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Name: People v. Smith
Case #: A132152
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 01/23/2013

Sexually violent predator (SVP) was entitled to new hearing where court proceeded under Welfare and Institutions Code section 6608 instead of section 6605. Smith was found to be an SVP and committed indeterminately. In July 2009, an examining psychologist recommended conditional release. Smith filed a petition for conditional release under sections 6605 and 6608. With both counsels’ agreement, the court determined that the appropriate code section was 6608, and proceeded with a hearing conducted pursuant to that section. Smith submitted the report recommending conditional release. The court denied the petition, finding that Smith failed to carry his burden of proof by a preponderance of the evidence. On appeal, Smith argued that the trial court erred in not proceeding under section 6605 after the submission of the report. In a consolidated habeas petition, he also alleged that his appointed counsel was ineffective because he sought relief under the wrong provision. The appellate court held that an SVP may seek conditional release under the provisions of section 6605 as well as under the provisions of section 6608. Section 6605 now applies to petitions for both unconditional and conditional release. The difference between the two sections is significant. Proceeding under section 6608 denied Smith his right to a jury trial and transferred from the state the burden of proving beyond a reasonable doubt the need for locked confinement to Smith, to prove by a preponderance of evidence his right to relief. Smith’s attorney provided ineffective assistance in failing to request a hearing pursuant to section 6605. There was a reasonable probability that but for counsel’s failure to request a proceeding under section 6605, the result would have been more favorable to Smith, and therefore reversal and remand was required.