Bagration v. Superior Court

• Decision Date: 07 August 2003
• Docket Number: No. B166721.,B166721.
• Citation: 3 Cal.Rptr.3d 292,110 Cal.App.4th 1677
• Court: California Court of Appeals Court of Appeals
• Parties: Alan BAGRATION, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest.

3 Cal.Rptr.3d 292

110 Cal.App.4th 1677

Alan BAGRATION, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent;

The People, Real Party in Interest.

No. B166721.

Court of Appeal, Second District, Division 2.

August 7, 2003.

Review Denied October 29, 2003.

Michael P. Judge, Public Defender, Albert J. Menaster, Ellen Coleman and

Jack T. Weedin, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney, George M. Palmer and Roberta Schwartz, Deputy District Attorneys; Bill Lockyer, Attorney General, Robert R. Anderson, Pamela C. Hamanaka, Stephen A. McEwen, and G. Tracey Letteau, Deputy Attorneys General, for Real Parties in Interest.

BOREN, P.J.

Petitioner Alan Bagration challenges the denial of his motion for summary judgment, specifically the trial court's determination that motions for summary judgment under Code of Civil Procedure section 437c are inapplicable to proceedings under the Sexually Violent Predators Act (SVP or the Act). (Welf. & Inst.Code, §§ 6600 et seq.)¹ We conclude that the trial court's ruling was correct. Accordingly, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In November 1977, petitioner pled guilty to three counts of Penal Code section 288, lewd or lascivious acts on a child under age 14, offenses the SVP Act defines as sexually violent. He was sentenced to an indeterminate sentence. In 1981 he was paroled, his parole was later suspended, and a warrant issued. In February 1995, he was arrested in Arizona and extradited to California, where he was imprisoned for six months for parole violation. He was released on parole in August 1995. In October 1995, the California Department of Corrections (CDC) placed a parole hold on him and then returned him to prison for a second parole violation.

On October 11, 1995, the SVP Act was enacted, effective January 1, 1996. (Stats. 1995, ch. 793, § 3 and Stats.1995, ch. 763, § 3, p. 5922.) The Act's definition of "sexually violent predator" includes a person who has been convicted of a specified offense and has received a determinate sentence. (§ 6600, subd. (a).)

In March 1996, the People filed a SVP Act petition in superior court to initiate judicial commitment proceedings against petitioner. The petition, which is currently pending, alleges that petitioner received a determinate sentence on November 8, 1977, for violation of Penal Code section 288, has a diagnosed mental disorder, is a danger to the health and safety of others, and is predatory.

Shortly after the petition was filed, petitioner filed a demurrer and a notice of motion to declare the SVP Act unconstitutional. The superior court sustained the demurrer, the People filed a petition for writ of mandate, and we issued an alternative writ of mandate and stay. In October 1996, we issued an opinion granting the writ and upholding the constitutionality of the SVP Act. In February 1997, the California Supreme Court granted review.

In early July 1999, while his petition for review was pending, petitioner filed a superior court motion to dismiss the SVP petition due to lack of a qualifying determinate sentence offense. Petitioner contended that he did not commit a qualifying offense because he did not receive a determinate sentence. He asserted that a 1996 amendment² did not change the requirement that a qualifying offense receive a determinate sentence and, if it did, the amendment did not apply retroactively to him. In late July 1999, the superior court granted petitioner's motion to dismiss the SVP Act petition. The superior court stayed the dismissal to allow the People to file a petition for writ of mandate, and we issued a stay pending our consideration of the People's petition.

On January 21, 1999, the Supreme Court upheld the constitutionality of the SVP Act in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584 (Hubbart). In February 2000, the Supreme Court dismissed review of petitioner's case. In October 2000, we issued a writ of mandate directing the superior court to set aside its July 30, 1999 order granting petitioner's motion to dismiss his SVP Act petition, and issue a new order, denying the motion, because the superior court had acted in excess of its jurisdiction when it dismissed the petition while the case was on review to a higher court. In October 2000, the superior court vacated its order granting petitioner's motion to dismiss the SVP petition, and issued a new order denying the motion.

On July 22, 2002, petitioner's counsel filed a motion for summary judgment in which he asserted that at the time petitioner's SVP Act petition was filed, the court was without jurisdiction because: (1) petitioner was unlawfully in CDC custody because his indeterminate sentence convictions did not qualify as sexually violent offenses under the SVP Act, and (2) his unlawful custody was not the result of a good faith mistake of law of fact.³ The People addressed the motion on the merits. Following argument invited by the court regarding applicability of summary judgment to SVP Act proceedings, the court found summary judgment inapplicable, and denied the motion on that basis.

Petitioner filed a petition for writ of mandate, requesting that we order the trial court to vacate its order denying the petition, and issue a new order requiring the court to hear the motion for summary judgment on the merits. We issued a stay, an order to show cause, and set the matter for argument because it presented an issue of first impression regarding SVP Act procedures.

DISCUSSION

Petitioner contends that the court erred in declining to hear his motion for summary judgment on the merits. His argument is fourfold: (1) since proceedings under the SVP Act are civil in nature, they are subject to the rules of civil procedure; (2) Code of Civil Procedure section 437c, governing summary judgment, on its face applies to "any action or proceeding," and the section is to be liberally construed; (3) neither the SVP Act nor its legislative history show an intention to foreclose use of summary judgment in a SVP Act proceeding; and (4) even if summary judgment is not statutorily authorized, "its use can be sanctioned as a form of non-statutory motion to dismiss." Petitioner relies primarily on People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 105 Cal.Rptr.2d 159 (Preciado ) which concluded that because SVP Act proceedings were "civil in nature" the ordinary rules of civil procedure applied unless otherwise indicated on the face of the statute (id. at p. 1128, 105 Cal.Rptr.2d 159), and on Leake v. Superior Court (2001) 87 Cal.App.4th 675, 104 Cal.Rptr.2d 767 (Leake) and People v. Superior Court (Cheek) (2001) 94 Cal. App.4th 980, 988, 114 Cal.Rptr.2d 760 (Cheek ), which held that SVP Act proceedings are subject to the Civil Discovery Act.⁴ As we will explain, we do not find this authority persuasive.

The Sexually Violent Predators Act

The stated purpose of the SVP Act is to identify persons who have certain diagnosed mental disorders that make them likely to engage in acts of sexual violence and to confine those persons for treatment of "their disorders only as long as the disorders persist and not for any punitive purposes." (Stats.1995, ch. 763, § 1, p. 5922.) The SVP Act is a civil rather than criminal statute, as indicated by the Legislature's stated intent to establish a civil commitment scheme and its disavowal of any punitive purpose. (Hubbart, supra, 19 Cal.4th at p. 1171, 81 Cal.Rptr.2d 492, 969 P.2d 584.)

The SVP Act provides for indefinite two-year commitments in a secure state hospital upon a finding that a person is a "sexually violent predator" because he or she "has been convicted of a sexually violent offense against two or more victims 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), 6604.)

Under section 6601, if the Director of the CDC determines that a prisoner may be a sexually violent predator, the director must refer the prisoner for an initial screening six months before the prisoner's scheduled release date.⁵ The initial screening includes evaluation by two practicing psychiatrists or psychologists designated by the Director of the Department of Mental Health (DMH), conducted in accordance with a standardized assessment protocol. (§ 6601, subds.(a), (b), (c), & (d).) 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 DMH transmits a request for a commitment petition under the Act to the county in which the prisoner was last convicted, along with copies of the evaluations and supporting documents. (§ 6601, subds.(d), (h), & (i).) If the designated county attorney concurs in the request, he or she files a commitment petition in superior court. (§ 6601, subd. (i).)

Once a petition is filed, the superior court is required to hold a probable cause hearing at which the person named in the petition is entitled to assistance of counsel. (§ 6602.) Probable cause is met if the court determines that a reasonable person would entertain a strong suspicion that the petitioner satisfied all elements required for commitment as a sexually violent predator: (1) the person named has been convicted of qualifying sexual offenses against at least two victims; (2) he or she has a diagnosed mental disorder; (3) the disorder makes it likely he or she will engage in sexually violent conduct if released; and (4) the sexually violent conduct will be predatory. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 249-250, 127 Cal.Rptr.2d 177, 57 P.3d 654.) The sole purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the petition. (Id. at p....