PRINT PAGE

svpa compendium

 

Year 2008
California Court of Appeal

In re Franklin (F055684 / 12/17/08)
169 Cal.App.4th 386
[4.B .] Where a felony conviction has been reversed on appeal before an SVP petition is filed, SVP proceedings cannot be initiated against the defendant based on those charges unless the defendant is retried and convicted again. Before the expiration of petitioner's two-year SVP recommitment, he was charged and sentenced to 25-years-to-life on a new case for damaging jail property. Based on the sentence in that case, the prosecutor noted in open court that he would no longer be proceeding on extensions in the SVP case, and so the court dismissed the SVP commitment. But then in May 2006, the Court of Appeal reversed the conviction in the damage to jail property case. A month later, the prosecutor filed a new SVP petition, and petitioner filed a writ of habeas corpus. According to In re Smith (2008) 42 Cal.4th 1251, SVP proceedings cannot proceed against a person after a felony conviction has been reversed on appeal if that conviction was the basis of the person's custody at the time of the initiation of the SVP proceedings. Here, although petitioner was in state prison custody at the time the SVP proceedings were filed (awaiting the Court of Appeal opinion to become final and the remittitur issue), he was no longer a convicted felon serving a determinate prison sentence. Since a person is lawfully subject to civil commitment as an SVP only if he or she was an individual in state prison custody either serving a determinate prison sentence or a parole revocation, here the statutory condition precedent to lawful SVP civil commitment proceedings was not satisfied.

 

People v. Felix (A115717 / 12/16/08)
169 Cal.App.4th 607
Subsequent history: rev. denied 3/25/09
[1.A.; 4.A; 4.C; 7.] Due process does not require proof of a recent overt act to establish dangerousness sufficient to warrant civil commitment under the Sexually Violent Predator Act, where the offender has been in custody prior to trial on the civil commitment. In 1982, Felix was convicted for sexually violent offenses against more than two victims and sentenced to prison for 19 years and 4 months. He was released on parole in 1993, but was returned to prison for parole violations on numerous occasions. In 1996, he was found to be an SVP and civilly committed. At the time of the most recent trial to extend his civil commitment in 2006, he had been in custody for approximately 10 years. The jury found Felix to be an SVP and he was committed for an indeterminate term. The appellate court rejected Felix's argument that pursuant to Welfare and Institutions Code section 6600, subdivision (d), proof of his SVP status was insufficient as there was no evidence that he committed an overt act when out of custody. Under the totality of the circumstances here, Felix's commission of the sexually violent offenses against more than two victims and the current psychiatric opinion of Felix's mental disorder was sufficient to meet the requirements of the statute. Since he had been in custody for most of the ten years preceding, no evidence of recent overt acts was required. Senate Bill No. 1128 did not eliminate statutory authority to file petitions to extend the commitment of persons who were already committed as sexually violent predators at the time the bill went into effect. The court joined other appellate courts in holding that Senate Bill 1128 did not eliminate statutory authorization to extend the commitment of persons already committed as SVP's. (See People v. Shields (2007) 155 Cal.App.4th 559 [Fourth District, Division One], and People v. Carroll (2007) 158 Cal.App.4th 503 [Fifth District].) Since the plain language of the SVPA as amended by the bill is ambiguous on the issue of whether extended commitments are permissible, the court looked to other indicia of legislative intent and concluded there was a clear intent to enhance--not restrict--confinement of persons determined to be SVP's.

 

Sabatasso v. Superior Court (G039906 / 10/20/08)
167 Cal.App.4th 791
[1.B.] Under Penal Code section 2713.1, a paroled prisoner who is transferred to another law enforcement agency for proceedings under Penal Code section 6600 (SVP) is entitled to the $200 release money authorized by section 2713.1. Upon his parole, Sabatasso was released to the Orange County Sheriff's Office pending evaluation as a sexually violent predator and commitment under the SVPA. His request for the $200 release fund, authorized pursuant to Penal Code section 2713.1, was denied on the grounds that he remained in custody as opposed to being paroled to the community, and, therefore, was not entitled to the money pursuant to Title 15, section 3075.2, subdivision (d)(2), as promulgated by the Department of Corrections. Under the rules of statutory construction, the court found that the clear language of section 2713.1, stating that the allowance is to be paid to an inmate "on release" does not mean release on parole, and cannot be changed by Title 15. It is up to the Legislature to consider the provisions of a statute and not the Department of Corrections through its administrative enactments. Sabatasso's petition for writ of mandate directing payment of the $200 was granted.

 

People v. Garcia (F052703 / 8/8/08)
165 Cal.App.4th 1120
Subsequent history: rev. grant/hold 10/16/08 (S166682)
[1.A.; 1.B; 1.C; 1.D; 1.F.] The Sexually Violent Predators Act, as amended by Proposition 83, does not violate due process, the prohibition against ex post facto laws, double jeopardy, or the equal protection clause; and it does not result in cruel and unusual punishment. Nor does it violate the First Amendment right to petition the government; or the single-subject rule. The appellate court made the following determinations as to the amended SVP Act: Appellant was not denied due process, the court noting, among other points, that the state has the burden of proof at the initial commitment and subsequent hearings if it chooses to oppose a department recommendation for release; that the statute requires annual examinations; and that the department must authorize a committed individual to file a petition for release if the department determines the person's condition is changed. There is no ex post facto violation because the statutory scheme is not punitive in nature and an indefinite commitment, standing alone, does not establish punishment. Regardless, as the court noted, the commitment is only potentially indefinite as the department must conduct an annual examination. There is no equal protection violation because SVP's are not similarly situated with other civil committees - the amended SVP being directed at a very narrow group that commits predatory offenses, has a high rate of recidivism, and requires lengthy treatment with limited results. The Eighth Amendment prohibition against cruel and unusual punishment is inapplicable because appellant is not a prisoner, is not being punished, and is only being treated for a mental disorder. There is no infringement of appellant's First Amendment right to petition the government as he can file a petition, subject only to the requirement that it not be frivolous. Proposition 83 does not violate the single-subject rule since the entire proposition addresses sex offenders.

 

People v. Boyle (A117860 / 6/26/08)
164 Cal.App.4th 348
Subsequent history: rev. grant/hold 10/1/08 (S166167)
[1.A.; 1.B.; 1.D.; 1.F.] The November 2006 amended version of the Sexually Violent Predator Act (SVPA) does not violate constitutional rights to due process, equal protection of the laws, or bans on double jeopardy or ex post facto laws. The 2006 amended version of the SVPA specifies an indeterminate term of civil commitment; does not change the requirement that sexually violent predator status at the initial stage be proven by the state beyond a reasonable doubt; and requires annual evaluations of whether or not the committed person remains a sexually violent predator. However, it provides that the committed person will remain in custody until he meets the burden of proving that he is no longer a sexually violent predator or until the Department of Mental Health determines he no longer meets the definition of a sexually violent predator. Considering the amendments to the act, the appellate court found that it was not unconstitutional. [Editorial note: Some of the questions considered in this opinion are currently pending before the California Supreme Court in People v. McKee (2008) 160 Cal.App.4th 1517, review granted July 9, 2008, S162823.]

 

People v. Superior Court (George) (A120536 / 6/23/08)
164 Cal.App.4th 183
Subsequent history: depublication req. denied 9/10/08
[4.C.] For a SVP recommitment, it is sufficient to show that public safety required at least a commitment to a supervised community placement. George was an adjudicated SVP who was deemed eligible for placement in a conditional supervised release program. The department was unable to place him in a program within San Francisco, the county of his domicile within the course of a year. When it was about to seek permission to place him outside San Francisco, his two-year SVP commitment was about to expire. The prosecutor filed a new petition to recommit George. Prior to trial, the issue arose of whether in order to establish George's continuing status as an SVP, it was necessary to prove that public safety required his continued custody in a locked facility, or whether it was sufficient to prove that public safety requires at least a commitment to a supervised community placement. The trial court adopted the former view and dismissed the petition, staying its order to permit appellate review. The appellate court held that in order to recommit George as an SVP, it was sufficient to prove that public safety required either his confinement in a secure facility or supervised community placement. It therefore reversed the dismissal of the petition and remanded for a trial on the issue.

 

People v. Riffey (C055649 / 5/28/08)
163 Cal.App.4th 474
Subsequent history: rev. grant/hold 8/20/08 (S164711)
[1.D.] Application of the amended Sexually Violent Predator Act does not result in impermissible retroactive application of the law, violation of the prohibition against ex post facto laws, violation of due process, or violation of equal protection. A petition to commit appellant to the Department of Mental Health as an SVP was filed prior to amendments to the SVPA providing for an indeterminate term commitment. Because of continuances, appellant's jury trial was continued until 2007, after the SVPA had been amended to provide for an indeterminate commitment rather than the two year commitment previously authorized. The district attorney filed an amended petition to commit appellant for an indeterminate term pursuant to the amended act. The jury found appellant to be an SVP and the court committed him to the department for an indeterminate term. The appellate court found that there was no impermissible retroactive application of the law as the determination as to whether appellant was an SVP was made at the date of the 2007 hearing; there was no ex post facto violation as the stated intent of the Legislature and the electorate in passing the amendment was not to punish and an indeterminate commitment alone is not so punitive as to constitute punishment; is not violative of due process merely because there is no provision for automatic periodic hearings and the defendant bears the burden of proving he should be released; and, with respect to the MDO and the NGI acts, there is no equal protection violation as the persons under the different acts are not similarly situated, such that they should be dealt with similarly.

 

People v. Johnson (D050751 / 5/14/08)
162 Cal.App.4th 1263
Subsequent history: rev. grant/hold 8/13/08 (S164388)
[1.A.; 1.B.; 3.B.] The extended commitment of a sexually violent predator the day before his release date was constitutional. Johnson challenged an order declaring him to be a sexually violent predator (SVP) because he was not lawfully in custody at the time the prosecutor filed the petition. A hearing was held one day prior to Johnson's release for the purpose of deciding if there was probable cause to file an SVP petition, and the trial court granted a 45-day hold. Seven days later, the petition was filed. The appellate court found that since Johnson did not object to the imposition of the hold, he waived the error. Even if he did not waive the issue, he was not entitled to a dismissal of the petition unless the hold was ordered in bad faith, which was not the case here. Johnson also challenged the imposition of a indeterminate term as a violation of due process. The appellate court found that neither the imposition of an indeterminate term of commitment nor the placing of some burden on the individual to petition for release violated due process protections. Further, since SVPs are not similarly situated to individuals committed under the LPS Act, MDOs, or persons found to be NGI, they do not have to be treated the same, and therefore there was no equal protection violation. Further, since the SVP Act is not punitive in nature, the principles of former jeopardy and ex post facto do not apply.

 

People v. Litmon (H031348 / 4/23/08)
162 Cal.App.4th 383
Subsequent history: rev. denied 8/13/08
[1.D.] The new statute allowing an indeterminate for an SVP is not retroactive. On March 15, 2007, the superior court issued a retroactive commitment order for Litmon under the new provisions of the Sexually Violent Predator Act (SVPA). The order committed him to an indeterminate term commencing on May 2, 2000, which was the date of his original commitment. As a result of the retroactive commitment order, the trial on the pending petitions to extend his SVP commitment for two-year terms did not go forward. Litmon argued that the superior court violated his right to due process by denying his motions to dismiss the petitions on grounds of excessive delay, and also challenged the retroactive commitment order. The appellate court agreed and reversed. The changes in the SVP law did not authorize an order imposing an indeterminate term of commitment retroactive to the date upon which appellant was first committed as an SVP under predecessor law. An indeterminate term of commitment may be ordered only following a trial in which a person is determined to be an SVP and that term commences on the date upon which the court issues its order pursuant to the current version of the statute. Further, it was error for appellant to have served an extended confinement period without any determination that he was an SVP under the second and third recommitment petitions filed by the prosecutor.

 

People v. Whaley (H031647 / 3/3/08)
160 Cal.App.4th 779
Subsequent history: rev. denied 6/18/08
[1.; 7.] Amendments to Sexually Violent Predator Act allowing for an indeterminate term do not apply retroactively. Whaley was committed to the Department of Mental Health as a sexually violent predator in 1999. A petition to extend his commitment was granted, and he was recommitted for an additional two-year term. In 2007, while another recommitment petition was pending, the prosecutor brought a motion to retroactively convert Whaley's first commitment from a two-year term to an indeterminate term pursuant to section 6604.1, subdivision (a). The trial court imposed the indeterminate term retroactive to the first order committing Whaley in 1999 without a trial on the most recent recommitment petition. Whaley appealed, contending that the indeterminate term in section 6604.1, subdivision (a) may not be applied retroactively. The appellate court agreed and reversed the order. The amendment to the SVPA providing for an indeterminate term of commitment applies prospectively, not retroactively. Since Whaley was initially committed as a SVP in 1999, before the 2006 amendments, he was entitled to an extension proceeding at which there would be a determination of his continued status as an SVP.

 

People v. Superior Court (Small) (D051355 / 1/24/08)
159 Cal.App.4th 301
[3.A.; 3.B.] Under the SVP Act, an SVP petition to civilly commit an individual as a sexually violent predator must be filed while the person is in lawful custody and is subject to dismissal if the person's unlawful custody is not the result of a good faith mistake of fact or law. Pursuant to Penal Code section 6601, the Department of Corrections must refer an inmate for SVP evaluation six months before the release date. If the parole date will be reached before the evaluation is complete, the inmate can be held an additional 45 days. An SVP petition will not be dismissed if the individual is held beyond the 45 days because of a good faith mistake of fact or law. In this case, the department referred Small for evaluation approximately one month before his release. As the evaluations were not done by the release date, a 45-day hold was placed on him. The evaluations were completed on the Saturday after the expiration of the 45 days and on the following Monday, the petition was filed. The Department of Corrections’ explanation that the delay was the result of the increased workload caused by the recent passage of Megan's Law did not constitute a good faith mistake of fact or law and the petition was properly dismissed. The appellate court noted, however, that appellant might still be an appropriate candidate for custodial treatment under the LPS Act.

Article Site Map:

Issues Pending Review
Compendium Topic Code Index
U.S. Supreme Court Cases
Ninth Circuit Court of Appeals Cases
California Supreme Court Cases
Year 2014 California Court of Appeal Cases
Year 2013 California Court of Appeal Cases
Year 2012 California Court of Appeal Cases
Year 2011 California Court of Appeal Cases
Year 2010 California Court of Appeal Cases
Year 2009 California Court of Appeal Cases
Year 2008 California Court of Appeal Cases – you are here
Year 2007 California Court of Appeal Cases
Year 2006 California Court of Appeal Cases
Year 2005 California Court of Appeal Cases
Year 2004 California Court of Appeal Cases
Year 2003 California Court of Appeal Cases
Year 2002 California Court of Appeal Cases
Year 2001 California Court of Appeal Cases
Year 2000 California Court of Appeal Cases
Year 1999 California Court of Appeal Cases
Years 1998 & earlier Court of Appeal Cases

 

BACK TO TOP