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Name: People v. Reynolds
Case #: E047192
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/10/2010

When the trial court dismisses a petition for unconditional release (Welf. & Inst. Code, sec. 6608) without a hearing, the standard of review is abuse of discretion. Appellant, a person committed as an SVP, filed a petition for unconditional release (Welf. & Inst. Code, sec. 6608), which alleged only that his original commitment occurred nearly four years ago and that before the last recommitment he had an expert and was ready to go to trial. The prosecutor filed a motion to dismiss the petition as frivolous, and at the hearing on the motion the court dismissed the petition without reviewing it because defense counsel admitted there was no change in circumstances. Appellant argued the dismissal required reversal because the trial court did not review the petition. The court noted there were no cases discussing the standard of review when a petition is dismissed without a hearing, and held the standard was abuse of discretion. The court held there could be no abuse of discretion in dismissing a petition without a hearing where, as here, there was no opposition to the motion to dismiss, but rather, an agreement to dismissal without prejudice. If a petition for unconditional release is frivolous, trial counsel does not render ineffective assistance for conceding there is no change in circumstance. Appellant argued his attorney abandoned him and was ineffective for not opposing the motion to dismiss. The court interpreted section 6608 to require a petitioner allege facts which show he is not likely to reoffend due to the diagnosed mental disorder. The court reviewed the facial adequacy of the petition and pointed out it did not allege petitioner was no longer a sexually violent predator. The court also noted there were two recent reports from experts concluding appellant was still an SVP. As a result of the deficient petition and the unfavorable evaluations, appellant could not show there was a reasonable probability that without the concession there would have been a more favorable result. Even if counsel had argued on behalf of appellant, there was no other likely result.