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Name: People v. Smith
Case #: A135760
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 05/07/2013

Trial court erred in denying conditional release petition under Sexually Violent Predator Act without a hearing. After serving a prison term for assault with intent to commit rape, Smith was found to be a sexually violent predator (SVP) and committed to the Department of Mental Health. In April 2012 he filed a petition for conditional release and unconditional discharge (Welf. & Inst. Code, § 6608). It was denied without hearing and Smith appealed. Held: Remanded for hearing. A person committed as an SVP may petition for conditional release and unconditional discharge any time after one year of commitment. Such petition may be denied without hearing when it is found to be frivolous. If not frivolous, the court should hold a hearing to determine whether the SVP continues to pose a danger to the heath and safety of others if released. Here, Smith’s petition reflected he had made significant progress in his treatment; there was no substantial evidence to support a finding Smith’s petition was without merit. Although not deciding Smith’s contentions he was entitled to appointment of counsel and an expert for the hearing, the court observed there are statutory provisions for same; it noted that respondent conceded Smith was entitled to an attorney and, once a hearing is set, appointment of an expert.