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svpa compendium

 

Year 2000
California Court of Appeal

Garcetti v. Superior Court (In re Blake) (B141817, 12/29/00)
85 Cal.App.4th 1113 (DCA 2, Div. 3)
Subsequent history: Rev. denied 4/11/01
[3.C.3.] [5.E.2.] A finding in a previous case that Blake was a mentally disordered sex offender, which was based on a conviction for an attempted lewd and lascivious act upon a child under age 14, qualified Blake for treatment under the Sexually Violent Predators Act because any MDSO finding qualifies as a prior conviction for purposes of the SVPA. Welfare and Institutions Code section 6600, subdivision (a), explicitly provides that a "conviction resulting in a finding that the person was a mentally disordered sex offender . . . shall also be deemed to be a sexually violent offense, even if the offender did not receive a determinate sentence for that prior offense." [7.] Because the Sexually Violent Predators Act is clear and unambiguous, the trial court erred in finding the statute to be uncertain. Moreover, the trial court's construction of the statute was at odds with the rules of statutory construction that require courts to ascertain the plain meaning of the statute, and with the "last antecedent rule." The "last antecedent rule" provides that qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote except when separated from the antecedents by a comma. In section 6600, subdivision (a), the qualifying phrase is not separated by a comma, and the two exceptions to the "last antecedent rule" do not apply. Moreover, the legislative history supports this application of the last antecedent rule. [1.A.] [3.C.] The Court of Appeal rejected the argument that the constitutionality of Kansas' Sexually Violent Predator Act, upheld in Kansas v. Hendricks (1997) 521 U.S. 346, was based upon the scope of the application of the statute, and that the addition of those previously found to be mentally disordered sex offenders impermissibly expanded the statute's scope. While Blake contended that nonviolent misdemeanants, such as those convicted of possessing obscene matter, could be included, the Court of Appeal cautioned that the MDSO finding, standing alone, was not sufficient to trigger treatment under the SVPA, but that there must also be evidence of a currently 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. The Court of Appeal ordered the writ of mandate to be issued, directing the trial court to vacate its order dismissing the amended petition, and to enter a new order reinstating the petition and overruling Blake's demurrer.

 

Garcetti v. Superior Court (Washington) (B142294, 12/19/00)
85 Cal.App.4th 782 (DCA 2, Div. 5)
Subsequent history: Rev. granted 3/21/01 (S094812), and the case was dismissed and remanded on 12/12/01.
[5.B.]The Court of Appeal granted two petitions for mandate in this Sexually Violent Predators Act commitment proceeding. First, the Court of Appeal held that where a psychological evaluator failed to perform within the guidelines and was removed from the panel of experts by the Department of Mental Health, the district attorney was obligated to obtain a second competent evaluation concurring in the diagnosis underlying his effort to commit Washington as an SVP. This action did not violate the statute which authorizes only two psychological evaluations of the defendant, and the trial court erred in excluding the opinions of the third psychologist. [5.D.] The Court of Appeal held that the confidentiality of therapy records under Welfare and Institutions Code section 5328 does not apply to SVPA proceedings. Moreover, the therapy privilege of Evidence Code section 1014 is not absolute, and must yield to compelling state interests, including the interest in detaining sexually violent predators, and providing them treatment until the disorder has abated. Accordingly, it was proper for the experts here to consider Washington's treatment records in reaching their conclusions, and the trial court erred in limiting the expert's review of the therapy records.

 

People v. Roberge (D034189, 12/15/00)
85 Cal.App.4th 696 (DCA 4, Div. 1)
[Editor's note: Rev. granted 3/28/01 (S094627); decided on 2/6/03. See cases Decided, page 5.]
[3.C.2.] [5.B.] [6.] The trial court did not err here in rejecting the jury instruction proffered by appellant, which cautioned the jury that it must find the defendant more likely than not to reoffend. The focus upon percentages rather than upon the totality of the evidence was argumentative, and would have tended to derogate, rather than amplify, the high burden of proof which must be met in a Sexually Violent Predators Act (SVPA) case. The statutory phrase "likely to engage in sexually violent criminal behavior" is not a standard of proof, but a prediction of dangerousness that must be proved beyond a reasonable doubt. The experts here relied on the RRASOR test, which statistically predicted appellant's probability of reoffending at below 50%, but opined that the test understated this probability. Moreover, one of the two prosecution experts explicitly refused to opine that it was "more likely than not" that appellant would reoffend. Nonetheless, the standard of proof, as defined here, was satisfied.

 

Garcetti v. Superior Court (In re Marentez) (B143330, 12/14/00)
85 Cal.App.4th 508 (DCA 2, Div. 5)
Subsequent history: Rev. granted on 3/21/01; decided on 11/25/02 as Cooley v. Superior Court (2002) 29 Cal.4th 228. See Decided cases, page 5.]
[2.C.] [5.B.] The trial court erred in rejecting outright the actuarial evidence relied upon by the experts at this probable cause hearing brought under the Sexually Violent Predators Act. Here the record demonstrated that sufficient admissible evidence was presented through the testimony of Dr. Vognsen to provide probable cause to set the matter for trial. The standard to be utilized at a probable cause hearing under Welfare and Institutions Code section 6602, subdivision (a), is whether there exists such a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a "strong suspicion" that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon their release from custody. Justice Grignon dissented, finding that the superior court judge made factual findings that were dispositive on the issue of the likelihood of reoffense, which are supported by substantial evidence, and are therefore conclusive.

 

People v. Talhelm (E026020, 12/11/00)
85 Cal.App.4th 400 (DCA 4, Div. 2)
Subsequent history: Rev. denied on March 28, 2001
[3.] [3.C.E.] The trial court erred here in summarily denying Talhelm's petition for a writ of habeas corpus. While the trial court reasoned that the appropriate procedure to challenge a probable cause determination in a Sexually Violent Predators Act commitment was to file a motion under Penal Code section 995, the appellate court held this to be the proper procedural vehicle for challenging the trial court's finding of probable cause. Nonetheless, the Court of Appeal found the error to be harmless. While a prejudice showing was required under People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, and Talhelm did not even purport to make such a showing, the court's review of the record compelled the conclusion that Talhelm had received a fair trial. [1.A.] [2.B.] [7.] While Penal Code section 6601, subdivision (a), of the Sexually Violent Predators Act requires that a referral for evaluation as an SVP be made at least six months prior to the individual's scheduled release date, the filing of the commitment petition here on May 27, 1999, when the scheduled release date was June 23, 1999, was not untimely. The referral here was timely made in October of 1998. The plain language of the SVPA supports this because section 6601.3 provides that the defendant's commitment for evaluation is limited to 45 days unless the scheduled release date is later than 45 days from the time of referral. Moreover, the Court of Appeal found there was nothing in the legislative history of the SVPA that indicated that the Legislature intended the commitment proceedings to be completed before the defendant's scheduled release date. Finally, the appellate court found the Mentally Disordered Prisoners Act and the cases decided thereunder are not helpful in SVPA cases because the SVPA does not contain the express time limits contained in the MDPA. Accordingly, the failure to complete the commitment process here before the scheduled release date did not result in a procedural due process deprivation. [1.A.][3.C.] The Court of Appeal rejected defendant's claims that his substantive due process rights were violated by the looseness of the definition of the term "mental disorder" which could permit commitment solely based on prior convictions and without any evidence of a recognized mental disorder. First, the Sexually Violent Predators Act itself requires jurors to be admonished that an SVP finding cannot be based on the defendant's prior convictions alone. Second, this argument was rejected by the California Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138. Finally, there was ample evidence here that in addition to his prior convictions, the defendant had been diagnosed as a pedophile, based on clinical tests and personal interviews, as well as his prior convictions.

 

People v. Superior Court (Gary) (F034537, 11/30/00)
85 Cal.App.4th 207 (DCA 5)
[4.] [5.B.] [7.] Dismissal of a recommitment petition in a sexually violent predator (SVP) case was appropriate where there was only one psychological evaluation filed with the petition. A recommitment petition must be supported by two concurring psychological evaluations. The established rules of statutory construction allow no other conclusion. The Legislature, by not expressing some different procedure for a recommitment, indicated its intent to require the same procedure as that required for the filing of an original petition. Further, it was not error for the trial court to have failed to continue the SVP hearing for a second evaluation, as the prosecution did not inform the court that it wanted additional time to do so. Dismissal of the proceedings was appropriate since no continuance was requested.

 

People v. Superior Court (Butler) (H021486, H021543, 9/18/00)
83 Cal.App.4th 951 (DCA 6)
Subsequent history: Rev. denied 1/10/01 [J. Mosk voted to grant review.]
[Editor's note: This is Butler II case; Butler I is at 78 Cal.App.4th 1171]
[E.4.] [5.B.] [E.7.] Butler and Cheek were committed as sexually violent predators (SVP) and committed to the custody of the State Department of Mental Health (DMH) for two years. Before their commitments expired, the district attorney filed a petition to extend the commitments, supported by one current evaluation from a DMH psychologist. The appellate court held that the petitions should have been dismissed because DMH failed to conduct a "full evaluation" involving two psych evaluations (Butler II). Before the opinion in Butler II was final, the district attorney filed new petitions to extend Butler's and Cheek's commitments, supported by two psychological evaluations. The trial court dismissed the original petitions for extended commitment. In Butler's case, the trial court also dismissed the new petition and ordered Butler released. In Cheek's case, it refused to dismiss and release. The prosecution sought relief in Butler, and Cheek likewise sought a petition for writ of mandate. In this opinion, the court concluded that the trial court erred by dismissing the prosecution's new petition for extended commitment in Butler, and properly refused to dismiss in Cheek. The trial court had dismissed the petition in Butler II on procedural grounds, not on the merits for insufficiency of evidence. No opinion was expressed regarding whether there was probable cause to believe that Butler and Cheek were "likely to engage in sexually violent predatory behavior upon (their) release." Therefore, because probable cause had already been found in the original proceeding, and the subsequent dismissal was based on a defective petition, new extension petitions were appropriate. There was no statutory defense to the filing of a new petition for extended commitment. The trial court had jurisdiction, and the petition was not barred by principles of res judicata.

 

People v. Wakefield (D032530, 6/6/00)
81 Cal.App.4th 893 (DCA 4, Div.1)
Subsequent history: Rev. denied on 9/2700
[3.A.] Wakefield was in actual custody of the Department of Corrections at the time the San Diego County District Attorney filed a motion to commit him under the Sexually Violent Predators Act (SVPA). A Marin County court subsequently determined that Wakefield's custody had been unlawful because there had been no formal hearing held on one parole revocation which resulted in his incarceration. There was no dispute that the district attorney had a good faith belief that appellant's custody status was lawful at the time he filed the petitions. Moreover, the Legislature has made it clear that lawful custody has never been a jurisdictional prerequisite to the filing of a petition under the SVPA. A later judicial or administrative proceeding determination that custody was unlawful does not deprive the court of the power to proceed on such a petition if the custody status was a result of a good faith mistake of law or fact. Here, the petitions were properly filed in good faith while Wakefield was being held in the custody of the Department of Corrections. Reversal was not required. [5.B.] There was no reversal required where the psychological evaluations of Wakefield were not current. Wakefield did not raise this issue, or the sufficiency of evidence, below. Furthermore, there was testimony from both psychologists that their opinions had not changed from earlier reports which they had filed.

 

People v. Mendoza (F032945, 6/1/00)
81 Cal.App.4th 179 (DCA 5)
Subsequent history: Rev. granted 8/9/01; rev. dismissed on 11/14/01 (S089671) .
[5.C.] [7.] The trial court did not err by admitting hearsay documents to prove the details of the underlying prior sex offenses in a sexually violent predator (SVP) case. Here, probation reports and police reports were admitted into evidence, without objection, in order to prove appellant's prior convictions for violating Penal Code section 288, subdivision (a). Without those documents, the prosecution was unable to prove that the prior offenses fell within the definition of sexually violent offenses. Welfare and Institutions Code section 6600, subdivision (a), specifically allows the admission of documentary evidence to prove the prior convictions. As the Sixth District Court of Appeal held in People v. Superior Court (Howard) (1999) 70 Cal. App. 4th 136, the Legislature intended the language as an exception to the hearsay rule. As the court in Howard explained, although a probation officer's report would be considered inadmissable hearsay for the purpose of proving a prior conviction for enhancement purposes, proceedings under the SVP Act are civil.

 

People v. Superior Court (Riley) (F034275, 5/11/00)
80 Cal.App.4th 820 (DCA 5)
Subsequent history: opn. ordered nonpub. Aug. 23, 2000.
[4.] [5.B.] A writ petition was granted, and the trial court's dismissal of a petition to extend appellant's civil commitment under the Sexually Violent Predators Act (SVPA) was reversed. Here the trial court incorrectly dismissed the petition because it was not accompanied by two psychological evaluations as required for an initial SVP determination. In the case of a recommitment, the subject is someone who has previously been found to meet the SVP criteria. In the case of a previously adjudged SVP, rigidly duplicating the procedure required by Welfare and Institutions Code section 6601 appears superfluous. The filing of a petition is only the first of many steps, and the fact that two evaluations are not submitted should not invalidate the petition. All of the procedural safeguards contained in sections 6602 through 6604 would apply to proceedings subsequent to the petition to extend the commitment.

A dissenting opinion by Justice Thaxter held that the trial court properly dismissed the petition for the reasons set forth in the previous appellate opinions on the same issue. (Citing Butler v. Superior Court (2000) 78 Cal. App. 4th 1171, and Peters v. Superior Court (2000) 79 Cal. App. 4th 845.)

 

Griego v. Superior Court (People) (B138334, 5/1/00)
80 Cal.App.4th 568 (DCA 2, Div. 6)
[1.E.] [3.A.] In this Sexually Violent Predators Act proceeding, petitioner sought to quash the deposition notice or, in the alternative, to seek a protective order. The deputy district attorney defined for the court the scope of the inquiry he would be making as limited to petitioner's current mental illness, his past charged criminal conduct, and an alleged sexual assault upon his half-brother. The deputy district attorney also represented that there would be no prosecution arising out of the deposition because the offenses at issue had either already resulted in convictions or were barred by the statute of limitations. The deputy district attorney explicitly promised transactional immunity from prosecution for any answers petitioner might give to questions concerning suspected but uncharged criminal acts. Based on these representations, the court denied the motions and found petitioner's Fifth Amendment rights were not implicated. However, during the deposition the prosecution asked petitioner about a picture of a boy on the back of a Magic Mountain pass. The prosecution had discovered it in petitioner's home during a parole search. Unbeknownst to petitioner, the prosecution was contemporaneously conducting an investigation attempting to locate the boy. The prosecution was ultimately successful in identifying and locating the boy. A criminal complaint was then filed, and appellant moved to dismiss it. The trial court denied the motion to dismiss, and appellant filed this writ petition. The Court of Appeal concluded that while the prosecution had a right to "enlarge" the scope of the deposition questions, the prosecution was also bound by the immunity agreement and could not prosecute those counts. The Court of Appeal also found that the doctrine of "inevitable discovery" does not apply where transactional immunity has been granted. The Court of Appeal directed the trial court to set aside its order denying the writ petition, and to enter an order consistent with this opinion.

 

People v. Otto (A086761, 4/24/00)
80 Cal.App.4th 179 (DCA 1, Div. 5)
Subsequent history: Rev. was granted 6/2/00 (S088807) and decided on 7/23/01: 26 Cal.4th 200. See cases decided by the California Supreme Court, article page 5.]
[5.C.] [7.] In this Sexually Violent Predator Act (SVPA) hearing held pursuant to Welfare and Institutions Code section 6600 et seq., it was not error for the trial court to have admitted a presentence report that contained hearsay and reports and testimony of experts which recounted the hearsay contents of the presentence report. Section 6600, subdivision (a), provides for the admission of documentary evidence including probation and sentencing reports. Otto argued on appeal that although section 6600 provided an exception to the general rule, it did not repeal Evidence Code section 1201 regarding multiple levels of hearsay. The appellate court here rejected that argument, citing In re Malinda S.(1990) 51 Cal.3d 368, for the proposition that section 6600 creates an implicit exception to sections 1200 and 1201, at least with respect to victim statements to police officers and other disinterested parties in the regular course of their professional duties. [1.A.] To the extent that Welfare and Institutions Code section 6600 creates an exception to the multiple hearsay ban contained in Evidence Code section 1201, it does not violate appellant's due process rights to confront and cross-examine witnesses against him. The Sexually Violent Predators Act (SVPA) commitment proceeding is a civil proceeding, not a criminal one, and the cases regarding confrontation are therefore inapplicable here. A right to confront and cross-examine exists in a civil proceeding, but the scope of that right is defined by the due process clause. Here there was no due process violation because the evidence of prior convictions was only partial proof that appellant committed sexually violent offenses.

 

People v. Green (A086488, 4/7/00)
79 Cal.App.4th 921 (DCA 1, Div. 4)
Subsequent history: Rev. denied on July 26, 2000.
[1.B.] Even though persons committed under the former mentally disordered sex offender (MDSO) law are entitled to the rights given defendants in criminal trials, while those committed under the Sexually Violent Predators Act (SVPA) are not, the SVPA does not violate the constitutional right to equal protection under the law. The MDSO commitment scheme comes into operation before sentencing, and the criminal case is suspended if a person is committed as an MDSO. Extension under the MDSO scheme is designed to extend the treatment period. An SVP has already been sentenced, and the goal of the SVPA is to protect the public from a narrow group of dangerous predators. The Legislature's decision to forego the full relitigation of crimes, for which the SVP has already been punished, is justified by the compelling interest in protection of the public.

 

Peters v. Superior Court (B135983, 4/5/00)
79 Cal.App.4th 845, mod. 80 Cal.App.4th 602a (DCA 2, Div. 6)
[4.] [5.A.] [7.] Where a petitioner had been treated for two years at Atascadero State Hospital pursuant to the Sexually Violent Predators Act (SVPA), and the state Department of Mental Health (DMH) initiated proceedings to extend his commitment, a writ of mandate was granted even though the order granting DMH's petition was based on the report of a single evaluator. The sole provision in the SVPA statutory scheme for a new petition, set forth in Welfare and Institutions Code section 6601, requires that a new petition be supported by two mental health evaluations. There was no support for DMH's contention that the Legislature did not intend the procedures of section 6601 to apply to an extended commitment. This argument was already rejected by the Sixth District in Butler v. Superior Court (2000) 78 Cal.App.4th 1171 (Butler I) A common sense reading of section 6601 is that it comes into play whenever the state seeks to recommit an SVP. The original reports cannot do "double duty" because there was no evidence that the initial evaluators had evaluated petitioner subsequent to the initial filing of the petition. Further, the use of stale reports would subvert the intent of the SVPA which is to treat those who suffer from a currently diagnosed mental disorder.

 

Butler v. Superior Court (H020240/H020554, 3/7/00)
78 Cal.App.4th 1171 (DCA 6)
[Editor's note: This is Butler I case; Butler II is at 83 Cal.App.4th 951]
[14.E.] Butler and Cheek were found to be sexually violent predators under the Sexually Violent Predators Act (SVPA) and were committed to the custody of the State Department of Mental Health (DMH) for two years. Before the two-year commitments expired, prosecutors filed petitions to commit each appellant for an additional two-year period. The petitions were each supported by one evaluation by a DMH psychologist. The court here held that the subsequent commitments had to be reversed because the SVPA requires a "full evaluation" which requires two evaluations of the person subject to commitment. The SVPA does not contain any explicit provisions regarding the process of recommitment. The fact that the Legislature did not provide any specific procedures for recommitment indicates that it intended the procedures to be the same for filing the initial commitment and for recommitment. This includes the requirement that two evaluations support the recommitment. The fact that the SVPA requires a new petition indicates that the evaluations performed at the initial stage would not reflect the current mental condition, and would be inadequate. As a result, the orders recommitting Butler and Cheek had to be vacated. [See Butler II at 83 Cal.App.4th 951, for subsequent rulings on this issue.]

 

People v. Turner (D033138, 3/7/00)
78 Cal.App.4th 1131 (DCA 4, Div. 1)
Subsequent history: rev. denied on June 14, 2000.
[3.B.] [7.] A jury deadlocked on the issue of whether Turner was a sexually violent predator (SVP) within the meaning of Welfare and Institutions Code section 6600 et. seq. The trial court correctly denied Turner's motion to dismiss the subsequently filed petition to declare him an SVP. The unanimity requirements of section 6603, read together with the burden of proof set forth in section 6604, provide that an alleged SVP should be released when the prosecutor does not meet the burden of proof or the jury fails to make a unanimous finding. Even though the sections do not specifically provide for retrial, to hold that they bar retrial would thwart the purpose of the SVP Act, which is to protect the public. It must be presumed that the Legislature knew of a long-standing civil statutory provision which permits retrial where a jury deadlocks, resulting in a mistrial.

 

People v. Leonard (C027404, 2/28/00)
78 Cal.App.4th 776 (DCA 4, Div. 2)
Subsequent history: Rev. denied on June 21, 2000.
[1.E.] [5.B.] [5.C.] The court did not deny appellant the right to remain silent at his Sexually Violent Predator Act (SVPA) hearing by allowing the psychologists who testified as expert witnesses to rely on material from interviews he gave under duress, or by allowing the district attorney to call one as a witness in the proceeding. Because the SVPA proceeding is civil, the privilege against self-incrimination does not apply.

 

Sporich v. Superior Court (B135605, 1/5/00)
77 Cal.App.4th 422 (DCA 2, Div. 6)
Subsequent history: opn. ordered nonpub. on March 29, 2000.
[1.G.] [5.B.] The Sexually Violent Predators Act (SVPA) does not authorize additional precommitment mental exams even if the two authorized by the statute are no longer current. Therefore, where an SVP trial was continued several times at petitioner's request, pending a determination of the constitutionality of the SVPA, the trial court erred when it ordered petitioner to submit to a psychiatric interview for the purpose of updating the reports. Unauthorized attempts by the state to conduct further examinations implicate the constitutional right to privacy. The 1986 Civil Discovery Act (Code Civ. Proc., §§ 2016 et seq) requires good cause to conduct a mental examination. Assuming that the Act has application in the SVPA context, the passage of time itself was not good cause for further mental examinations. Absent other proof, the court abused its discretion in ordering an additional mental examination.

 

Albertson v. Superior Court (B135604, 1/5/00)
77 Cal.App.4th 431 (DCA 2, Div. 6)
Subsequent history: Rev. granted 3/29/00 (S085899) and decided on 6/4/01: 25 Cal.4th 796. See cases decided by the California Supreme Court, article page 5.]
[5.D.] The Department of Mental Health cannot directly transmit mental health records to the district attorney in Sexually Violent Predators Act (SVPA) hearings. The confidentiality provisions of Welfare and Institutions Code section 5328 prohibit such a transfer to the extent that the records are generated in the course of providing mental health services. Therefore, although mental health records generated during the time appellant was in state prison were not confidential, his post-prison confinement was premised upon "treatment," and mental health records generated after the SVPA initial evaluations must be deemed as "services provided" under section 5328. A writ of mandate was therefore issued which ordered the respondent court to set aside its orders requiring additional mental health examinations, and allowing the district attorney direct access to the records.

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