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svpa compendium

 

Year 2013
California Court of Appeal

 

Rabuck v. Superior Court (G046936 / 12/6/13)
221 Cal.App.4th 1334
[2.C.] New evaluations conducted under Welfare and Institutions Code section 6601, subdivision (c) support probable cause for commitment as a Sexually Violent Predator. After a previous standardized assessment protocol was found invalid, a judge ordered new evaluations. Two psychologists were appointed to conduct the new evaluations and both concluded that the criteria for commitment as an SVP had been met. Based on this evidence the court found probable cause for commitment. Petitioner sought writ relief: denied. The court held that the psychologists had properly conducted new evaluations under Welfare and Institutions Code section 6601, subdivision (c), not updated evaluations under section 6603, subdivision (c). Moreover, new evaluations were not required absent a showing of material error in the previous evaluations; petitioner did not meet this burden. (See Reilly v. Superior Court (2013) 57 Cal.4th 641 [Reilly was decided after briefing was submitted in this case].) The psychologists followed a new standardized assessment protocol, which implemented the requirements of section 6601, subdivision (c), and reasonably interpreted the statute in defining a protocol as a plan or framework that served as a guide for evaluators in performing evaluations.

 

People v. Hill (E054823 / 9/11/2013)
219 Cal.App.4th 646
[1.H.] Marsden procedure applies to sexually violent predator proceedings and where it is violated, the Chapman standard of prejudice applies. Hill appealed his commitment as a sexual violent predator (Welf. & Inst. Code, § 6600, et seq.). One issue raised on appeal challenged the trial court's refusal to consider Hill's Marsden motion. Held: Limited remand ordered. Hill was represented by court appointed counsel at the SVPA proceedings. Prior to trial he asked for a Marsden hearing, but the court denied him one. Although the Sixth Amendment right to counsel, which is the foundation of the Marsden procedure, does not apply to civil commitment proceedings, an SVPA defendant has a due process right via the Fourteenth Amendment, and through the statutory implementation of the SVPA, to counsel. The liberty interest at stake in SVPA proceedings is substantial. There is no significant difference between criminal and SVPA proceedings with respect to the procedures to guard against deprivation of the right to effective assistance of counsel. Allowing an SVPA committee to set forth his reasons for replacing counsel does not place an undue burden on the government or impede the government's interest in protecting the public. Because Hill's right to effective counsel is ensured by due process, reversal is required unless the harm resulting from the court's denial of hearing is harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18), which is not the case here, requiring limited remand for hearing.

 

People v. Nguyen (E048880 / 8/20/2013)
218 Cal.App.4th 1363
[4.B.] Defendant's absence at SVP trial was harmless beyond a reasonable doubt. Nguyen was found to be a sexually violent predator (SVP) and committed to the Department of Mental Health (DMH) for an indeterminate term following a petition for recommitment. Nguyen appealed on the grounds that the trial court erred in allowing his counsel to waive his presence at trial, and also that the indeterminate term for SVPs violates state and federal guarantees of equal protection. The commitment order was affirmed on appeal, and Nguyen petitioned for review. The California Supreme Court retransferred the case to the appellate court with directions to vacate the decision and suspend further proceedings pending finality of the proceedings on remand in People v. McKee (2010) 47 Cal.4th 1172. The appellate court again affirmed the order. While Nguyen did not have a statutory right to be present at his recommitment hearing, he had a constitutional due process right to be present. Although his attorney lacked the authority to waive his presence, Nguyen's absence at the trial was harmless beyond a reasonable doubt. The record shows that Nguyen did not want to participate in the trial. Defense counsel thoroughly cross-examined the prosecution experts and provided a defense expert who disagreed with the diagnosis of the other experts. There was evidence beyond a reasonable doubt that Nguyen met the diagnostic criteria for pedophilia and posed a risk of engaging in sexually violent predatory behavior.

 

People v. Smith (A135760 / 5/7/2013)
216 Cal.App.4th 947
[3.D.] Trial court erred in denying conditional release petition under Sexually Violent Predator Act without a hearing. After serving a prison term for assault with intent to commit rape, Smith was found to be a sexually violent predator (SVP) and committed to the Department of Mental Health. In April 2012 he filed a petition for conditional release and unconditional discharge (Welf. & Inst. Code, § 6608). It was denied without hearing and Smith appealed. Held: Remanded for hearing. A person committed as an SVP may petition for conditional release and unconditional discharge any time after one year of commitment. Such petition may be denied without hearing when it is found to be frivolous. If not frivolous, the court should hold a hearing to determine whether the SVP continues to pose a danger to the heath and safety of others if released. Here, Smith's petition reflected he had made significant progress in his treatment; there was no substantial evidence to support a finding Smith's petition was without merit. Although not deciding Smith's contentions he was entitled to appointment of counsel and an expert for the hearing, the court observed there are statutory provisions for same; it noted that respondent conceded Smith was entitled to an attorney and, once a hearing is set, appointment of an expert.

 

People v. McDonald (G044963 / 3/28/13)
214 Cal.App.4th 1367
[1.B.] Sexually Violent Predator Act (SVPA) does not violate equal protection by providing for indeterminate commitment and by placing burden on defendant to obtain release. Defendant had been the subject of numerous two-year SVP petitions since 1999. Based on a petition filed in January 2008, he was committed for an indeterminate term. On appeal he challenged his commitment on equal protection and due process grounds. Held: Affirmed. In People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) the court found that notwithstanding the similarities between SVP's, MDO's, and NGI's, SVP's as a class represent a greater danger to society and therefore, imposing on SVP’s a greater burden to secure release is needed to protect society. The Court of Appeal agreed with McKee II, and found its holding applied to the whole class of SVP's, rather than solely to McKee, stating that the California Supreme Court intended equal protection challenges to the SVPA be resolved by that case.

[1.] An indeterminate commitment does not violate due process and is not an improper ex post facto law or cruel and unusual punishment. These points were decided in McKee I (People v. McKee (2010) 47 Cal.4th 1325) and are binding on the Court of Appeal.

[1.F.] McDonald's indeterminate commitment does not violate double jeopardy. The double jeopardy prohibitions of the state and federal Constitutions are not violated by McDonald's indeterminate commitment because the SVPA does not inflict punishment.

[7.] The amended SVPA did not violate the single subject rule. Proposition 83 did not violate the single subject rule (Cal. Const., art. II, § 8, subd. (d)) because all of its provisions "related to its stated purpose of strengthening laws that punish and control dangerous sexual predators."

 

Orey v. Superior Court (Orange) (G046111 / 2/19/13)
213 Cal.App.4th 1241
[2.A.] Although 45-day hold placed on defendant to evaluate him for a sexually violent predator (SVP) petition was unlawful, trial court was not required to dismiss the petition because the hold resulted from good faith mistake of law. On appeal Orey challenged the trial court's denial of his motion to dismiss an SVP petition, claiming the petition was not filed while he was in lawful custody (Welf. & Inst. Code, § 6601, subd. (a)(2)). The petition was filed while Orey was in custody under a 45-day hold, which he argued was invalid because it was issued without good cause. Held: Affirmed. An SVP petition may be filed only while the defendant is in lawful custody, which means a determinate prison term, parole revocation, or hold placed pursuant to section 6601.3. The hold must be based on good cause as outlined in the statute. Here, BPH placed the hold for public safety reasons, which is not an "exigent circumstance" under the statute. Thus, the 45-day hold was without good cause. Under section 6601, subdivision (a)(2) a person's unlawful custody does not result in the dismissal of a petition if the unlawful custody resulted from a good faith mistake of fact or law. In this case, BPH's belief that public safety constituted good cause was a good faith mistake of law.

 

People v. McCloud (A132798 / 2/14/13)
213 Cal.App.4th 1076
[1.B.] Provision of Sexually Violent Predator Act (SVPA) that accords trial court discretion to summarily deny petition for release may violate the equal protection clause. A jury found defendant to be an SVP and he was committed to the Department of Mental Health (DMH). After the SVPA was amended in 2006 ("Jessica's Law") to provide for indefinite commitments, the only means of release which is not recommended by DMH, is for an SVP to file a petition, incident to which he must prove he is no longer an SVP. Once an SVP's petition for release is denied, a subsequent petition may be summarily denied unless it contains facts showing a change in the SVP's condition warranting a hearing. (Welf. & Inst. Code, § 6608, subd. (a).) On appeal, defendant claimed the provision of section 6608, subdivision (a) that allows a trial court to summarily dismiss petitions it deems frivolous violates equal protection and due process. Held: Remanded. The right at issue "is that of being able to appear before the court to argue that a petition, despite the court's initial determination, is not frivolous." As the equal protection challenge to section 6608, subdivision (a) was not fully brief by either party (because it was anticipated this would be litigated on remand to the trial court on the issues raised by People v. McKee (2010) 47 Cal.4th 1172), the Court of Appeal remanded the case to the trial court to fully address this claim.
[3.C.] Sufficient evidence supported the jury's finding defendant is an SVP. The expert testimony regarding defendant's current dangerousness did not rely solely on the commitment offenses, but included other factors. There was sufficient evidence defendant currently suffers from a mental condition which renders him a danger to others and likely to reoffend..

 

People v. Landau (G042008 / 2/7/13)
213 Cal.App.4th 1
[1.] Multiple constitutional challenges upheld following significant delay. The court concluded that defendant failed to show he was prejudiced by the initial SVP evaluators' use of unlawful underground regulations. Because the exclusionary rule is not required in SVPA proceedings, the trial court did not err in failing to exclude evidence claimed to have been obtained in violation of defendant's Fourth Amendment rights. The facts supported the trial court's decision to order updated mental evaluations of defendant, the close of discovery notwithstanding. A 98-day delay in providing defendant a trial after the second mistrial did not violate due process. Although defendant argued that amendments to the SVPA violated a number of constitutional provisions, the court rejected these claims. Because the court did not perceive the SVPA to have a punitive purpose, defendant's commitment under the SVPA did not violate double jeopardy. Although defendant complained that SVPs are treated more harshly than similarly situated involuntary civil committees, the court rejected defendant's equal protection challenge, noting that defendant made no showing that he would be able to introduce any new or different evidence that would require a different result.

 

People v. Superior Court (Karsai) (C070719 / 2/7/13)
213 Cal.App.4th 774
[3.D.] The court may order a person previously committed as an SVP into a conditional release program without a fixed residence at the time of release. Karsai was committed as an SVP in 1998. In October 2010, the Placer Superior Court determined that he should be conditionally released. A year and a half later, after an exhaustive but ultimately unsuccessful search for an acceptable residence for Karsai, the court ordered that he be conditionally released into Santa Barbara County without a fixed residence, i.e., as a transient. Santa Barbara County sought a writ of mandate to prevent Karsai's release, arguing that there was no provision allowing for release of an SVP as a transient. The appellate court denied the writ petition. There is nothing in the SVPA that precludes a court from ordering the conditional release of an SVP even where no residence has been located. In order to release an SVP conditionally, a court must find that person is not a danger to others if under outpatient supervision and treatment. Even a transient participating in a conditional release program will be under near constant supervision.

 

People v. Poulsom (D060779 / 1/31/13)
213 Cal.App.4th 501
[3.C.] Appellant's behavior on parole was sufficient to support jury's sexually violent predator (SVP) finding despite earlier contrary finding. In 2007, a jury found Poulsom did not qualify as an SVP. After two subsequent parole violations the prosecutor filed another SVP petition. The jury found the allegations true and Poulsom was committed for an indefinite term. In the published portion of the opinion, the appellate court held substantial evidence supported the jury's verdict. Because the jury at Poulsom's 2007 SVP trial did not make the requisite findings, the jury in this proceeding had to find that circumstances had materially changed since then, which made Poulsom likely to reoffend if released from custody. Poulsom argued there was insufficient evidence of changed circumstances. In rejecting this argument, the court distinguished this case from Turner v. Superior Court (2003) 105 Cal.App.4th 1046. In Turner, the experts did not acknowledge the prior jury finding. Here, both experts specifically acknowledged Turner and the need to find changed circumstances after the 2007 trial. The experts relied on post-2007 facts to explain why their opinions had changed. Further, there was sufficient evidence that Poulsom currently lacked the ability to control his behavior as evidenced by his parole violations, which involved failure to participate in treatment and placing himself in risky situations where children could be present.
[3.] Each party was entitled to six peremptory challenges under Code of Civil Procedure section 231, subdivision (c), rather than the 20 challenges provided for in criminal cases potentially resulting in a life sentence. The court rejected Poulsom's argument he was entitled to 20 peremptory challenges as opposed to the six challenges provided for in civil proceedings, following the holding of People v. Calhoun (2004) 118 Cal.App.4th 519.

 

Brown v. Superior Court (G046502 / 1/28/13)
213 Cal.App.4th 61
[3.A.] When a person is received into custody for a parole violation, Welfare and Institutions Code section 6601.3, subdivision (b) allows a 45-day hold for a sexually violent predator (SVP) evaluation. An SVP petition may be filed only while a defendant is in lawful custody pursuant to a determinate prison term, parole revocation, or hold under Welfare and Institutions Code section 6601.3. Brown was in custody when the challenged SVP petition was filed pursuant to a 45-day hold under section 6601.3, which he contended was invalid because unsupported by good cause, and therefore, was not lawful custody. Held: Mandate denied. When the hold was granted, Brown had been received into custody based on a parole revocation. He therefore fell within the "receipt of the prisoner into custody" provision of section 6601.3, subdivision (b). This recommenced the initial screening process under section 6601, subdivision (a)(1), which cannot begin until the person is returned to custody. Thus, section 6601.3, subdivision (b) "allows a 45-day hold when the person is received into custody for a parole violation and, at the time of referral to the DMH for full evaluation under section 6601, subdivision (c) through (i), fewer than 45 days remain before the person is to be released."

 

People v. Smith (A132152 / 1/23/13)
212 Cal.App.4th 1394
[3.A.] Sexually violent predator (SVP) was entitled to new hearing where court proceeded under Welfare and Institutions Code section 6608 instead of section 6605. Smith was found to be an SVP and committed indeterminately. In July 2009, an examining psychologist recommended conditional release. Smith filed a petition for conditional release under sections 6605 and 6608. With both counsels' agreement, the court determined that the appropriate code section was 6608, and proceeded with a hearing conducted pursuant to that section. Smith submitted the report recommending conditional release. The court denied the petition, finding that Smith failed to carry his burden of proof by a preponderance of the evidence. On appeal, Smith argued that the trial court erred in not proceeding under section 6605 after the submission of the report. In a consolidated habeas petition, he also alleged that his appointed counsel was ineffective because he sought relief under the wrong provision. The appellate court held that an SVP may seek conditional release under the provisions of section 6605 as well as under the provisions of section 6608. Section 6605 now applies to petitions for both unconditional and conditional release. The difference between the two sections is significant. Proceeding under section 6608 denied Smith his right to a jury trial and transferred from the state the burden of proving beyond a reasonable doubt the need for locked confinement to Smith, to prove by a preponderance of evidence his right to relief. Smith's attorney provided ineffective assistance in failing to request a hearing pursuant to section 6605. There was a reasonable probability that but for counsel's failure to request a proceeding under section 6605, the result would have been more favorable to Smith, and therefore reversal and remand was required.

 

People v. McNight (A123119 / 1/11/13)
212 Cal.App.4th 860
[1.B.] Because the sexually violent predator (SVP) individual is differently situated than the mentally disordered offender (MDO) and the not guilty by reason of insanity (NGI) individual, disparate treatment is justified and there is no violation of equal protection. Appellant's case was remanded for proceedings consistent with People v. McKee (2010) 47 Cal.4th 1172. In McKee, the Supreme Court ruled that the State had the burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as MDO's and NGI's, are subject to indefinite commitment, and remanded to allow the State to meet its burden. The State subsequently established that because the SVP poses a substantially greater risk to society than the other type of class, disparate treatment is justified. Here, appellant unsuccessfully argued that his equal protection claim was not resolved by McKee because his case was different in that he was not convicted of crimes against children. This claim failed because McKee did not base its finding on crimes specifically against children. McKee also was applicable because it considered SVP's as a class and was not restricted to appellant McKee, alone.

 

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