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svpa compendium

 

Year 2016
California Court of Appeal

People v. Burroughs (B267353, 12/5/2016)
6 Cal.App.5th 378
[1.A, 3.C.3, 5.B, 5.C.] Indefinite sexually violent predator (SVP) commitment reversed where trial court prejudicially allowed the prosecution expert to relate substantial amounts of inadmissible hearsay. Appellant was committed to the Department of State Hospitals (DSH) for an indefinite term as an SVP. He appealed, arguing he was prejudiced by the admission of inadmissible hearsay evidence during the testimony of a prosecution expert. Held: Reversed. In SVP cases, the prosecution must prove beyond a reasonable doubt that the defendant previously committed a sexually violent offense and currently suffers from a mental disorder that renders it likely he will commit a sexually violent offense in the future. To establish the mental disorder, the prosecution typically offers expert testimony. Often the expert relies at least in part on hearsay in forming his opinion. However, hearsay evidence is inadmissible "except as provided by law" (Evid. Code, 1200, subd. (b)). In People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court held that although an expert may rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so, the expert may not relate as true case-specific facts asserted in hearsay statements, unless they are independently proved by competent evidence or covered by a hearsay exception. Here, the prosecution's expert was allowed to testify as to facts about appellant's unrelated convictions and unproven allegations that he committed other acts of sexual violence. This inflammatory hearsay evidence depicted appellant as someone with an irrepressible propensity to commit violent sexual offenses. It is reasonably probable the jury would have reached a more favorable verdict had the evidence not been admitted.

The trial court did not err in failing to assess appellant's mental competency before allowing him to proceed to trial. Prior to trial, appellant's attorney moved to stay the proceedings due to appellant's alleged incompetency. The trial court denied the motion, relying on Moore v. Superior Court (2010) 50 Cal.4th 802. In Moore, the California Supreme Court held that due process does not require mental competency on the part of someone undergoing an SVP commitment proceeding. This is true regardless of the precise nature or source of the mental incompetence the defendant alleges. Thus, appellant's attempt to distinguish Moore on the basis that his alleged mental incompetency stems from a different mental disorder (anti-social personality disorder) than the paraphilia diagnosis at issue in Moore, is unavailing.

The prosecution experts improperly testified regarding the nature of appellant's qualifying offenses but the evidence was properly admitted via probation reports. Appellant argued the prosecution experts improperly testified as to whether or not a specific offense qualifies under the SVP statute, as this is purely a legal question. In People v. Stevens (2015) 62 Cal.4th 325, the court held in the context of an MDO proceeding that the prosecution may not prove the facts underlying the commitment offense through a mental health expert's testimony. The same reasoning applies in SVP proceedings. The prosecution may prove that a conviction was for a "sexually violent" offense by introducing documentary evidence such as preliminary hearing transcripts, probation reports, and evaluations by the Department of State Hospitals. In this case, the court admitted probation reports that recited the facts underlying appellant's offenses, which plainly showed the offenses qualified as "sexually violent." Thus, any error in allowing the experts to opine that the facts of the offenses rendered them "sexually violent" was harmless.

People v. Wright (B269705, 10/24/2016)
4 Cal.App.5th 537
[3.C.1] Commitment as a sexually violent predator (SVP) reversed where sole evidence that defendant suffered from a requisite mental disorder was an expert's flawed testimony. Wright was committed as an SVP after his conviction for oral copulation of a child under 18. He had three prior convictions for committing lewd acts on 14 and 15 year olds. To prove that Wright had a diagnosed mental disorder that made it likely he would engage in sexually violent criminal behavior, the prosecutor admitted expert testimony that Wright probably had hebephilia, i.e., sexual arousal interest in pubescent age children. The expert conceded that children go through puberty at different ages (usually between 11 and 13) and that based solely on the age of Wright's victims (14 to 15) he could not tell whether they were in puberty when Wright committed lewd acts on them. However, the expert testified that Wright's hebephilia diagnosis was a "close call." Wright appealed his commitment as an SVP, arguing that the commitment order was not supported by substantial evidence because there was a lack of information about the physical characteristics and/or sexual development of the victims. Held: Reversed. "An expert opinion has no value if its basis is unsound . . . assumptions which are not grounded in fact cannot serve as the basis for an expert's opinion." The expert's opinion in this case "was not of ponderable legal significance or of solid value." It was based on the hypothesized facts that Wright's 14- and 15-year-old victims were still in puberty. Thus, it was based on "pure speculation." Wright's commitment as an SVP was reversed for lack of substantial evidence.

People v. White (B267529, 9/19/2016)
3 Cal.App.5th 433
[3.C.] "Sexually violent criminal behavior" as used in the Sexually Violent Predator Act (SVPA) is broader than "sexually violent offense" and includes forcible acts of sexual battery committed during frotteuristic episodes. After a bench trial, the trial court found White to be an SVP. White had previously been convicted of assault to commit rape and a series of sexual batteries arising from frotteuristic episodes (rubbing his erect penis against strangers). White appealed, arguing that the trial court erred by reasoning that the term "sexually violent criminal behavior" was broader than "sexually violent offense" and therefore applied to sexual batteries even though sexual battery is not listed as a sexually violent offense. Held: Affirmed. An SVP is "a person who has been convicted of a sexually violent offense against one or more victims and who has a 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." (Pen. Code, 6600, subd. (a)(1).) The first element was satisfied by White's conviction for assault to commit rape, which is a sexually violent offense. He also has diagnosed mental disorders: frotteuristic disorder, exhibitionist disorder, bipolar disorder, and anti-social disorder. However, White asserted that those disorders only made it likely that he would engage in sexually battery, which is not listed as a sexually violent offense. The terms "sexually violent criminal behavior" and "sexually violent offense" cannot be synonymous or else there would be no reason to use different terms in the statute. While there is not a precise definition of "sexually violent criminal behavior" it "undoubtedly" includes "[a]ggressive frotteurism" such as White's. The court also rejected White's argument based on Johnson v. United States (2015) 135 S.Ct. 2551, that the term "sexually violent criminal behavior" is void for vagueness.

People v. Putney (A142012, 7/27/2016)
1 Cal.App.5th 1058
[4.A.] Trial court acted in excess of jurisdiction by issuing a sexually violent predator (SVP) recommitment order while the defendant was serving a life Three Strikes sentence in another case. In 1991, Putney pleaded no contest to three counts of lewd acts on a child under the age of 14. After serving his prison term, he was committed as an SVP. In 2007, the prosecution filed a petition to extend his commitment. The SVP trial was continued a number of times, in part because there were criminal charges pending against Putney in another case. Ultimately, Putney pleaded no contest in the other case and received a life Three Strikes sentence. That case was affirmed on appeal. The SVP case then proceeded, and the jury found Putney was an SVP. He was committed to Coalinga for an indefinite term. He appealed. Held: Reversed. Under the SVP Act (Welf. & Inst. Code, 6600, et seq.), an offender who is found to be an SVP is subject to involuntary civil commitment for an indefinite term "immediately upon release from prison." (People v. Yartz (2005) 37 Cal.4th 529, 534; Welf. & Inst. Code, 6604.) An SVP is defined as a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes him a danger to the health and safety of others. Here, the recommitment petition was proper when filed, and it was also appropriate for the trial court to continue the SVP proceedings while the criminal case was pending. However, once the criminal case became final, the court lacked authority to grant the relief requested in the petition because the offender had no prospect of being released from custody for many years. He therefore posed no danger to the public, and did not meet the definition of an SVP. The SVP Act provides no mechanism for reviewing the SVP status of a person who is serving a lengthy prison term.

 

People v. Hydrick (B256043, 7/21/2016)
1 Cal.App.5th 837
[3.B., 7] The 45-day "hold" allowed to complete a full evaluation to determine whether a defendant is a sexually violent predator (SVP) includes the prosecutor's decision to file a petition. Hydrick was convicted a multiple sex offenses committed against more than one victim and sentenced to prison. He was scheduled to be released on September 10, 2008. The day before his scheduled release, the Board of Parole Hearings (BPH) issued a 45-day hold (Welf. & Inst. Code, 6601.3). On October 8, the prosecution filed an SVP commitment petition. Hydrick appealed, claiming the petition was untimely. Held: Affirmed. An SVP petition may be filed while the defendant is in lawful custody. This includes the 45-day hold period (Welf. & Inst. Code, 6601.3, subd. (a)(2)). In 2008, the 45-day hold was allowed for "good cause," which was defined as "some evidence" the person was likely to engage in sexually violent behavior. But in In re Lucas (2012) 53 Cal.4th 839, the court held this definition was invalid because it was linked to showing the person was likely to be an SVP rather than to the reasons for the delay in filing the SVP petition. Nonetheless, the court found the reliance on the law a good faith excusable mistake of law. Hydrick claims his 45-day hold improper because, by the time it was imposed, full evaluations stating he was an SVP had already been completed. However, the 45-day hold includes within the ambit of a "full evaluation," the district attorney's decision to file a petition (Welf. & Inst. Code, 6601, subd. (i)). "Because the district attorney's evaluation had not been completed at the time the 45-day hold was imposed, the petition was timely.".

 

People v. Landau (G049785, 4/20/2016)
246 Cal.App.4th 850
[5.B.; 5.C.] Indefinite civil commitment of SVP defendant reversed where trial court admitted "massive amounts" of inadmissible hearsay. In April 2009 appellant was committed to the Department of State Hospitals (DSH) for an indefinite term as a sexually violent predator (SVP). While his first appeal was pending he received a favorable annual examination, which resulted in a recommendation that, while he was still a pedophile, appellant was no longer dangerous, and merited treatment in a less secure setting. Based on this evaluation, he petitioned for unconditional release. The jury concluded appellant remained an SVP and he was recommitted. He appealed, claiming he was prejudiced by the admission of "massive amounts" of inadmissible hearsay during a prosecution expert's testimony. Held: Reversed. Hearsay evidence is inadmissible "except as provided by law" (Evid. Code, 1200, subd. (b)). Multiple levels of hearsay must meet the requirements of admissibility at each level (Evid. Code, 1201). An expert may tell the jury the reasons for his opinion, but prejudice may arise where the expert reveals to the jury incompetent hearsay evidence. Here, the trial court abused its discretion by admitting testimony of the prosecution's expert, Dietz, concerning numerous entries and information he saw in appellant's state hospital records. (See People v. Dean (2009) 174 Cal.App.4th 186.) This hearsay evidence cast appellant in a very bad light as someone who refused to follow rules, had no concern for others, engaged in forms of violence, and exhibited biased behavior. As it was reasonably probable the jury would have reached a more favorable verdict had it not heard this evidence, reversal was required.

[1.A.] Appellant's confrontation issue need not be resolved in light of the reversal. Appellant claimed his confrontation rights were abridged because Dietz was allowed to testify regarding numerous hearsay statements contained in appellant's hospital records. The confrontation clauses of the state and federal constitutions only apply in criminal cases, although there is a confrontation component to a civil committee's due process rights. However, the Court of Appeal did not decide appellant's confrontation issue in light of its reversal of judgment.

 

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