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svpa compendium

 

Year 2009
California Court of Appeal

People v. Reynolds (E047192 / 11/20/09)
179 Cal.App.4th 603, rehearing granted and depublished on 12/21/09
[1.] Counsel did not provide ineffective assistance by conceding that client's petition for release was frivolous. Reynolds, an SVP who had been recommitted, filed a pro se petition for unconditional release (section 6608) while his recommitment was on appeal. The prosecution moved to dismiss the petition. At a hearing on the petition, defense counsel acknowledged that there had been no changed circumstances. The court dismissed the petition without prejudice. On appeal, Reynolds argued that the trial court abused its discretion by failing to review his petition, and that counsel was ineffective by "abandoning" him by conceding his petition lacked merit. The appellate court found that the trial court did not abuse its discretion by dismissing the petition where appellant conceded there had been no changed circumstances. Further, the record supported counsel's concession. The court also rejected appellant's argument that he was deprived of effective assistance of counsel. The petition was frivolous, and even if counsel had argued in favor of it, no other result was possible, much less likely. Counsel made a wise tactical decision by not opposing the dismissal of the petition in the face of two recent evaluations demonstrating that Reynolds was still an SVP at risk of reoffending. There was no reasonable probability Reynolds would have obtained a favorable result absent counsel's concession.

 

In re Ronje (G041373 / 11/19/09)
179 Cal.App.4th 509
[2.A, 2.B.] Since the assessment protocol used to evaluate petitioner as an SVP was an invalid underground regulation, he is entitled to a new probable cause hearing based on valid assessments. Petitioner was evaluated for an SVP commitment based on an assessment protocol which was substantially the same as one later held to be invalid as an "underground regulation" by the Office of Administrative Law (OAL). Petitioner filed a pre-trial writ fof habeas corpus, contending that the invalid protocol deprived the trial court of jurisdiction over his commitment. The appellate court agreed the protocol was invalid and constituted an error or irregularity in the proceedings. The court futher held that because this was a pre-trial challege to an irregularity in the proceedings, petitioner was entitled to relief without establishing prejudice from use of the invalid assessment protocol. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519.) However, petitioner is not entitled to dismissal of the SVP commitment petition; rather, the appropriate remedy is to order new evaluations of petitioner using a valid assessment protocol and to conduct another probable cause hearing based on those new evaluations.

 

Langhorne et al. v. Superior Court (H033845 - H033848/ 11/16/09)
179 Cal.App.4th 225
[4.A, 4.B.] Under Welfare and Institutions Code section 6601, subdivision (a)(2), a petition to extend a sexually violent predator (SVP) commitment to an indefinite term will not be dismissed if it is shown that the failure to timely pursue the action was a good faith mistake of law. Petitioners were initially subject to a determinate two-year term under the SVPA. When the act was amended to provide for an indeterminate term, the People filed motions to automatically convert the terms to indeterminate terms. People v. Whaley (2008) 160 Cal.App.4th 778 was then decided which held that an automatic commitment was improper because the person is entitled to an extension hearing at which there is to be a new determination of whether the person is an SVP. In the meantime, petitioners? two-year commitments had expired. Petitioners sought dismissal of the extended commitment petitions on the grounds that they were not legally in custody when the petitions were filed. The court affirmed the trial court denial of motion to dismiss, holding that under the good faith exception of Welfare and Institutions Code section 6601, subdivision (a)(2), the court did not lose jurisdiction when, as here, the untimely recommitment petitions were due to the People?s mistake of law.

 

People v. McRoberts (C060485 / 11/2/09)
178 Cal.App.4th 1249
[5; 6; 7] A juvenile adjudication for a sexual offense when the victim is a child under the age of 14 is a qualifying offense under the Sexually Violent Predator Act (SVPA). The 2006 amendment to Welfare And Institutions Code section 6600 et seq., the SVPA, reduced the number of necessary convictions of a sexually violent offense to one; deleted the limitation on the number of juvenile adjudications that can be used; and deemed any sex offense to be sexually violent if it involved a child under the age of 14. Here, the court rejected appellant’s statutory interpretation and applied rules of construction to support its read of the amended statute.
Character evidence of lay witnesses is not admissible in an SVP proceeding as to the issue regarding appellant’s amenability for treatment. Appellant sought to introduce the testmiony of three lay witnesses to show his good character, and to establish that even if he had a disorder, he was amenable to outpatient treatment. The trial court excluded the evidence. The appellate court agreed with the trial court that such witnesses could not counter the expert’s opinions as to whether appellant was likely to reoffend if released to the community for treatment.
The trial court did not err in omitting the fourth element in CALCRIM No. 3454. The court also agreed with the trial court’s ruling that where there is no evidence of a defendant’s amenability to voluntary treatment in the community, the court need not instruct sua sponte that the People must prove it is necessary to keep the person in custody in a secure facility to ensure the health and safety of others (CALCRIM No. 3454).

 

People v. Glenn (G041245 / 10/26/09)
178 Cal.App.4th 778
[3.A.] The trial court had jurisdiction over an SVP commitment where the commitment evaluation was based on a protocol held to be invalid. Glenn was committed as a sexually violent predator (SVP) based on an assessment protocol which was later held to be invalid as an "underground regulation" by the Office of Administrative Law (OAL). Glenn filed a petition for writ of habeas corpus, contending that the invalid protocol deprived the trial court of jurisdiction over his commitment. The appellate court rejected the argument, finding that the trial court has authority to determine an SVP commitment, even if the evaluation was based on an invalid protocol. The court had jurisdiction here, Glenn was represented by counsel, and presented and cross-examined witnesses in front of a jury. The OAL finding did not suggest that the protocol was unreliable, and therefore Glenn had a fair trial and was not prejudiced by reliance on it. The court also rejected constitutional challenges to the SVPA as amended by Proposition 83.

 

People v. Rotroff (H033527 / 10/22/09)
178 Cal.App.4th 619
Subsequent history: Not citable; review granted 10/22/09; transferred to Court of Appeal with directions to vacate decision and reconsider in light of People v. McKee (2010) 47 Cal.4th 1172
[1.A; 1.B; 1.D.] Proposition 83 does not violate the single-subject rule, and imposing an inderminate term of commitment under the new SVPA provisions does not violate due process, equal protection or ex post facto principles. Rotroff appealed from a commitment order as a sexually violent predator (SVP), challenging the constitutionality of the imposition of an indeterminate term under the SVP Act as amended by the passage of Proposition 83. The appellate court rejected his challenge based on the single subject rule, because there were no provisions which were not germane to a common purpose. It also rejected Rotroff's claim that the SVPA violated due process by providing an indeterminate term because it creates an unacceptable risk that an SVP who no longer qualifies will have his commitment continued. The SVPA contains numerous procedural safeguards which ensure that the duration of SVP commitment bears a reasonable relation to the committed person's continuing qualification as an SVP. The court also rejected equal protection, ex post facto, and double jeopardy challenges. Further, the court rejected appellant's claims that the SVPA violates the federal First Amendment right to petition the court for redress of grievances by limiting access to the court and not providing a reasonable opportunity to present violations of fundamental constitutional rights to the courts.

 

Lee v. Superior Court (G041511 / 9/21/09)
177 Cal.App.4th 1108
[3.B.] In a civil commitment proceeding under the SVPA, subpoenas duces tecum seeking state hospital records, etc. must set forth in full detail the materiality of the items sought, but this requirement does not apply to those records to which the district attorney has access under Welfare and Institutions Code section 6603, subdivision (c)(1). In this case, the appellate court considered whether the generalized declarations accompanying the subpoenas duces tecum seeking records from the state hospital were adequate and found them lacking in the specificity required under Code of Civil Procedure section 1985, subdivision (b).

 

People v. Fields (D053080 / 7/14/09)
175 Cal.App.4th 1001
[5.B.] Polygraph evidence is not barred in SVP proceedings. A petition was filed to commit appellant for an indeterminate term of involuntary treatment. At the jury trial on the issue, witnesses for the prosecution testified as to appellant's progress in the treatment process. In conjunction with the process, appellant underwent a polygraph examination. The court limited cross-examination of the witnesses with regard to the polygraph examination administered to appellant. The appellate court observed that, unlike in criminal proceedings, Evidence Code section 351.5 is not a bar to admission of polygraph evidence in an SVP proceeding which is civil in nature. Instead, admission of polygraph evidence is subject to the rules of admission of evidence offered by an expert. Here, although cross-examination was curtailed, there was no reasonable probability that appellant would have obtained a more favorable result absent the limitation.

 

People v. Johndrow (C055620 / 7/1/09)
175 Cal.App.4th 719
Subsequent history: Not citable; review grant/hold 9/16/09 (S175337)
[1.A; 1.B.] Commitment as an SVP for an indeterminate term is not a denial of due process. Appellant was committed to the Department of Mental Health (DMH) for an indeterminate term as a sexually violent predator (SVP) subject to the limited review in sections 6605 and 6608. On appeal, he contended that those sections violated his right to due process. He argued that section 6605 denied due process because it leaves the determination of whether to authorize the person to file a petition in the absolute discretion of DMH without any judicial review. He challenged section 6608 because the person is not entitled to the assistance of an expert and bears the burden of proof at hearings. The appellate court rejected both arguments. Although the decision of DMH is not subject to judicial review, the person may petition the court directly with the assistance of assigned counsel. Although a petitioner is not entitled to an expert to assist him under section 6608, he is entitled to an annual evaluation and report prepared by a qualified professional. Placing the burden of proof on the person to prove that he is entitled to release is not a denial of due process. The person has already been found to be an SVP, and he is the one asserting the change entitling him to release. The court also rejected a challenge based on equal protection principles, as it has not been shown that SVPs are similarly situated with MDOs and NGIs.

 

In re Hovanski (C059192 / 6/19/09)
174 Cal.App.4th 1517
[1.D; 3.B.] A 45-day hold for an SVP evaluation placed one day prior to release date was proper. Hovanski was serving the last day before his parole discharge date when the Board of Parole Hearings ordered a 45-day hold pursuant to Welfare and Institutions Code section 6601.3. A month later, the prosecutor filed a petition seeking to commit him as an SVP. In his petition for habeas corpus, Hovanski contended that section 6601.3 does not authorize the extension of custody beyond the parole discharge date, and that the 45-day hold was void. He argued that section 6601.5 was the sole means by which he could be detained, and that detaining him past his discharge date constituted a retroactive increase in his prison sentence, barred by ex post facto protections. The appellate court rejected the arguments and denied the petition. Section 6601.3 is the applicable section where, as here, the evaluation by the Department of Mental Health has not yet been completed. Hovanski's release date was just one day after the hold was placed on him, which complied with the terms of the statute. The court also rejected the ex post facto argument because it was based on the assumption that evaluation and treatment under the SVPA constitutes "punishment." Because Hovanski's continued confinement was not punishment, the time he spent awaiting full evaluation as an SVP candidate under section 6601.3 did not increase his prison sentence, and therefore did not violate ex post facto prohibitions.

 

Moore v. Superior Court (B198550 / 6/4/09)
174 Cal.App.4th 856
Subsequent history: Not citable; review grant 9/16/09 (S174633)
[1.A.] As a matter of constitutional due process, a defendant cannot be subjected to a trial to commit him under the SVPA while mentally incompetent. This is so because a civil commitment in an SVPA proceedings involves a significant deprivation of liberty, proceeding with such a trial against a mentally incompetent defendant poses an unacceptable risk of erroneous deprivation of liberty, the government's interest in protecting the public and treating SVP's is not significantly burdended by providing competency hearings, and because ensuring a defendant is competent to stand trial protects his interest in presenting his side of the story. Although the prosecutor was correct that there was no statutory provision to stay SVP proceedings to litigate competency issues, courts have the inherent power to fill the gap in the SVPA by providing for a competency determination in order to effectuate the act while protecting due process concerns.

 

People v. Taylor (E044368 / 6/4/09)
174 Cal.App.4th 920
[1.A.; 1.B; 1.D.] It is constitutional to retroactively apply an indeterminate term of commitment under the amendments to the SVPA to an individual who had been found to be an SVP and committed to a two-year term. Imposing an inderminate term of commitment under the new SVPA provisions does not violate due process, equal protection or ex post facto principles as long as a defendant is affored a trial to determine if he currently meets SVP criteria. But the court cannot cannot convert a prior completed two-year term to an indeterminate term without a current finding that a defendant currently meets this criteria. Because no such finding occurred in this case, remand was required.

 

People v. Dean (E041513 / 5/22/09)
174 Cal.App.4th 186
[1.A; 5.B; 5.C.] In a jury trial for recommitment under the SVPA, Welfare and Institutions Code section 6600 permits the use of multiple hearsay. Appellant contended that the trial court erred by erroneously permitting plaintiff's experts to testify to inadmissible hearsay regarding the facts of the qualifying offenses, the fact that he was convicted those offenses, and the information gleaned from hospital records. The appellate court rejected the argument, finding that the vast majority of the hearsay testified to by plaintiff's experts on direct was properly admitted from other sources. Other than some testimony as to the hospital records, the facts testified to did not bring before the jury incompetent hearsay evidence. The plaintiff's experts were not precluded from reiterating the same facts during their examination. .
SVP process allowing appointment of one expert is not a violation of due process. Appellant also argued that the SVP process is a denial of due process because the plaintiff was able to present two expert witnesses paid for by the Department of Mental Health, where he was only able to call one court-appointed expert, thereby stacking the deck against him. The appellate court found no due process violation. There is nothing which militates in favor of providing two experts. The testimony of a single witness is sufficient to prove a fact. Appellant was able to fully present his side of the story. As such, fundamental fairness was afforded.

 

People v. O'Shell (D052648 / 4/8/09)
172 Cal.App.4th 1296
[3.]The trial court's error in excluding testimony of SVP's fear of a Third Strike conviction was harmless. O'Shell appealed an order committing him to the custody of the Department of Mental Health as a sexually violent predator (SVP). He contended on appeal that the trial court erred in precluding him from testifying to the jury that he faced a life sentence under the Three Strikes law if he reoffended. The appellate court agreed that the trial court erred when it excluded the testimony. Whether O'Shell was likely to reoffend was a fact of consequence as to the determination of the action, and the testimony had some tendency to disprove the likelihood of reoffense. However, reversal was not warranted because there was an insufficient showing of prejudice. Evidence concerning O'Shell's enhanced motivation to avoid a felony conviction was relevant, but tangential to the primary disputed issue at trial. The defense tried to show that even if O'Shell might reoffend, it was not because of any mental disorder. Further, the evidence was overwhelming and largely uncontested that O'Shell posed a substantial serious risk of reoffending upon release. It was not reasonably probable that had the court allowed O'Shell's testimony concerning his fear of the Three Strikes law, the jury would have reached a different verdict.

 

People v. Medina (A120517 / 2/25/09)
171 Cal.App.4th 805
[3.B.] Appellant's SVP recomittment was valid despite lack of compliance with the Administrative Procedures Act. Medina was adjudged a sexually violent predator (SVP), and in 2005 a petition was filed to recommit him for another period of two years. In late 2006, section 6604 was amended to provide for an indefinite period of commitment. Prior to the trial on the 2005 recommitment petition, the county filed an amended recommitment petition seeking the indefinite commitment. Medina admitted the petition, consented to entry of an order imposing an indefinite term, and filed a notice of appeal. On appeal, he argued that the original commitment petition was void because it was based on an evaluation conducted pursuant to a protocol adopted by the department in violation of the Administrative Procedures Act (APA). The appellate court rejected the collateral attack because Medina forfeited any challenge to the validity of the procedures preceding the filing of the original petition when he admitted its allegations. Further, even if his consent to the judgment did not forfeit the issues, his failure to raise the issue in the trial court would have done so. Medina failed to show that had his trial counsel challenged the protocol and obtained reevaluation, it was reasonably probable that he would not have been found to be an SVP.

 

People v. Castillo (B202289 / 1/30/09)
170 Cal.App.4th 1156
Subsequent history: Not citable; review granted 5/13/09 (S171163)
[5.; 6.] Special instructions concerning volitional impairment were not necessary in appellant's SVP trial. Castillo was found to be a sexually violent predator (SVP) and committed to the Department of Mental Health. On appeal, he contended that the trial court failed to specially instruct the jury that it must find that his mental disorder caused him serious difficulty in controlling his dangerous behavior. He acknowledged that in People v. Williams, the court held that instructions analogous to those given at his trial comported with due process, but argued that Howard N. casts doubt on Williams and requires additional "volitional impairment" instructions. The appellate court rejected the argument. Nothing in Howard N. abrogates the Williams holding. Further lack of control instructions were not necessary to support the SVPA finding. In SVP trial.
The court erred by admitting prosecution evidence concerning the nature of treatment programs. At trial, the court admitted, over Castillo's objection, testimony concerning the nature of treatment programs offered to SVPs at the hospitals where he had been committed. Castillo conceded that his refusal to participate in the programs was relevant, but contended that once his nonparticipation was established, the details of such programs were not relevant and diverted the attention of the jury. The appellate court rejected the argument, finding that the testimony was not prejudicial.
Appellant's two-year commitment was an unauthorized sentence and had to be corrected to an indeterminate term mandated by Proposition 83. Respondent argued that the trial court's imposition of a two-year commitment on Castillo was an unauthorized sentence because the law in effect at the time required an indeterminate term. The appellate court agreed and modified the term of confinement. Proposition 83 took effect nine months before the jury rendered its verdict in Castillo's case. The trial court had no discretion to formulate an alternative term.

 

People v. Force (G039186 / 1/26/09)
170 Cal.App.4th 797
Subsequent history: Not citable; review grant/hold 4/15/09 (S170831)
[1.A.; 1.D.; 3.C.] Application of the California Sexually Violent Predator Act, Welf. & Inst. Code, § 6600, as amended by Proposition 83 to defendant did not violate defendant's constitutional protections from ex post facto laws and being placed more than once in jeopardy for the same crime. The Court of Appeal concluded that application of the amended Act to defendant did not violate the defendant's constitutional protections from ex post facto laws and being placed more than once in jeopardy for the same crime. Imposing an indeterminate term on defendant under the amended Act did not amount to a retroactive application of the law. The State established defendant was an SVP by proof beyond a reasonable doubt. Although defendant further argued the trial court erred by excluding evidence that would have allowed him to contest his sexual assault conviction, by amending the burden of proof instruction to eliminate the presumption that he was not a sexually violent predator, and by refusing to disclose juror information to support his motion for a new trial based on juror misconduct, the instant court concluded that all of defendant's claims lacked merit.

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