Parker, In re

Page 167

71 Cal.Rptr.2d 167

60 Cal.App.4th 1453, 98 Cal. Daily Op. Serv. 605,

98 Daily Journal D.A.R. 795

In re Leon PARKER on Habeas Corpus.

No. D029756.

Court of Appeal, Fourth District, Division 1, California.

Jan. 22, 1998.

Review Denied April 29, 1998.

Steven J. Carroll, Public Defender, Donna L. Harris and Stephen Cohan, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Paul J. Pfingst, District Attorney, Thomas F. McArdle and Craig E. Fisher, Deputy District Attorneys, for Real Party in Interest.

HUFFMAN, Associate Justice.

In this action we are asked to determine the nature of the hearing provided for under WELFARE AND INSTITUTIONS CODE 6602¹ of the recently enacted Sexually Violent Predators Act (the Act) (§ 6600 et seq.) to determine if there is "probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602.) Here, the trial court, over the objection of Leon Parker's counsel, determined there was probable cause to hold Parker for trial as a potential "sexually violent predator" (SVP) under the Act after a facial review of the petition and its attachments, following an earlier superior court judge's ruling that a full evidentiary hearing was not required under section 6602. Because we conclude that a probable cause hearing under this section requires more than a mere "paper review" in this case, we grant the petition and remand to the trial court to conduct an appropriate hearing in accordance with this opinion.

BACKGROUND

I Summary of the Act

The Act, contained in sections 6600 through 6608, was enacted October 11, 1995, effective January 1, 1996. (Stats.1995, chs.762, § 3, 763, § 3.) The Act's uncodified purpose clause states:

"The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society. [p] The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing threat to society. The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats.1995, ch. 763, § 1.)

The Act defines an SVP as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) The Act provides that:

"[t]he existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health." (§ 6600, subd. (a), as amended by Stats.1996, ch. 462, § 4, eff. Sept. 13, 1996.)

Subdivision (b) of section 6600 lists the qualifying sexually violent offenses for purposes of the Act. ² Although a "[d]iagnosed mental disorder" is not fully defined under the Act, such condition is stated to "include[ ] a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).) Proof of a recent overt act while the prospective SVP is in custody is not required to show "[d]anger to the health and safety of others." (§ 6600, subd. (d).)

Under section 6601, if the director of the Department of Corrections determines that a prisoner may be an SVP, the director must refer the prisoner for an initial screening, which includes evaluation by two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol, commenced at least six months before the prisoner's scheduled release date. (§ 6601, subds. (a), (b), (c) & (d).) ³ If both evaluators conclude that the prisoner "has a diagnosed mental disorder such that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the Director of the Department of Mental Health (DMH) transmits a request for a petition for commitment under the Act, with copies of the evaluation reports and other supporting documents, to the county in which the prisoner was last convicted. (§ 6601, subds. (d), (h) & (i).) If the designated county's attorney concurs in the request, a petition for commitment is filed in that county's superior court. (§ 6601, subd. (i).)

Once filed, the superior court is required to hold a probable cause hearing at which the individual named in the petition is entitled to assistance of counsel. (§ 6602.) If the court determines there is probable cause to believe that the person is likely to engage in sexually violent predatory ⁴ criminal behavior upon his or her release from prison, the judge "shall" order that a trial be conducted "to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release...." (§ 6602.) If, however, the court finds no probable cause, the court must dismiss the petition and have the prisoner report to parole. (§ 6602.)

Subdivision (a) of section 6601.5 of the Act provides that:

"In cases where an inmate's parole or temporary hold pursuant to Section 6601.3 ⁵ will expire before a probable cause hearing is conducted pursuant to Section 6602, the agency bringing the petition may request an urgency review pursuant to this section. Upon that request, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release. If the judge determines that the petition, on its face, supports a finding of probable cause, the judge shall order that the person be detained in a secure facility until a hearing can be held pursuant to Section 6602. The probable cause hearing provided for in Section 6602 shall be held within 10 calendar days of the date of the order issued by the judge pursuant to this section." ⁶

The person subject to a trial under the Act is then to remain in custody in a secure facility until the trial is completed. (§ 6602.) That person is entitled to trial by jury, the assistance of counsel, the right to retain experts or professional persons to perform further evaluations, and access to relevant medical and psychological reports. (§ 6603, subd. (a).) The court, if jury is waived, or the jury, by unanimous verdict, must determine beyond a reasonable doubt whether the person named in the petition is in fact an SVP. (§ 6604.) If there is any reasonable doubt, the person is released at the expiration of his or her prison term. (§ 6604.) If the person is determined to be an SVP, he or she shall be committed to the custody of the DMH for two years "for appropriate treatment and confinement in a secure facility ...," subject to annual review and extension of commitment if the diagnosed mental disorder and the consequent danger to the community persists. (§§ 6604, 6605.)

The remaining sections of the Act contain provisions relating to the annual review, treatment, extension of commitment, and conditional and unconditional releases. (§§ 6605-6608.)

II Procedural Summary and Facts

On October 16, 1992, Parker was convicted of committing a lewd act with a child under the age of 14 (Pen.Code, § 288, subd. (a)) and was found to have suffered an earlier serious felony conviction for committing a lewd act with a child under the age of 14 in 1984 (Pen.Code, § 667, subd. (a)(1)). Parker was sentenced to a determinate term of eight years with a parole release date set for October 9, 1997.

On August 5, 1997, the DMH wrote the San Diego District Attorney's Office that Parker had been identified as an SVP under the Act and attached to its letter the reports of two psychiatric professionals who concurred, after separate evaluations, that Parker fit the Act's statutory qualifications. Specifically, the experts' reports concluded Parker presently suffers from a "diagnosed mental disorder" and is currently dangerous thereby qualifying as an SVP for commitment under the Act.

Pursuant to the Act, the People filed a petition September 2, 1997, which included the above-referenced psychiatric reports, requesting the superior court to commence proceedings to determine whether Parker...