Arnold v. Superior Court of L. A. Cnty.

• Decision Date: 14 November 2014
• Docket Number: B254887
• Court: California Court of Appeals Court of Appeals
• Parties: STEPHEN ARNOLD, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Parties in Interest.

STEPHEN ARNOLD, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;THE PEOPLE, Real Parties in Interest.

B254887

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

November 14, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. ZM011449)

(Susan M. Speer, Judge)

Original proceeding. Petition for Writ of Mandate. Denied with directions.

Ronald L. Brown, Public Defender of Los Angeles County, Albert J. Menaster, Ellen Coleman and Jack T. Weedin, Deputy Public Defenders, for Petitioner.

Jackie Lacey, District Attorney of Los Angeles County, Roberta Schwartz and Matthew Brown, Deputy District Attorneys, for Real Party in Interest.

I. INTRODUCTION

Defendant, Stephen Arnold, is the subject of a commitment petition under the Sexually Violent Predator Act, Welfare and Institutions Code¹ section 6600 et seq. Defendant's mandate petition challenges an order authorizing a mental examination by Dr. Richard Romanoff, a psychologist retained by the Los Angeles County District Attorney (district attorney). Consistent with People v. Landau (2013) 214 Cal.App.4th 1, 24-27 (Landau), we hold the respondent court had discretion to order a mental evaluation of an alleged sexually violent predator by Dr. Romanoff. But because no proper order has been issued by the respondent court, we address no issues concerning whether an abuse of discretion has occurred. That question plus issues relating to documents that may be reviewed by Dr. Romanoff are not presently ripe for decision. Once the remittitur issues, the respondent court may exercise its discretion on those matters.

II. THE SEXUALLY VIOLENT PREDATOR ACT

The trial in this matter is pending. Several essential steps precede an alleged sexually violent predator's civil commitment trial. (§§ 6601-6603; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144-1147.) First, the Department of Corrections and Rehabilitation screens inmates in its custody to determine whether an individual is likely to be a sexually violent predator. (§ 6601, subds. (a) & (b).) Section 6601, subdivision (b) states that an inmate who is likely to be a sexually violent predator is then referred to the State Department of State Hospitals (hospitals department). (§ 6601, subd. (b).) The hospitals department is to then evaluate the inmate to determine whether the person is asexually violent predator. (§ 6601, subd. (c).²) Prior to June 27, 2012, the evaluation of an inmate referred by the Department of Corrections and Rehabilitation was performed by the former State Department of Mental Health (mental health department). However, effective June 27, 2012, the mental health department was eliminated. (Sen. Com. on Budget and Fiscal Review, Analysis of Assem. Bill No. 1470 (2011-2012 Reg. Sess.), as amended June 13, 2012, p. 1; Sen. Rules Com., 3d reading analysis of Assem. Bill No. 1470 (2011-2012 Reg. Sess.), as amended June 13, 2012, p. 1; Assem. Budget Com. Assem. Floor Analysis of Assem. Bill No. 1470 (2011-2012 Reg. Sess.), as amended June 13, 2012, concurrence in Sen. Amendments, p. 1.) The hospitals department was created and it now conducts the sexually violent predator evaluations. (Stats. 2012, ch. 24, §§ 63, 139.) Later in our opinion, references will be made to evaluations performed under the aegis of the former mental health department. Those evaluations are the ones now performed by the hospitals department.

Second, the hospitals department evaluates the individual to determine whether he or she meets the criteria for commitment as a sexually violent predator. (§ 6601, subd. (c).) Those criteria are set forth in section 6600, subdivision (a)(1): "'Sexually violentpredator' means a person [(1)] who has been convicted of a sexually violent offense against one or more victims and [(2)] 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." Only the second of the two elements is at issue in the present case. Hospitals department evaluations are conducted pursuant to a "standardized assessment protocol." (§ 6601, subd. (c).) Section 6601, subdivision (c) describes the protocol: "The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." To that end, the hospitals department issues a Clinical Evaluator Handbook and Standardized Assessment Protocol. (See [as of October 15, 2014].)

The hospitals department designates two licensed psychologists or psychiatrists to evaluate the alleged sexually violent predator. If those two professionals agree the individual meets the sexually violent predator criteria, the hospitals department asks the district attorney to file a commitment petition. (§ 6601, subd. (d).) If the two hospitals department designated professionals do not agree, it must select two non-state government professionals to evaluate the alleged sexually violent predator. In order for a commitment petition to be filed, the two independent professionals must agree that the alleged sexually violent predator meets the specified criteria. (§ 6601, subds. (e) & (f).) When the hospitals department requests that the prosecutor file a commitment petition, copies of the evaluation reports and supporting documents must be made available to the prosecuting attorney. (§ 6601, subds. (d) & (h).)

Third, the prosecuting attorney's office determines whether it concurs with the professional evaluations. (§ 6601, subd. (i).) In performing this function, the prosecuting attorney must have access to records relied on by the evaluators. (People v. Dixon (2007)148 Cal.App.4th 414, 428-429; People v. Martinez (2001) 88 Cal.App.4th 465, 480.) If the prosecuting attorney determines it appropriate, a commitment petition is filed. (§ 6601, subd. (i).) Fourth, a superior court judge reviews the petition. The superior court judge determines whether there is probable cause to believe the named individual, if released from custody, is likely to engage in sexually violent predatory criminal conduct. (§ 6602, subd. (a).) If probable cause is not present, the commitment petition is dismissed. If probable cause is found, the matter proceeds to trial. (§ 6602.)

At trial, the alleged sexually violent predator is entitled to enumerated statutory rights: "A person subject to this article shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf." (§ 6603, subd. (a).) The trier of fact must find beyond a reasonable doubt that the person is a sexually violent predator. (§ 6604.) The trier of fact must find the alleged sexually violent predator has a currently diagnosed mental disorder that makes him or her presently dangerous and likely to reoffend. (Albertson v. Superior Court (2001) 25 Cal.4th 796, 802; Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1169.) In a jury trial, the verdict must be unanimous. (§ 6603, subd. (f).)

In the present case, as discussed below, defendant was evaluated by the hospitals department in 2007. But as of September 2013, his case had not been tried. Prior to 2000, the Sexually Violent Predator Act did not specifically provide for any updated or replacement evaluations when, as here, trial was delayed. In Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 424, an alleged sexually violent predator had been awaiting trial for several years. The delay occurred while the constitutionality of the Sexually Violent Predator Act was being litigated in other courts. When a trial date became imminent, the district attorney successfully sought to compel a further post-probable-cause determination mental examination. (Ibid.) On appeal from the trial court's order,Division Six of the Court of Appeal for this appellate district held section 6601, subdivisions (c)-(e) did not provide for any further examinations. Therefore, our Division Six colleagues held the trial court abused its discretion in granting the district attorney's motion. (Sporich v. Superior Court, supra, 77 Cal.App.4th at pp. 425-427.) The Court of Appeal further held, assuming without deciding that the Civil Discovery Act applied, the district attorney had not shown good cause for a further examination. (Id. at pp. 427-428, citing former Code Civ. Proc., § 2032, subd. (d).) Section 6603, subdivision (c) was amended in response to the Sporich decision to permit the prosecutor to secure updated evaluations under specified circumstances. (Stats. 2000, ch. 420, § 2, pp. 3138-3139B³; Assem. Com. on Public Safety, Analysis of Sen. Bill No. 2018 (1999-2000 Reg. Sess.) as amended May 1, 2000, pp. 6-8; Sen. Com. on Public Safety, Rep. on Sen. Bill No. 2018 (1999-2000 Reg. Sess.) as amended Apr. 11, 2000, p. 6.) Section 6603 has been subsequently amended on a number of occasions. The current version became effective on September 29, 2012. (Stats. 2012, ch. 790, § 2.)

III. Proceedings In The Present Case

The Department of Corrections and...