svpa compendium


Year 2011
California Court of Appeal


People v. Kisling (C063911 / 9/28/11)
199 Cal.App.4th 687
[7.] Proposition 83, the Sexual Predator Punishment and Control Act, Jessica's Law, does not violate the "single-subject" rule because it involves criminal punishment as well as civil commitments. The initiative's stated purpose was to strengthen and improve laws that punish and control sex offenders. An initiative does not violate the "single-subject" rule because it amends two statutory schemes so long as they are reasonably related to a common purpose. The purpose here is to monitor sex offenders, strengthen and improve laws that punish aggravated sexual assault, habitual offenders and child molesters, and to provide for their commitment and control.


People v. Superior Court (O'Connor) (B232295 / 9/22/11)
199 Cal.App.4th 441
Subsequent history: revw. granted 1/18/12 (S197705)
[4.A.; 4.B.] To hold a prisoner beyond his release date, on a 45 day hold, for an Sexually Violent Predator (SVP) evaluation, the Department of Mental Health must have "good cause" as defined in Welfare and Institutions Code section 6601.3, subdivision (b) and the inability to complete the evaluation due to workload did not constitute good cause. Although chronic backlog in SVP evaluations due to a large caseload, state budget constraints, and "systemtic shortage of resources," including qualified clinicians, was not an exigent circumstance establishing good cause for an inmate's 45-day hold under Welfare and Institutions Code section 6601.3, dismissal of an SVP petition against him should have been denied because his unlawful custody was result of a good faith mistake of law.


People v. Landau (G044359 / 8/30/11)
199 Cal.App.4th 31
[4.B.] The language of Welfare and Institutions Code section 6605 requires that the director of the State Department of Mental Health (DMH) authorize a petition for the release of an inmate held under the Sexually Violent Predator Act (SVPA) if his annual evaluation results in a recommendation for release. The language of section 6605 is such that "if the Department of Mental Health determines," based on the evaluation, that release is recommended, then the director is required to authorize the petition. Landau's evaluator found that he remains a pedophile, but that he is no longer likely to engage in sexually violent criminal behavior. The medical director refused to recommend release under section 6605, which entitles the inmate to an order to show cause hearing, the threshold to a jury trial on the issue of release. When the director failed to concur with the evaluator and did not authorize the petition under section 6605, the trial court treated the petition as one filed under section 6608. That procedure only allows for an initial review to determine if the petition is based on frivolous grounds and Landau's petition was dismissed as frivolous. The dismissal was reversed because the statutory language does not give the director discretion in 6605 circumstances.


People v. Superior Court (Gilbert) (B230886 / 6/28/11)
196 Cal.App.4th 1355
Subsequent history: review granted 9/28/11 (S195336)
[2.B] Where delay in referring defendant for a SVP evaluation is an honest mistake, it was improper for the trial court to dismiss the petition. The prosecution filed a petition for writ of prohibition to challenge the trial court's dismissal of an SVP petition against defendant (Welf. & Inst. Code, § 6600, et seq.). Defendant, who has a history of sex offenses, suffered a Penal Code section 289, subdivision (a) conviction and was sentenced to eight years. He was released but violated parole and was re-incarcerated. On August 6, 2009, he was scheduled for discharge from parole. That afternoon a correctional counselor realized defendant had not been screened and reported this to the Board of Parole Hearings (BPH). The BPH issued an emergency three-day hold on defendant's release. After initial screenings were conducted, the BPH issued a 45-day hold. Thereafter a SVP petition was filed, which defendant moved to dismiss based on unlawful detention. The trial court dismissed the petition. The Court of Appeal found the dismissal error. "Nothing in the record supports the conclusion that the delay in referring defendant for evaluation was the result of systemic negligence rather than honest mistake."


People v. Superior Court (Rigby) (G043937 / 5/19/11)
195 Cal.App.4th 857
[3.A.; 4.A.] The trial court acted in excess of its jurisdiction in allowing an inmate to petition for a conditional release when two petitions were pending to extend his commitment as a sexually violent predator (SVP). Rigby had previously been committed as an SVP and a petition to extend the commitment was filed in 2004. While that petition was pending, and after the passage of Proposition 83 in 2006, another petition was filed seeking an indeterminate commitment. The trial court made findings pursuant to section 6601.5 that both petitions contained sufficient facts to constitute probable cause that he is likely to engage in sexually violent predatory behavior if released and he was ordered detained in a secure facility pending his probable cause hearing. The probable cause hearing had not yet taken place by January, 2010 when Rigby petitioned for a conditional release, which was supported by two experts opining that he does not meet the criteria of an SVP. The trial court was concerned with the extraordinary delay in the case and after a hearing found he was entitled to petition for a conditional release from commitment. The authority to apply for conditional release is found in principles of due process and fundamental fairness, combined with ambiguity of the SVPA concerning individuals with expired commitments who are awaiting trial on recommitment petitions. Allowing a petition for conditional release initiates a process whereby the director of the treatment facility is required to provide a recommendation on the petition for release within 30 days. After a review of the SVPA scheme, the appellate court here found the conditional release could not be justified where one commitment was completely terminated and other petitions for recommitment have yet to be adjudicated. A peremptory writ of prohibition was issued restraining the trial court from taking any further action on the January, 2010 petition for conditional release.


People v. Nguyen (E048880 / 4/22/2011)
194 Cal.App.4th 774
[1.A.; 4.B.]There is no statutory right for the committed offender to attend SVP (Sexually Violent Predator) recommitment proceedings, but there is a due process right to be present. Counsel does not have authority to waive the client’s presence. Any error in this special proceeding of a civil nature is evaluated under the standard of Chapman v. California (1967) 386 U.S. 18, 24. The error was harmless beyond a reasonable doubt. Out of 37 hearings, the client was only transported once to court inadvertently and for the majority of the time was unwilling to participate in both treatment and the proceedings. There was communication between counsel and client and there was no indication that he wished to be present. It is unlikely that his presence would have changed the cross-examination of experts who had evaluated him.
[1.B.]An equal protection argument based on the disparity of treatment between SVP commitments and those of MDO's (Mentally Disordered Offenders) did not prevail because there are statistical reasons to treat the two classes of offenders differently. People v. McKee (2010) 47 Cal.4th 1172 held the two groups met the threshold of being similarly situated for the purpose of placing the burden on the People to justify the differential treatment. The difference in length of confinement and conditions of confinement is the result of a valid exercise of state power if there are different degrees of dangerousness perceived as to the class of persons. The MDO must be found to be amenable to treatment, whereas amenability to treatment is not required for SVP's. SVP's represent a very small number of dangerous people who are kept from society based on their complex and compulsive disorder. They have a very poor prognosis for successful treatment such that only 2.9% successfully complete the treatment program. They have a much higher rate of recidivism than the risk posed by MDO's. The evidence presented at trial provided sufficient justification to defeat the equal protection claim.


People v. Gonzales (H032866 / 1/27/11)
192 Cal.App.4th 152
Subsequent history: review granted 4/27/11 (S191240)
[1.G; 5.D] The institution of SVPA proceedings does not strip an individual of the right to privacy against the unjustified disclosure of information protected by the psychotherapist-patient privilege such that the dangerous-patient exception automatically applies. The trial court erred in finding that appellant's psychological records were discoverable and admissible under the "dangerous patient" exception to the psychotherapist-patient privilege. The exception should be narrowly construed, and here the prosecutor presented no evidence to support the application of the exception to the privilege. The prosecution made a vague and conclusory offer of proof that the records would show appellant posed a danger. In this case, the violation amounted to a constitutional violation of the right to privacy.


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