svpa compendium


Year 2012
California Court of Appeal


People v. Shazier (H035423 / 12/27/12)
212 Cal.App.4th 520
[5.B.] Prosecutor's pervasive pattern of misconduct during sexually violent predator (SVP) trial required reversal of order adjudging appellant an SVP. During the third trial in a civil commitment proceeding alleging Shazier was a sexually violent predator, the prosecutor told the jury in his closing argument that the community would subject them to disapproval and contempt should they find for the defendant, referred to Shazier as a "prolific child molester," and suggested there were other victims who had not reported the crimes. Defense counsel made objections during the argument and to other statements made throughout trial, but the objections were overruled. The appellate court reversed the judgment, finding that the prosecutor's many improper questions and argument so infected the trial with unfairness as to make the resulting conviction a denial of due process. This was not a case with a few minor incidents of misconduct, but a pervasive pattern of inappropriate questions, comments, and arguments throughout. The cumulative effect of all the misconduct required reversal.


People v. McKnight (A123119 / 12/12/12)
212 Cal.App.4th 860
[1.B.] Because the sexually violent predator (SVP) individual is differently situated than the mentally disordered offender (MDO) and the not guilty by reason of insanity (NGI) individual, disparate treatment is justified and there is no violation of equal protection. Appellant's case was remanded for proceedings consistent with People v. McKee (2010) 47 Cal.4th 1172. In McKee, the Supreme Court ruled that the State had the burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as MDO's and NGI's, are subject to indefinite commitment, and remanded to allow the State to meet its burden. The State subsequently established that because the SVP poses a substantially greater risk to society than the other type of class, disparate treatment is justified. Here, appellant unsuccessfully argued that his equal protection claim was not resolved by McKee because his case was different in that he was not convicted of crimes against children. This claim failed because McKee did not base its finding on crimes specifically against children. McKee also was applicable because it considered SVP's as a class and was not restricted to appellant McKee, alone.


People v. Paniagua (A123926 / 9/20/12)
209 Cal.App.4th 499
[3.C.] Reversal was required where trial court allowed admission of unreliable evidence without a proper section 352 analysis. In an appeal from an order committing him to DMH as a sexually violent predator (SVP), Paniagua argued that the trial court erred when it permitted the prosecution to introduce evidence of his alleged trip to Thailand: a country where sex with minors is easily obtainable, including a United Airlines flight number. Paniagua denied going to Thailand and argued that there was no proof he had gone. The parties stipulated that the flight number did not even exist, and Paniagua made a 352 objection to the evidence. The trial court admitted the evidence without any section 352 analysis, and the jury found Paniagua to be an SVP. The appellate court reversed, finding that the trial court improperly did not weigh the evidence as required by section 352. The evidence was unduly prejudicial because it led the jury to believe that Paniagua had gone to Thailand for sex despite the unreliability of the evidence. There was a reasonable probability that had the jury not heard this evidence it would have rendered a different verdict, and therefore reversal was warranted. The court also rejected several other claims in case they were to arise at retrial.


People v. McKee (D059843 / 7/24/12)
207 Cal.App.4th 1325
[1.B.] Equal protection principles are not violated because of disparate treatment of sexually violent predators who have a higher burden to obtain release as compared with mentally disordered offenders or those having been found not guilty by reason of insanity. Following the passage of Proposition 83, appellant was committed for an indefinite term as an SVP. The California Supreme Court rejected his due process and ex post facto claims and remanded for an evidentiary hearing to determine whether, applying the strict scrutiny standard, the People could justify their disparate treatment of SVPís from MDO's and NGI's. (People v. McKee (2011) 47 Cal.4th 1172, 1197-1198, 1208-1209.) After extensive testimony and documentary evidence, the trial court ruled that disparate treatment was justified by the greater and unique dangers that SVP's pose as compared to MDO's and NGI's. Affirmed. The People presented substantial evidence to support a reasonable inference or perception that the disparate treatment of SVP's is necessary to further compelling state interests. Despite the similarities between SVP's, MDO's, and NGI's, SVP's bear a substantially greater risk to society and imposing a greater burden on them before they can be released is needed to protect society. Evidence showed that recidivism is more likely, the victims suffer unique and greater trauma, and diagnoses and treatments are different with SVP's requiring longer treatment based on tools to limit reoffending rather than medication-based treatment. The electorate was not required to adopt the least restrictive means available.


Macy v. Superior Court (H037138 / 5/15/12)
206 Cal.App.4th 1393
[3.A.; 3.C.] Automatic dismissal of SVPA commitment proceedings is not the appropriate remedy when original concurring evaluations under Welfare and Institutions Code section 6601 were conducted using an invalid regulation and updated evaluations conducted under section 6603 produced conflicting opinions regarding whether an individual meets the SVP criteria. Petitioner's original section 6601 concurring evaluations were conducted using an invalid regulation. Updated evaluations conducted under section 6603 resulted in conflicting opinions regarding whether the petitioner met the SVP criteria. Petitioner argued that the trial court was legally obligated to dismiss his SVPA commitment proceedings under these circumstances. The Court of Appeal denied petitioner's writ of mandate without prejudice and refined the remedy created by In re Ronje (2009) 179 Cal.App.4th 509, to address the situation where evaluations under section 6601 were conducted under an invalid "underground regulation." When an individual seeks Ronje relief after a probable cause hearing but before trial, the person must affirmatively show (1) the concurring evaluations under 6601 were conducted using an invalid assessment protocol and (2) this error or irregularity "reasonably might have affected the outcome" of the probable cause hearing. If such a showing is made, the court should allow a reasonable time for the Department of Mental Health (DMH) to obtain new evaluations using a valid protocol. If the individual additionally establishes that the use of an invalid assessment protocol resulted in a material defect in either of the concurring evaluations that were the basis for filing the commitment petition, new concurring evaluations must be produced pursuant to section 6601 to cure the defect. Where refined Ronje relief is ordered and the DMH satisfies the applicable requirements, the court must hold a new probable cause hearing pursuant to section 6602. The court must dismiss the commitment petition only if a rare situation arises where DMH does not meet these requisites. Here, petitioner did not show that the trial court ordered the new evaluations that produced several splits in opinion to effectuate a Ronje remedy. Instead, it appeared that the new conflicting evaluations were generated pursuant to section 6603, subdivision (c) and such disagreement did not mandate dismissal.


Reilly v. Superior Court (G045118 / 3/28/12)
204 Cal.App.4th 829
Review granted in all 3 companion cases on 6/13/12: S202280
[4.C.] In an SVPA proceeding, a petitioner may challenge the petition on the ground it is not supported by two concurring evaluators with a plea in abatement. Petitioner was the subject of an SVPA commitment petition filed in 2000. While in custody, a recommitment petition was filed. The requisite evaluations were conducted according to an invalid assessment protocol. New evaluations were performed and the evaluators found he did not meet the criteria for commitment. The appellate court ruled that petitioner could challenge the validity of the petition with a bill in abatement and the petition must be dismissed because the subsequent evaluations found him to not meet the criteria for the SVPA. Because it must be dismissed, petitioner cannot be compelled to undergo another mental evaluation. (See People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, and In re Ronje (209) 179 Cal.App.4th 509.) [Note: see also companion cases on this subject: Boysel v. Superior Court (2012) 204 Cal.App.4th 854 (G045202) and Wright v. Superior Court (2012) 204 Cal.App.4th 879 (G042503).]


People v. Sanders (B225024 / 2/21/12)
203 Cal.App.4th 839
[3.B.] In an SVPA proceeding, a defendant's admission to the allegation in the petition forecloses appellate review of a claimed violation of a federal due process right to a "speedy trial." The SVPA provides for involuntary commitment of certain sex offenders likely to reoffend but does not specify a time by which trial on commitment proceedings must commence. However, although the SVPA involves a civil commitment rather than a criminal proceeding, the federal due process clause extends to the SVPA by requiring a hearing "at a meaningful time and in a meaningful manner." Here, a petition was filed seeking commitment of appellant as a sexually violent predator. Appellant subsequently admitted the allegations of the petition and received an agreement of a two-year commitment. [During the proceedings, the statute had been amended to provide for an indeterminate term, rather than the previous two-year commitment.] On appeal, appellant claimed a "speedy trial" violation. In a criminal proceeding, the essence of a speedy trial claim based on delay is that the passage of time has frustrated the defendant's ability to defend himself. With a guilty plea, he concedes the absence of prejudice, having admitted all matters essential to conviction. Here, the court found any claimed error in an SVPA proceeding based on delay likewise is waived with an admission to the allegations in the petition.


Davenport v. Superior Court of San Francisco (A131008 / 1/5/12)
202 Cal.App.4th 665
[3.A.] Use of an invalid evaluation protocol in an SVP proceeding does not result in dismissal of the SVP petition when the court has obtained jurisdiction. A Sexually Violent Predator (SVP) commitment commences when the prison officials evaluate and determine the inmate is a likely SVP, and refer him/her to the Department of Mental Health for a full evaluation. Two mental health professionals evaluate the inmate per a standardized assessment protocol developed by the Department and, with concurring evaluations, refer the inmate to the district attorney who files a petition for commitment. The inmate is entitled to a probable cause hearing and, if probable cause is found, a jury trial on the issue of whether he/she is an SVP. In this case, two professionals concurred that petitioner met the criteria for commitment and a petition was filed in the superior court. It was then established that an invalid protocol had been utilized and new non-concurring evaluations were obtained, using a valid protocol. Petitioner brought this habeas action, seeking dismissal of the petition. The court found that dismissal was not the proper remedy because a flaw in the protocol has no effect on the jurisdiction of the court. Here, at the time of filing, the petition was properly filed and, therefore, the court has obtained jurisdiction and should proceed to trial.


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