Sexually Violent Predator
Category > Sexually Violent Predator
Updated 3/4/2024The trial court prejudicially erred by granting the prosecution’s motion to exclude defendant’s only SVP expert witness from testifying at trial. In the context of SVP cases, in determining whether to exclude defense expert witness testimony, the trial court must consider both applicable statutory law and the defendant’s constitutional right to present evidence. The trial court’s exclusion of critical defense expert testimony to rebut the prosecution’s two expert witnesses deprived defendant of a fair trial.id: 27794
Updated 3/4/2024The trial court erred in denying defendant’s petition for release from the SVP commitment as frivolous where his argument was least colorable. Defendant moved for conditional release from his indefinite commitment as a sexually violent predator under Welfare and Institutions Code section 6608. He argued that the American Psychiatric Association has rejected rape as a mental disorder and his diagnosis was based solely on his commission of two sex offenses. The argument was colorable and the court erred by finding it was frivolous. The matter was remanded for a new hearing. id: 27804
Updated 2/26/2024The trial court erred at the SVP probable cause hearing by allowing case-specific facts from an expert that were inadmissible hearsay under Sanchez. Defendant challenged the probable cause finding in his Sexually Violent Predator Act hearing. The trial court prejudicially erred at that hearing by allowing an expert witness to testify as to case-specific facts that were inadmissible hearsay under People v Sanchez (2016) 63 Cal.App.4th 665.id: 26396
Updated 2/26/2024Following Sanchez, case-specific hearsay is inadmissible at SVP probable cause hearings.The trial court did not err in finding there was insufficient admissible evidence to support a probable cause finding in defendant’s SVP case. The prosecution relied on psychological evaluations that were case-specific hearsay statements submitted for their truth, which made them inadmissible under People v. Sanchez (2016) 63 Cal.4th 655.id: 26496
Updated 2/24/2024An SVP defendant can obtain an updated Department of State Hospitals evaluation.The trial court erred by concluding the Sexually Violent Predators Act leaves no discretion to grant a defense request for an updated DSA evaluation.id: 28157
Updated 2/22/2024The trial court properly dismissed the SVP petition on speedy trial ground 13 years after the petition was filed where defense counsel couldn’t properly prepare due to a systemic breakdown.13 years after the prosecution filed a petition to have defendant civilly committed under the SVP Act, the trial court granted his motion to dismiss on the ground that he had been deprived of his right to a speedy trial. The court’s ruling was proper. The delay was extraordinary. Defendant only agreed to the delays because he had no real choice since counsel could not prepare given severe cuts to the SVP unit at the public defender’s office. This was a systemic breakdown attributable to the state. The court did not err in dismissing the petition.id: 27024
Updated 2/22/2024Failure to bring defendant to trial on a SVP petition for 12 years violated his right to due process and a timely trial.Defendant was convicted of rape and served his sentence. Prior to his release, the prosecution filed an SVP petition. Despite repeated demands by defendant to go forward, no trial was held due to delays caused by the public defender’s case load. But the state had an obligation to bring the case to trial. The failure to do so for 12 years violated defendant’s right to due process and a timely trial. Defendant was properly ordered to be released.id: 27039
Updated 2/3/2024The SVP act does not permit the prosecution to call a privately retained expert to testify at trial.The Sexually Violent Predators Act provides a detailed process that centers around multiple evaluations made by independent experts. The act does not permit the prosecution to call a privately retained expert to testify at court.id: 27543
Updated 2/1/2024The trial court erred by allowing the prosecution to use a privately retained expert to testify at defendant’s SVP trial.The prosecution has no right under the Sexually Violent Predators Act to retain a private expert to testify at trial.id: 27925
Updated 2/1/2024Denying SVP’s a full jury trial advisement required under other civil commitment statutes may violate equal protection.Defendant challenged his Sexually Violent Predator commitment based on the trial court’s failure to provide a full jury trial, advisement, as required under other civil commitment statutes. The equal protection claim likely has merit, and the case was remanded to allow defendant to raise the issue in the trial court and allow the prosecution an opportunity to provide a legitimate government purpose to justify different treatment of SVPs.id: 27943
The trial court committed Sanchez error at defendant’s SVP trial by allowing experts to relate as true the case-specific content of documents that were neither admitted into evidence nor covered by a hearsay exception.The trial court at defendant’s sexually violent predator trial, misapplied People v. Sanchez (2016) 63 Cal.4th 665, and erroneously allowed the prosecution’s experts to relate as true case-specific facts contained in hearsay statements that were not otherwise covered by a hearsay exception or independently proven by competent evidence.id: 25799
Case of SVP claiming equal protection violation was remanded so the state could provide a compelling justification for disparate procedures regarding compelled testimony for SVPs and NGI’s.Defendant was found to be a sexually violent predator. He argued an equal protection denial given that he was compelled to testify in the prosecution’s case-in-chief, and defendants found not guilty by reason of insanity cannot be compelled to testify at hearings to extend their commitments. The matter was remanded to allow the prosecution to show, under the strict scrutiny test, that the state has a compelling interest that justifies the disparate treatment. id: 25632
The trial court at the SVP proceedings committed Sanchez error by allowing experts to recite case-specific facts that were inadmissible hearsay. The trial court at defendant’s sexually violent predator trial committed prejudicial error under People v. Sanchez (2016) 63 Cal.4th 665, by allowing the prosecution’s experts to recite case-specific facts that were not independently proved by admissible evidence.id: 25245
SVP finding was reversed where the evidence didn’t support the expert’s diagnosis of hebephilia.Defendant was found to be a sexually violent predator after one expert diagnosed him with hebephilia - a condition resulting in sexual attraction in pubescent age children, but not pre-pubescent or post-pubescent. The diagnosis was flawed due to the lack of information about the physical characteristics and/or sexual development of the victims. There was too great of an analytical gap between the data and the opinion offered.id: 24937
The department of hospitals erred by “undesignating” an SVP evaluator after learning she was unqualified, and appointing another, instead of appointing two new professionals.Two psychologists were appointed to evaluate defendant to determine whether he was a sexually violent predator. One psychologist (the one who determined defendant was not an SVP) was “undesignated” after it was learned that she failed to meet minimum quality standards pursuant to California Department of State Hospitals Quality Assurance processes. The department then designated a new expert to serve as the second evaluator. Defendant was thereafter subject to SVP proceedings. However, by “undesignating” the expert, rather than appointing two new experts, the department violated Welfare and Institutions Code section 6601. The department was directed to appoint two new independent professionals to evaluate defendant.id: 25275
Requiring defendant to testify at his SVP trial may violate his equal protection rights and the prosecution must show under the strict scrutiny test why SVP’s should be treated differently from NGI’s.The trial court allowed the prosecutor to call defendant as a witness at his SVP commitment trial. SVPs are similarly situated with not guilty by reason of insanity commitees who have a right not to be called to testify. The prosecution must establish under the strict scrutiny standard that the disparate treatment is justified. The matter was remanded for a hearing to allow the prosecution a chance to make the required showing.id: 24793
The trial court erred by allowing the prosecution’s expert to rely on massive amounts of inadmissible hearsay to support his conclusion that defendant remained an SVP. Generally, an expert may rely on inadmissible hearsay to support his or her opinion if reliance on such hearsay is reasonable for that purpose. However, the trial court prejudicially erred by allowing the prosecution’s expert to rely on massive amounts of inadmissible hearsay to support his conclusion that defendant remained a sexually violent predator, including evidence that defendant was “pushy” with a victim’s mother, testifying to the content of a study on testosterone’s impact on sex offender recidivism, testifying to the content of hospital records to support a conclusion that defendant was OCD, testifying to records showing defendant refused treatment, and to hospital notes suggesting defendant was nasty with staff.id: 24674
The jury at defendant’s SVP recommitment hearing should be able to decide whether defendant can be conditionally released if he did not qualify for an unconditional release. At defendant’s SVP recommitment hearing, the trial court erred by refusing to allow him to introduce evidence and to argue to the jury that if it found he should not be unconditionally released from the hospital it should determine whether he should be conditionally released.id: 24675
The state cannot initiate SVP proceedings against a defendant who is mentally incompetent.The state may not proceed with an initial SVPA commitment trial while the defendant is incompetent - that is, unable as a result of mental disorder or developmental disability, to understand the nature of the proceedings or to assist his or her counsel in conducting a defense in a rational manner.id: 21482
The trial court may have violated defendant’s equal protection rights by compelling his testimony in the SVP trial since a defendant in NGI commitment extension trials cannot be compelled to testify.Defendant was committed as a sexually violent predator. He argued that he was deprived of his right to equal protection when he was called to testify during the prosecutor’s case-in-chief because a person found not guilty by reason of insanity may not be compelled to testify at a hearing to extend his or her commitment, and neither should a person in SVP proceedings be forced to testify. Defendant’s failure to object at trial did not forfeit the issue on appeal because there was law holding an SVP could be compelled to testify and so an objection would have been futile. Next, NGI’s and SVP’s are similarly situated for the present purpose. The prosecution here failed to justify the disparate treatment allowing compelled testimony from an SVP but not an NGI. The matter was remanded for a hearing allowing the prosecution to make the showing. id: 24122
Prosecution was only entitled to SVP’s confidential treatment records to the extent that information was contained in an updated evaluation.The prosecution initiated SVP proceedings against defendant and served a subpoena on the state hospital seeking virtually all of his confidential treatment records. However, the prosecution was only entitled to access that information to the extent it is contained in an updated mental evaluation. id: 23507
The trial court erred by refusing to conduct a Marsden hearing at defendant’s SVP trial.Defendant in an SVP trial has a constitutional right to the effective assistance of counsel, and as part of that right, to a Marsden hearing. The trial court erred by refusing to conduct a hearing, and reversal for a postrial Marsden hearing was required under the Chapman standard since the right to the effective assistance of counsel in the civil proceeding is protected by federal due process principles.id: 23333
The trial court erred in denying the SVP’s petition for conditional release without a hearing because the petition showed he was making progress. The trial court erred in denying without a hearing, defendant’s petition for conditional release under Welfare and Institutions Code section 6608 of the Sexually violent Predator’s Act. The court found the petition was frivolous but defendant’s psychologist noted that he was making progress, and he presented an article showing a mistake may have been made in the diagnosis. Because the petition was not frivolous, the trial court should have granted the hearing. id: 23202
SVP Act’s provision allowing dismissal of a frivolous petition for release without a hearing may violate equal protection.Defendant argued that Welfare and Institution’s Code section 6608, subd.(c), the SVP Act’s provision allowing dismissal of a frivolous petition for release without a hearing violates equal protection because no other commitment scheme allows for such a summary dismissal. There may be merit to the claims as the requirement that the defense of a petition as non-frivolous take place at the appellate level is an obstacle not faced by MDO’s or NGI’s. The matter was remanded to the trial court for further proceedings on the issue.id: 23082
The prosecutor committed prejudicial misconduct at defendant’s SVP trial by telling jurors they would be hated if they found for the defense, that defendant committed other unreported acts, and that there would be no parole if he won.The prosecutor engaged in a pattern of misconduct at defendant’s SVP trial, including his argument to the jury that finding for the defendant would subject them to ridicule in the community, that defendant who he described as a “prolific child molester” had other victims who did not report abuse, that defendant would not be on parole if released, and by telling the jurors they had been “groomed” by defendant. The misconduct required reversal of the SVP finding.id: 23012
Nothing in the SVP Act precludes a court from ordering a conditional release of a SVP even though no residence has been located for the person before his release. The superior court determined defendant, who has been confined as a sexually violent predator since 1998 should be conditionally released. The District Attorney for Santa Barbara argued there is no provision in the law that allows a SVP to be released as a transient. However, nothing in the SVP Act precludes a court from ordering the conditional release of a person committed as a SVP even though no fixed residence has been located for the person before his release.id: 23073
The trial court prejudicially erred at defendant’s SVP trial by admitting evidence of a possible trip defendant took to Thailand. Defendant was committed as a sexually violent predator following a jury trial. However, the trial court prejudicially erred by admitting evidence of a possible trip defendant took to Thailand. The evidence was unreliable as it showed United Airlines did not fly to Thailand, but despite that evidence the prosecutor had his experts mention Thailand at every opportunity. The very mention of the country suggests inappropriate sexual activity, and the court did not sanitize the evidence by excluding any mention of the specific country. This was a close case and the error in admitting the evidence was prejudicial.id: 22899
The trial court should have found the SVP defendant’s motion for release was filed under section 6605 which requires a show cause hearing following the conclusion that he no longer qualified as an SVP.Defendant was an SVP housed in a state hospital. A psychiatrist who prepared an annual report found he should be treated in a less restrictive setting. The director of the hospital disagreed. Defendant filed a petition for his unconditional release. The petition was filed under Welfare and Institution’s Code section 6605 which requires a show cause hearing, but the court denied it as frivolous under section 6608 which requires no hearing. Because the yearly evaluation concluded defendant no longer qualified as a SVP, the director of the DMH was required to authorize him to file a petition under section 6605 and the court should have treated his petition as having been filed under that provision. id: 22379
State’s budget crisis did not justify a 45-day hold before defendant’s release to give SVP evaluators extra time to complete the evaluations.Defendant’s prison release date was extended 45 days under Welfare and Institution’s Code section 6601.3 and title 15, section 2600.1(d), to permit the Department of Mental Health to determine whether he met the criteria for confinement as an SVP, However, the inability to complete defendant’s evaluations due to an increased workload caused by the state’s budget crisis was not an “exigent circumstance” establishing good cause for the 45day hold. But the unlawful hold was the result of a good faith mistake of law and dismissal of the petition was not justified.id: 22392
The trial court erred by finding the SVP defendant’s psychological records were admissible under the “dangerous patient” exception to the psychotherapist patient privilege. The trial court erred at defendant’s sexually violent predator trial in releasing his psychological records from a treatment center and allowing testimony from a therapist at the center. The materials were covered by the psychotherapist-patient privilege and did not come within the “dangerous patient” exception to the privilege. The prosecutor presented no evidence that defendant said anything to the therapist suggesting he might be a danger. The ruling was based on the prosecutor’s brief and conclusory offer of proof that the records would show and the parole officer believed defendant was dangerous. The error violated defendant’s federal constitutional right to informational privacy and was prejudicial where the information impacted the prosecutor’s experts at trial.id: 22023
The trial court erred by allowing defendant’s counsel to waive his presence at the SVP recommitment trial. Defendant had a right to be personally present at his SVP recommitment trial. Trial counsel had no right to waive defendant’s right to attend the hearing. However, the error in allowing counsel to waive defendant’s presence was harmless where defendant was largely unwilling to participate in the proceedings and never objected to his attorney’s waiver of his presence. The “unknown unknowns” of what defendant might have contributed if present did not require reversal.id: 22148
The doctrine of judicial estoppel requires the enforcement of the stipulation by the parties that defendant’s SVP commitment would be for two years. The Court of Appeal erred by modifying the term of defendant’s SVP commitment from two years - the term agreed to by the district attorney, the public defender and the presiding judge, pursuant to a signed stipulation - to an indeterminate term, as provided by Prop 83's amendment to Welfare and Institutions Code section 6604. The doctrine of judicial estoppel applies to enforce the stipulation by the parties to the two year term.id: 21576
The assessment protocol used for SVP evaluations was invalid as an underground regulation. The evaluations leading to defendant’s SVP commitment petition were conducted under a standardized assessment protocol later determined to constitute an invalid “underground” regulation. The appropriate remedy was not to dismiss the SVPA commitment petition but to order new evaluations using valid assessment protocol.id: 21264
The trial court erred in granting the prosecutor’s motion to convert the original SVP commitments to indeterminate terms under the amended SVPA without recommitment proceedings.Defendants were found to be sexually violent predators prior to 2006. In 2006, the law was amended changing the two year term to an indeterminate term.
Defendants were subject to extensions of their two year commitments. The trial court granted the prosecutor’s motion to retroactively convert the original commitments to an indeterminate term so there were no trials on the current extension petitions. Imposing an indeterminate term under the amended SVPA does not violate due process, equal protection or ex post
facto principles where a defendant is afforded a trial to determine if he meets the criteria. Because there were no trials on the current petitions, the judgment was reversed with directions to comply with SVP recommitment proceedings. id: 21013
A defendant cannot be subjected to an SVP trial while mentally incompetent.As a matter of constitutional due process, a defendant cannot be subjected to trial as an alleged sexually violent predator while mentally incompetent. The liberty interest at stake in SVP proceedings with the trial against an incompetent defendant poses an unacceptable risk of an erroneous deprivation of liberty. The government’s interest in protecting its citizens and treating SVPs is not significantly burdened by providing for competency determinations. Finally, the defendant’s dignitary interest in providing his side of the story is protected by ensuring the defendant is competent to stand trial.id: 20998
The failure to try the forfeiture actions in conjunction with the
criminal case or obtain a waiver of the right to a jury trial precluded
forfeiture of the cash seized at the time of the arrest.Police seized $10,158 at the time of defendant’s arrest for possession for sale of cocaine base. However, Health and Safety Code section 11470 requires that the prosecution bring the forfeiture matter to trial in connection with the criminal proceedings. The failure to do so precluded the forfeiture of the cash.id: 21002
The trial court at defendant’s SVP trial erred in precluding him from testifying that he faced a life sentence under the three strikes law if he reoffended. The trial court at defendant’s sexually violent predator trial erred by precluding him from testifying to the jury that he faced a life sentence under the three strikes law if he reoffended. The evidence was relevant to show defendant was motivated to seek treatment and avoid reoffending. However, the error was harmless where the evidence of defendant’s risk of reoffending was overwhelming and the case was tried primarily on the question of whether defendant had a qualifying mental disorder.id: 20913
Absent an emergency, qualified professionals may involuntarily treat competent SVP's with psychotropic drugs.In the absence of an emergency, qualified medical professionals at Atascadero State Hospital may involuntarily treat competent Sexually Violent Predators with psychotropic drugs if such treatment is in their medical interest. The administration of psychotropic drugs to the petitioners in the present case was in their medical interest. The medication was administered to treat their mental disorders and mitigate the substantial danger they posed to themselves and others.id: 17608
SVPs have the right to refuse antipsychotic medication in a nonemergency situation absent a finding of incompetence or dangerousness.A sexually violent predator can be compelled to take antipsychotic medication in a nonemergency situation only if a court, at the time the SVP is committed or recommitted, or in a separate proceeding, makes one of two findings: 1) that the SVP is incompetent or incapable of making decisions about his medical treatment, or 2) that he is dangerous within the meaning of Welfare and Institutions Code section 5300. The rights of an SVP to refuse medication can be further limited by State Department of Mental Health Regulations necessary to provide security for inpatient facilities.id: 18083
The trial court erred at defendant's recommitment hearing by allowing evidence of his two prior SVP commitments.At the hearing to recommit defendant as a sexually violent predator, the trial court erred in allowing the evidence concerning and arguments about his two prior SVP commitments. Each SVP hearing addresses the defendant's current mental state. The admission of evidence of prior SVP commitments was irrelevant to that determination and tended to switch the burden of proof to him to prove he was no longer an SVP.id: 18549
The trial court erred in conducting the probable cause hearing simultaneously with the SVP recommitment trial.Instead of conducting a probable cause hearing within a reasonable time of the filing of the petition to recommit defendant as a sexually violent predator, the trial court conducted the hearing at the conclusion of, instead of before and as a prerequisite to, the trial on the petition. The deviation from statutory requirements amounted to procedural error which affected defendant's due process. However, the absence of a pretrial probable cause hearing was harmless in light of the evidence and the jury's verdict based on the reasonable doubt standard.id: 18936
SVP petition was dismissed after the reversal on appeal of the felony conviction that was the basis of defendant’s custody when SVP proceedings were initiated.The appellate opinion reversing defendant’s felony conviction was final before the SVP petition at issue was filed against him. The SVP petition was dismissed.id: 20731
A defendant in an SVP proceeding has a constitutional right to testify despite counsel’s decision that he or she should not testify.A defendant in a sexually violent predator proceeding has a state and federal constitutional right to testify over the objection of his or her counsel. The trial court’s error in refusing to allow defendant to testify was harmless where the proffered testimony could not have had any impact on the jury’s conclusion that defendant was a sexually violent predator.id: 20443
The trial court violated defendant’s due process rights by denying his motions to dismiss consolidated SVP petitions on the ground of excessive delay in bringing the matter to trial.On March 15, 2007, without trial, the superior court issued a retroactive SVP commitment order against defendant under the new provisions of the SVP act. The order provided for an indeterminate term commencing on May 2, 2000, the date of the original commitment. The previous commitment order was issued in 2004 (a date preceding the commitment order). As a result of the retroactive commitment order, trial on the pending petitions to extend the commitment for two successive two year terms (from May 2, 2004 to May 2, 2006 and then to May 2, 2008) which was scheduled for March 19. 2007, did not go forward. However, the trial court violated defendant’s due process rights by denying his motion to dismiss the consolidated petitions based on excessive delay. id: 20301
The amended SVP law does not authorize an order imposing an indeterminate term of commitment retroactive to the date upon which defendant was first committed.Welfare and Institutions’ Code sections 6604 and 6604.1, in effect March 2007 did not authorize an order imposing an indeterminate term of commitment retroactive active to the date upon which the defendant was first committed as an SVP under the predecessor law.id: 20298
The trial court abused its discretion in finding defendant's petition for conditional release as an SVP was frivolous in light of the evidence of his changed condition.Following defendant's two year SVP term and a subsequent two year extension, he applied for a conditional release under Welfare and Institutions Code section 6608 due to a change in conditions brought on by his chemical castration. The trial court abused its discretion in ruling the petition was frivolous and denying defendant a hearing. The petition included a psychiatric report concluding defendant's risk was reduced following his treatment, and manageable. Other reports recommending defendant remain committed were based on the separate issue of danger if defendant was unconditionally released. The superior court was directed to set the matter for a hearing.
id: 17442
Defendant's 1978 plea of no contest to a lewd act against a child could not be used in the SVP proceeding due to the language of former section 1016, subd.(3).Defendant pled no contest in 1978 to committing a lewd act on a child. At the time, former Penal Code section 1016, subd.(3) specified the no contest plea and factual basis could not later be used against the defendant in a civil suit. Since the present sexually violent predator proceeding is a civil suit growing out of the 1978 case, his plea of no contest cannot be used against him to establish an element necessary for an SVP commitment. The fact that section 1016, subd.(d) was amended in 1982, does not require a different result.id: 17429
Trial court erred in ordering SVP recommitment petitions consolidated where the petitioners had objected and the earlier trials were delayed just to accommodate consolidation.Petitioners argued the trial court does not have the power to consolidate recommitment petitions under the Sexually Violent Predator Act. Although the trial court does have the power to consolidate such petitions for trial, the exercise of that power was abused in the present cases, where trials on the earlier petitions were delayed over petitioner's objections, solely to accommodate consolidation.
id: 18182
Juvenile records sealed under section 781 may not be released for use in SVP proceedings.Juvenile court records may not be released for use in an SVP
proceeding when those records have been sealed by court order under Welfare and Institutions Code section 781. That provision specifies sealed records "shall not be open to inspection"
except in limited circumstances not relevant here.id: 19837
The trial court erred by allowing the prosecutor to cross-examine the SVP expert regarding other cases where he concluded the defendants were not SVPs. Defendant produced an expert at his Sexually Violent Predator trial to testify that he could control his behavior. The prosecutor cross-examined the expert regarding three other cases
where he had testified that the defendants were not SVPs. The facts from the other cases and the psychologist's opinion in those cases were not relevant to show bias or prejudice. However, the error in admitting the evidence was harmless where there was no reasonable probability of a more favorable outcome.id: 19696
SVP defendant is entitled to discovery of the victim's contact information, but must make a timely demand for the information.A defendant in SVP recommitment proceedings is entitled to the victims' contact information under the Civil Discovery Act.
However, defendant in the present case failed to make the timely demand as required by the Act.id: 19484
The trial court abused its discretion in rejecting petitioner's request for conditional release as an SVP where eight professionals unanimously concluded he was not likely to
reoffend.Defendant was incarcerated as a sexually violent predator. The trial court abused its discretion in denying defendant's petition for conditional release pursuant to Welfare and Institutions Code section 6608. Eight mental health professionals unanimously concluded defendant would not present a significant danger if released. The prosecution presented no
evidence showing defendant would likely reoffend but argued he was convicted of a heinous crime and reoffense after having been found a "model patient." However, this was two decades
earlier and before extensive therapy. There was no evidence to support the trial court's implicit finding that defendant failed to meet his burden of showing he was not likely to reoffend.id: 19379
Requests for admissions may not be propounded in proceedings under the SVP act because their use would eviscerate the state's burden of proof. In an action to have a defendant committed as a sexually violent predator under Welfare and Institutions Code section 6600, et. seq., the district attorney may not propound requests for admissions, which might, if admitted, eliminate the state's burden to prove the ultimate issues in the case.id: 19300
Under the Sexually Violent Predators Act a defendant is entitled to confront and cross-examine witnesses at the probable cause hearing.The trial court erred by denying defendant's motion to confront and call witnesses at the Welfare and Institutions Code section 6602 probable cause hearing. However, the error did not require reversal because he was subsequently found to be an SVP after a trial at which he was able to cross-examine the prosecution's witnesses, and call his own witnesses.id: 15397
Probable cause hearing to determine whether petitioner was a sexually violent predator denied him due process where the court simply reviewed the hearsay reports of experts.Under the Sexually Violent Predators Act (Welfare and Institutions Code sections 6600 through 6608), a prisoner faces civil confinement following his prison release. Under the Act, such a person is entitled to a pretrial hearing at which he can challenge the commitment. However, the petitioner in the instant case was denied due process where the probable cause hearing was nothing more than a paper review procedure involving the hearsay reports of experts concluding he qualified as an SVP. He should have been permitted to challenge the reports by calling experts for cross-examination and to call other witnesses who had relevant evidence as to probable cause.id: 15735
Finding of probable cause that petitioner was an SVP was flawed where it was based on uncertified psychological evaluations.Following a hearing the trial court found there was probable cause to hold petitioner for trial as a potential sexually violent predator. However, the trial court's finding was not based on competent evidence, insofar as the court relied on uncertified psychological evaluations as evidence of petitioner's mental disorder. A new probable cause hearing was required.id: 15730
Court-martial conviction for indecent acts with a child did not constitute a conviction under the SVP Act.Defendant's commitment as a sexually violent predator was reversed because his court-martial in Germany for indecent acts with a child does not qualify as a conviction of a sexually violent offense within the meaning of the SVP Act. The Act's use of the term "a conviction in another state" is limited to convictions in one of the United States and does not encompass a conviction via military court martial in Germany.id: 15721
SVP finding was reversed where there was no evidence that appellant received a determinate sentence for his 1975 rape conviction.At the time of appellant's SVP trial, the definition of sexually violent predator included a requirement that the person . . . has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence. Although appellant stipulated at trial that he was convicted of forcible rape in 1975 and again in 1983, there was no evidence that he received a determinate sentence for the 1975 conviction. The Determinate Sentencing Law took effect in 1976. There is no legal or practical solution to the express words of the statute that created the anomaly which inures to appellant's benefit.id: 15743
Petition for extended SVP commitment, like a petition for an original commitment, requires two concurring psychological evaluations.A petition for an extended commitment as a Sexually Violent Predator, under Welfare and Institutions Code section 6600 et seq., like a petition for an original commitment, must be supported by two concurring psychological evaluations. While two evaluations were done in the present case, the experts disagreed as to the defendant's status as an SVP. The petition for recommitment was dismissed. The court did not err in failing to grant a continuance to allow for additional evaluations since there was no request for a continuance.id: 14949
Recommitment under the SVP Act, like the initial commitment, requires two mental health evaluations.The procedures for recommitment under the Sexually Violent Predators Act are the same as for an initial commitment, including the requirement that the person be evaluated by two doctors. The present petitions were dismissed where they were each supported by one evaluation from a Department of Mental Health clinical psychologist.id: 15737
The state may not recommit for treatment an SVP based upon a single psychological evaluation.The state may not recommit for treatment a sexually violent predator (under Welfare and Institutions Code section 6600, et.seq.) on the basis of a single psychological evaluation. Recommitment, like the initial commitment, requires two evaluations.id: 15747
Defendant who was granted transactional immunity in exchange for his deposition testimony in the SVP proceeding could not be prosecuted for any crime relating to his testimony.The state initiated proceedings to declare defendant a sexually violent predator. In exchange for his deposition testimony on certain matters he received transactional immunity for those matters and "any of the matters he may testify to." The defendant may not be prosecuted for any crime relating to his deposition testimony.id: 15727
Court erred in ordering additional psychological exams to establish currency prior to the SVP trial.With the Sexually Violent Predator trial date imminent, the prosecution feared the psychological evaluations were no longer current. The court granted a motion to compel further mental examinations. However, the order for additional precommitment mental examinations to establish currency is not authorized by the SVP Act. Moreover, the passage of time does not, of itself, translate into good cause for further testing under the Code of Civil Procedure. The court erred in ordering further testing.id: 15720
Defendant has a right to call witnesses at the "show cause hearing" which is part of the annual SVP review.Once committed as a sexually violent offender, Welfare and Institutions Code sections 6605 and 6608 provide for an annual review which includes a "show cause hearing." The defendant has the right to call witnesses and to cross-examine the state's witnesses at that hearing.id: 14948
SVP evaluator's recommendation is invalid if based on a legal error such as misinterpretation of the likely to reoffend standard - which is that the defendant pose a substantial danger - not that the risk exceeds 50 percent.A Sexually Violent Predator's Act recommitment petition cannot be filed without the concurrence of two designated evaluators as set forth in Welfare and Institutions Code section 6601, subd.(d) or two independent evaluators as set forth in section 6601, subds. (e) and (f). The Director of Mental Health may not disagree with the evaluators and request recommitment. An evaluator's conclusion may be reviewed to make sure it met the criteria for commitment or recommitment. The statutory standard is not met if the person presents a substantial danger of reoffending, rather than a better than even or greater than 50 percent risk. An evaluator's recommendation is invalid if there appears a reasonable probability that it was influenced by a legal error, including misinterpretation of the "likely to reoffend" standard.id: 16769
The term "likely" in the context of an SVP probable cause hearing has the same meaning as it does in the SVPA provision outlining the requirements for psychological evaluations.The phrase "likely to engage in sexually violent predatory criminal behavior upon.... release" as it appears in Welfare and Institutions Code section 6602, subd.(a) requires the superior court to determine whether the potential SVP presents a serious and well-founded risk of committing sexually violent criminal acts that will be of a predatory nature. The superior court must consider the offender's amenability to treatment when making this determination. Because of the incorrect application of the correct definition of "likely" by both parties and the trial court, and because the parties did not address whether the defendant's future sexual violence would be "predatory" in nature, the Supreme Court could not independently review the record so the matter was returned to the superior court for a new probable cause hearing.id: 17075
Trial court erred in failing to give the circumstantial evidence instruction at defendant's SVP trial.The trial court erred in failing to instruct the jury at defendant's Sexually Violent Offender recommitment trial, with CALJIC 2.01, regarding the sufficiency of circumstantial evidence, where the prosecution's case relied substantially on expert testimony that constituted circumstantial evidence. However, the error was harmless since defendant was in the highest risk category for likeliness to reoffend and it was not reasonably probable that he would have received a better result had the circumstantial evidence instruction been given.id: 16785
Trial court had a sua sponte duty to instruct the jury at defendant's SVP trial on the necessity of custodial confinement.The trial court erred at defendant's sexually violent predator trial, by failing to instruct the jury that it had to determine whether custody in a secure facility was necessary to ensure that he was not a danger to the health and safety of others. However, the error was harmless where the evidence and arguments of counsel were adequate to inform the jury of this concept.id: 17638
While a prior jury finding that a person is not an SVP does not bar a subsequent petition after a release and parole revocation, it is relevant, and the DA must present evidence of a change in circumstances.A jury previously determined defendant was not a sexually violent predator. The district attorney then filed a new commitment petition after a new custodial term resulting from a parole revocation. However, the district attorney did not present sufficient evidence of changed circumstances to support a finding of probable cause that defendant was an SVP. Although a prior jury determination does not necessarily bar a subsequent SVP petition after a new custodial term, in the subsequent proceeding the prosecutor may not relitigate the finding that the individual was not a sexually violent predator at the time of the prior release. To establish probable cause on the subsequent petition, the district attorney must present evidence of changed circumstances affecting this factual determination. id: 17184
Defendant was entitled to withdraw his 1996 plea which was based on the court's statement that no SVP petition would be filed later.In accepting defendant's 1996 guilty plea to forced oral copulation the court noted its opinion that defendant would not fall under the SVP law, and that if a petition was subsequently filed, he could withdraw his plea. The prosecutor later filed an SVP petition, and defense moved to dismiss the petition based upon the statements made when the guilty plea was entered. However, the only remedy to which defendant was entitled was that for which he bargained - withdrawal of the plea.id: 17532
Updated 3/6/2024Trial court misinterpreted the law by considering the least restrictive setting when ordering the SVP defendant’s conditional release. The trial court misinterpreted the law and thus erred in ordering the SVP defendant’s conditional release back into the community. The court evaluated the evidence through an improper lens - one that mandated the least restrictive setting in which the defendant would receive treatment without sufficient consideration of public safety.id: 26671
Updated 2/26/2024Defendant’s age (74) did not preclude an SVP finding.Defendant argued the evidence was insufficient to support the finding that he was a sexually violent predator because, at 74, he was too old to pose a credible risk of sexually reoffending upon release. However, defendant acknowledged that he might reoffend upon release, and the evidence supported the finding. id: 27260
Updated 2/26/2024Revocation of SVP’s conditional release rendered him ineligible for unconditional discharge.Defendant, a committed sexually violent offender, was on conditional release when he filed a petition for unconditional discharge. During those proceedings, his conditional release was revoked. The statutory requirement that an SVP must have spent at least a year on conditional release requires the person to have been on conditional release when the unconditional discharge petition is filed and to remain on that status throughout the duration of the unconditional proceedings. This, the revocation of defendant’s conditional release rendered him statutorily ineligible for unconditional discharge. id: 26861
Updated 2/23/2024The trial court may consider hearsay contained in the psychological evaluations in determining probable cause to commit the defendant as an SVP. Defendant argued the trial court’s finding of probable cause to commit him as a sexually violent predator was flawed because it was based on inadmissible hearsay contained in the psychological evaluations. However, the SVP statute requires the court to consider the evaluations, including the hearsay statements contained in the reports in determining probable cause.id: 26911
Updated 2/7/2024A trial court may consider hearsay in the expert’s evaluations at an SVP probable cause hearing. Defendant moved to dismiss the finding that there was probable cause to believe he was a sexually violent predator. Contrary to defendant’s claim, a court may consider hearsay in the expert’s evaluation when making the probable cause determination under Welfare and Institutions Code section 6602.id: 27155
Updated 2/4/202411 year delay between the filing of an SVP petition and defendant’s commitment did not violate due process where the delay was not caused by the prosecution or the court. Defendant argued the 11 year delay between the District Attorney’s filing of a Sexually Violent Predator petition, and his commitment after a bench trial violated his right to due process. However, the delay was mostly attributed to defense motions and there was no evidence of delay tactics by the prosecution. Neither was the trial court responsible for the delays. Balancing the relevant factors, defendant’s right to due process was not violated. id: 27267
Updated 2/4/2024SVP’s advanced age (63) or approval for a drug and alcohol treatment program did not require his conditional release. The trial court did not err in denying defendant’s petition for conditional release under the Sexually Violent Predator Act. His circumstances have not materially changed from his report two years earlier, and his advanced age (63) did not require a hearing. While he was approved to enter a transitional drug and alcohol treatment for veterans, there was no evidence that program offered treatment for sex offenders. id: 27282
Updated 2/4/2024A defendant seeking conditional release under the SVP Act is not entitled to the appointment of counsel until the court determines the petition warrants a hearing.The trial court denied the defendant’s petition for conditional release under the SVP Act. The petition was denied without a hearing, and for that reason the court did not violate his due process rights by refusing to appoint counsel or an expert.id: 27283
Updated 2/4/2024Defendant’s SVP commitment was valid where the prosecution’s expert relied on inadmissible material as well as case-specific hearsay.Defendant argued his commitment as a sexually violent predator was invalid because the expert testimony at trial was based on case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665. While the trial court may have heard this testimony, it did not indicate that it had considered the testimony. Moreover, the expert’s opinion was also based on additional evidence. id: 27366
Updated 2/4/2024The trial court used an improper probable cause standard in the SVP hearing, and improperly rejected the expert’s opinion, substituting its own on the issue.The trial court failed to apply the proper reasonable person standard for determining probable cause as to whether defendant was no longer a sexually violent predator. The court also improperly rejected the defense expert’s opinion based on its own personal belief that defendant still qualified as an SVP. The matter was remanded for a proper determination.id: 27653
Updated 2/4/2024SVP case was remanded to allow the parties to make a record on the issue of an equal protection violation based on the lack of advisements on right to a jury trial.Defendant challenged his sexually violent offender commitment arguing an equal protection violation based on the court’s failure to advise him of his right to a jury trial and to obtain a personal waiver from him. The challenge was not addressed in the trial court and the matter was remanded to allow the parties to make a record on the issue.id: 27602
Updated 2/3/2024SVP’s may not directly petition for an unconditional discharge without a favorable finding of suitability by the Director. The Sexually Violent Predator Act does not authorize an SVP to directly petition for unconditional discharge without a favorable evaluation from the Director of State Hospitals, and this construction of the act does not deny an SVP due process.id: 27534
Updated 2/3/2024An SVP could not be released near a school even though the school was newly established in a private home and perhaps created to prevent the placement.The trial court erred by ordering defendant, a sexually violent predator, be released to a residence in Santa Cruz County. The residence was within a quarter mile of a school, and the release was therefore prohibited by Welfare and Institutions Code section 6608.5. The school in question was in a private home, and it may have been created for the purpose of preventing the present placement. However, the statute prohibiting placement of SVPs near a school does not require the school to have been operating for any period of time.id: 27614
The SVP Act requires the filing of a commitment petition when both initial evaluators concur, even if they do so after an initial disagreement. Where evaluators under Welfare and Institutions Code section 6601, subd.(d) initially disagree, but as a result of a peer review process and review of a more complete record, they eventually agree the person being evaluated is an SVP, the director of the DSH must request the filing of a commitment petition.id: 26172
The prosecutor can subpoena a defendant’s medical records for purposes of SVP proceedings.Welfare and Institutions Code section 6603, subd. (j) expressly authorizes a district attorney to subpoena and use an SVP’s medical records in proceedings under the SVP Act.id: 26103
The one-year waiting period for conditional release under the SVP Act does not violate equal protection. Defendant argued that the SVP Act violates equal protection because mentally disordered offenders unlike SVPs have an opportunity to petition for immediate conditional release. However, the one-year waiting period is necessary to further the compelling state interest in providing treatment to SVPs and protecting the public, and there is no less burdensome alternative to effectuate those interests.id: 25980
There was no due process violation by allowing defendant to be impeached with his prior testimony from the first SVP trial where that testimony was compelled but not involuntary.The trial court ruled that if defendant testified at his SVP trial, he would be impeached with the content of his compelled testimony from the first trial. The fact that his earlier testimony was compelled did not mean that it was involuntary, and therefore there was no due process violation by allowing his impeachment with the prior testimony.id: 25981
The trial court did not err by allowing the state’s SVP expert access to defendant’s SDSH records. Defendant argued the trial court erred by allowing the prosecution to retain an SVP expert for the retrial, and improperly allowed that expert to have access to his State Department of State Hospital records. A 2016 amendment to the SVP Act allowed the prosecution to subpoena SDSH records even though access is not allowed in mentally disordered offender or mentally disordered sex offender proceedings. Even though the groups are similarly situated, the SVP Act provides for a life commitment unlike the other proceedings which allow one year extended commitments. And those civilly committed do not have a fundamental right to privacy of their medical records. The provision does not violate equal protection and the court did not err by allowing the prosecution expert access to the SDSH records.id: 25982
16-month delay in SVP retrial due largely to the state’s efforts in hiring and preparing an expert did not violate defendant’s due process rights. Defendant argued the trial court violated his due process rights by allowing a 16 month delay in his SVP retrial so that the prosecution could retain and prepare an expert. While much of the delay was due to the state’s actions, the court provided a comprehensive analysis that appropriately weighed the relevant facts.id: 25983
Pursuant to a new amendment to the SVP Act, the prosecutor may access and share treatment records with its expert in an effort to challenge the conclusions of defense experts. A recent amendment to the Sexually Violent Predator Act allows the district attorney to obtain otherwise confidential treatment records. The prosecutor may then disclose those records to its retained expert, subject to an appropriate protective order, to assist in the cross-examination of the State Department of State Hospital evaluators or mental health professionals retained by the defense and more generally, in prosecuting the SVP petition.id: 25984
Defendant did not have a due process right to be mentally competent during civil SVP proceedings.Defendant argued the trial court erred by failing to stay his SVP proceedings because he was not competent at the time. However, in Moore v. Superior Court (2010) 50 Cal.4th 802, the court found due process didn’t require mental competence for someone undergoing SVP commitment proceedings. It did not matter that the mental illness supporting the SVP diagnosis was different from the illness that served as the basis for the competency claim.id: 25003
Expert testimony relying on case-specific hearsay as the basis for an opinion that defendant was an SVP violated Sanchez.At defendant’s SVP trial, an expert relied on inadmissible hearsay to support his extensive testimony about defendant’s unrelated convictions and unproven allegations that he committed other acts of sexual violence. This testimony was inadmissible under People v. Sanchez (2016) 63 Cal.4th 665.id: 25004
The trial court lacked the authority to recommit defendant as an SVP once his sentence for the intervening criminal conviction became final.The trial court acted in excess of its jurisdiction by recommitting defendant as a sexually violent predator after his decades-long prison term on an intervening offense became final.id: 24846
Provision that tolls parole period for SVP’s does not violate equal protection where there is no similar tolling provision for MDO’s and does not violate ex post facto.Defendant argued that Penal Code section 3000 (a)(4), which tolls the parole period for a sexually violent offender, violates his right to equal protection because he is similarly situated to mentally disordered offenders who do not have a similar tolling provision. However, this is not a situation where MDO’s are treated differently. California has shown a compelling interest in tolling the parole period for SVP’s so that SVP’s receive parole supervision after they have been fully discharged from their commitment. Defendant also argued application of the provision to his case violated ex post facto provisions, but the SVP Act is not punitive in nature.id: 25631
Defendant’s Frotteuristic behavior along with his other disorders constituted sexually violent criminal behavior for purposes of the SVP act.Defendant argued the trial court erred in interpreting the Sexually Violent Predators Act. However, experts found defendant to have a Frotteuristic disorder (where a person rubs up against a nonconsenting victim for sexual arousal) combined with other mental disorders. Contrary to defendant’s claim, his forcible frotteuristic acts of sexual battery combined with his other diagnosed disorders qualify as sexually violent criminal behavior. Moreover, the phrase “sexually violent criminal behavior” is not vague and does not violate due process.id: 24902
Use of the term “sexually violent predator” during the SVP trial did not violate defendant’s due process rights.Defendant was found to be a sexually violent predator. Before trial, he moved to bar the use of the term “sexually violent predator” during trial (claiming that it was inflammatory). He asked that the term “qualifying offense” be substituted for “sexually violent offense” and that “meets the criteria” be substituted for “sexually violent predator.” The trial court’s denial of defendant’s request did not result in a due process violation. id: 24792
Extension of defendant’s pre-SVP petition custody was unlawful due to an incorrect interpretation of good cause, but he was not entitled to relief where the board’s reliance on the bad regulation was a good faith mistake of law. The Board of Parole Hearings extended defendant’s custody for 45 days under Welfare and Institution’s Code section 6601.3 so that the DA could file a sexually violent predator petition. However, the extended custody was unlawful because the definition of “good cause” for such an extension under the Code of Regulations (Title 15, section 2600.1, subd.(d)) is inconsistent with the legislative intent behind the statutory good cause requirement. But defendant was not entitled to relief since the regulation was valid when the board relied on it, and the unlawful custody was the result of a good faith mistake of law. id: 21458
The 45 day hold beyond defendant's scheduled parole release date to facilitate SVP evaluations was supported by good cause - that some evidence showed he had committed a qualifying offense.Four days before defendant's scheduled parole release date, the Board of Parole hearings placed a 45 day hold pursuant to Welfare and Institutions Code section 6601.3, to facilitate SVP evaluations by the Department of Mental Health. There was good cause for the 45 day hold where there was some evidence in his clinical evaluation summary and a written report that he had committed a qualifying offense and some evidence that he was likely to engage in sexually violent predatory criminal behavior. id: 21901
There is no constitutional right to self-representation on appeal from an SVP commitment.The trial court did not err in denying the defendant’s request to represent himself on appeal following the jury’s verdict finding him to be a sexually violent predator.id: 21485
Defendant's nonviolent child molestation committed when he was a minor was a qualifying SVP offense.Defendant argued the Penal Code section 288, subd.(a) offense he committed as a juvenile was not a qualifying offense for purposes of the Sexually Violent Predator Act
because his fondling of young girl's breasts did not involve violence, force or duress. However, under Welfare and Institutions Code sections 6600 and 6600.1 any act involving substantial sexual conduct was a sexually violent offense. id: 21127
Where there was no evidence the SVP defendant was amenable to
voluntary treatment the court did not err in refusing to instruct on the
necessity of keeping him in a secure facility.The trial court did not err at defendant's SVP trial by refusing his request for an instruction
requiring the jury to find it was necessary to keep him in a secure facility for the protection of the health and safety of others. There was no
evidence to show defendant had a mental disorder for which voluntary
treatment would be appropriate and defendant was not competent to give an opinion as to whether he was capable of being successfully treated in the community.id: 21128
The trial court did not err at defendant's SVP trial by excluding the testimony of lay witnesses to rebut the experts' opinions on his capacity to avoid recidivism.Defendant argued the trial court abused its discretion at his SVP trial by denying his request to call three lay witnesses who would testify as to defendant's good character and amenability to outpatient treatment. However, while the witnesses opinions might speak to defendant's willingness to avoid recidivism, they could not counter the opinions of the SVP experts on the psychological issue of whether defendant was likely to reoffend if released to the community for treatment.id: 21130
The trial court erred by concluding the SVP evaluations were invalid as a matter of law where the authors had copied portions of previous evaluations. The trial court dismissed the petition seeking to recommit defendant as a sexually violent predator based on a “material legal error” where portions of two expert evaluations were copied from previous reports prepared by others. However, it was not possible to conclude the opinions were invalid or were not those of the doctors who signed them. id: 24297
Supreme Court says civil commitment of sexual predators requires proof of serious difficulty in controlling sexually violent behavior.The Kansas Sexually Violent Predator Act provides for civil commitment of "any person who has been convicted of, or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence." The Kansas Supreme Court held that the statute cannot be constitutionally applied unless the State proves that a dangerous, mentally disturbed individual is completely unable to control his sexually violent behavior. In a 7-2 decision written by Justice Breyer, the Supreme Court held that the state court's insistence on a showing of "absolute lack of control" was erroneous, but that the State must show "serious difficulty in controlling behavior" to justify civil commitment under the statute. Justice Scalia, joined by Justice Thomas, dissented.id: 20132
The trial court incorrectly used the “closest practical walking distance instead of a straight line to determine whether the SVP defendant lived within a quarter mile of a school.The Sexually Violent Predator Act provides that certain conditionally released SVP’s who have a history of sexual misconduct shall not be placed within one-quarter mile of a school. In determining compliance with the residency restriction, the distance should be calculated using a straight line method rather than a pedestrian route method.id: 23798
The trial court failed to properly address the threshold issue of frivolousness when denying the SVP defendant’s request for conditional release. Defendant was committed for an indeterminate term under the SVP Act. He filed a petition for conditional release under Welfare and Institutions Code section 6608. The trial court applied an incorrect standard in determining the threshold issue of whether the petition was frivolous. In making that determination, the court should not have considered the merits of the conditional release determination. id: 23806
Elimination of paraphilia from the DSM5 did not render defendant’s SVP commitment unlawful.Defendant argued his SVP commitment was unlawful because the newest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM5) does not allude to the diagnosis upon which his commitment was based - paraphilia. However, even if the fifth edition of the DSM reflects a growing skepticism of the psychiatric community about paraphilic coercive disorder (aroused by thoughts of non-consenting sex partners), an SVP commitment based on the disorder does not violate due process. id: 24025
McKee’s ruling following remand by the Supreme Court was dispositive on the issue of whether the SVP law violated equal protection and defendant was not entitled to his own hearing.In People v. McKee (2012) 207 Cal.App.4th 1325, the court found the disparate treatment between those committed as sexually violent predators, and others committed as MDO’s and NGI’s does not violate equal protection. Defendant argued he was entitled to his own hearing to determine the issue. However, the Supreme Court intended for the remanded proceedings in McKee to be, as a matter of law, dispositive in all cases on the issue. id: 23473
SVP evaluations were based on valid assessment protocol where the evaluations started fresh after the earlier protocol was found to be invalid and the newer assessments did not result in material error. Following an SVP commitment, defendant argued the evaluation reports were prepared under the standard assessment protocol that had been determined to be invalid. However, defendant failed to show any material error by using the rejected protocol. Moreover, contrary to defendant’s claim, the evaluations did not improperly update the initial evaluations prepared using the old criteria. Rather, the evidence shows they started anew. The evaluators properly used the 2009 protocol which is a legitimate standardize assessment protocol.id: 23408
Indeterminate term provision for SVP’s does not violate equal protection principles.The indeterminate commitment provisions of the Sexually Violent Predator Act doe not violate equal protection guarantees. SVP defendants are not similarly situated to mentally disordered offenders or not guilty by reason of insanity defendant because of the increased recidivism risks of SVPs, the greater harm inflicted on victims and the diagnostic and treatment differences.id: 23306
The error in failing to require a personal waiver of defendant’s right to be present at the SVP trial was harmless where it was unlikely that his presence would have made a difference.Defendant had a due process right to be present at his SVP trial. Moreover, trial counsel does not have the authority to waive the defendant’s right to attend the hearing over the client’s objection. The error in accepting counsel’s waiver was harmless where counsel did a good job at the hearing, defendant had always refused to participate in treatment and there was substantial evidence showing that defendant was a pedophile.id: 23305
Dismissal of SVP petition is only required if defendant can show the invalid assessment protocol materially affected his initial evaluations. Dismissal of the SVP petition was not required where the original evaluations used a protocol later determined to be invalid. Dismissal is only required where defendant can show the invalid assessment protocol materially affected his initial evaluations.id: 23304
Due process did not require a written waiver of defendant’s right to be present for his SVP trial. Defendant orally waived his right to be present for his SVP trial. Penal Code section 977, subd.(b), which requires a written waiver, did not apply because this was not a felony prosecution. Neither the state nor federal due process provisions required a written waiver, and if they did, the error was harmless where there was no question that defendant voluntarily made an oral waiver of his right to be present.id: 23137
McKee II properly found that an indeterminate term for SVP’s did not violate equal protection, due process, cruel and unusual punishment, ex post facto or double jeopardy provisions.In People v. McKee (2012) 207 Cal.App.4th 1325, the court properly found the Sexually Violent Predator Act’s provision for an indeterminate commitment and for placing the burden on the SVP to obtain release does not violate equal protection. McKee also applies to the entire class of suspected SVP’s. The court also found McKee properly applied the strict scrutiny standard, it did not violate due process, ex post facto or cruel and unusual punishment provisions and the extended term did not violate double jeopardy.id: 23136
Dismissal of the SVP petition was not required where the unlawful custody was the result of a good faith mistake of law. Defendant was not in lawful custody at the time the SVP petition was filed because an inexplicable delay in referring him for evaluation was not a statutorily authorized exigent circumstance justifying a 45 day hold under Welfare and Institution’s Code section 6601.03. However, dismissal of the petition was not required since the unlawful custody was a result of a good faith mistake of law.id: 23083
The trial court did not err in ordering updated evaluations before the third SVP trial.Two mistrials were granted in defendant’s SVP case. The trial court did not err by granting the prosecutor’s motion to compel defendant to submit to updated mental evaluations before the third trial where the original evaluations were done by different experts five years earlier.id: 23098
The passage of seven years between the SVP petition and the jury’s finding did not violate due process where much of the delay was attributed to the defense.The DA filed a SVP petition before defendant was released from prison after serving a term for committing various sex offenses. Following multiple delays and two mistrials, a jury found he was a SVP almost seven years later. Defendant argued the long delay violated his due process rights. However, defendant requested or agreed to many of the continuances. The remaining unconsented to delays did not violate his right to due process.id: 23099
The exclusionary rule is not required in SVP proceedings.SVP cases do not present a compelling need for an additional deterrent to unlawful searches or seizures over and above exclusion in a criminal prosecution. Therefore, the exclusionary rule does not apply in SVP proceedings. id: 23097
Amended SVP act providing for an indeterminate commitment did not violate double jeopardy or equal protection provisions.The SVP act, amended by Prop 83 to allow for an indefinite commitment did not violate double jeopardy principles as the commitment furthered a nonpunitive governmental objective. Moreover, because SVP’s are clinically distinct from MDO’s and NGI’s, the indeterminate term did not violate equal protection principles.id: 23100
Trial counsel rendered IAC in seeking conditional release of the SVP defendant under section 6608 rather than 6605 where the prosecution had a heavier burden. Defendant sought a conditional release as a sexually violent predator under Welfare and Institution’s Code section 6608 where the SVP bears the burden of proof. Trial counsel rendered ineffective assistance of counsel in failing to proceed under section 6605 where the state has the burden of showing SVP status beyond a reasonable doubt. There could be no legitimate tactical reason for not proceeding under section 6605.id: 23043
There was no equal protection violation in treating an SVP more harshly than MDO’s or NGI’s. Defendant argued that his recommitment as a sexually violent predator violated his equal protection rights because he was treated more harshly than mentally disordered offenders or those found not guilty by reason of insanity. However, SVP’s are not similarly situated with MDO’s or NGI’s and their treatment is justified by compelling state interests.id: 23034
The probable cause determination in an SVP case should be challenged pretrial in a habeas petition.Defendant was found by a jury to be an SVP. He argued on appeal that there was insufficient evidence to support the trial court’s probable cause determination. However, the appropriate mechanism to challenge a probable cause finding under the SVP Act is a petition for writ of habeas corpus. Because the prosecutions’ burden of proof is higher at trial than the burden guiding a court in determining if probable cause exists, it is highly unlikely that the posttrial challenge will succeed, especially where review will be subject to a harmless error analysis. Substantial evidence supported the finding.id: 23062
Good cause supported defendant’s 45 day hold as there were fewer than 45 days to complete the SVP evaluation before his scheduled release from custody.Defendant argued the trial court erred by failing to dismiss his SVP commitment because the petition was not filed when he was in lawful custody pursuant to Welfare and Institution’s Code section 6601, subd.(a)(2). He was in custody pursuant to a 45 day hold under section 6601.3. Good cause supported that hold as he had been returned to custody following a revocation of parole and sentenced to 90 days for the violation, and when he was referred for a full evaluation under section 6601, subds. (c)-(i), there were fewer than 45 days to complete that evaluation before he was released from custody.id: 23049
Evidence showed a change in circumstances from a 2007 jury finding that defendant did not qualify as an SVP. A jury found defendant was a sexually violent predator. He argued there was insufficient evidence to show a change in circumstances after a jury found he did not qualify as an SVP in 2007. However, contrary to defendant’s claim, Turner v. Superior Court (2003) 105 Cal.App.4th 1046, did not list the type of facts that are required to support a change in circumstances. Moreover, the evidence showed he lacked the ability to control his behavior as he acknowledged that he thought about molesting his daughter but had neither the ability or desire to seek treatment on his own.id: 23063
Defendant, in an SVP trial, was properly limited to six peremptory challenges.A jury found defendant to be a sexually violent predator. He argued the trial court erred by ruling that each party was entitled to six peremptory challenges, as provided for in civil cases, rather than the 20 challenges provided for in criminal cases potentially resulting in life imprisonment. However, the SVP Act does not provide for an increase in peremptory challenges for a defendant.id: 23061
SVP experts did not invade the jury’s province as they used statutory criteria to frame their opinions that defendant was “likely” to reoffend.Defendant argued that the trial court prejudicially erred at his sexually violent predator trial by permitting the prosecution’s expert to testify that he was “likely” to engage in “predatory” sexually violent offenses in the future because these were legal issues and the expert’s testimony invaded the jury’s province. However, the experts’ properly utilized statutory criteria to frame their opinions that they did not cross the line from testifying about bases for their opinion to advocating for a particular outcome.id: 22982
SVP commitment petition was dismissed where two post-Ronje evaluators agreed the defendant did not meet the criteria. In In re Ronje (2009) 179 Cal.App.4th 509, the court held the use of an invalid assessment protocol in conducting mental evaluation of a person suspected to be a sexually violent predator constituted an irregularity in the SVP commitment proceeding. In this case, two post-Ronje evaluators agreed defendant no longer met the SVP criteria and the commitment petition was dismissed. id: 22652
SVP challenge was denied without prejudice so defendant could renew it this time presenting all post-Ronje evaluations. In In re Ronje (2009) 179 Cal.App.4th 509, the court rejected the use of invalid assessment protocol in conducting SVP evaluations and ordered new evaluations using valid assessment protocol. Here, two new evaluators disagreed as to whether defendant met the criteria, but their reports were not before the trial court when it denied defendant’s challenge to the commitment petition. His petition was denied without prejudice to renewing the challenge based on the reports of all post-Ronje evaluations.id: 22653
SVP challenge was denied without prejudice so that the post-Ronje evaluation process could be completed. In In re Ronje (2009) 179 Cal.App.4th 509, the court found invalid assessment protocol was used in SVP mental evaluations. Here, two initial post-Ronje evaluators disagreed whether defendant met the SVP criteria but there was no evidence in the record that two others were appointed. Defendant’s challenge was denied without prejudice so it could be renewed when the post-Ronje process was completed. id: 22654
Dismissal of SVP petition was not required if remedial evaluations ordered post-Ronje result in a split of opinion. The trial court was not legally obligated to dismiss committment proceedings brought against the petitioner on SVP proceedings where the original concurring evaluations were conducted using an invalid standardized assessment protocol and presently there was no pair of concurring evaluations. In In re Ronje (2009) 179 Cal.App.4th 509, the court created a remedy where SVP evaluations were based on an invalid assessment protocol but it did not discuss what would happen if the new evaluations produced a split of opinion. The petition was denied without prejudice to petitioner seeking further relief.id: 22751
Board’s regulation defining “good cause” to extend a defendant’s custody 45 days when seeking an SVP commitment was defective because it did not require a showing that the need for the delay was justified.To be timely, a petition to commit a defendant as a sexually violent predator must be filed while the inmate is in lawful custody. Lawful custody extends up to the release date, but an inmate may be held for an additional 45 days beyond that date upon a showing of good cause. The Board of Parole Hearings’ 2007 regulation defining “good cause” was invalid as it did not require a showing of why it needed to extend the defendant’s custody beyond the scheduled release date. However, the Board’s reliance on the defective regulation was excusable as a good faith mistake of law.id: 22626
Because defendant admitted to the allegations contained in the SVP petition he could not allege a due process violation based on delay.Defendant entered into a stipulated agreement establishing that he was a sexually violent predator. He argued on appeal that his right to due process was violated by the excessive delay in resolving the matter. However, because he admitted to the allegations contained in the petition, he was foreclosed from challenging a due process violation based on delay.id: 22604
There is no equal protection violation in treating SVP’s more harshly than MDO’s or NGI’s. The prosecution presented substantial evidence to support the perception by the electorate that sexually violent predators present a substantially greater danger to society than do mentally disordered offenders (Penal Code section 2960) or those committed after being found not guilty be reason of insanity (section 1026.5). Therefore, the disparate treatment of SVP’s is necessary to further the state’s compelling interests of public safety and humane treatment of the mentally disordered.id: 22809
The trial court erred in dismissing the SVP petition where the delay in referring defendant for evaluation was an honest mistake.The trial court erred in dismissing the defendant’s sexually violent predator commitment following the Department of Corrections error in failing to refer defendant for evaluation before his release date. The delay in referring defendant for evaluation by the Department of Mental Health was an honest mistake and not a result of systemic negligence. id: 22257
rop 83 which amended the SVP act in 2006, did not violate the single subject rule.Defendant argued that Proposition 83, which amended the SVP act in 2006, violated the single subject rule for ballot initiatives. However, the proposition did not violate the single subject rule since all of its provisions related to its stated purpose of strengthening laws that punish and control dangerous sexual predators.id: 22400
Dismissal of SVP petition was not required where the original evaluations were prepared using an invalid protocol and replacements resulted in a split of opinion. A trial court need not dismiss a petition to commit a person as a sexually violent predator when the original SVP evaluations were prepared using an invalid protocol and replacement evaluations result in a split of opinion.id: 22549
The trial court exceeded its jurisdiction by permitting defendant to petition for conditional release while not currently committed as an SVP. While two petitions to extend defendant’s commitment as a sexually violent predator were pending, the trial court granted his request to petition the court for a conditional release pursuant to Welfare and Institution’s Code section 6608. However, the court’s order permitting defendant to petition for conditional release while not currently committed as an SVP was an act in excess of the court’s jurisdiction.id: 22184
There is no equal protection violation in treating SVPs more harshly than MDOs given the low rate of success in treating SVPs. Defendant argued that an indeterminate life term for sexually violent predators violates equal protection guarantees because mentally disordered offenders (under Penal Code section 2962) do not receive such harsh treatment. While the groups may be similarly situated, the disparity in treatment is supported by the statutory differences between SVPs and MDOs and the statistical reasons to treat the two classes of offenders differently.id: 22149
A defendant has no constitutional right to self-representation on appeal from an SVP commitment.After a jury found defendant to be a sexually violent predator, he sought to represent himself on appeal. However, there is no constitutional right to self-representation on appeal from an SVP commitment. The trial court did not err in denying defendant's original request to represent himself or his renewed request at oral argument.id: 21806
Counsel was not ineffective in conceding there were no changed circumstances following the SVP defendant’s petition for release.After being recommitted as a sexually violent predator, defendant filed a petition for release in pro per. Counsel was then appointed. The trial court did not subsequently abuse its discretion in dismissing the petition where defendant did not oppose the dismissal motion and conceded there were no changed circumstances at the hearing. Moreover, counsel was not ineffective in not opposing the motion where there were no circumstances to support the conclusion that defendant’s condition had so changed that he was no longer dangerous.id: 21404
Due process does not prevent the trial and commitment of SVP’s while mentally incompetent.Defendant argued that the diagnosed mental disorders that allegedly made him a sexually dangerous predator also impair his mental competence to stand trial, and that the state therefore cannot try or commit him as a SVP unless or until his competence is restored. However, due process does not prevent the trial and commitment of SVP’s while mentally incompetent. id: 21765
The amended SVP Act is not punitive and therefore does not violate ex post facto.The amended SVP Act (Prop 83) which allows for an indefinite commitment does not violate the ex post facto prohibition because it is not punitive in nature.id: 21377
Amended SVP Act may violate equal protection since SVPs are similarly situated with other persons committed civilly because they are dangerous to society.Defendant argued that his indefinite commitment as a sexually violent predator under the amended act (Prop 83) violated his right to equal protection because the law treats SVPs worse than similarly situated people civilly committed under other statutes. SVPs are similarly situated with other classes of people subject to civil commitment because of their danger to society. The matter was remanded to permit the prosecution to justify the differential treatment.id: 21378
Amended SVP statute does not deny due process by requiring defendant after the initial commitment to prove by a preponderance that he is not longer an SVP.The amended SVP act which changes the commitment from a two year term to an indefinite commitment does not violate due process. The requirement that defendant, after his initial commitment must prove by a preponderance of the evidence that he is no longer an SVP does not violate due process. Moreover, the law must be read to mandate the appointment of an expert for an indigent SVP who petitions the court for relief.id: 21376
The trial court retained jurisdiction to hear SVP commitment petitions where the prosecutor’s untimely filing was based on a good faith mistake of law.Evidence supported the trial court’s finding that the prosecution made a good faith mistake of law when it failed to timely file the SVP commitment petitions before the expiration of the defendants’ two year commitment periods. Because defendants’ unlawful custody was a product of the prosecution’s mistake of law, the good faith exception of Welfare and Institutions Code section 6601(a)(2) precluded dismissal of the untimely commitment petitions. Therefore, the trial court properly denied defendants’ motions to dismiss the petitions to extend commitment and the court had jurisdiction to proceed on the petitions.id: 21112
The trial court had jurisdiction over the SVP proceedings even if the standard assessment protocol was invalid.In 2008, the Office of Administrative Law determined the 2007 standardized SVP assessment protocol constituted an invalid underground regulation. Assuming that determination is correct, any error in using evaluations based on that protocol did not deprive the trial court of the fundamental jurisdiction over the SVP commitment petition and any error in the use of the invalid assessment protocol was harmless.id: 21129
The amended SVP act does not violate the First Amendment right
to petition the court for redress of grievances.The Sexually Violent Predator Act, as amended to provide for an indeterminate term in 2006,
does not violate the single subject rule, due process, equal protection or ex post facto principles. Moreover, the federal First Amendment right to petition the court to redress grievances does not dictate what statutory rights must be provided to involuntarily committed persons wishing to
obtain judicial review of their commitments. id: 21126
Any error in limiting defense counsel’s questioning of the prosecution’s experts at the SVP trial with defendant’s polygraph results was harmless.Defendant argued the trial court erred at his sexually violent predator trial by limiting defense counsel’s ability to question the prosecutor’s expert witnesses with regard to the administration and results of a polygraph examination that was administered as a part of his treatment. Evidence Code section 351 does not discuss the use of polygraph evidence in civil proceedings. However, the court did not decide whether error took place here because there was no reasonable probability the jury would have reached a different result if the court had permitted defense counsel to question the experts about the polygraph report.id: 20988
Amendment to SVP act permitting an indeterminate term does not violate due process by precluding judicial review of the DMH decision when defendant seeks a release from treatment based on a change in mental condition.Defendant argued the commitment under the amended SVP law violates due process because it leaves the determination of whether to authorize the person to file a petition seeking release due to a change in condition in the absolute discretion of the Department of Mental Health without any judicial review, and because the person is not entitled to an expert and bears the burden of proof at the hearings. However, the Legislature provided an alternative path to judicial review – as the defendant can petition the court directly with the assistance of assigned counsel. Moreover, defendant is entitled to an expert under Welfare and Institutions Code section 6608. Finally, when a defendant who has already been found to be an SVP is alleging a change of circumstances, it is fair to require that he carry the burden of proof.id: 21059
Defendant’s initial SVP commitment was not void due to assessment protocol that was not formally adopted where approved
protocol was used in current evaluations which showed defendant was an SVP.Defendant argued his initial SVP commitment was illegal because it was derived by “underground regulations” relating to protocols to be followed by evaluators. The issue was forfeited since it was not raised in the trial court. Moreover, any error was negated by current evaluations not tainted by “underground regulations” which show defendant suffers from a mental illness making him a danger to the public.id: 21014
Section 6601.3 authorized a 45-day hold on the day before defendant’s parole discharge to evaluate him as a potential SVP. Defendant was serving the last day before his parole discharge date when the Board of Parole Hearings placed him under a Welfare and Institutions Code section 6601.3 hold to evaluate his potential as a sexually violent predator. The section 6601.3 hold which would extend his release date was proper and there was no ex post facto violation since the continued custody for evaluation and treatment was not “punishment”.id: 21034
There is no right of self-representation at an SVP trial.Defendant argued the trial court committed Faretta error by denying his right to self-representation at his sexually violent predator trial. However, a right to self-representation does not exist in a civil commitment proceeding under the SVPA, under either the rationale of Faretta or the Due Process clause.id: 19032
The trial court did not erroneously permit the plaintiff’s experts to testify to inadmissible hearsay at the SVP trial.Defendant, at his SVP trial, argued the trial court erroneously permitted the state’s experts to testify to inadmissible hearsay. However, the facts testified to including facts of the qualifying offenses and convictions, were admissible and were admitted into evidence from other sources. Because of this, the plaintiff’s experts were not precluded from repeating these facts during their direct examination.id: 20851
Due process did not require that Riverside County appoint two defense experts at defendant’s SVP trial.Defendant argued his due process rights were violated at the SVP trial where Riverside County only appointed one expert for the defendant but allowed the state to present two experts paid by the Department of Mental Health. Moreover, his expert was paid at a lower rate. However, defendant was fully able to present his side of the story to the trier of fact and due process did not require the appointment of two defense experts. id: 20850
Defendant forfeited the right to challenge his original SVP commitment as void due to protocol which did not comply with the Administrative Procedures Act.Defendant was recommitted as a sexually violent predator. He argued his original petition was void because the protocol developed by the Department of Mental Health, and used for many years, was declared to be an unlawful “underground regulation” because it did not comply with the Administrative Procedures Act as set forth in Government Code section 11340 et seq. However, defendant failed to object to the invalid protocol and therefore, had no right to appeal the judgment of commitment. While he claimed trial counsel rendered ineffective assistance by failing to object, he could not show prejudice - that is if counsel had objected, he would not have been found to be an SVP under APA compliant procedures.id: 20849
The use of protocol-based evaluations at the early phases of the SVP proceedings did not deprive the trial court of jurisdiction to order commitment after the jury trial.Defendant argued his SVP commitment was illegal because the Department of Mental Health violated the Administrative Procedure Act in promulgating the mental health evaluation protocol used in the evaluations relied on by the prosecution in support of the SVP petition. Contrary to defendant’s claim, the use of the protocol-based evaluations at the early phases of the commitment proceedings did not deprive the trial court of fundamental jurisdiction to order commitment following the jury trial.id: 20794
The trial court did not err in admitting evidence of the nature of the treatment programs offered to SVPs. The trial court did not err in admitting evidence concerning the nature of treatment programs offered to sexually violent predators at the hospitals where defendant had been committed. Defendant had refused to participate in the programs which was highly probative as to his amenability to voluntary treatment, and the jury could not properly assess his reasons for rejecting treatment absent knowledge of what the treatment entailed.id: 20793
The stipulation to the two year commitment was negated following the passage of Prop 83 and because the two year commitment was unauthorized it was revocable absent a timely cross-appeal by the prosecution. The jury found defendant to be an SVP several months after the passage of Proposition 83, which modified the SVP law by requiring indefinite rather than two year commitments. The petitions were filed before the effective date. The parties stipulated to a two year commitment and the court ordered the two year term based upon the stipulation. However, the trial court lacked the authority to impose anything but the indeterminate term. Because the sentence imposed was unauthorized it could be reviewed even absent an objection or a timely cross-appeal by the prosecution.id: 20792
The trial court did not err in rejecting the SVP defendant’s special instruction requiring the jury to find defendant suffered volitional impairment making him dangerous beyond his control.At defendant’s SVP trial, the trial court did not err in failing to instruct the jury that it must find defendant’s mental disorder caused him serious difficultly in controlling his dangerous behavior. However, the additional “volitional impairment” instructions were not necessary to satisfy due process requirements.id: 20791
The trial court did not err by failing to instruct the jury to presume he was not an SVP.The trial court did not err at defendant’s SVP trial in refusing to modify the standard instruction to say the defendant in an SVP case “is presumed to not be a sexually violent predator.” id: 20790
The amended SVP act allowing for an indefinite commitment did not violate defendant’s constitutional rights.The SVP act, as amended in 2006 to allow for an indefinite commitment did not violate defendant’s rights relating to due process, ex post facto, double jeopardy and the improper retroactive application of laws.id: 20789
At defendant’s SVP trial, the state was not required to show a recent overt act where defendant had been in custody for the last decade. Defendant argued proof of his SVP status was insufficient because there was no evidence he committed a recent overt act while out of custody. However, the issue before the jury was defendant’s SVP status at the time of trial. The lack of a “recent” overt act was immaterial as he had been in custody since 1996. Even if the prosecutor was required to prove an overt act during defendant’s most recent sustained period out of custody, that requirement was satisfied where defendant was repeatedly returned to custody for parole violations during the mid-1990s. id: 20730
In order to recommit defendant as an SVP it was sufficient to prove public safety required either his confinement in a secure facility or supervised community placement. Defendant was an adjudicated sexual violent predator deemed eligible for place in a conditional supervised release program. Due to geographic restrictions, the Department of Health was unable to place defendant in his county of domicile. When they sought to place him outside of San Francisco his two year SVP commitment was about to expire. The prosecutor filed a new commitment petition. In determining whether to recommit defendant as an SVP it was sufficient to prove public safety required either his confinement in a secure facility or supervised community placement. It was not necessary to show public safety required his continued custody in a locked facility.id: 20531
Amended SVP act providing for an indefinite commitment did not violate due process, equal protection, double jeopardy or ex post facto provisions. Defendant was found to be a sexually violent predator under the amended version of the SVP act and committed indefinitely. Contrary to his claim, the amended act which provided for indefinite commitments did not violate due process, ex post facto, double jeopardy or equal protection principles.id: 20530
Amended SVP act does not punish and therefore does not violate ex post facto provisions. The amended SVP act which provides for an indeterminate term does not render the law punitive. It therefore does not violate ex post facto principles.id: 20382
Amended SVP act was not applied retroactively where the determination made at the initial commitment hearing in 2007 was that defendant was an SVP at that time.Defendant argued the trial court erred in retroactively applying the amended SVP act to his case. However, the determination made at the initial hearing in April 2007 was that defendant was an SVP at the time. In light of this fact, the court’s application to defendant of the then-current version of the SVP act, which called for an indeterminate term of commitment, was not a retroactive application of the law.id: 20381
Amended SVP act did not violate equal protection as SVPs are not similarly situated to persons involuntarily committed under other laws.Application of the amended SVP law did not violate equal protection principles because persons committed under that law are not similarly situated to persons committed under the Mentally Disordered Offenders Act, or not guilty by reason of insanity acquittees.id: 20380
The SVP act provides for the appointment of a medical expert and therefore the act does not deny defendant’s right of access to the courts, or to due process.Defendant argued the amended SVP act violated his First Amendment right to meaningful access to the courts because there is no provision in the act for the appointment of a medical expert. However, while Welfare and Institutions Code section 6608 does not expressly provide for the appointment of an expert, section 6605 provides that right. For that reason, the act similarly does not violate due process.id: 20379
he amended SVP act which provides for an indeterminate term does not violate due process where it provides for discretionary review.Defendant argued his indeterminate SVP commitment violates due process because there are no periodic reviews where the state must show he continues to be dangerous. However, the amended SVP act provides sufficient procedural safeguards involving periodic exams and procedures for filing and reviewing petitions to protect the interest of the individual while also providing for compelling state interests.id: 20300
The amended SVP act providing an indeterminate term does not violate equal protection principles.Sexually violent predators under the SVP act are not similarly situated to individuals committed under the LPS act, mentally disordered offenders or persons found not guilty by reason of insanity. Therefore, equal protection principles do not require similar treatment. id: 20299
Dismissal of SVP petition was not required where the petition was filed five days after defendant’s release date but his custody had been extended by a 45-day hold.Defendant was scheduled to be released from prison on December 2, 2005. The state screened him for SVP status and placed a 45 day hold on him on December 1, 2005. The DA filed an SVP petition on December 7th, five days after the release date. Defendant argued he was not in lawful custody at the time the DA filed the SVP petition. However, defendant may have waived the issue by failing to raise it at the earlier hearing. Moreover, the 45 day hold was not ordered in bad faith.id: 20297
Amended SVP act is not punitive and does not violate double jeopardy or ex post facto provisions. The amended SVP act providing for an indeterminate term does not violate ex post facto or double jeopardy principles because it is civil in nature and those provisions apply only to criminal proceedings.id: 20296
The amended SVP act did not violate any state or federal constitutional provisions.Contrary to defendant’s claims, the amended SVP act provides for an indefinite commitment, does not violate due process, ex post facto, double jeopardy, equal protection or cruel and unusual punishment provisions of the state or federal constitutions.id: 20484
The provisions of Prop 83, the amended SVP act all relate to sex offenders, their punishment, parole, registration and status as SVPs, and therefore do not violate the single subject rule.Defendant argued the amended SVP act violated the single subject provision in the state constitution. While the law (under Proposition 83) increases the term for sex offenses, increases the monitoring of registered sex offenders, restricts where they can live, and delays parole terms, these topics are reasonably germane to each other and therefore does not violate the single subject rule.id: 20485
The SVP law does not provide for a commitment after the conviction that served as the basis for the commitment was reversed on appeal.After the SVP commitment proceedings were initiated against defendant , the felony conviction that served as the basis for his custody was reversed on appeal. The prosecutor decided not to retry him. Under the circumstances an SVP commitment would not be authorized.id: 20225
The trial court was not required to give defendant's proposed modified SVP instruction requiring impairment of control.The trial court did not err in refusing defendant's proposed modification to CALCRIM No. 3454 to require the diagnosed mental disorder must render the person unable to control his dangerous behavior. The issue has been previously rejected by the California Supreme Court.id: 20224
Evidence supported defendant's finding where an expert found his disorder made it difficult to control his sexual behavior even though a defense expert disagreed.Evidence supported the finding that defendant was a sexually violent predator under the amended SVP act. A psychologist appointed to examine defendant, necessarily concluded he was likely to reoffend and was an SVP even though he has only two charged offenses and one conviction in 1991 that could have resulted in a lower STATIC - 99 score.id: 20223
Application of amended SVP law did not violate equal protection when compared to treatment of MDOs or those found not guilty by reason of insanity.Defendant argues that his involuntary commitment under the amended SVP act violated his federal constitutional right to equal protection because SVPs are similarly situated to mentally disordered offenders who are committed under Penal Code section 2960 and to persons found not guilty by reason of insanity, and that the disparate treatment provided to SVPs is not necessary to further a compelling state interest. However, assuming SVPs are similarly situated with MDOs the disparate treatment is necessary in part because they are not likely to be cured. Assuming they are similarly situated with NGIs, there is no equal protection violation because NGIs are treated less favorably than SVPs.id: 20222
Amended SVP statute providing an indefinite commitment did not violate due process where there were provisions in place to ensure people who no longer qualified would be released.Defendant argued that his indeterminate commitment under the Sexually Violent Predators Act, as amended in 2006 violated his constitutional right to due process. First, the issue involves widespread public interest and was addressed despite any potential ripeness deficiency. Next, there was no due process violation since the initial civil commitment for an indefinite term was subject to adequate periodic examinations to determine a defendant's current status to ensure that a committed person who no longer qualified for commitment is releases.id: 20220
The "indeterminate term of commitment" provided for in the amended SVP law may not be applied retroactively.The amendments to Welfare and Institutions Code sections 6604 and 6604.1 providing for an indeterminate term of commitment apply prospectively, because neither the language of those sections, nor Proposition 83 and the related ballot pamphlet, provide a clear indication of retroactivity.id: 20111
Expert testimony in SVP cases is not subject to Kelly-Frye analysis.The trial court did not abuse its discretion when it admitted expert testimony regarding the likelihood that defendant was a sexually violent predator and likely to reoffend. Expert psychological testimony is not scientific evidence subject to <i>Kelly-Frye</i> analysis. Moreover, both doctors who testified for the prosecution had extensive experience in making psychiatric evaluations, and their expertise in diagnosis and treatment was closely related to the opinions they formed.id: 15729
No Kelly hearing required for the Static-99 test where expert's opinion on the likelihood of a sex offender reoffending is not based solely on the results of that test.When an expert's opinion regarding the likelihood of defendant reoffending is not based solely upon the results of the static-99 test (which assigns a risk assessment of reoffending) a Kelly hearing on the admissibility of an expert's testimony regarding the test is not required.id: 17632
Court properly rejected argumentative instruction regarding the need for volitional impairment in an SVP case.Defendant in a Sexually Violent Predator trial asked that the jury be instructed "The diagnosed mental disorder must render the person unable to control his dangerous behavior. Because of the need for volitional impairment, a DSM-IV diagnosis is not, standing alone, sufficient proof of a 'diagnosed mental disorder' within the meaning of Welfare and Institutions Code section 6600." The instructions given by the court conveyed the substance of the requested instruction, and did so without argument. The trial court properly refused to give the requested instruction.id: 15723
In an SVP trial, evidence of the consequences of the jury's finding as to whether the defendant is or is not a sexually violent predator, is not relevant and therefore not admissible.The trial court erred in permitting the doctors to testify about the consequences of a jury's "true" finding on the issue of whether the defendant was a sexually violent predator within the meaning of Welfare and Institutions Code section 6600, et seq. In an SVP trial, evidence of the consequences of the jury's true finding is not relevant and therefore not admissible. The error was harmless where the evidence was undisputed and the defendant presented no defense.id: 15732
SVPs are not denied equal protection when compared to other civilly committed persons due to the less severe definition of mental disorder.Defendant argued California's civil commitment statutes uniformly require a degree of mental impairment that is more severe than the Sexually Violent Predator Act's definition of mental disorder. However, SVPs are similarly treated to other persons involuntarily committed for purposes of the law. Consequently, there is no equal protection violation with respect to the nature of the impairment addressed by the SVP Act. Similarly, there is no equal protection violation in that the SVP Act's evidentiary standards are easier to meet, or that the SVP Act provides less treatment for the mental disorders of SVPs.id: 15279
Trial court may order precommitment treatment for alleged SVPs who have had a probable cause determination and require treatment outside the county jail.Alleged sexually violent predators who were released from prison and detained pending trial in Los Angeles County jail requested housing outside the county jail and psychiatric treatment under the SVP act. Welfare and Institutions Code section 6602.5 and Penal Code section 4002, subd.(b) permit the trial court to order precommitment treatment for alleged SVP's who have had a probable cause determination or who have already begun a course of psychiatric treatment.id: 17358
Supreme Court reverses 9th Circuit on Washington's Sexually Violent Predator statute.In <i>Young v. Weston</i>, 192 F.3d 870 (9th Cir. 1999), the Ninth Circuit ordered the district court to hold a hearing on the allegations of a habeas corpus petitioner who was subjected to indefinite civil commitment under Washington's Sexually Violent Predator statute. The Supreme Court granted certiorari and reversed, holding that the Washington Supreme Court's prior determination that the statute was civil rather than criminal precluded the inmate's claim that "as applied" to his conditions of confinement, the statute violated double jeopardy and the ex post facto clause. Writing for the majority, Justice O'Connor noted that the Washington act was the pattern for the Kansas act upheld in <i>Kansas v. Hendricks</i>, 521 U.S. 346 (1997). The majority held that an "as applied" analysis could never conclusively resolve whether the particular scheme was punitive and would thereby prevent a final determination of the scheme's validity under the double jeopardy and ex post fact clauses. "Permitting respondents as-applied" challenge would invite an end run around the Washington Supreme Court's decision that the Act is civil in circumstances where a direct attack on the decision is not before this court." Justices Scalia, Souter and Thomas concurred separately. Justice Stevens dissented.id: 15135
The trial court properly dismissed the SVP petition which was filed after the date defendant was supposed to be released from prison.Defendant was scheduled to be released from prison on a Sunday. The Department of Corrections kept him in custody until the following Monday so that the prosecution could file a Sexually Violent Predator petition. The trial court properly dismissed the petition under the SVP act because defendant was in unlawful custody, the prosecution failed to show the delay in filing the petition resulted from a good faith mistake of fact or law, and CCP section 12a did not extend the time to file the petition.id: 20062
Amendments to SVP Act providing an indeterminate term of confinement could be applied after the expiration of the original two year term.Welfare and Institutions Code sections 6604 and 6604.1, as amended effective September 20, 2006, to provide for an indeterminate term of commitment as opposed to the two year extensions to which defendant previously was subject, could properly be applied to him. The court had the authority to extend the commitment term and the statute gave notice of the increased commitment. Finally, there was no impermissible retroactive application of the law since this was not a case where the length of the commitment was altered during its term.id: 20024
The superior court had jurisdiction to treat petitions to extend SVP commitment as petitions for an indefinite commitment under the amended legislation.By changing the terms of commitment under the SVP Act from two years to indefinite terms, the Legislature and then the voters demonstrated a clear intent to keep SVPs confined. From the very purpose of the amendment to the act, a savings clause was implied. Under the implied savings clause, the superior court had jurisdiction to proceed on the petitions to extend the commitments.id: 19946
The indeterminate term provisions of the amended SVP law apply to persons who received two year terms under the former law and were recommitted.Defendant argued the trial court had no jurisdiction to find him to be an SVP and recommit him because Welfare and Institutions Code section 6604's two year commitment procedure has been eliminated and the amended statute (calling for an indeterminate term) fails to expressly refer to persons already confined to two year terms under the former statute. However, the indeterminate term provisions of section 6604 apply to persons confined as SVPs for two year terms under the former version of the statute.id: 19863
Trial court did not err in failing to define "offending act" at defendant's SVP trial.Defendant argued that the court was required to instruct the jury at his SVP trial that the "offending act" was limited to the single act which led to conviction. However, the instruction
was not necessary as the law does not suggest that a violation of section 288(a) is limited to a single discrete touching.id: 19589
The trial court was not required to give unanimity instruction at the SVP trial where the three prior convictions constituted alternative means of satisfying the "sexually violent offense" element.The prosecution presented multiple theories to satisfy the first
element of the SVP determination - the requirement of two "sexually violent offenses." Because the 1983, 1987 and 1991 convictions constituted alternative means of satisfying that element, the jury was not required to agree on which offenses satisfied that element.id: 19590
Use of unreliable hearsay to prove predicate SVP offense violated defendant's due process rights. The prosecutor's use of hearsay evidence to prove defendant's 1991 conviction involved substantial sexual conduct for purposes of the SVP Act violated his right to due process. The evidence lacked reliability as defendant's plea could not have contemplated the 2000 and 2001 statements, which were made 10 years after the plea and which varied greatly from the victim's statements at the time of the conviction.id: 19588
The trial court committed harmless error by allowing cameras in the SVP recommitment proceedings. The public and press may have a right to attend sexually violent predator proceedings, but the press does not have a right to have a camera in the courtroom. Moreover, the trial court erred in failing to apply the proper standard in evaluating the media's request to televise the proceedings. However, the error was harmless where the defendant could not show the media's intrusion affected the jury's determination that he satisfied
the criteria for recommitment.id: 19483
The trial court did not err at the SVP trial in instructing the jury that as a matter of law defendant had suffered the requisite qualifying prior convictions. The trial court did not err by instructing the jury in the sexually violent predator trial that the court had determined that defendant had suffered the requisite qualifying prior convictions and the jury was not to decide the issue. The collateral estoppel doctrine applied since the issue of whether
defendant suffered the requisite qualifying prior convictions was identical in both proceedings. Moreover, the instruction did not constitute an improper directed verdict.id: 19422
Defendant had no constitutional right to testify at his SVP recommitment trial over counsel's objection.Defendant did not have a constitutional right to testify over his
attorney's objection at his sexually violent predator trial because SVP proceedings are civil in nature and defense counsel can waive the right to testify on the ground that doing so would be harmful to defendant's case.id: 19339
The jury's future dangerousness finding at defendant's SVP trial was supported by substantial evidence even though defendant had undergone chemical and surgical castration. Evidence supported the finding of future dangerousness at defendant's sexually violent predator trial even though he had undergone chemical and surgical castration while confined. There were other legitimate factors, including his history and the static 99 test results, the jury could consider in reaching its decision.id: 19342
The reversal of defendant's conviction did not preclude the court from continuing with SVP proceedings that had already begun.Defendant challenged his confinement as a sexually violent predator on the ground that the conviction that brought him into the SVP evaluation and commitment system was invalidated after the SVP commitment petition was filed. The conviction for failing to register as a sex offender was reversed because of an
improper response by the court to a question from the deliberating jury. However, the reversal of defendant's conviction did not preclude the court from continuing with SVP proceedings that had already begun.id: 19141
The trial court was not required to instruct the SVP jury to assess the credibility of the victim hearsay statements. Defendant argued the trial court must specifically instruct the jury in a sexually violent predator trial to assess the credibility of the hearsay victim statements contained in police reports. However, such an instruction was not necessary to the
jury's understanding of the case. Moreover, the court instructed with CALJIC 2.80 commanding the jurors to determine whether the facts relied on by the experts were proven or disproved.id: 19033
Defendant's 1980 conviction was a qualifying SVP conviction even though it was based on a no contest plea.Former clause (3) of Penal Code section 1016 does not bar
use of pre-1983 proceedings, because SVPA proceedings are not civil actions. Instead, they are special proceedings of a civil nature, and the two are mutually exclusive. Moreover, the recent
Supreme Court case that resolved this issue, People v. Yartz (2005) 37 Cal.4th 529, decided while this case was pending, and overruling the Court of appeal decision, applied retroactively.id: 19044
Admitting testimonial hearsay in police reports did not violate defendant's confrontation clause rights because defendants in SVP cases have no Sixth Amendment right of confrontation.The admission of testimonial hearsay in police reports and
other documents, through the testimony of the prosecution's experts did not violate defendant's confrontation clause rights at his SVP trial. There can be no Crawford violation in SVP cases since defendants have no Sixth Amendment right of confrontation in these proceedings. While the experts should not have been allowed to testify to the specifics of the underlying conduct under the guise of support for their opinions, any error was harmless in light of the prosecution's
case.id: 19045
Trial court at SVP trial did not err in allowing the victim of 1998 offenses to testify regarding acts not previously reported.Defendant argued the trial court erred at his Sexually Violent Predator trial in allowing the prosecution to introduce evidence outside the record of his 1998 conviction to prove the crime qualified as a predicate offense. However, the court did not err in allowing the 1998 victim to testify concerning different details than previously reported. First, the defense waived the issue by failing to raise it at the SVP trial. Moreover, Penal Code section 6600, subd.(a)(3) authorizes the court to admit documentary evidence establishing a prior conviction. It does not preclude all other evidence such as testimony of the victim.id: 18904
Erroneous factual assumptions of SVP experts should have been addressed through cross-examination and did not render their testimony inadmissible.Defendant argued the testimony of the expert witnesses at his SVP trial was inadmissible because their conclusions that he used force in the 1998 incident erroneously assumed defendant used force in holding the victim's pants down. However, any erroneous factual assumptions by the experts should have been addressed through cross-examination and by showing there was no evidence to support their conclusions.id: 18905
Rule requiring unanimity instruction does not apply in SVP proceedings.At defendant's SVP trial, he argued the court erred in failing to give the unanimity instruction (CALJIC 17.01) on whether the jury found force, duress, or substantial sexual conduct. However, the rule requiring a unanimity instruction does not apply in civil SVP proceedings.
id: 18907
Anders/Wende procedures do not apply to an appeal by an indigent person following an SVP recommitment order.The procedures under Anders v. California (1967) 386 U.S. 738, and People v. Wende (1979) 25 Cal.3d 436, allowing the court to review a record for arguable issues on appeal, do not apply to an appeal filed by an indigent person following a sexually violent predator recommitment order.id: 18816
A 1978 conviction based on a nolo contendere, or no contest, plea may serve as a predicate prior conviction under the SVP Act.Before its 1982 amendment, Penal Code section 1016. former subd.(3) provided that a defendant's nolo contendere plea "may not be used against the defendant as an admission in any 'civil suit' based upon or growing out of an act upon which the criminal prosecution is based." An SVPA civil commitment proceeding is a special proceeding of a civil nature, and not a "civil suit" under section 1016, former subd.(3). As such, defendant's 1978 conviction for child molestation may be used as a predicate prior conviction to support his SVP commitment.id: 18841
Counsel may waive defendant's right to a jury trial in an SVP proceeding.Defendant, at a sexually violent predator recommitment trial, argued the court erred by accepting counsel's representation that defendant wanted a court, rather than jury, trial. However, a personal waiver of jury trial from defendant was not necessary, as an SVP proceeding is civil not criminal, and the right to a jury is statutory, not constitutional.id: 18794
Code of Civil Procedure provision did not require dismissal of an SVP case where trial did not start until more than five years after the case was filed.Code of Civil Procedure section 538.310 requires that a trial must begin within five years of the time the action was filed. Defendant argued his Sexually Violent Predator case was not timely under this provision and should have been dismissed. However, even if the provision applied to SVP proceedings, mandatory dismissal would be inconsistent with the character of SVP proceedings since dismissal would affect public safety, the only time limit that has been applied to SVP cases is that they begin before the prior commitment expires, and the court has the authority to dismiss an SVP petition based on unreasonable prosecutorial delay.id: 18773
A trial court may go beyond the elements of a foreign statute to determine whether the offense qualifies under the SVP act.Defendant was found to be a sexually violent predator under Welfare and Institution's Code section 6600 et seq. He argued the trial court erred by finding his Texas convictions for a "sexually violent offense" within the meaning of the SVP act. The Texas statute applies to children up to the age of 17 whereas the nearest California statute (Penal Code section 288) applies only to children under age 14. The trial court properly went beyond the bare elements of the Texas crimes to look to the record to determine that the offenses (which were committed against nine year-olds) fell within the definition of sexually violent offenses under the SVP act.id: 18580
The psychotherapist-patient privilege does not apply in SVP proceedings, and the court did not err in denying the request for confidentiality of court-appointed experts.At defendant's Sexually Violent Predator proceedings, the trial court did not err in denying his request that the psychological evaluations of the doctor's appointed to assist him be kept confidential and not disclosed to the prosecutor. The psychotherapist-patient privilege applies to a court-appointed expert in a criminal proceeding, but does not apply in an SVP proceeding.id: 18537
The admission of police reports at defendant's SVP trial did not violate Crawford.Defendant argued the use of police reports at his Sexually Violent Predator proceeding violated Crawford v. Washington (2004) 541 U.S. 36. However, Crawford does not apply first, because it was a criminal case that did not discuss the due process right of confrontation in civil proceedings, and second, because defendant had an opportunity to cross-examine the declarant. id: 18538
A psychologist performing a sexually violent predator evaluation must have a doctoral degree in psychology.Welfare and Institutions Code section 6601 specifically requires that licensed psychologists conducting a secondary evaluation under subdivision (g) have a "doctoral degree in psychology." The evaluator in the present case had a doctoral degree in education, but not in psychology as required under the statute. However, any error was harmless where two other qualified evaluators also testified at the SVP trial and both recommended commitment.id: 18484
The court did not err at defendant's SVP trial by excluding evidence of his planned treatment in a secure nursing facility.Defendant argued the trial court erred at his sexually violent predator trial in excluding evidence of planned treatment recommended by his doctors and evidence of his amenability to treatment, which he claimed were relevant to the issue of his dangerousness. However, the court did not abuse its discretion in excluding the evidence which might have confused the jury into believing defendant was not an SVP merely because he promised to participate in the involuntary conservatorship program.id: 18193
The trial court at defendant's SVP trial did not have a sua sponte duty under these facts to instruct on the necessity of custody in a secure facility.Defendant argued the court erred in failing, sua sponte, to instruct the jurors at his SVP trial to consider whether custody in a secure facility was necessary to ensure defendant was not a danger to others. However, defendant's failure to present any evidence of his amenability to voluntary treatment relieved the trial court of any sua sponte duty to modify a legally correct jury instruction and instruct on the necessity of custody in a secure facility.id: 18194
A defendant in an SVP case is entitled to six peremptory challenges.In a jury trial under the Sexually Violent Predators Act, the defendant is entitled to six peremptory challenges, as provided in California Code of Civil Procedure section 231, subd.( c). Neither state nor federal due process or equal protection principles require that state law provide the defendant in such a proceeding the same number of peremptory challenges as in most criminal cases.id: 17866
The SVP Act does not require that the commitment order be obtained before the expiration of the underlying term.Defendant was committed as a sexually violent predator in 1999. In April of 2001, the state petitioned for a two year recommitment. That trial was continued several times before the state filed a second recommitment petition in 2003. Defendant argued a subsequent extended commitment order must be obtained prior to keeping him in custody beyond a two-year commitment period under the SVP Act. However, the Act does not require that the recommitment order be obtained before the expiration of the underlying term. The issue is whether the delay in the trial violates due process. There was no due process violation in the present case where the delay was attributable to defense continuance requests. , ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, (2nd Dist. 2004) March 29, 2004. <$!IOrozco v. Superior Court., ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2004 D.A.R. 3861 (2nd Dist. 2004) .>id: 17802
SVP petition need not be filed in the county which the defendant has suffered his most recent conviction.Defendant argued the Sexually Violent Predator law requires that a commitment petition be filed in the county in which the defendant has suffered his most recent conviction - in this case San Mateo County. However, Sonoma County had jurisdiction over the commitment petition since it was "one of the counties in which the person was convicted of the offense for which he or she was committed to the jurisdiction of the Department of Corrections."id: 17671
Court did not err at SVP trial by excluding evidence regarding the terms and conditions of parole.Defendant argued the trial court erred at his sexually violent predator trial by excluding evidence of the terms and conditions of parole that would have been imposed on him if he were released from custody. However, such evidence was not relevant as it had no bearing on the determination whether defendant has a disorder which makes it likely he will reoffend. It does not relate to the nature of his disorder or reflect in any way his willingness or ability to pursue treatment voluntarily.id: 17672
Denial of SVP defendant's request for outpatient treatment, without exercising discretion, did not violate due process.Defendant argued the trial court's denial of his request for outpatient treatment as an option to institutional confinement, without exercising any discretion, resulted in his confinement as a sexually violent predator, in violation of his state and federal rights to due process. However, the trial court's rejection of defendant's proposed plea bargain involving immediate outpatient commitment, did not violate due process.id: 17639
Defendant's prior act of touching a five year old's vaginal area over her clothes constituted substantial sexual conduct for purposes of the SVP act.Defendant argued he did not qualify as a sexually violent predator because he did not have the requisite qualifying prior convictions. Specifically, his 1994 Penal Code section 228, subd.(a) conviction did not qualify because there was no skin-to-skin conduct and therefore no "substantial sexual conduct." However, defendant intentionally rubbed the child's vaginal area over her clothing, and instructed the 5 year-old to keep it a secret. The evidence established the requisite sexual intent to constitute a qualifying prior conviction under the SVPA.id: 17628
Court did not err at defendant's SVP trial in failing to instruct that the mental disorder must render defendant unable to control his sexual impulses.Defendant argued the trial court erred at his Sexually Violent Predator trial by failing to specifically instruct on the need to find serious difficulty in controlling behavior. However, the language in Welfare and Institutions Code section 6600 inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes one's criminal sexual behavior. Moreover, even if instructional error occurred, there was no prejudice as no rational jury could have failed to find defendant harbored a mental disorder that made it difficult for him to control his violent sexual impulses.id: 17539
The "likely" standard at an SVP trial is met if the trier of fact finds the person presents a substantial danger (a serious and well founded risk) that he will commit sex crimes if released.In a trial to determine whether a person is a sexually violent predator, the trier of fact must find, among other things, that the person is "likely" to engage in sexually violent criminal behavior if released. That standard is met when the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.id: 17196
Defendant's 1978 rape conviction qualified as a predicate offense for the SVP law.Defendant's 1978 conviction for rape qualified as a predicate offense under the Sexually Violent Predators Act. The conviction qualified under the Welfare and Institutions Code section 6600, subd. (a)(2)(D). It did not matter that he was a juvenile convicted in adult court, or that he received an indeterminate term.id: 17158
Each county in which defendant committed a crime which led to his incarceration had jurisdiction over SVPA proceedings.The Sexually Violent Predators Acts confers jurisdiction over a petition for commitment to the superior court of the county in which the person was convicted. Defendant was sent to prison for offenses he committed in three separate counties. Each of those counties had jurisdiction over the SVPA proceedings.id: 17052
The SVP probable cause determination, like the ultimate determination to be made at trial, encompasses all four elements contained in the definition of an SVP. The Welfare and Institutions Code section 6602, subd.(a) probable cause hearing requires the superior court to determine whether a reasonable person could entertain a strong suspicion that the defendant has satisfied all the elements required for a civil commitment as an SVP, specifically, whether 1) the offender has been convicted of a qualifying sexually violent offense against at least two victims; 2) the offender has a diagnosable mental disorder; 3) the disorder makes it likely he or she will engage in sexually violent criminal conduct if released; and 4) this sexually violent criminal conduct will be predatory in nature.id: 17073
Probable cause standard used in criminal preliminary hearings also applies to probable cause hearings under the SVPA.The "probable cause" standard as used in criminal preliminary hearings is the appropriate burden of proof for a probable cause hearing under the Sexually Violent Predators Act.id: 17074
Evidence at defendant's SVP trial showed he lacked control of his sexually violent behavior as he repeatedly reoffended and, due to his mental condition, was undeterred by the threat of criminal punishment.Defendant was civilly committed as a sexually violent predator. He argued on appeal there was insufficient evidence that he lacked control of his sexually violent behavior. However, the evidence showed that while awaiting his rape trial, he attempted to rape another person, and did rape still another person while awaiting sentencing. He also repeatedly violated his parole. Moreover, prosecution witnesses established on direct examination that defendant had a mental illness which made him unlikely to be deterred by the threat of criminal punishment and hence likely to reoffend. This amounted to evidence of lack of control.id: 17034
Trier of fact in SVP trial must find defendant is likely to commit sexually violent predatory behavior upon release.Before defendant can be committed or recommitted under the Sexually Violent Predators Act, the trier of fact must find, beyond a reasonable doubt, that the defendant is likely to commit sexually violent predatory behavior upon release. Thus, the judge or jury trying the case must determine not only whether the defendant is likely to engage in sexually violent criminal behavior, but also whether that behavior is likely to be directed "toward a stranger, a person of causal acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization."id: 16991
SVP act does not require that two experts testify for the prosecution at trial.Defendant argued the sexually violent predator finding was insufficient as a matter of law because only one mental health expert testified for the prosecution. However, although there must be two concurring experts as a procedural prerequisite to commencement of the SVP process, the SVP act does not expressly require two experts to testify at trial on behalf of the prosecution.id: 16928
Defendant is not entitled to notice or counsel before an SVP petition is requested or filed.Due process does not require written notice or the assistance of counsel during evaluations conducted by two psychologists prior to filing the petition to commit a defendant as a sexually violent predator under Welfare and Institutions Code section 6600 et seq.id: 16856
Any error in failing to instruct SVP jury that future acts need be "predatory" was harmless since defendant's criminal sexual conduct had always been predatory.Defendant argued the trial court prejudicially erred by failing to instruct the jury at his Sexually Violent Predator recommitment trial, that it must find he was likely to engage in sexually violent "predatory" criminal behavior. However, any error was harmless beyond a reasonable doubt where defendant's criminal sexual conduct had always been predatory, and was therefore likely to be predatory in the future.id: 16784
Trial court did not lose jurisdiction by allowing the prosecution to cure a defect in an SVP extension proceeding after his original commitment expired.Defendant appealed from an order extending his commitment as a sexually violent predator for an additional two years. He argued the court lost jurisdiction after his original commitment expired and the court dismissed the petition to extend his commitment (for lack of a second psychological evaluation) but permitted another petition to be filed immediately. However, under the circumstances, the trial court did not lose jurisdiction.id: 16755
The court did not err by refusing to dismiss the extended SVP petition where defendant's original term expired three days before the probable cause hearing.Defendant argued the trial court erred by refusing to dismiss the extended sexually violent predator petition where his original commitment expired and a probable cause hearing had not yet begun. The trial court made the probable cause finding three days later. Defendant suffered no prejudice by the three day delay and intent of the SVP law was not to release an alleged SVP solely because the trial court failed to make a probable cause finding before the defendant's term expired.id: 16678
The right to discovery in SVP cases includes the right to notice depositions.The Civil Discovery Act of 1986 applies to Sexually Violent Predator Act proceedings, and therefore the deposition method of discovery is available. Moreover, the right to discovery in SVP proceedings is subject to certain provisions of the Civil Discovery Act which authorize the trial court to manage discovery and prevent misuse of discovery procedures. Finally, the scope of discovery in SVP cases is limited to the relevant issues of 1) whether the person sought to be committed has been convicted of a sexually violent offense against two or more victims, and 2) whether the person has a diagnosed disorder that makes him a danger to others in that it is likely he will engage in sexually violent criminal behavior.id: 16608
Dismissal of SVP petition was not required where the two original evaluations found defendant met the SVP criteria and then after the probable cause hearing, later evaluations were split on the issue.The District Attorney filed a Sexually Violent Predator petition against defendant in 1996. It was supported by two expert evaluations. A probable cause hearing was held. The matter languished for three years due to various trial court proceedings. Defendant then moved to dismiss the petition since three new evaluations had been conducted and two of the three experts found he did not meet the SVP criteria. He argued he was not subject to an involuntary commitment since the recent opinions reflect a difference of opinion. Contrary to defendant's claim one of the new opinions was not a "replacement" for one of the 1996 evaluations. While the statutory scheme provides for new evaluations it does not provide consequences for a split of opinion between the new evaluators. However, the new evaluations do not require dismissal but may be used for informational and evidentiary purposes.id: 16627
Remedy for "unlawful" custody is not immunity from civil commitment under the SVP Act.In <i>Terhune v. Superior Court</i> (1998) 65 Cal.App.4th 864, the court held the Board of Prison terms lacked jurisdiction to revoke parole of a person who was unlawfully in custody in that revocation was based on the need for psychiatric treatment, rather than for some form of misconduct. The trial court in the instant case dismissed the Sexually Violent Predator petition citing <i>Terhune</i> for the proposition that defendant was unlawfully in custody. However, <i>Terhune</i> did not address the question of whether "lawful" custody is a jurisdictional prerequisite to the filing of a petition under the SVP Act. Moreover, the remedy for "unlawful" custody is not immunity from civil commitment under the SVP Act.id: 15738
Sex crimes against children under age 14 qualify under the SVP Act even if no force is involved.Penal Code section 6600.1 modifies section 6600, subdivision (b). Under that provision someone who commits two or more specified sex offenses against children under age 14 with substantial sexual conduct is subject to the Sexually Violent Predators Act, even if his crimes were not committed with force, violence, menace or fear.id: 15739
SVP Act's requirement that the offender is "likely" to engage in sexually violent behavior does not dilute the reasonable doubt standard.Defendant argued that while the Sexually Violent Predators Act under Welfare and Institutions Code section 6600, et seq. purports to require proof beyond a reasonable doubt it requires the trier of fact simply to determine whether an offender is "likely" to engage in sexually violent criminal behavior. However, the requirement that the offender is likely to engage in sexually violent criminal behavior does not unconstitutionally circumvent or dilute the state's reasonable doubt standard.id: 15741
SVP commitment was not improper for lack of lawful custody where, at the time, defendant's actual custody was due in part to a good faith mistake of the law.Defendant argued the court lacked jurisdiction to order a commitment under the Sexually Violent Predators Act because he was not in lawful custody at the time the petitions were filed. He was in actual custody at the time the petitions were filed but it was subsequently determined that his parole revocation for psychiatric treatment was improper. However, while his custody status may have been determined to be "unlawful" by the superior court, it could have been rendered lawful by a new revocation hearing. His custody status was due in part to a good faith mistake of law. Therefore, the petitions were properly filed while defendant was in good faith custody of the Department of Corrections.id: 15742
SVP petition filed four days before defendant's release date was timely.A petition to extend defendant's commitment under the Sexually Violent Predator's Act (Welfare and Institutions Code section 6600, et seq.) was filed four days before his release date. The trial court dismissed the petition as untimely on the ground that the trial would not be completed before expiration of defendant's commitment term. However, the SVP Act does not require the recommitment trial be completed before the date the original commitment term expires.id: 15744
The slightest touching of the genitals of a victim in a prior case may subject a defendant to the Sexually Violent Predators Act.Defendant argued the evidence was insufficient to show he had previously committed a sexually violent offense against one of the victims, which is a prerequisite to the application of the Sexually Violent Predators Act. In 1989, defendant touched the victim on the outside of her vagina, underneath her panties, and he forced her to touch his penis. This was sufficient evidence to show defendant was an SVP because any touching of the genitals is sufficient to meet the required statutory definition under the SVP Act of "substantial sexual conduct" by means of "masturbation of either the victim or the offender."id: 15746
The SVP Act does not provide for precommitment custody credits.Defendant argued he was entitled to precommitment custody credits for the time in custody after his expected release date from prison, until the date upon which he was committed as a sexually violent predator. However, the SVP Act does not provide for precommitment custody credits.id: 15748
Trial court did not err in removing determinate sentence requirement of SVP law, since the provision was an obvious drafting error by the Legislature.As originally drafted Welfare and Institutions Code section 6600 defined a sexually violent predator as having been convicted of a violent sex crime against multiple victims for which he received a determinate sentence. Defendant's conviction preceded the Determinate Sentencing Law of 1977. The trial court in the present case did not err in modifying the pattern instruction to eliminate the determinate sentence requirement which was an obvious drafting error.id: 15750
Trial court erred in dismissing the SVP petition on the basis that defendant would be deported before receiving the benefit of treatment provided for in the SVP Act, and that any commitment would violate equal protection principles.Defendant, a legal immigrant, argued that because he would be deported before he could receive the benefit of conditional release and outpatient treatment provided for in the Sexually Violent Predators Act, argued any commitment under the Act would violate state and federal equal protection principles. However, neither the action of the prosecution in filing the SVP petition nor the decision of the federal government to defer action on deportation pending the outcome of the SVP proceedings have resulted in invidiously discriminatory disparate treatment under the otherwise neutral SVP Act. Therefore, the superior court erred in dismissing the SVP petition filed against defendant.id: 15751
Trial court had jurisdiction to proceed on second SVP petition filed in 1998 even though the first petition filed in 1996 was still pending review in the Supreme Court.Defendant argued the trial court lacked jurisdiction to proceed on a second petition filed in 1998 to determine whether he was a person the Act (Welfare and Institutions Code section 6600, et seq.) defines as an SVP because the proceeding involving his first petition filed in 1996 was still pending review before the state Supreme Court. However, the trial court had jurisdiction to proceed on the second petition due to the nature of the commitment proceedings described by the Act which focus on the current mental condition and dangerousness of an SVP, permitting the initiation of such proceedings "whenever" the potential SVP is scheduled to be released from prison.id: 15752
Allowing hearsay statements at SVP probable cause hearing does not violate due process.The Sexually Violent Predators Act (Welfare and Institutions Code section 6600, et seq.) expressly allows the prosecution to prove that a defendant has committed sexually violent offenses through hearsay evidence, including victim hearsay statements contained in probation reports. The admission of such hearsay evidence at the probable cause hearing does not violate due process, because the defendant has the opportunity to challenge the evidence.id: 15715
Amended SVP act applies to persons whose sentence was to an indeterminate term.The conviction of a sexually violent offense may be counted as a predicate conviction under the Sexually Violent Predator Act if the defendant was sentenced to an indeterminate term for that crime, despite the statute's reference to a determinate term. This is true even though a petition for commitment under the act was filed before the 1996 amendment to the statute.id: 15716
An SVP is not entitled to commitment credit for time spent in jail prior to the jury's finding.A defendant convicted as a sexually violent predator under Welfare and Institutions Code section 6600 is not entitled to receive credit against his commitment for the time spent in jail prior to the jury's finding.id: 15717
Conclusions of prosecution's experts supported jury's finding the defendant was an SVP.Evidence was sufficient to support the jury's finding that defendant was a sexually violent predator pursuant to Welfare and Institutions Code section 6600, et seq. Defendant had argued the evidence was insufficient since the experts were unable to agree on the specific mental disorder and there was no evidence he lacked the ability to control his sexually violent behavior. However, despite other differences, all three psychologists testified that defendant suffered from pedophilia. Moreover, with respect to volitional control, the two experts testifying for the prosecution agreed defendant could not control his behavior but the defense expert disagreed. The jury could reasonably believe the states experts and reject that of the defense witness.id: 15718
Court did not err in failing to initiate formal Marsden proceedings at the SVP trial where defendant's complaint about counsel was not related to counsel's performance.On the first day of defendant's Sexually Violent Predator trial, defendant "fired" defense counsel, after counsel informed the court defendant had been given steel tipped darts (possible weapons) by his wife. On appeal he argued the court erred in refusing to appoint a replacement without conducting a hearing outside the presence of the prosecutor. However, the formal <i>Marsden</i> inquiry was not required where the complaint was not based on counsel's performance, but rather, on his report regarding the darts. Moreover, that the denial resulted in self-representation during jury selection (dismissed counsel resumed representation after voir dire) did not change the result. The court warned defendant of the dangers of self-representation and gave defendant the right to review counsel's materials.id: 15719
Court properly denied the motion to dismiss the SVP petition after a mistrial was declared at the first trial which resulted in a deadlocked jury.Before defendant's second trial he brought a motion to dismiss on grounds that Penal Code section 6604 mandated his immediate release on parole because the jury was unable to agree on a verdict or find he was a sexually violent predator beyond a reasonable doubt. Although the SVP Act does not specifically provide for retrial if there is a hung or deadlocked jury, such is implied when considered with the Act's "finality" requirement that the jury finding be unanimously determined beyond a reasonable doubt.id: 15722
Court retained jurisdiction to consider Sexually Violent Predator petition even though the revocation of petitioner's probation for psychiatric purposes was unlawful.Petitioner challenged his commitment under the Sexually Violent Predator's Act (Welfare and Institutions Code section 6600, on the basis that the revocation of his parole for psychiatric evaluation was unlawful under <i>Terhune v. Superior Court</i> (1998) 65 Cal.App.4th 864. However, despite the Department of Corrections' legal error in revoking petitioner's parole on that basis, the trial court still had jurisdiction to consider the SVP petition.id: 15724
Lack of a current diagnosis did not invalidate the SVP commitment where the evaluations used were several months old and adopted by the psychologists at the present hearing.Defendant argued his SVP commitment based on the October 1997 petition was invalid for lack of a current diagnosis, since the most recent evaluations were performed before the March 1997 petition. However, both psychologists who evaluated defendant testified at the probable cause hearing that their diagnoses were current and unchanged from the earlier evaluations. Even if a new screening should have been conducted reversal was not required since the evaluations were sufficient for the March petition and the commitment was based on both petitions.id: 15733
Lawful custody is not a prerequisite to the filing of an SVP petition.Defendant argued the trial court lacked jurisdiction to try him as a sexually violent predator because he was unlawfully in the custody of the Department of Corrections following revocation of his parole for psychiatric evaluation. However, there is no requirement that a defendant's custody be "lawful" at the time an SVP petition is filed, only that the person alleged to be an SVP be in custody under the jurisdiction of the Department of Corrections.id: 15734
Prosecutor at an SVP trial may call the defendant as a witness.Defendant argued the trial court denied his the constitutional right to remain silent when it permitted the prosecutor to call him as a witness at his Sexually Violent Predator trial. His argument focused on the fact that his trial testimony must have seemed implausible and reduced his credibility with the jury. However, the SVP trial was not a criminal proceeding within the meaning of the Fifth Amendment's privilege against self-incrimination. Moreover, that defendant's credibility might have been questioned by the jury was not the fault of the procedure established by the SVPA.id: 15736
Court need not advise a defendant about the possibility of future SVP proceedings before accepting a plea.The trial court was not required to advise defendant, before accepting his no contest plea, that he might eventually be subject to additional confinement under the Sexually Violent Predator Act - Welfare and Institutions Code section 6600.id: 15708
Evidence showed defendant had a diagnosed mental disorder for SVP purposes where his alcoholism caused him to lose control.Defendant argued there was insufficient evidence to show he had a "diagnosed mental disorder" under the Sexually Violent Predator law since the law requires evidence that a person lacks "volitional control." However, the evidence showed defendant suffered from paraphilia and that his alcoholism caused him to lose control, become dangerous to others, and become predisposed to act on his paraphiliac interests. Substantial evidence supported the court's determination.id: 15369
Prior rape conviction under former statute was a qualifying prior under the SVP law.Defendant argued his 1974 conviction of rape by force under former Penal Code section 261, subdivision (3) could not be used at his Sexually Violent Predator trial because that former provision was not one of the qualifying offenses enumerated in section 6600, subdivision (b). However, the Legislature intended to include in section 6600 prior convictions which occurred before section 261 was amended to its current form but which described all the elements of an offense described by section 261, subdivision (a)(2). Moreover, defendant's 1976 Oklahoma conviction for rape was also a qualifying prior.id: 15381
SVP Act does not violate ex post facto laws where confinement for offenses committed before effective date of the Act does not constitute "punishment".Defendant argued the Sexually Violent Predators Act under Welfare and Institutions Code section 6600 violated ex post facto principles by permitting commitments based on offenses committed before the effective date of the Act. However, the SVP Act does not impose liability or punishment for criminal conduct and therefore does not implicate ex post facto concerns.id: 15290
SVP Act does not violate equal protection in that the criteria for commitment are less exacting than those under analogous statutory schemes.Defendant argued the Sexually Violent Predators Act under Welfare and Institutions Code section 6600 denies equal protection of the law because the criteria for commitment, particularly dangerousness, are less exacting than the standards used under analogous statutory schemes. However, the other cited commitment statutes have been interpreted in a manner consistent with the SVPA. Assuming SVP's are similarly situated to other persons subject to civil commitment, no disparate treatment occurs under the relevant statutory provisions.id: 15277
SVP law does not violate equal protection by permitting hearsay to be introduced to prove the prior qualifying convictions.The Legislature did not offend equal protection principles by permitting hearsay contained in documents to be introduced as proof of the fact of prior qualifying convictions or as proof of the details of those offenses in trial on the Sexually Violent Predator petition. The SVP law, by not according persons subject to a petition all rights accorded criminal defendants, does not on its face violate equal protection principles.id: 15278
SVP evaluators use of former therapy records did not violate the psychotherapist-patient privilege.At defendant's sexually violent predator trial (under Welfare and Institution's Code section 6600 et seq.) the evaluating psychologists were permitted to review and use his statements to former treating psychologists. Contrary to defendant's claim, the psychotherapist-patient privilege did not preclude the psychologists from considering defendant's therapy records because the privilege never attached to his communications with the treatment staff at Atascadero or his MDSO evaluator.id: 14955
The appropriate procedure to challenge a probable cause finding under the SVP act is a writ of habeas corpus.After the trial court found probable cause that defendant would engage in sexually violent behavior if released from prison, the defendant filed a petition for a writ of habeas corpus challenging the finding for insufficient evidence. The trial court ruled the appropriate procedure to challenge the determination was a motion to dismiss under Penal Code section 995. However, the appropriate procedure to challenge a probable cause finding under the SVP act is a writ of habeas corpus.id: 14956
The Civil Discovery Act of 1986 applies to proceedings under the Sexually Violent Predators Act.The prosecution commenced Sexually Violent Predator proceedings against defendant. He moved for a court order directing the exchange of expert witness information as a preliminary step toward deposing the two psychiatric witnesses. The trial court thereafter erred in denying the request after concluding that civil discovery in not applicable in SVPA proceedings.id: 14957
The SVP act does not require the prosecution to complete the commitment process before the defendant's scheduled release date from prison.There is nothing in the plain language of the SVP act to support defendant's view that the commitment proceedings must have been completed in their entirety before his scheduled release date, although the act provides that the referral to the Department of Mental Health shall be conducted no less than six months prior to the defendant's scheduled release from prison. It says nothing about when the commitment process must be completed.id: 14958
Trial court could rely on vacated Texas conviction in the SVP proceeding.Defendant was civilly committed to the Department of Mental Health as a sexually violent predator under Welfare and Institutions Code section 6600 et seq. One of the convictions qualifying defendant was a Texas conviction for child sexual abuse that had been vacated and charges dismissed, under a Texas probation statute similar to California Penal Code section 1203.4. The trial court did not err in allowing the evidence of the vacated Texas conviction in the SVP proceeding.id: 14959
Under the SVPA the trier of fact at the trial is not required to find that a defendant's prior convictions involved predatory acts.The Sexually Violent Predators Act under Welfare and Institutions Code section 6600 et seq. provides for civil commitment of criminal defendants who, after serving their prison terms, are found to be sexually violent predators. This determination need not be based upon a finding by the trier of fact at trial that the defendant's prior sexual crimes involved "predatory acts" which are statutorily defined as acts against a stranger, a casual acquaintance, or someone cultivated for the purpose of victimization.id: 14961
Amendment to the SVP act authorizes updated interviews and allows the DA access to defendant's treatment records.The Court of Appeal found the Sexually Violent Predator's Act did not authorize updated interviews, and that the District Attorney had no right of access to the defendant's treatment records. Thereafter, the Legislature enacted urgency legislation under Welfare and Institutions Code section 6603, subd.(c). The new legislation applies to the present case and authorizes updated interviews and evaluations as well as access to treatment records.id: 14944
Court did not err in denying SVP's request for a court-appointed mental health expert to assist him at the annual show cause hearing.Defendant argued he was deprived of due process because the court denied his request for a court appointed mental health expert to assist him at the annual show cause hearing under Welfare and Institutions Code section 6605, subd.(a). However, the statute gives the court discretion to appoint an expert. The court did not abuse its discretion in denying the appointment where the medical report from the hospital made clear that he had made little progress in his treatment, choosing to rely on his religious values as a deterrent to future criminal conduct. Contrary to defendant's claim, due process does not require the appointment of an expert as a matter of right before probable cause has been established.id: 14945
Court did not err in failing to order a full hearing following the annual review of defendant's SVP status since he did not show he was no longer a danger.Defendant appealed from an order issued after the annual "show cause" hearing on his mental condition, at which the court denied his request for a full hearing on his SVP status and ordered him to remain committed for the balance of his two year term. (Welfare and Institutions Code section 6605, subds.(b) and (c).) He argued he was entitled to a full hearing on his SVP status because there was probable cause to believe that his mental condition had changed and that he was no longer dangerous. However, defendant did not carry his burden of showing he was no longer dangerous and it was uncontested that he refused to participate in a portion of his therapy.id: 14946
Court was not required to release SVP petitioner on procedural grounds.Petitioner's Sexually Violent Predators Act petition under Welfare and Institutions Code section 6600 et seq. was dismissed where it was based on one rather than two psychiatric evaluations. Section 6602 did not require the trial court to release the petitioner following the dismissal of the original petition. The court was required to permit the prosecution to file the new petition for extended commitment after the probable cause finding was vacated.id: 14947
Predicate offenses in an SVP proceeding may be proven by multiple hearsay evidence that does not fall into any hearsay exception.Welfare and Institutions Code section 6600, subd.(a)(3), which permits the details of predicate offenses to be proven by documentary evidence in a sexually violent predator proceeding, allows the admission of multiple hearsay that does not fall within any exception to the hearsay rule. Reliance on this evidence does not violate a defendant's right to due process.id: 14950
Premature filing of an SVP petition can be cured if the psychiatric evaluations were performed prior to the end of the previous commitment.Although a petition alleging that a person is a sexually violent predator within the meaning of Welfare and Institutions Code section 6600, et seq. should not be filed until two psychotherapists have evaluated the alleged SVP and found that his condition meets the requirements of the SVP Act, a failure to do so may be cured by the prosecution after a petition is filed. Thus, where the petition was timely and the required evaluations were performed prior to the end of the alleged SVP's previous commitment, the trial court erred in dismissing the petition.id: 14951
Prosecutor did not violate privacy rights in reviewing psychiatric records in deciding whether to file an SVP petition.Defendant argued the prosecutor, during the proceedings to determine whether he was a sexually violent predator, violated his state constitutional right to privacy by examining records concerning his medication and treatment at Atascadero State Hospital. However, the minimal intrusion was justified by compelling interests behind the SVP Act and the prosecutor's duty to make an independent and informed decision concerning whether to file a petition.id: 14952
SVP act requires a probable cause hearing on a petition for recommitment.The district attorney sought an order directing the trial court not to hold a scheduled probable cause hearing on a petition to recommit a person as a sexually violent predator. However, the SVP act requires a probable cause hearing on a petition for recommitment just as on an initial petition to commit.id: 14953
SVP Act does not violate equal protection by failing to provide similar treatment as other civil commitment schemes.Defendant argued the Sexually Violent Predators Act (Welfare and Institutions Code section 6600 et.seq.) violated equal protection principles because it treated people charged under the act differently from those committed under other civil commitment schemes. However, the proof of current mental condition under the SVPA is similar to the other civil commitment schemes. The fact that the SVPA does not provide for treatment while the person is serving his or her predicate term does not violate equal protection. Finally, the SVPA does not violate equal protection by denying credit for the time the defendant spent in custody after his scheduled release date from prison and before his SVP trial.id: 14954
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245