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svpa compendium

 

Year 1999
California Court of Appeal

People v. Dacayana (B122454, 12/13/99)
76 Cal.App.4th 1334 (DCA 2, Div. 6)
Subsequent history: Rev. granted 3/22/00 (S085498), and the case was deffered pending a decision in People v. Torres (2001) 25 Cal.4th 680, matter still pending.
[5.D.] Dr. Paladino's testimony at appellant's trial under the Sexually Violent Predators Act was properly admitted and did not violate the patient-psychotherapist privilege under Evidence Code section 1012. Evidence Code section 1024 permits treating psychotherapists to disclose otherwise confidential communications to prevent the danger posed by the prisoner's release, just as it permitted similar disclosures under the Mentally Disordered Sexual Offenders law. People v. Wharton (1991) 53 Cal.3d 522 does not require that a warning, pursuant to Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, 442, be given before the disclosure can be made under Evidence Code section 1024, nor does it limit the disclosure of otherwise privileged communications to the Tarasoff warning itself. Wharton was a criminal prosecution. [3.C.3.c.] The Court of Appeal rejected appellant's claim that he did not have two qualifying offenses as required to trigger the application of the Sexually Violent Predators Act because the 1980 rape conviction resulted from a no-contest plea rather than a guilty plea. Because Penal Code section 1016, which was amended in 1982, provided that the legal effect of a no-contest plea would be the same as a plea of guilty for all purposes, and case law establishes that these convictions are admissible in subsequent civil actions, a person who enters a no-contest plea stands convicted just as though he had pleaded guilty. [3.D.] [6.] [7.] CALJIC 4.19, which defines the elements necessary for a Sexually Violent Predators Act conviction, and which does not require the jury to find the prior convictions "predatory," accurately states the law. The predatory nature of the prior offenses is a factor in the prison screening process designed to identify potential SVPs. Welfare and Institutions Code section 6600, subdivision (a), permits prior convictions to be shown with documentary evidence, including the details underlying the offense and the predatory relationship with the victim. However, neither of these provisions transforms this factor into an element of the offense. As further evidence that the Legislature did not intend the predatory factor to become an element of the offense, the Court of Appeal pointed to the fact that forcible spousal rape under Penal Code section 262, subdivision (a)(1), is a qualifying SVP offense under Welfare and Institutions Code section 6600, subdivision (b), while few, if any, of such convictions would involve a predatory relationship. [3.C.2.] [6.] Under CALJIC 4.19, the Sexually Violent Predators Act requires the jury to find, beyond a reasonable doubt, that the prisoner is likely to commit a sexually violent crime. Neither the statute nor the jury instruction requires the jury to find that "the prisoner is likely beyond a reasonable doubt to commit a sexually violent crime." The trial court's answer to the jury's question regarding what standard to apply to the "likely that he will engage in sexually violent criminal behavior" finding, as well as CALJIC 4.19, make this clear.

 

Garcetti v. Superior Court (B133053, 11/30/99)
76 Cal.App.4th 685 (DCA 2, Div. 4)
Subsequent history: Rev. dismissed on 2/16/00 (S057336)
[3.C.3.a.] [7.] A sexually violent offense may be counted as a predicate conviction under the Sexually Violent Predators Act (SVPA) if the defendant was sentenced to an indeterminate term for that crime. A 1996 amendment in the SVPA extended the law to qualifying crimes for which an indeterminate term had been imposed, as long as the conviction otherwise qualified as a "sexually violent offense." This interpretation of the amendment is fully congruent with the purposes of the SVPA and consistent with its legislative history. The 1996 amendment applied to the 1972 conviction and sentence suffered by appellant because its provisions expressly apply it to convictions suffered before July 1, 1977, (that is, under the indeterminate sentence law), and application would be consistent with legislative intent.

 

People v. Ibanez (E024579, 11/29/99)
76 Cal.App.4th 537
Subsequent history: Rev. denied 3/15/00
[1.] The trial court here abused its discretion in granting a petition for writ of corum nobis where Ibanez claimed that at the time he entered his plea he was not advised that by pleading to multiple counts of child molestation he would be subject to civil commitment proceedings under Welfare and Institutions Code section 6600 et. seq. (SVPA). The remedy of plea withdrawal was not available on the corum nobis writ petition here because Ibanez had no new information to bring before the court. Moreover, the petition was predicated on a mistake of law (whether such an advisement was required) in which Ibanez's attorney participated. Finally, because civil commitment is not a direct penal consequence of the plea but merely a possible collateral consequence, the trial court was not required to advise of the possibility of such commitment. The appellate court therefore found that the lower court erred in denying the People's petition for a writ of prohibition which sought to prevent the plea from being withdrawn.

 

People v. Rains (F028684, 10/25/99)
75 Cal.App.4th 1165 (DCA 5)
Subsequent history: Rev. denied 1/2500.
[3.C.3.e.] [5.B.] In a trial to determine whether appellant was a sexually violent predator, it was error for the court to have permitted two doctors to testify about the consequences of a jury's "true" finding. However, because the trial was a civil proceeding, the verdict could not be set aside unless it was reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. Here, it was undisputed that appellant was a sexually violent predator and was likely to reoffend. Moreover, appellant had tendered no defense. The doctors' testimony was brief and in response to the jury's inquiry. The jury was instructed not to consider what was going to happen to appellant. Under the circumstances, there was no reasonable probability of a more favorable result to appellant, and reversal was therefore not required.

 

People v. Superior Court (Perez)(B131539, 9/30/99)
75 Cal.App.4th 394 (DCA 2, Div. 2)
[1.B.] The court erred in dismissing a petition filed under the Sexually Violent Predators Act (SVPA) because appellant would be deported before receiving treatment. The dismissal was premature because the Attorney General had the discretion to defer deportation proceedings in favor of allowing treatment under the SVPA. Furthermore, because the SVPA is fair and nondiscriminatory on its face concerning alienage, state action against Perez could only be a violation of equal protection if the action resulted in purposeful or intentional discrimination. Neither the filing of the SVPA petition, nor the decision of the government to defer deportation pending the outcome of the petition resulted in discriminatory treatment. Accordingly, there was no equal protection violation.

 

People v. Cheek (H019064, 9/28/99)
75 Cal.App.4th 282 (DCA 6)
Subsequent history: Rev. granted 12/15/99 (S083305) and decided on June 21, 2001: 25 Cal.4th 894. See cases decided by the California Supreme Court, article page 5.
[1.A.] [3.D.] [7.] A trial court erred by precluding appellant from calling and cross-examining witnesses at his hearing for conditional release under Welfare and Institutions Code section 6608. Appellant had been committed to the State Department of Mental Health (DMH) under the Sexually Violent Predators Act (SVPA). Under the SVPA, a defendant is entitled to petition the court for conditional release after one year. If s/he does not affirmatively waive his or her right to petition, the court must hold a show cause hearing to determine whether facts exist that warrant a hearing on whether there has been a change in condition which warrants release. Here, appellant did not affirmatively waive his right to petition for a hearing because he refused to check the appropriate box on the form which advised him of his right to a hearing. While Welfare and Institutions Code section 6605 does not specifically provide for the right to call and cross-examine witnesses, it does provide a right to a hearing, which implies something more than just a review of an annual report prepared by the DMH. The absence of language in the statute limiting the hearing to the review of reports, combined with the specific restriction in other provisions of the SVPA, demonstrates that the Legislature intended to provide for a full hearing. Also, because DMH presented the testimony of experts through hearsay reports, "common sense and fairness" compel the conclusion that appellant should have been allowed to cross-examine the preparers of the reports. [3.D.] [5.B.] [7.] It was not error for the trial court to have refused appellant's request for the appointment of an expert prior to the show cause hearing. Welfare and Institutions Code section 6605, subdivision (a), uses permissive rather than mandatory language, and the appointment of an expert is a matter within the court's discretion. There was no abuse of discretion here because there was substantial information in the annual report regarding appellant's current mental condition.

 

People v. Buffington (C025957, 9/14/99)
74 Cal.App.4th 1149 (DCA 3)
[3.C.2.] The requirement that a trier of fact need determine only that is "likely" that an alleged sexual predator will engage in future predatory behavior is not a violation of due process. The reasonable doubt standard is not diluted because the phrase challenged is not a standard of proof, but simply a prediction of future dangerousness that the trier of fact must find proved beyond a reasonable doubt. [1.B.] The Sexually Violent Predator Act (SVPA) does not violate equal protection principles. The SVPA does not allow SVPs to be involuntarily committed based on a less severe mental disorder than those committed under other civil commitment schemes. Although the definitions of mental disorder for the SVPA and the Mentally Disordered Offender (MDO) Act do not have identical definitions of mental disorder, their definitions rest on a similar foundation for equal protection purposes. The SVPA, the MDO Act, and the Lanterman-Petris-Short (LPS) Act have similar evidentiary requirements for determining who is suffering from a mental disorder and who is likely to reoffend. The provisions for treatment of SVPs also do not violate the equal protection clause. Treatment is an integral part of the SVPA, but requiring a finding of "amenability to treatment" would be contrary to the goal of California's civil commitment schemes, which were intended to protect the public as well as treat the mentally disturbed.

 

In re Kirk (A087145, 9/10/99)
74 Cal.App.4th 1066 (DCA 1, Div. 5)
Subsequent history: Rev. denied 11/17/99.
[2.] [5.C.] A new hearing to determine probable cause to hold a petitioner for trial as a sexually violent predator (SVP) was required where the court relied on uncertified psychological evaluations as evidence of a petitioner's mental disorder. The certification requirements of Evidence Code sections 1530 and 1531 apply to SVP probable cause hearings, and help ensure that the hearsay which is admissible in SVP hearings is sufficiently trustworthy to form the basis of the probable cause finding.

 

People v. Hunt (C025177, 9/7/99)
74 Cal.App.4th 939 (DCA 3)
[3.C.3.c.] A commitment under the Sexually Violent Predators Act (SVPA) was reversed, and the petition dismissed, where the qualifying prior conviction under the SVPA was a court-martial conviction in Germany for indecent acts with a child. The SVPA's use of the term "conviction in another state" is limited to convictions in one of the United States and does not encompass a conviction via military court-martial in Germany.

 

People v. Chambless (D031860, 8/31/99)
74 Cal.App.4th 773 (DCA 4, Div. 1)
Subsequent history: Rev. denied on Dec. 15, 1999.
[3.C.3.b.] [7.] An inmate who had pleaded guilty to molesting two children, which included masturbation and oral copulation, committed substantial sexual conduct under the Sexually Violent Predators Act (SVPA). The SVPA required a showing that Chambless had been convicted of two "sexually violent offenses," against at least two victims. A sexually violent offense can be lewd acts with children when the acts included "substantial sexual conduct," which is defined to include masturbation of either the victim or the offender. Although masturbation is not legally defined, the Legislature must have intended for it to have the commonly understood definition, which is touching for the purpose of arousal. Therefore, because the evidence showed that Chambless touched the victims' genitals and forced them to touch his, substantial sexual conduct occurred. Accordingly, there was sufficient evidence that appellant fell within the definition of the SVPA.

 

People v. Poe (A083416, 8/30/99)
74 Cal.App.4th 826 (DCA 1, Div. 1)
[3.C.2.] There was sufficient evidence that an inmate was "likely" to engage in sexually violent conduct when released where two experts testified that the risk of appellant reoffending was higher than 50 percent, and their opinions were based on numerous factors in addition to appellant's prior offenses. The fact that appellant was young when he committed his first sexual offense, he continued to use drugs and alcohol, and he had a pattern of aggressive conduct over many years including during the time he was in prison, all supported the conclusion that he was likely to reoffend. Therefore, there was sufficient evidence to support the finding of the court that appellant was a sexually violent predator within the meaning of Welfare and Institutions Code section 6600. [1.A.] [1.B.] [1.D.] The Sexually Violent Predators Act (SVPA) does not violate state and federal due process rights, or the constitutional protection against ex post facto laws. The arguments presented by appellant were rejected in Hubbart v. Superior Court(1999) 19 Cal.4th 1138. The SVPA also does not violate the equal protection clause. Identical arguments were raised and rejected in People v. Torres (1999) 71 Cal.App.4th 704. [3.B.] Appellant was not entitled to credit for the six months he served between his scheduled release date and the date he was committed as a sexually violent predator. The Legislature did not provide for pre-commitment custody credits, and it intended the two-year commitment to begin on the date of the finding that an inmate was found to be a sexually violent predator.

 

People v. Hurtado (D029586, 8/3/99)
73 Cal.App.4th 1243 (DCA 4, Div. 1)
Subsequent history: Rev. granted 10/20/99 (S082112) and the case was decided 8/22/02 (S082112) See cases decided by the California Supreme Court, article page 5.
[3.C.3.e.] [6.] [7.] Although the Legislature inadvertently omitted the adjective "predatory" from the Sexually Violent Predators Act (SVPA), and CALJIC 4.19 echoed this oversight, the error was harmless beyond a reasonable doubt. There was substantial evidence that Hurtado's behavior was predatory. The only evidence of Hurtado's offenses established that his victims were strangers or individuals with whom he promoted a relationship in order to victimize. [1.B.] The Sexually Violent Predators Act did not violate appellant's equal protection rights because it was narrowly drafted to serve the compelling state interest in protecting society from a specific class of sex offenders. [3.A.] [3.B.] Appellant was legally committed under the Sexually Violent Predators Act on a second petition filed on the same day that the original commitment petition was dismissed for failure to hold a probable cause hearing within the requisite ten-day period. By reinstating the original petition or filing a new one, the trial court never lost jurisdiction, and appellant was therefore legally committed. [3.C.1.] Substantial evidence supported the jury's finding that appellant suffered from a currently diagnosed mental disorder. [1.F.] The Sexually Violent Predators Act did not violate the constitutional prohibition against double jeopardy because double jeopardy principles do not apply to civil proceedings.

 

People v. Hedge (D021343, 6/23/99)
72 Cal.App.4th 1466 (DCA 4, Div. 1)
[4.A.] In an appeal taken from a judgment ordering appellant's second two-year extension of commitment to the custody of the Department of Mental Health as a sexually violent predator, the Court of Appeal held that the trial court did have jurisdiction to proceed on the second petition. Even though the commitment order on the first petition was not final because it was still pending review in the California Supreme Court (People v. Hedge(1997) 56 Cal.App.4th 773, review granted October 29, 1997 (S063954) [Hedge I]), the trial court retained jurisdiction to proceed on the second petition. Even assuming that appellant was not serving a valid parole revocation term at the time these current proceedings were instituted, per Terhune v. Superior Court (1998) 65 Cal.App.4th 864, it had no effect on the trial court's jurisdiction to act on the second petition under Garcetti v. Superior Court (1998) 68 Cal.App.4th 1105 (referred to as Lyles) and People v. Superior Court (1998) 68 Cal.App.4th 1383. The Sexually Violent Predators Act (SVPA) does not require that a defendant's custody be lawful at the time the petition is filed. It only requires the person to be "in custody under the jurisdiction of the [DOC]."
[Editor's note: while the Court of Appeal did not rely on default in its holding here because of the express statutory language and existing case law supporting its disposition, it did note in dicta that appellant failed to challenge the validity of his custody under the applicable parole regulation by administrative appeal or by habeas writ, and that he did not challenge the filing of the current second petition on these grounds until this appeal.]

 

People v. Torres (C028359, 4/26/99)
71 Cal.App.4th 704 (DCA 3)
Subsequent history: Rev. granted 8/11/99 (S079575), and decided on 5/21/01: 25 Cal.4th 680. See cases decided by the California Supreme Court, article page 5.
[5.C.] [7.] In a hearing to determine whether appellant was a sexually violent predator (SVP), the trial court committed reversible error when it admitted uncertified documents to prove the prior out-of-state convictions. Torres had waived his right to a jury determination on two prior Texas convictions and a prior California conviction for sex offenses. In a bifurcated proceeding, the trial court admitted, over appellant's objection, several uncertified documents from Texas purporting to prove appellant's prior convictions in that state. The trial court rejected appellant's argument that the uncertified documents were inadmissable hearsay, and held that the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code section 6600, subdivision (a), allows admission of a broader range of documents and does not expressly require the documents to be certified. The court then found the priors to be true. The appellate court reversed the judgment. Although section 6600, subdivision (a), allows the introduction of a broader range of documents, it does not relieve the proponents of the documents from compliance with Evidence Code sections 1530 and 1531. The Evidence Code applies to every action in California except as otherwise provided by statute. Nothing on the face of Welfare and Institutions Code section 6600, subdivision (a), suggests an exception or a legislative intent to create an exception. Public policy reasons, such as ensuring that the documents are authentic and that the inmate's right to confront and cross-examine is protected, further support the conclusion that the Legislature could not have intended to abrogate those Evidence Code sections. Because a person's liberty interest is at stake in a civil commitment proceeding, he or she has the right to confrontation and cross-examination. Without the safeguard of certification, the Texas documents were not sufficiently trustworthy to be admitted and used against appellant. Because only the California conviction remained, and a minimum of two prior victims were required to satisfy the SVPA, the conviction was reversed and the matter was remanded to the trial court for retrial only on the issue of whether appellant sustained the prior Texas convictions. [3.C.3.c.] [3.C.3.d.] The Court of Appeal also held that if the documentation had been certified, there was sufficient evidence to prove the prior convictions. The SVPA does not require proof that the prior convictions were predatory. [5.D.] Appellant's claim that his statements to examining doctors were inadmissable to prove his prior predatory acts was not raised below and was therefore waived on appeal. Even if the issue had been preserved, it would have failed on the merits because the judicially declared rule of use immunity applies only in a criminal proceeding, and hearings under the Sexually Violent Predator Act (SVPA) are civil in nature. [3.C.2.] There was no error regarding the standard of proof where examining physicians stated, and the prosecutor argued, that appellant was "likely" to engage in further predatory behavior. The jury was properly instructed that they were to make the ultimate finding "beyond a reasonable doubt." Appellant's diagnosis of paraphilia and antisocial personality disorder was sufficient as a qualifying disorder under the Sexually Violent Predator Act (SVPA). The appellate court also rejected further constitutional challenges to the SVPA, as they had been previously rejected by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138.

 

People v. Ward (E020993, 4/13/99)
71 Cal.App.4th 368 (DCA 4, Div. 2)
Subsequent history: Rev. denied on July 28, 1999.
[3.B.] Appellant was not entitled to pre-commitment credits for the 231 days he was in jail prior to the jury's sexually violent predator finding. Credits which would reduce a prison term are not applicable to a civil mental health commitment. [5.A.] Psychiatric and psychological testimony admitted for the purpose of a sexually violent predator (SVP) hearing pursuant to Welfare and Institutions Code section 6600, et seq., is not scientific evidence subject to a Kelly-Frye analysis. (People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (1923) 293 F. 213.) California law distinguishes between expert medical opinion and scientific evidence. Kelly-Frye analysis applies to cases involving novel devices or processes, not to expert testimony such as a psychiatrist's prediction of future dangerousness. The law permits such expert testimony in a number of other contexts, such as insanity and mentally disordered offender commitments. These other situations cannot reasonably be distinguished from expert testimony in SVP commitment proceedings. Therefore, the trial court did not abuse its discretion in this case when it admitted expert testimony regarding the likelihood that appellant was a sexually violent predator and was likely to reoffend. [3.C.1.] The trial court did not err in refusing appellant's request for an instruction which informed the jury that a DSM-IV diagnosis was not sufficient proof of the requisite diagnosed mental disorder. The statement was not appropriate as a statement of law, but only as argument.

 

People v. Superior Court (Ramirez) (A085269, 3/30/99)
70 Cal.App.4th 1384 (DCA 1, Div. 2)
[2.B.] The appellate court here found that the trial court had erred in dismissing the People's petition for civil recommitment of Ramirez as a sexually violent predator. The petition was filed four days before Ramirez's release date. Distinguishing People v. Kirkland(1994) 24 Cal.App.4th 891, a case that interpreted the time limits set forth in the Mentally Disordered Offender (MDO) Act (Pen. Code, § 2960 et seq.), the appellate court held that the petition, filed pursuant to Welfare and Institutions Code section 6600 et seq., the Sexually Violent Predators Act (SVPA), was timely. Welfare and Institutions Code section 6601, subdivision (a), provides that the initial screening should be commenced at least six months prior to the inmate's scheduled release date, but it does not specify when the request for a petition must be made or when the petition must be filed, although it does require that the individual be in custody. Welfare and Institutions Code section 6601.3 permits the issuance of a parole hold of 45 days if the parole date will be reached before the evaluation is completed. Where the parole hold will expire before a probable cause hearing is conducted, section 6601.5 authorizes an urgency review which, based on the facts of the petition, allows the court to order the individual detained for an additional 10 days, provided, however, that the hearing is held within the 10-day period. There is no provision specifying a time by which the trial must be commenced or concluded. [4.] Welfare and Institutions Code section 6604.1 does provide that for a subsequent extended commitment, the term of commitment shall be from the date of the termination of the previous commitment. The appellate court found that this provision recognized that the extended commitment trial may not finish before the expiration of the previous commitment because otherwise there would be no need to specify that the term of the extended commitment shall run from the date the previous commitment ended. Therefore, a subsequent commitment order need not be obtained before expiration of the previous term.

 

People v. Superior Court (Johannes) (B126017, 3/3/99)
70 Cal.App.4th 558 (DCA 2, Div. 1)
Subsequent history: Rev. denied on Jun. 16, 1999.
[3.C.3.b.] [7.]Under Welfare and Institutions Code section 6600 et. seq., the Sexually Violent Predator Act (SVPA), sex offenses against children under 14 need not have been committed by force to satisfy the statute. Johannes was convicted of seven violations of Penal Code section 288, subdivision (a) (child molestation without force), against multiple victims, and several counts of Penal Code section 288.5 (continual sexual abuse of a child). The People petitioned to have Johannes declared a sexually violent predator under the SVPA. The trial court found that there was no probable cause because Johannes's offenses were committed without force. The trial court held that the crimes must satisfy both section 6600.1, which required the offenses to have involved substantial sexual conduct, and section 6600, subdivision (b), which required that they be committed by means of force, fear, or violence. The appellate court here held that section 6600.1 modifies section 6600, subdivision (b). Someone who commits two or more specified sex crimes against children under 14 years old with substantial sexual conduct is subject to the SVPA even if the offenses were not committed with force, violence, menace, or fear. The statutes' facial meaning and legislative history, as well as the rules of statutory construction, unambiguously compel this conclusion. [1.A.] Relying on Kansas v. Hendricks (1997) 521 U.S. 346, and Hubbart v. Superior Court(1999) 19 Cal.4th 1138, the Court of Appeal found the SVPA to be sufficiently narrowly drawn to pass constitutional muster even if the conduct against children under the age of 14 years was not committed with force, violence, menace of fear of immediate and unlawful bodily injury on the victim or another person.

 

People v. Mercer (E021569, 3/1/99)
70 Cal.App.4th 463 (DCA 4, Div. 2)
[3.C.3.e.] There was sufficient evidence to classify appellant as a sexually violent predator where the jury could reasonably have believed the evidence of prosecution witnesses and rejected that of the defense witness. Although no court has yet articulated the standard of review for considering the sufficiency of evidence to support a commitment under the Sexually Violent Predator Act, the class of offenders is similar to commitments under the Mentally Disordered Offender Law and extended commitments under Penal Code section 1026.5 for defendants acquitted by reason of insanity. Therefore, the standard of proof should be the same as that for reviewing a criminal conviction. Here, all three psychologists who testified at appellant's hearing to determine whether he was a sexually violent predator testified that he had pedophilia. The prosecution experts testified that appellant could not control his sexually violent behavior, while the defense expert testified that there was no evidence that he was unable to control his behavior. As all reasonable inferences must be drawn in favor of the judgment, there was sufficient evidence from which the jury could have determined that appellant could not control his behavior and would likely reoffend if released.

 

People v. West (F026945, 2/24/99)
70 Cal.App.4th 248 (DCA 5)
[3.C.3.a.] There was insufficient evidence that appellant was a sexually violent predator where there was no evidence that he received a determinate term for his prior 1975 rape conviction. At the time of appellant's trial, the definition of a "sexually violent predator" included a requirement that the defendant had been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence. Although West stipulated that he was convicted of forcible rape in 1975, he contended that there was no evidence he received a determinate term for that offense. The court agreed, finding "no legal or practical solution to the express words of this statute that created the anomaly which inures to appellant's benefit." Subsequent amendments to the statute were not simply a clarification of existing law. The amendment did not affect appellant because it had not yet become law when appellant's trial took place. The judgment must be reversed because of "legislative oversight," despite appellant's egregious record and evident danger to the public.

 

People v. Superior Court (Howard) (H018530, 2/22/99)
70 Cal.App.4th 136 (DCA 6)
Subsequent history: Rev. denied on Jun. 3, 1999.
[1.A.] [2.C.] [5.C.] The Sexually Violent Predators Act (SVPA) specifically allows the People to prove that a defendant has committed sexually violent offenses through hearsay evidence. The admission of hearsay evidence at a probable cause hearing does not violate due process because the defendant has an opportunity to challenge the evidence. Howard, who had pleaded guilty in 1987 to a violation of Penal Code section 288a, subdivision (b)(2), and in 1991 to a violation of Penal Code section 288, subdivision (a), was not paroled in May of 1997. Instead, proceedings were begun under the SVPA. At the hearing on the SVPA petition, the court admitted four written evaluations of Howard which were submitted by psychologists who, in addition to examining Howard, had reviewed his record, including the probation reports. Howard's attorney called two of the psychologists as witnesses at the hearing, and cross-examined them regarding their opinions that Howard met the criteria of the statute. The court ruled that there was no probable cause to detain Howard under the SVPA because the proof that Howard's convictions constituted sexually violent offenses within the meaning of the statute consisted of inadmissable evidence, that is, the hearsay statements of the victims contained in the probation reports. The People petitioned for a writ of mandate. The court here held that the SVPA specifically provides that the existence of qualifying past conduct may be shown at the probable cause hearing by documentary evidence, including statements in a probation report. Due process under the SVPA is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings.

 

People v. Superior Court (Donelson) (G023889, 1/29/99)
69 Cal.App.4th 734 (DCA 4, Div. 3)
Subsequent history: opn. ordered nonpub. Apr. 1, 1999.
[2.B.] A petition to commit a defendant as a sexually violent predator (SVP) was valid when brought while the defendant was still in custody because the Board of Prison Terms had put a hold on his release. Donelson was scheduled to be released from state prison on parole on April 18, 1996. Prior to that release date, the Department of Corrections identified him as a potential SVP and referred him to the Department of Mental Health (DMH) for an evaluation. Both examining doctors concluded that Donelson was a pedophile who would continue his sexually violent behavior if released. A three-day hold was placed on Donelson's release pursuant to California Code of Regulations section 2006.1. The Board then placed a 45-day hold on Donelson in order to allow the state time to petition for Donelson's commitment. The state filed the petition and proceedings commenced. Donelson moved to dismiss the petition, arguing that the Board's holds were invalid. The trial court granted the motion, but stayed the order pending appellate review of the State's writ of mandate. The court here granted the writ, holding that Donelson was legally in custody when the petition was filed, and the hold placed by the Board was valid. Welfare and Institutions Code section 6601.3 allows the Board to place a hold on an inmate who is referred to the DMH for up to 45 days to complete an evaluation before the inmate's release and before the DMH makes a recommendation. Here, the DMH evaluation was completed but probable cause was not determined before Donelson's original release date. Given the sequence of events, the Board had no statutory provision to guide its actions. Section 6601 required a probable cause hearing, but did not specify when it was to occur. The Board was entitled to rely on its own regulations under the circumstances, and its actions were necessary to ensure that an SVP was not released before the potential danger was assessed.

 

People v. Moore (A080393, 1/26/99)
69 Cal.App.4th 626 (DCA 1, Div. 4)
Subsequent history: while the petition for review was denied on March 31, 1999, Justice Mosk voted to grant review.
[3.C.3.] The trial court was not required to advise a defendant that he may be subject to additional confinement under the Sexually Violent Predator Act (SVPA) before accepting his guilty plea to a violation of Penal Code section 288, subdivision (a). Following the entry of his guilty plea, Moore moved to withdraw the plea because the court had not advised him that the plea could lead to SVPA proceedings which might require him to spend the rest of his life in prison. The court properly denied the motion because any commitment Moore might suffer under the SVPA would be neither a "direct" nor a "penal" consequence of his plea. Even if Moore would be automatically screened under the SVPA as a result of his plea prior to his release from prison, the screening would not necessarily lead to a finding that he was a sexually violent predator. Any such determination would require additional steps, and would not be controlled by Moore's plea. A potential commitment under the SVPA is, at most, a collateral consequence of the plea and admissions. The court, citing Hubbart v. Superior Court (1999) 19 Cal.4th 1138, also held that such a commitment would not be a "penal" consequence of the plea. There was no abuse of discretion in refusing to allow withdrawal of the plea.

 

People v. Superior Court (Whitley) (A084054, 1/5/99)
68 Cal.App.4th 1383 (DCA 1, Div. 1)
Subsequent history: while the petition for review was denied on March 17, 1999, Justice Kennard voted to grant review.
[2.B.] The Department of Corrections has the jurisdiction to commit an individual under the Sexually Violent Predators Act (SVPA) even where his parole has been erroneously revoked. The prosecutor's original petition for Whitley's commitment as a sexually violent predator was dismissed for lack of probable cause. Whitley's parole was revoked for psychiatric treatment. In Terhune v. Superior Court (1998) 65 Cal.App.4th 864, this court held that the revocation was in excess of the Board of Prison Terms' authority. Before the opinion in Terhune was final, the prosecutor filed another petition for Whitley's commitment under the SVPA. Whitley's motion to dismiss that petition was granted. In this People's appeal, the court held that the trial court erred. At the time of the filing of the new petition, Whitley was in the custody of the Department of Corrections, because Terhune was not yet final. The Department's error in revoking Whitley's parole was not a negligent or intentional wrongdoing; the error was the result of a mistaken understanding regarding the Department's statutory authority. Given these factors and the serious public safety purpose underlying the SVPA, the trial court had jurisdiction to consider the latest petition for Whitley's commitment despite the Department's legal error. Even if the dismissal of the second petition for commitment was a final judgment on the merits, the prosecutor was not collaterally estopped from bringing another petition, as the two proceedings did not involve the same issue. The determination that the original revocation was not authorized did not undermine the efficacy of the commitment proceedings, and a new probable cause hearing was authorized.

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