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svpa compendium

 

Year 2014
California Court of Appeal

People v. Olsen (H039814, 9/12/14)
229 Cal.App.4th 981
[4.C.] The trial court did not apply the correct standard in determining whether sexually violent predator's (SVP) petition for conditional release under Welfare and Institutions Code section 6608, subdivision (a) was frivolous. In February 2011, Olsen was committed as an SVP for an indeterminate term following a jury trial. In May 2013, he filed a petition for conditional release under section 6608 and attached a 2013 evaluation by a psychologist who concluded Olsen does meet the SVP criteria. The People filed a response with attachments, arguing that the petition should be dismissed as frivolous. After a hearing, the trial court denied the petition as frivolous, but noted that the procedure for evaluating whether the petition was frivolous was unclear. Olsen appealed. Held: Reversed and remanded for reconsideration. Section 6608, subdivision (a) applies when an SVP files a petition for conditional release without authorization from the Department. At the time Olsen filed his petition, the statute required the trial court to review the petition and determine whether it was based on "frivolous grounds," which is not defined. If the court determines that the petition is frivolous, it is denied without a hearing. The Court of Appeal set forth the following procedure for a trial court's threshold determination of frivolousness: A petition for release is based on frivolous grounds if any reasonable attorney would agree that the petition is totally and completely without merit. The trial court reviews the petition and any supporting documents to determine if the defendant has made a showing that he would not be a danger to others due to his diagnosed mental disorder while under supervision and treatment in the community. The court may also consider the Department's annual report in its threshold determination of frivolousness. The People may respond to the petition, but only on the issue of whether the petition is frivolous. There should not be an evidentiary hearing on the issue.

 

People v. Christman (A138287, 9/10/14)
229 Cal.App.4th 810
[7.] The "one-quarter mile" residency restriction in Welfare and Institutions Code section 6608.5, subdivision (f) should be measured by a straight-line method, rather than a pedestrian-route method. After approximately 15 years of inpatient treatment as a sexually viokent predator (SVP) (based on multiple sex offenses against boys), Christman was conditionally released (Welf. & Inst. Code, § 6608) and the Department of State Hospitals located housing for him near an elementary school in Contra Costa County. Using a straight-line method to calculate the distance between the proposed residence and the school, the residence was less than one-quarter mile away from the school, which is prohibited by a residency restriction (Welf. & Inst. Code, § 6608.5, subd. (f)). However, calculating the distance using a pedestrian-route method resulted in the residence being compliant with the statute. At a hearing to determine Christman's placement, the County argued that the residency restriction should be measured by a straight-line method. The trial court disagreed and ordered Christman placed at the proposed residence. The County appealed. Held: Reversed. The Sexually Violent Predator Act (SVPA) provides that certain conditionally released SVPs who have a history of sexual misconduct with children "shall not be placed within one-quarter mile" of a school providing instruction to children from kindergarten to grade 12 (Welf. & Inst. Code, § 6608.5, subd. (f)). Applying rules of statutory construction, the court concluded that the residency restriction should be measured by a straight-line measurement from the boundary of the school's property to the threshold of the primary entrance of the SVP's residence. "The straight-line method provides a predictable, objectively cognizable measurement which enables the statute to achieve 'predator free zones' around schools—which is the obvious purpose for which the residency restriction in section 6608.5, subdivision (f), was enacted."

 

People v. Gray (F065957, 8/27/14)
229 Cal.App.4th 285
[1.B.] Sexually Violent Predators Act (SVPA) does not violate equal protection rights of sexually violent predators who are subject to different treatment than mentally disordered offenders. Appellant challenged the constitutionality of the SVPA under which he was committed, contending that it violates the ex post facto and double jeopardy provisions of the federal and state constitutions, as well as his rights to due process and equal protection of the law. He conceded that the California Supreme Court has ruled against him on his due process, ex post facto, and double jeopardy claims. He further conceded that upon remand by the California Supreme Court, the appellate ruled against in him in People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II) on the equal protection issue. However, he argued that McKee II was wrongly decided and should not be followed. Held: Affirmed. Every published opinion to consider the issue has concluded the applicable version of the SVPA passes constitutional muster under the strict scrutiny test and has found McKee II persuasive. The court agreed with these opinions. The court also declined to consider whether recent amendments to the SVPA violate an SVP's due process rights because the amendments were not in effect when appellant was adjudged an SVP.

 

Gilbert v. Superior Court (E059673 / 2/6/2014)
224 Cal.App.4th 376
[3.B., 7.] The prosecution may not use a subpoena duces tecum (SDT) to directly access an SVP's confidential treatment information that is not contained in an updated mental evaluation. The prosecution sought to commit Gilbert as a sexually violent predator (SVP) pursuant to Welfare and Institutions Code section 6600. Gilbert was first evaluated in 2001 and probable cause for commitment was found. Updated evaluations were prepared in 2006 and 2009, and the trial court again found probable cause for commitment in 2010. Prior to his trial, Gilbert was sent to Coalinga State Hospital. After learning that Gilbert may have assaulted someone at the hospital, the prosecution served an SDT for all of Gilbert's medical and treatment records. Gilbert moved to quash the subpoena, claiming his treatment records were confidential and the prosecution could only access this information insofar as it is contained in an updated medical evaluation. After denial of his motion, Gilbert petitioned for writ of mandate. Held: Peremptory writ issued. The Court of Appeal applied de novo review to the discovery order because it involved statutory interpretation. Welfare and Institutions Code section 5328 provides that all treatment information under the SVPA is confidential. Under section 6603, subdivision (c)(1) the prosecution may obtain updated evaluations of an alleged SVP, and access to otherwise confidential information to the extent it is contained in an updated medical evaluation. But section 6603 does not authorize disclosure of treatment information directly to the prosecution. Using an SDT to obtain otherwise confidential documents does not render the documents accessible. Section 5328, subdivision (f), which allows confidential treatment records to be released to the courts as necessary to the administration of justice, predates relevant amendments to section 6603, subdivision (c) and there is no indication that this provision authorizes the release of records directly to the People.

 

People v. Kisling (C072497 / 1/28/2014)
223 Cal.App.4th 544
[1.B.] Appellant was not entitled to a hearing on whether his indeterminate commitment as a sexually violent predator (SVP) violates his equal protection rights because McKee II decided the issue adversely to him. In 2009, a jury found appellant to be an SVP and the trial court committed him to the State Department of Mental Health for an indeterminate term. Appellant appealed, contending the commitment violated his constitutional rights; namely, due process, ex post facto, and equal protection. While appellant's appeal was pending, the California Supreme Court in People v. McKee (2010) 47 Cal.4th 1172 (McKee I) rejected all but the equal protection argument. As to that argument, it held that SVP's were similarly situated to MDO's (mentally disordered offenders) and NGI's (not guilty by reason of insanity), and remanded to the trial court to allow the People to justify the disparate treatment. The trial court found that because SVP's present a substantially greater danger to society, the disparate treatment is justified. The appellate court affirmed and the Supreme Court denied review. (People v. McKee (2012) 207 Cal.App.4th 1325 (McKee II).) In this case, appellant argued that he should not be bound by McKee II and that the matter should be remanded with appellant being allowed the opportunity to present his own case on the equal protection issue. Held: Affirmed. The court agreed with the reasoning of McKee II, and also found that the Supreme Court intended the remand in McKee I to be dispositive in all cases dealing with whether disparate treatment was justifiable. Because McKee II decided the issue adversely to defendants, there was no basis for a hearing on the issue in appellant's case.

 

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