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Name: In re Franklin
Case #: F055684
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/17/2008

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.