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Name: People v. Rasmussen
Case #: B183616
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 12/21/2006

In a proceeding for conditional release under the Sexually Violent Predator ACT (Welf. & Inst. Code, sec. 6608), the trial court, in determining if it is likely that the person will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community, is to use the same definition of “likely” as that developed in People v. Ghilotti (2002) 27 Cal.4th 888 — namely, will the person present a substantial danger, i.e., a serious and well-founded risk, that he or she will commit such crimes if free in the community. At his hearing, appellant submitted testimony of eight mental health professionals who all agreed that appellant was suitable for release. The People provided no “scintilla” of evidence that appellant would reoffend. The appellate court concluded that the trial court’s finding that appellant failed to meet his burden that he would not reoffend was not supported by the evidence and ordered appellant’s petition for release granted. It declined to decide the constitutionality of imposing the burden on appellant to establish entitlement to conditional release.