svpa compendium


Year 2015
California Court of Appeal

People v. Superior Court (Troyer) (B263146, 9/18/2015)
240 Cal.App.4th 654
[4.C.] Sexually violent predator (SVP) failed to show that evaluations supporting recommitment petition were infected with "material legal error" where the evaluations were substantially copied from previous reports. Troyer, a convicted sex offender, was committed as an SVP. Prior to the expiration of his commitment, the former Department of Mental Health (DMH) recommended that the D.A. file a petition to recommit and provided two psychological evaluations in support of a petition. Both evaluators found Troyer presented a high range of risk for predatory offenses. Troyer moved to dismiss, challenging whether the two doctors were "designated" to perform the evaluations and claiming the evaluations contained "material legal error" because they were largely copied from earlier reports and therefore did not represent the independent judgment of the doctors as required. The petition was dismissed and the D.A. petitioned for writ of mandate. Held: Petition granted and remanded. When a commitment petition is filed, the trial court holds a probable cause hearing to determine whether the person named in the petition is likely to engage in sexually violent predatory behavior if released (Welf. & Inst. Code, § 6602, subd. (a)). Prior to the probable cause hearing the court may review an evaluator's report to assess whether, on its face, it contains "material legal error," i.e., whether it reflects an inaccurate understanding of the statutory criteria governing the evaluation. The error is "material" if it affected the evaluator's ultimate conclusion, and a change in that conclusion would either supply, or dissolve, the required concurrence of two designated evaluators. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888.) Here, it was error to dismiss the petition because, from the face of the evaluations, it cannot be determined that the opinions are not those of the evaluators.


People v. Kisling (C076047, 8/6/2015)
239 Cal.App.4th 288
[1.A., 1.H.] The Court of Appeal is not required to conduct a Wende review of the record in an appeal from the denial of petition for release from a sexually violent predator (SVP) commitment. Kisling appealed from the trial court's denial of his petition for release from his commitment as an SVP under the Sexually Violent Predator Act (SVPA). Appointed counsel filed a Wende brief, and the appellate court requested supplemental briefing on whether the Wende review procedure applies to appeals from denials of petitions for release from an SVP commitment. Held: The Wende review procedure is inapplicable and the appeal was dismissed. The procedures outlined in People v. Wende (1979) 25 Cal.3d 436 only apply to appointed appellate counsel's representation of an indigent criminal defendant in his first appeal of right. Proceedings under the SVPA are civil matters and an SVPA appeal does not directly implicate Wende. In Conservatorship of Ben C. (2007) 40 Cal.4th 529, the California Supreme Court applied a three-part balancing test to determine whether Wende review applied as a matter of due process to appeals from LPS conservatorship proceedings, and concluded that it did not. The same analysis applies in SVP cases, and the balance of interests weighs more heavily against applying Wende to SVPA appeals. Here, appellate counsel complied with her duty to review the record and found no arguable issues, and defendant did not identify any issues he believed should have been raised.


People v. LaBlanc (E059589, 7/22/2015)
238 Cal.App.4th 1059
[3.D.] Trial court abused its discretion by finding sexually violent predator's (SVP) petition for unconditional discharge to be frivolous and by failing to hold an evidentiary hearing. LaBlanc, who is serving an indeterminate SVP civil commitment, petitioned for unconditional discharge (Welf. & Inst. Code, former section § 6608, subd. (a)). He supported his petition with a report by a psychologist who concluded that LaBlanc did not have a diagnosed mental disorder that rendered him a danger to others if released (see Welf. & Inst. Code, § 6600, subd. (a)(1)). The psychologist based this conclusion, in part, on (1) debate concerning the validity of LaBlanc's diagnosis of paraphilic coercive disorder, and (2) her determination that LaBlanc was less likely to reoffend due to the passage of time, his age (LaBlanc was 70 years old), and his serious medical conditions. The trial court summarily denied the petition as frivolous. LaBlanc appealed. Held: Reversed and remanded for evidentiary hearing. The SVP Act provides for the indefinite commitment of those defendants found to be an SVP. When LaBlanc filed his petition, former section 6608 provided that an SVP could petition for conditional release or unconditional discharge. However, when a petition for unconditional discharge is based on frivolous grounds, the trial court must summarily deny it. Here, the trial court found the petition frivolous because the jury had found LaBlanc to be an SVP beyond a reasonable doubt. However, the jury did not necessarily decide whether LaBlanc's diagnosis was valid, and there is currently a degree of controversy regarding the validity of paraphilic coercive disorder. Further, LaBlanc made a colorable showing that he was unlikely to reengage in sexually violent behavior based on the passage of time, his aging, and his poor health. Thus, LaBlanc's petition was not frivolous. LaBlanc's refusal to participate in sex offender treatment did not require the court to dismiss the petition as frivolous.


People v. Curlee (A136337, 6/12/2015)
237 Cal.App.4th 709
[1.B.; 3.C.] Sexually violent predator (SVP) commitment case remanded so People may attempt to show that compelling SVPs to testify at their commitment hearings does not violate an SVP's right to equal protection. The Alameda County District Attorney filed a petition to commit Curlee as an SVP. During the trial, the People called Curlee as a witness in its case-in-chief. The jury found that Curlee was an SVP and the trial court committed him to the California Department of Mental Health for an indefinite term. Curlee appealed, arguing that his compelled testimony violated his right to equal protection. Held: Remanded to trial court for evidentiary hearing. The California Supreme Court recently held that persons found not guilty by reason of insanity (NGIs) have a statutory right not to testify in a civil proceeding to extend their commitment. (Hudec v. Superior Court (2015) 60 Cal.4th 815, 818.) SVPs do not have the same right to refuse to testify. (See People v. Leonard (2000) 78 Cal.App.4th 776, 789-793.) Here, the Court of Appeal concluded that this differential treatment may violate an SVP's right to equal protection. SVPs and NGIs are similarly situated for purposes of whether they may be compelled to testify at their commitment hearings. (See People v. McKee (2010) 47 Cal.4th 1172, 1207 (McKee I).) On the record in this case, the People did not justify the disparate treatment of SVPs. The Attorney General argued that the same factors that justify an indefinite commitment for SVPs (see People v. McKee (2012) 207 Cal.App.4th 1325, 1340-1346 (McKee II)), also justify the differential treatment related to compelled testimony. The Court of Appeal disagreed, concluding that the factors considered in McKee II do not necessarily show that an SVP's testimony is more necessary than an NGI's. The People will be allowed to make an appropriate showing on remand.


People v. Johnson (A140310, 3/13/2015)
235 Cal.App.4th 80
[5.B.] Defendant committed as sexually violent predator (SVP) may not vacate his commitment based on the fact the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) fails to allude to the psychiatric diagnosis upon which his commitment was based. On several occasions since 1983, Johnson committed violent sexual assaults against women. As he neared completion of a prison term for a rape conviction, the prosecution petitioned to have Johnson committed as an SVP. The jury found Johnson to be an SVP and he received an indefinite commitment. In several writ petitions he claimed newly discovered evidence as well as revisions to the DSM undermined the state's evidence, rendering it "false evidence" (Pen. Code, § 1473). Held: Writ denied. A habeas petition may be based on a claim that false evidence which was substantially material/probative on the issue of guilt was presented against a person. The Legislature recently amended section 1473 to expand the definition of "false evidence" to include expert opinions which have been repudiated by the expert who provided it or which were undermined by later scientific research or technological advances. Johnson claimed that the diagnosis on which his commitment was based—paraphilic coercive disorder—can no longer be considered a valid mental disorder, thus invalidating his commitment. The fact that the latest DSM does not allude to paraphilic coercive disorder does not undermine the opinions of the state's expert witnesses or render their opinions false evidence. "The federal constitution does not require an SVP's commitment to be based on a disorder that is uniformly recognized by the mental health community." Nor does the SVP Act require that an SVP’s mental diagnosis appear in DSM. The validity of Johnson's diagnosis was fully litigated at his trial. He did not object to introduction of the state's experts and cross-examined them. Even if the newest DSM reflects skepticism in the psychiatric community about paraphilic coercive disorder, Johnson's commitment based on this diagnosis does not violate due process, or undermine the basis of his commitment.


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