Criminal Appeal

SVP Recommitments and Indeterminate Terms, Take 2

As noted in a previous post, two California appellate courts recently concluded that individuals subject to two-year sexually violent predator (SVP) civil commitments at the time the electorate passed Prop 83 can face the prospect of indeterminate terms upon expiration of their current commitments. In People v. Carroll (F051709), the Fifth District Court of Appeal has reached the same result, noting that to hold otherwise would lead to "absurd consequences." In addition, California Supreme Court recently denied review on this question in People v. Shields.

In Carroll, the Fifth Disrtict Court of Appeal also fended off a few related challenges. The district attorney in that case filed an extended commitment petition before the SVP Act was amended to provide for indeterminate terms. Therefore, the commitment petition sought to impose a two-year commitment. By the time the commitment trial commenced several months later trial, the SVP Act had been amended to provide for indeterminate terms. At that time, the district attorney announced that an indeterminate term would be sought rather than the two-year term identified in the petition. After a court trial, the defendant was committed as an SVP for an indeterminate term. The Fifth District Court of Appeal concluded that the defendant waived any objection to the amendment of the petition by failing to object.

The Court of Appeal did, however, reject two of the defendant's challenges to the petition on the merits. First, the Court of Appeal dispensed with the defendant's due process challenge to the adequacy of the notice he was given on the merits, noting that the "allegations against which Carroll needed to be prepared to defend – most importantly, that he continued to have a current diagnosable mental disorder, by reason of which he was likely to engage in sexually violent criminal behavior in the future – were unaffected by the amendment."

In addition, the Court of Appeal held that because the petition was amended and the trial occurred after the indeterminate term provisions took effect utilization of the newly-added indeterminate term provisions of the SVP Act did not constitute an impermissible retroactive application of the statute.

The unanimous opinion was authored by Presiding Justice James A. Ardaiz.

People v. Carroll, no. F051709 (Cal.Ct.App. (5th Dist.) filed 12/27/07)

Did Prop 83 Eliminate The SVP Extended Commitment Scheme?

In November 2006, the voters enacted Prop 83, which substantially amended the state's sexually violent predator (SVP) civil commitment law, which had also recently been amended by the Legislature in September 2006. Under the old law, commitments were two years in duration. At the conclusion of the two-year commitment, the government had to prove once again beyond a reasonable doubt that the person met the commitment criteria. Upon such a showing, the person was then committed for another two-year period subject to the same recommitment scheme every two years. Prop 83, however, eliminated this recommitment scheme and replaced it with a framework whereby the initial commitment would be for an indeterminate period of time, thus obviating the need for recommitment trials. Instead, in order for an SVP to gain release after Prop 83, the burden is now on the SVP to request a hearing and prove by a preponderance of the evidence that he or she no longer meets the commitment criteria.

In a strange oversight, however, Prop 83 completely eliminated the code section governing extended commitments. As a result, for those people committed as SVPs prior to the passage of Prop 83, there no longer exists an explicit statutory mechanism to extend their commitments. Nevertheless, district attorneys have continued to bring recommitment petitions alleging that post-Prop 83 extensions should be for indeterminate terms. The SVPs facing these extended commitment petitions have, in turn, brought a bevy of dismissal motions, arguing that the framework's omission of a recommitment scheme post-Prop 83 requires their release. Not surprisingly, two Courts of Appeal have recently decided the electorate did not intend for all SVPs committed prior to the adoption of Prop 83 to be released.

In Bourquez v. Superior Court (C055402), the Third District Court of Appeal held that "[b]y changing the terms of commitment under the SVPA from two-year terms to indefinite terms, the Legislature and then the voters demonstrated an intent to keep those found to be sexually violent predators (SVPs) committed until they no longer meet the definition of an SVP. From the very purpose of the amendment of the SVPA, a saving clause is implied. Under the implied saving clause, the superior court has jurisdiction to proceed on the petitions to extend petitioners' commitments. Under the provisions of the SVPA, as amended by SB 1128 and by Proposition 83, the petitions to extend commitment are petitions for indefinite commitment."

Similarly, in People v. Shields (D050034), Division One of the Fourth District Court of Appeal rejected the SVP's assertion that "the court had no jurisdiction to find him to be an SVP and recommit him because [Welfare and Institution Code] section 6604' s two-year commitment procedure has been eliminated and the amended SVP statute fails to expressly refer to persons already confined for two-year terms under former section 6604. We reject this contention because Shields's proposed statutory interpretation is contrary to the clear legislative intent."

A petition for review was filed in the California Supreme Court on October 31, 2007 in Shields and is currently pending.

Sealed Juvenile Records May Not Be Unsealed For Use In SVP Proceedings

The Board of Parole Hearings (BPH) petitioned the juvenile court to disclose an adult prisoner's juvenile records that had been sealed pursuant to Welfare and Institutions Code section 781 (Section 781). BPH intended to use the sealed records to evaluate whether the person met the sexually violent predator (SVP) civil commitment criteria. The juvenile court summarily granted BPH's petition without holding a hearing.

Because Section 781 provides a brief, exhaustive list of situations in which sealed juvenile records may be disclosed that does not encompass use for SVP proceedings, Division Three of the First District Court of Appeal reversed the order disclosing the prisoner's juvenile court records. The proper rule of statutory construction, the Court reasoned, "'is that the statement of limited exceptions excludes others, and therefore the judiciary has no power to add additional exceptions; the enumeration of specific exceptions precludes implying others.'”

Moreover, the Court of Appeal rejected the Attorney General's argument that recent amendments to the Sexually Violent Predator Act (SVPA) found in Prop 83 - adopted by the voters in November 2006 - necessarily created an implied exception to Section 781 allowing the use of sealed juvenile court records in SVP proceedings. While the voters obviously intended to make SVP commitments easier, the voters accomplished that express aim in very specific ways, such as: requiring fewer prior qualifying offenses, allowing the use of certain unsealed juvenile prior adjudications, and making more prior crimes qualifying offenses. Therefore, the Court of Appeal concluded that not construing Prop 83 in the manner proposed by the Attorney General would not render the initiative's amendments to the SVPA a nullity or frustrate voter intent.

Lastly, although the Court of Appeal declined to reach the prisoner's constitutional claims, it did recognize his right to due process and note that it was "questionable whether appellant had adequate notice and an opportunity to be heard," as the juvenile court granted the petition for disclosure a mere seven days after a copy of the petition was mailed to him while he was an incarcerated prisoner unrepresented by counsel.

The Court of Appeal therefore vacated the order disclosing the prisoner's juvenile court records, and directed the juvenile court to secure the return of all relevant documents.

The unanimous opinion was authored by Justice Peter J. Siggins.

In re James H., no. A116315 (Cal.Ct.App. (1st Dist., Div. 3) filed 8/31/07)

SVP Has No Right to Testify Over Objection of Defense Counsel

Division Two of California's Fourth Appellate District held today that in a jury trial on the recommitment of sexually violent predator, the defendant has not right to testify over the objection of his attorney: "We conclude defendant did not have a constitutional right to testify over his attorney’s objection because the SVP proceedings are special proceedings of a civil nature and his attorney could waive his right to testify on the ground doing so would be harmful to defendant’s defense."

The unanimous opinion in People v. Allen, no. E039518 (Cal.Ct.App. 4th Dist., Div. 2, filed 11/16/06), was authored by Justice Gaut.

Expiration of Two-Year SVP Commitment Does Not Moot Federal Habeas Challenge to Commitment; Due Process and EP Challenges Relating to Petitioner's Original Unlawful Commitment that Preceded SVP Commitment Rejected. Hubbart v. Knapp, no. 03-16877 (9th Cir. Aug. 13, 2004).

Holdings: (1) Mootness. the court rejected the state's argument that the habeas petition was moot because of expiration of the original two-year commitment challenged in the petition. The court specifically rejected the state's argument that the claims did not evade review because the California courts ruled on them: "for purposes of determining mootness in connection with California’s repeating pattern of two-year commitments under the SVPA, a federal constitutional claim evades review if the challenged action expires before a federal appellate court has the opportunity to fully consider the allegation."

(2) Due Process: state court's rejection of due process claim was not an unreasonable application of US Sup. Ct. case law. The Cal. SVP law provides that proceedings may only be initiated against persons already “in custody under the jurisdiction of the Department of Corrections.” When the petitioner was committed he was in the custody of the dept. of corrections, but that custody was illegal because appellant had been detained illegally under former parole revocation regulation § 2616(a)(7). According to the 9th Cir., "the state court held that 'an SVPA commitment resulting from unlawful custody [does not] violate due process where, as here, the unlawful custody was the result of a good faith error and where, as here, the SVP is provided with numerous procedural safeguards.'" The Ninth Cir. found this a reasonable application of due process law and affirmed.

(3) Equal Protection. The court also rejected equal protection challenges to the same commitment: one challenging the different treatment of those "in custody" pre-SVP commitment due to an unlawful parole revocation, as compared to those who did not have their parole revoked or whom successfully challenged their pre-SVP commitment; the other challenging the differing definitions of mental conditions under the SVP and California's Mentally Disordered Offender Law.

Panel: Goodwin, Canby, and Tallman (author)

Six Peremptories Per Side In SVP Trial.
People v. Calhoun, no. A101034 (Cal.Ct.App. (1st Dist., Div. 1) May 11, 2004).

Holding: In captial and LWOP trials, each side gets 20 peremptory challenges. In most other criminal cases the parties get 10. In civil cases, and in criminal cases where the offense is punishable with a maximum term of imprisonment of 90 days or less, the parties are allowed six. SVP proceedings fall in the six-per side category.

Authoring Judge: William D. Stein

Review Granted In Juvenile Involuntary Commitment Case.
The California Supreme Court also granted review yesterday in In re Howard N., no. S123722, a Fifth District case in which the court held that proceedings under Welfare and Institutions Code Section 1800 for the civil commitment of individuals under the control of the CYA are constitutionally inadequate. Read the Court of Appeal opinion here and my post on it here.

The minor is represented by Francia Welker.

Forgoing Treatment and Refusing to Submit to Interview by State's Experts Results in Waivers of Appellate Claims in SVP Case.
Case: People v. Sumahit (Cal.Ct.App. (3d Dist.), Mar. 29, 2004) (partially published)
Proceeding: Direct appeal of SVP Two-Year Recommitment Order

Holdings:

(1) "[A] person who has been found to be a sexually violent predator (SVP) is precluded from challenging the sufficiency of the evidence that he currently lacks the ability to control his behavior, where he refuses to be interviewed by the state’s experts with respect to the current status of the mental abnormality which forms the basis of his commitment."

(2) "[D]efendant’s refusal to be treated forecloses him from claiming that application of the Sexually Violent Predator Act ... violates the ex post facto clause of the federal or state Constitutions on the ground that it is primarily “punitive” in nature."

Authoring Judge: Fred K. Morrison, Associate Justice

Trial in SVP Re-Commitment Matter May Be Held After Both the Original Commitment and the Re-Commitment Terms Have Expired.
Case: Orozco v. Superior Court, no. B168989 (Cal.Ct.App. (2d Dist., Div. 3))
Proceeding: Petition for Writ of Mandate; Sexually Violent Predator proceedings

Holding: While a petition to recommit sexually violent predator must be filed before the prior commitment expires, the recommitment order itself need not.

Despite this holding, the court recognized the unfairness of delay and "direct[ed] the issuance of a peremptory writ of mandate directing respondent superior court to set the first recommitment petition for trial forthwith, and to proceed expeditiously with a probable cause hearing on the second recommitment petition." (Emphasis added.)

Orozco's original two-year SVP commitment expired on May 13, 2001. There has yet to be a trial on the first re-commitment petition, yet the commitment covered by that petition has also expired, as of May, 2003.

Authoring Judge: Associate Justice Richard D. Aldrich

Concurrence: Presiding Justice Joan D. Klein concurred, emphasizing that "these aspects of the statutory scheme need clarification to impose timetables for conducting the probable cause hearing on a recommitment petition and for the subsequent recommitment trial." She also put the onus on the prosecutor and the trial court for the delay in this case: "Irrespective of a defendant’s reluctance to proceed to trial on a recommitment petition, the People and the trial court have an obligation to ensure that there is a timely determination of probable cause on a recommitment petition, followed by a timely trial thereon."

Cal.Ct.App. (5th Dist.): Civil Commitment Proceedings for Juveniles in CYA Constitutionally Inadequate

In In re Howard N., no. F043006, the California Court of Appeal (5th Dist.) held today that proceedings under Welfare and Institutions Code Section 1800 for the civil commitment of individuals under the control of the CYA are constitutionally inadequate. Relying heavily on case law analyzing the constitutional adequacy of sexually violent predator (SVP) laws, the court held that section 1800 does not meet constitutional requirements:

Section 1800 permits the filing of a petition for continued commitment when the YOPB concludes it “would be physically dangerous to the public [to release the potential committee] because of the person’s mental or physical deficiency, disorder, or abnormality.” (Ibid.) The only issue decided by the trial court or the jury was whether Howard was “physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality.” (§ 1801.5.) This question adequately conveys to the jury that the potential committee must have a mental deficiency, disorder, or abnormality that renders the person dangerous. It does not convey adequately to the jury that it also must determine whether the mental illness or abnormality causes the potential committee to have serious difficulty controlling his or her behavior and whether this loss of control results in a serious and well-founded risk of reoffense.

Justice Dennis A. Cornell authored the unanimous opinion.