, ch. 1088, § 1, p. 4931.)6 The former
subdivision did not define the term “civil suit,” nor does the current version define

5
Although Penal Code section 1016, former subdivision (3), prohibits the
subsequent use of a nolo contendere plea and required admissions, Cartwright
held that a conviction based on the nolo contendere plea could not be the basis for
discipline in an administrative proceeding. (Cartwright, supra, 16 Cal.3d at pp.
773-774.) In doing so, Cartwright relied on decisional law and did not squarely
base its holding on Penal Code section 1016, former subdivision (3). (Cartwright,
supra, 16 Cal.3d at pp. 768-773.) Here, neither party has questioned treating the
conviction the same as the underlying nolo contendere plea for purposes of Penal
Code section 1016, former subdivision (3). Accordingly, we shall treat them the
same.
6
In 1982, the Legislature amended Penal Code section 1016, subdivision (3),
to its current version. (Stats. 1982, ch. 390, § 3, p. 1725.) Since then, this
subdivision has provided, in part, that the legal effect of a nolo contendere plea to
a felony case “shall be the same as that of a plea of guilty for all purposes.” (Pen.
Code, § 1016, subd. (3), italics added.) However, the current version retains the
prior prohibition against using the plea as an admission in any civil suit “[i]n cases
other than those punishable as felonies.” (Ibid.)
8


it in the context of nolo contendere pleas in nonfelony cases. (Id., § 1016, subd.
(3).)
“In construing a statute, our task is to determine the Legislature’s intent and
purpose for the enactment. (People v. Tindall (2000) 24 Cal.4th 767, 772.) We
look first to the plain meaning of the statutory language, giving the words their
usual and ordinary meaning. (Ibid.) If there is no ambiguity in the statutory
language, its plain meaning controls; we presume the Legislature meant what it
said. (Ibid.) ‘However, if the statutory language permits more than one
reasonable interpretation, courts may consider various extrinsic aids, including the
purpose of the statute, the evils to be remedied, the legislative history, public
policy, and the statutory scheme encompassing the statute.’ [Citations.]” (People
v. Garcia (2002) 28 Cal.4th 1166, 1172.) For reasons that follow, we reject
defendant’s contention that the term “civil suit” under Penal Code section 1016,
former subdivision (3), is broader than a “civil action,” and includes a “special
proceeding.”
As noted above, the term “civil action” is by definition not a “special
proceeding” (Code Civ. Proc., §§ 22, 23, 30), and “civil action” does not have a
different meaning from “civil suit.” (See ante, at pp. 6-7.) Furthermore, the
Legislature used both “civil suit” and “civil action” in complementary statutory
provisions (Pen. Code, § 1016, former subd. (3); Evid. Code, former § 1300; see
ante, at p. 7), confirming that these terms are interchangeable in this context.
When the Legislature added former subdivision (3) to Penal Code section 1016 in
1963 and used the term “civil suit,” it was presumably aware of not only these
statutory definitions, but also our earlier holding that “[s]exual psychopathy
proceedings are special proceedings of a civil nature.” (Gross, supra, 42 Cal.2d at
p. 820.) “The Legislature, of course, is deemed to be aware of statutes and judicial
decisions already in existence, and to have enacted or amended a statute in light
9
thereof. [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 329.) Based on
the statutory language, we conclude that the Legislature did not intend to include a
special proceeding like a sexual psychopathy proceeding within the definition of
“civil suit.” (Pen. Code, § 1016, former subd. (3).)
Although there is little legislative history of the amendment adding the nolo
contendere plea to Penal Code section 1016,7 the background behind this
amendment undercuts defendant’s broad definition of “civil suit.” (See Quinn v.
State of California (1975) 15 Cal.3d 162, 173 [“contemporaneous construction . . .
may shed important light on legislative intent”].) In 1963, the Legislature
amended Penal Code section 1016—permitting defendants to enter a nolo
contendere plea with the consent of the district attorney and the approval of the
court—reportedly in response to our decision in Teitelbaum Furs, Inc. v.
Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601 (Teitelbaum). (Note, Nolo
Contendere—Its Use and Effect (1964) 52 Cal. L.Rev. 408, 409 (hereafter Nolo
Contendere.) In Teitelbaum, we held that in certain circumstances, “any issue
necessarily decided in a prior criminal proceeding is conclusively determined as to
the parties if it is involved in a subsequent civil action.” (Teitelbaum, supra, 58
Cal.2d at p. 607.) We also said, “A plea of guilty is admissible in a subsequent
civil action on the independent ground that it is an admission.” (Id. at p. 605.)

7
The original subdivision provided: “3. Nolo contendere, subject to the
consent of the district attorney and with the approval of the court. The legal effect
of such plea shall be the same as that of a plea of guilty, but the plea may not be
used against the defendant as an admission in any civil suit based upon or growing
out of the act upon which the criminal prosecution is based.” (Stats. 1963, ch.
2128, § 1, p. 4418.) With respect to the issue here, the 1963 version of Penal Code
section 1016, former subdivision (3), does not differ substantively from the 1976
version of the statute that governed defendant’s nolo contendere plea. (Stats.
1976, ch. 1088, § 1, p. 4931; see Stats. 1975, ch. 687, § 1, p. 1635 [amending the
1963 version of Pen. Code, § 1016].)
10


After our Teitelbaum decision, “[i]t is reported that at the legislative
hearings on California Penal Code Section 1016(3), a general dissatisfaction was
voiced against using criminal cases as a basis for civil actions. [Fn. omitted.] By
providing defendants with a nolo plea, the legislators hoped to curb the
overlapping of criminal and civil cases. The plea enables the defendant both to
save the time and expense of trial and guard himself against admissions that could
be used in a subsequent civil suit.” (Nolo Contendere, supra, 52 Cal. L.Rev. at p.
409.) Reviewing the 1963 legislation, the State Bar Journal explained, “The plea
of nolo contendere permits speedy disposal of the criminal charge. Defendants
charged with traffic offenses and defendants in corporate fraud cases, which are
usually long and complex, are among those expected to utilize the plea.” (Review
of 1963 Code Legislation (1963) 38 State Bar J. 751, 752.) The foregoing
suggests that when the Legislature added former subdivision (3) to Penal Code
section 1016, limiting the use of a nolo contendere plea in a subsequent civil suit,
it intended the limitation to apply to matters like traffic offenses and corporate
fraud.
The Legislature’s subsequent amendment of section 1016—deleting the
limitation with respect to felony cases—supports this understanding of the
legislative intent. (Stats. 1982, ch. 390, § 3, p. 1725; see ante, at p. 8, fn. 6.)
“Although an expression of legislative intent in a later enactment is not binding
upon a court in its construction of an earlier enacted statute, it is a factor that may
be considered. [Citations.]” (Cummins v. Superior Court (2005) 36 Cal.4th 478,
492.) In amending section 1016, former subdivision (3), the Legislature declared
its intent to “assist the efforts of victims of crime to obtain compensation for their
injuries from the criminals who inflicted those injuries.” (Stats. 1982, ch. 390, § 1,
p. 1725.) “The Legislature further finds and declares that the practice of
permitting defendants in criminal cases to enter pleas of nolo contendere and thus
11
avoid the use of the criminal conviction in a civil suit wherein the victim of the
crime seeks to recover damages for injuries sustained by the criminal act runs
counter to the interest of victims of crime.” (Ibid.)
Matters like traffic offenses, corporate fraud, and crime victims’ damages
suits are quite distinct from SVPA proceedings, which identify a “ ‘small but
extremely dangerous group of sexually violent predators that have diagnosable
mental disorders’ ” (Hubbart, supra, 19 Cal.4th at p. 1144, fn. 5), and are highly
critical to the public’s safety. (But see People v. Vasquez (2001) 25 Cal.4th 1225,
1233 [SVPA commitment and loss or denial of professional license both seek to
protect public from felon’s future harmful conduct].)
As the Attorney General points out, to preclude the use of a nolo
contendere plea in a subsequent SVPA proceeding would frustrate the “narrow
and important purpose” of the Act, which is “confining and treating mentally
disordered individuals who have demonstrated their inability to control specific
sexually violent behavior through the commission of similar prior crimes.”
(Hubbart, supra, 19 Cal.4th at p. 1164.) Delaying this necessary identification
and treatment would obviously place the public at significant risk. “The
Legislature indicated that to the extent such persons are currently incarcerated and
readily identifiable, commitment under the SVPA is warranted immediately upon
their release from prison. The Act provides treatment for mental disorders from
which they currently suffer and reduces the threat of harm otherwise posed to the
public.” (Id. at p. 1144, italics added.)
Defendant and the dissent, however, assert that our decision in Cartwright,
supra, 16 Cal.3d 762, is dispositive of the meaning of “civil suit,” and precludes
the use of defendant’s 1978 conviction in the SVPA proceeding. We disagree.
In Cartwright, chiropractor Adam Cartwright pled no contest to Penal Code
section 316, a misdemeanor, for keeping a “disorderly house” for purposes of
12
prostitution. (Cartwright, supra, 16 Cal.3d at p. 765, fn. 3.) Based on this
conviction, the state Board of Chiropractic Examiners (Board) revoked
Cartwright’s license to practice because the Board concluded the conviction
constituted a “conviction of a crime involving moral turpitude” under section 10 of
the Chiropractic Act. (Cartwright, supra, 16 Cal.3d at pp. 764-765.) Ordering the
Board to set aside its revocation, the trial court concluded that “under a settled
California rule of decision a conviction based on a plea of nolo contendere could
not be a basis for discipline under section 10 of the Chiropractic Act.” (Id. at p.
765.) In a four-to-three decision, we affirmed the trial court’s judgment. (Ibid.)
After reviewing the relevant case law, the Cartwright majority agreed with
the trial court that the “reasonable expectations of persons examining the law on
the subject” are that a conviction based on a nolo contendere plea cannot be used
as a “ground for discipline or other adverse consequences authorized by a statute
for convictions generally.” (Cartwright, supra, 16 Cal.3d at p. 773, relying on
Caminetti v. Imperial Mut. L. Ins. Co. (1943) 59 Cal.App.2d 476 [Insurance
Commissioner’s conservatorship]; In re Hallinan (1954) 43 Cal.2d 243 [State Bar
discipline]; Kirby v. Alcoholic Bev. etc. App. Bd. (1969) 3 Cal.App.3d 209 (Kirby)
[revocation of liquor license].) The “settled nature of the California rule against
collateral use of convictions based on nolo contendere pleas is an important reason
for permitting the rule to remain in effect unless and until changed by legislation.
Those who have entered nolo contendere pleas in the past instead of standing trial
were entitled to rely upon the limitations announced by California decisions on
subsequent uses of their pleas and of the ensuing convictions. [Citation.]”
(Cartwright, supra, 16 Cal.3d at p. 773.)
Contrary to defendant’s and the dissent’s suggestion, Cartwright is not
dispositive of the issue here. It did not rest its holding on Penal Code section
1016, former subdivision (3), much less critically examine its statutory language.
13
Although the Cartwright majority may have implicitly rejected the argument that
an administrative proceeding is not a “civil suit” under former subdivision (3) (see
Cartwright, supra, 16 Cal.3d at pp. 779-780 (dis. opn. of Richardson, J.)), it did
not therefore give “civil suit” an expansive meaning to include a special
proceeding of a civil nature. (See City of Oakland v. Public Employees’
Retirement System (2002) 95 Cal.App.4th 29, 48 [administrative proceeding is
neither a “civil action” nor “special proceeding of a civil nature” for statute of
limitations purposes].)
Moreover, Cartwright does not reasonably stand for the broad proposition
that a conviction based on a nolo contendere plea cannot be used in any
subsequent proceedings. (See Cartwright, supra, 16 Cal.3d at pp. 770-771,
discussing Kirby, supra, 3 Cal.App.3d 209.) Kirby, on which the Cartwright
majority extensively relied, made clear that it was concerned with the effect of a
nolo contendere plea in an administrative proceeding in particular. (Kirby, supra,
3 Cal.App.3d at p. 219 [“The collateral effect of a nolo contendere plea in an
administrative proceeding is a subject that produces little unanimity of opinion in
legal circles”].) Significantly, neither Cartwright nor the cases it relied on
involved a sexual psychopathy-type proceeding, which we had already concluded
was a special proceeding of a civil nature. (Gross, supra, 42 Cal.2d at p. 820.) A
fair reading of Cartwright makes clear that the decision at most extended the reach
of the bar against using the nolo contendere plea and conviction (see Pen. Code, §
1016, former subd. (3)) to administrative proceedings. Indeed, because our earlier
holding in Gross strongly suggested that the limitations of Penal Code section
1016, former subdivision (3), would not apply in sexual psychopathy proceedings,
Cartwright’s main concern that defendants “were entitled to rely upon the
limitations announced by California decisions on subsequent uses of their pleas
14
and the ensuing convictions” (Cartwright, supra, 16 Cal.3d at p. 773), is not an
issue in the SVPA context.
Defendant also points out that Cartwright emphasized that a “conviction is
significant in the statutory scheme only insofar as it is a reliable indicator of actual
guilt.” (Cartwright, supra, 16 Cal.3d at p. 773.) A nolo contendere plea’s
reliability as such is “substantially reduced” because of a “defendant’s reservations
about admitting guilt for all purposes,” and the suggested “weakness in the
available proof of guilt.” (Ibid.) However, in the SVPA context, a conviction
based on a defendant’s nolo contendere plea does not undermine the determination
of a defendant’s suitability for civil commitment. For instance, requisite
convictions alone “shall not be the sole basis for the determination” that a person
is an SVP. (§ 6600, subd. (a)(3).) A person alleged to be an SVP “shall be
entitled to a trial by jury, to the assistance of counsel, to the right to retain experts
or professional persons to perform an examination on his or her behalf, and to
have access to all relevant medical and psychological records and reports.” (§
6603, subd. (a).) If the person demands a jury trial, a unanimous verdict is
required. (Id., subd. (f).) The trier of fact “shall determine whether, beyond a
reasonable doubt, the person is a sexually violent predator.” (§ 6604.) Thus, we
conclude the SVPA provides sufficient safeguards to ensure that a defendant’s
conviction from a nolo contendere plea is reliable as evidence of the defendant’s
current mental disorder and future violent sexual behavior. (See Hubbart, supra,
19 Cal.4th at pp. 1145-1146.)
15
In sum, we conclude that Penal Code section 1016, former subdivision (3),
does not preclude the use of defendant’s 1978 conviction based on his nolo
contendere plea.8

8
Defendant also contends that Evidence Code former section 1300 (Stats.
1965, ch. 299, § 2, p. 1345), which provided that evidence of a final judgment of a
person’s felony conviction is not rendered inadmissible by the hearsay rule in a
civil action “unless the judgment was based on a plea of nolo contendere,”
prohibits the use of his 1978 conviction. We disagree. As discussed above (see
ante, at p. 7), the Legislature amended Evidence Code former section 1300 in light
of “ ‘the policy expressed in Penal Code section 1016’ (that is, the policy of
prohibiting use of the plea as an admission in civil suits).” (Cartwright, supra, 16
Cal.3d at p. 774, fn. 9.) Because we reject defendant’s claim based on Penal Code
section 1016, former subdivision (3), we also reject his claim based on Evidence
Code former section 1300, the scope of which was coextensive with former
subdivision (3).
________________________
16


DISPOSITION
We reverse the Court of Appeal’s judgment and remand the matter for
further proceedings consistent with our opinion.
CHIN,
J.

WE CONCUR:
GEORGE, C.J.
BAXTER, J.
MORENO, J.
ARDAIZ, J.*

* Presiding Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

17





DISSENTING OPINION BY KENNARD, J.
Before it was amended in 1982, Penal Code section 1016, subdivision (3),
(section 1016, former subdivision (3)) stated that a no contest plea “may not be
used against the defendant as an admission in any civil suit based upon or growing
out of the act upon which the criminal prosecution is based.” (Stats. 1976, ch.
1088, § 1, p. 4931.) As the majority construes it, section 1016, former subdivision
(3), does not bar use of a 1978 conviction based on a no contest plea as a predicate
prior conviction in a proceeding under the Sexually Violent Predators Act (SVPA)
(Welf. & Inst. Code, § 6600 et seq.). Because the majority’s interpretation of
section 1016, former subdivision (3), is irreconcilable with a decision of this
court—Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762
(Cartwright)—that was controlling precedent when defendant entered his no
contest plea, and on which defendant was entitled to rely, I dissent.
The majority reasons that “civil suit” means the same thing as “civil
action,” that the term “civil action” has a technical legal meaning under the Code
of Civil Procedure, and that the Legislature intended the term “civil suit” in
section 1016, former subdivision (3), to have the technical legal meaning of a
“civil action” under the Code of Civil Procedure. Applying that interpretation of
section 1016, former subdivision (3), to SVPA proceedings, the majority
concludes that a conviction based on a no contest plea may be used as a predicate
conviction under the SVPA because an SVPA commitment proceeding is not a
1



civil action but rather a “special proceeding of a civil nature.” (Maj. opn., ante, at
pp. 6-12.)
If the majority is correct that “civil suit” in section 1016, former
subdivision (3), has the restrictive technical meaning of “civil action” under the
Code of Civil Procedure, then it necessarily follows that under that provision a
conviction based on a no contest plea may be used to impose discipline in an
administrative proceeding, because an administrative proceeding is not a civil
action under the Code of Civil Procedure (see, e.g., Little Company of Mary
Hospital v. Belshé (1997) 53 Cal.App.4th 325, 329). Yet, this court held just the
opposite in Cartwright, supra, 16 Cal.3d 762, that under section 1016, former
subdivision (3), a conviction based on a no contest pleas could not be used in an
administrative disciplinary proceeding to revoke a chiropractor’s license.
The Cartwright majority stated: “A review of prior California decisions on
this question shows that except in one instance convictions based on nolo
contendere [no contest] pleas have until now been rejected in California as a basis
for discipline or other adverse legal consequences unless a statute expressly
specifies such convictions as a basis for such consequences.” (Cartwright, supra,
16 Cal.3d 762, 768, italics added.) The Cartwright majority then discussed
Caminetti v. Imperial Mut. L. Ins. Co. (1943) 59 Cal.App.2d 476, which held that,
because the convictions were based on no contest pleas, the Insurance
Commissioner could not use the federal convictions of two officers of an
insurance company to justify continuing a conservatorship over the company’s
assets; In re Hallinan (1954) 43 Cal.2d 243, which held that the State Bar had
properly refused to initiate disciplinary proceedings against attorneys whose
criminal convictions were based on no contest pleas; Kirby v. Alcoholic Bev. etc.
App. Bd. (1969) 3 Cal.App.3d 209, which held that a liquor license could not be
revoked because of a criminal conviction based on a no contest plea; and Grannis
2

v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, which held that a
medical doctor’s certificate to practice medicine could not be revoked because of a
conviction based on a no contest plea. (Cartwright, supra, at pp. 769-771.) The
Cartwright majority discussed and disapproved Christensen v. Orr (1969) 275
Cal.App.2d 12, which had permitted the Department of Motor Vehicles to suspend
a driver’s license because of a conviction based on a no contest plea. (Cartwright,
supra, at p. 772.) The Cartwright majority then stated: “ . . . Christensen cannot
fairly be said to have altered the reasonable expectations of persons examining the
law on the subject, namely, that in California a conviction based on a plea of nolo
contendere would not be allowed as a ground for discipline or other adverse
consequences authorized by a statute for convictions generally. . . . Those who
have entered nolo contendere pleas in the past instead of standing trial were
entitled to rely upon the limitations announced by California decisions on
subsequent uses of their pleas and of the ensuing convictions.” (Cartwright,
supra, at p. 773.)
The Cartwright majority implicitly rejected the arguments in the dissenting
opinion authored by Justice Richardson. In vain, the Cartwright dissent urged a
construction of section 1016, former subdivision (3), similar to the one the
majority here adopts: “Indeed, the very language of [section 1016, former
subdivision (3)], and particularly the reference to ‘any civil suit,’ discloses an
intent to confine application of the section to ordinary civil litigation. An
administrative disciplinary proceeding is not a ‘civil’ action; the word ‘civil’
connotes actions or special proceedings in courts, and not hearings before boards.”
(Cartwright, supra, at p. 780 (dis. opn. of Richardson, J.).) Like the Cartwright
dissent, the majority here urges a restrictive construction of “any civil suit” in
section 1016, former subdivision (3). But the majority’s construction of “any civil
3

suit” is even narrower than the one proposed by the Cartwright dissent, which
apparently would have included special proceedings as well as civil actions.
The majority asserts that Cartwright “is not dispositive of the issue here”
because it “did not rest its holding on Penal Code section 1016, former subdivision
(3), much less critically examine its statutory language” and because “neither
Cartwright nor the cases it relied on involved a sexual psychopathy-type
proceeding.” (Maj. opn., ante, at pp. 13-14.) I disagree. By rejecting the view of
the Cartwright dissenters that section 1016, former subdivision (3), applied only to
ordinary civil litigation, not to administrative proceedings, the Cartwright majority
implicitly construed that provision as broadly applicable to proceedings of a civil
nature, such as the SVPA proceedings here. Thus, the majority here cannot
construe section 1016, former subdivision (3), as inapplicable to such proceedings
without overruling Cartwright. Given the irreconcilable conflict between
Cartwright’s holding and the majority’s construction of section 1016, former
subdivision (3), the majority has impliedly overruled Cartwright, even though it
has not done so expressly.
Of course, this court has the authority to overrule Cartwright, supra, 16
Cal.3d 762, and to adopt a different and narrower construction of section 1016,
former subdivision (3). But this court does not have the authority to apply its new
statutory construction retroactively to persons like defendant here who may have
relied on Cartwright. Although a judicial decision ordinarily applies retroactively,
a judicial decision is not given retroactive effect when it overrules controlling
authority that parties might justifiably have relied on. (Claxton v. Waters (2004)
34 Cal.4th 367, 378-379; Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345,
372; Woods v. Young (1991) 53 Cal.3d 315, 330; see also People v. Simon (2001)
25 Cal.4th 1082, 1108; People v. Blakely (2000) 23 Cal.4th 82, 91-92.) Because
parties entering no contest pleas after Cartwright was decided in 1976, and before
4

the Legislature amended Penal Code section 1016 in 1982, could justifiably have
relied on Cartwright’s assurance that “in California a conviction based on a plea
of nolo contendere would not be allowed as a ground for discipline or other
adverse consequences authorized by a statute for convictions generally”
(Cartwright, supra, 16 Cal.3d at p. 773), this court may not now retroactively
apply its decision overruling Cartwright to the detriment of parties who might
justifiably have relied on it.
As the Cartwright majority explained, “Those who have entered nolo
contendere pleas in the past instead of standing trial were entitled to rely upon the
limitations announced by California decisions on subsequent uses of their pleas
and of the ensuing convictions.” (Cartwright, supra, 16 Cal.3d at p. 773.) The
majority here casts aside this important restriction on judicial authority when it
applies its new interpretation of section 1016, former subdivision (3), to
defendant’s conviction, which was based on the no contest plea he entered in 1978
when Cartwright was the law. For this reason, I cannot join the majority’s
decision. I would affirm the Court of Appeal’s judgment.
KENNARD,
J.
I CONCUR:
WERDEGAR, J.
5

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Yartz
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 109 Cal.App.4th 1660
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S117964
Date Filed: December 5, 2005

__________________________________________________________________________________

Court: Superior
County: San Joaquin
Judge: Terrence R. Van Oss

__________________________________________________________________________________

Attorneys for Appellant:

Linn Davis, under appointment by the Supreme Court, and Cynthia A. Thomas for Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, David P. Druliner and
Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General,
Stephen G. Herndon, Maureen A. Daly, Janet E. Neeley, John G. McLean and Paul A. Bernardino, Deputy
Attorneys General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Linn Davis
3130 Norco Drive
Norco, CA 92860
(909) 279-6553

Paul A. Bernardino
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 323-1977


Opinion Information
Date:Docket Number:
Mon, 12/05/2005S117964A

Parties
1The People (Plaintiff and Respondent)
Represented by Paul Arvin Bernardino
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

2Yartz, Norman (Defendant and Appellant)
Represented by Linn Davis
Attorney at Law
3130 Norco Drive
Norco, CA

3Yartz, Norman (Defendant and Appellant)
Represented by Cynthia A. Thomas
Attorney at Law
5050 Laguna Blvd #112-329
Elk Grove, CA


Disposition
Dec 5 2005Opinion: Reversed

Dockets
Aug 5 2003Petition for review filed
  by (AG) counsel for respondent (People)
Aug 5 2003Record requested
 
Aug 6 2003Received Court of Appeal record
  1-doghouse
Aug 14 2003Answer to petition for review filed
  appellant, Norman Yartz
Sep 24 2003Petition for Review Granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Sep 29 2003Received Court of Appeal record
  two volumes
Oct 16 2003Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Linn Davis is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty ( 30) days from the date respondent's opening brief on the merits is filed.
Oct 17 2003Request for extension of time filed
  Respondent (People) is asking to 11/24/2003 to file the opening brief on the merits.
Oct 28 2003Extension of time granted
  To November 24, 2003 to file Respondent's Opening Brief on the Merits.
Nov 21 2003Opening brief on the merits filed
  In Sacramento by counsel for Respondent {The People}.
Dec 22 2003Request for extension of time filed
  By appellant {Norman Yartz} asking for a 31-day extension of time to and including January 23, 2004to file appellant's Answer Brief on the Merits.
Dec 31 2003Extension of time granted
  To January 23, 2004 to file Appellant's Answer Brief on the Merits.
Jan 8 2004Answer brief on the merits filed
  By Appellant {Norman Yartz}.
Jan 27 2004Reply brief filed (case fully briefed)
  by respondent The People, in Sacramento
Feb 4 2004Compensation awarded counsel
  Atty Davis
Jul 15 2004Change of contact information filed for:
  Counsel for appellant.
Feb 22 2005Received:
  Letter from counsel for respondent dated February 22, 2005, re unavailability of counsel for oral argument from April 16, 2005 - April 30, 2005.
Aug 10 2005Case ordered on calendar
  9/13/05 @ 9am - San Francisco
Aug 31 2005Filed:
  List of Additional Authorities from Appellant (Yartz) by counsel.
Sep 13 2005Cause argued and submitted
 
Dec 5 2005Opinion filed: Judgment reversed
  and remand the matter for further proceedings consistent with our opinion. Majority opinion by Chin, J. joined by George, CJ; Baxter, Moreno, Ardaiz, JJ. Dissenting opinion by Kennard, J joined by Werdegar, J.
Jan 18 2006Remittitur issued (criminal case)
 
Jan 20 2006Received:
  Remittitur acknowledgment from CA Third Appellate District.
Feb 8 2006Compensation awarded counsel
  Atty Davis

Briefs
Nov 21 2003Opening brief on the merits filed
 
Jan 8 2004Answer brief on the merits filed
 
Jan 27 2004Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website