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Name: People v. McCloud
Case #: A132798
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 02/14/2013

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.

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.