Butler v. Superior Court

• Citation: 78 Cal.App.4th 1171,93 Cal.Rptr.2d 468
• Decision Date: 07 March 2000
• Docket Number: No. H020554.,No. H020240.,H020240.,H020554.
• Court: California Court of Appeals
• Parties: Allen Douglas BUTLER, Petitioner, v. The SUPERIOR COURT of Santa Cruz County, Respondent; The People, Real Party in Interest. Michael Thomas Cheek, Petitioner, v. The Superior Court of Santa Cruz County, Respondent; The People, Real Party in Interest.

93 Cal.Rptr.2d 468

78 Cal.App.4th 1171

Allen Douglas BUTLER, Petitioner, v. The SUPERIOR COURT of Santa Cruz County, Respondent;

The People, Real Party in Interest.

Michael Thomas Cheek, Petitioner, v. The Superior Court of Santa Cruz County, Respondent;

The People, Real Party in Interest.

No. H020240.

No. H020554.

Court of Appeal, Sixth District.

March 7, 2000.

Biggam, Christensen & Minsloff, Diana L. August, Santa Cruz, Attorneys for Petitioner: Allen Douglas Butler.

No appearance by Respondent in Nos. H020240 and H020554.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, George F. Hindall III, Assistant Supervising Deputy Attorney General, Moona Nandi, Deputy Attorney General, Attorneys for Real Party in Interest: The People of the State of California in No. H020240.

Biggam, Christensen & Minsloff, Santa Cruz, William R. Weigel, Attorneys for Petitioner: Michael Thomas Cheek.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, René A. Chacón, Supervising Deputy Attorney General,

Bridget Billeter and Moona Nandi, Deputy Attorneys General, Attorneys for Real Party in Interest: The People of the State of California in No. H020554.

BAMATTRE-MANOUKIAN, Acting P.J.

Petitioners Michael Thomas Cheek and Allen Douglas Butler were found to be sexually violent predators under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.)¹ and were committed to the custody of the State Department of Mental Health (DMH) for two years. We affirmed those commitments in People v. Cheek (1999) 75 Cal.App.4th 282, 89 Cal.Rptr.2d 125, review granted Dec. 15, 1999 (S083305)² and People v. Butler (1998) 68 Cal.App.4th 421, 80 Cal.Rptr.2d 357.³

Before those two-year commitments expired, the district attorney filed petitions to commit Butler and Cheek for additional two-year periods. The petitions were each supported by one evaluation from a DMH clinical psychologist. Both Butler and Cheek contend that the petitions for commitment should be dismissed because the Sexually Violent Predators Act requires the DMH conduct a "full evaluation," (§ 6601, subd. (b)), which involves two evaluations of the person subject to commitment (§ 6601, subd. (d)), before the district attorney may file a petition for extended commitment. We agree, and therefore in each case we will issue a writ of mandate commanding the superior court to dismiss the petition for commitment.

BACKGROUND

Sexually Violent Predators Act

The Sexually Violent Predators Act (SVPA), adding sections 6600 through 6608 to the Welfare and Institutions Code, was enacted October 11 1995, effective January 1, 1996. (Stats.1995, chs. 762 & 763.) In section 1, the Legislature set forth its findings and summarized the purpose of the new law, as follows:

"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.

"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. 762, § 1; id., ch. 763, § 1).

A "sexually violent predator" is defined in section 6600, subdivision (a), 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." Sexually violent offenses, for purposes of the SVPA, are listed in section 6600, subdivision (b).

If the Director of the Department of Corrections determines that a prisoner may be a sexually violent predator, the director shall refer that person for an initial screening evaluation at least six months prior to his or her scheduled release date. (§ 6601, subds.(a) & (b).) The initial screening is performed by the Department of Corrections and the Board of Prison Terms. If "as a result of this screening it is determined that the person is likely to be a sexually violent predator," he or she is then referred to the DMH for a "full evaluation of whether the person meets the criteria in Section 6600." (§ 6601, subd. (b).)

Upon referral, the DMH evaluates the potential SVP "in accordance with a standardized assessment protocol." (§ 6601, subd. (c).) The evaluations are performed "by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist." (§ 6601, subd. (d).) "If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the DMH requests that the county attorney file a petition for commitment. (Ibid.) "Copies of the evaluation reports and any other supporting documents shall be made available to the attorney designated by the county pursuant to subdivision (i) who may file a petition for commitment." (Ibid.)

A probable cause hearing is then held before a superior court judge. (§ 6602.) The individual named in the petition is entitled to assistance of counsel at this hearing and is permitted to call and cross-examine witnesses. (See People v. Butler, supra, 68 Cal.App.4th 421, 80 Cal. Rptr.2d 357.) If the judge determines there is probable cause to believe that the person is likely to engage in sexually violent predatory 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.)

The person subject to the petition is entitled to a trial by jury, the assistance of counsel and the right to retain experts or professional persons to perform further evaluations, and is entitled to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).) A unanimous verdict is required in any jury trial. (§ 6603, subd. (d).) The burden of proof is on the state to show that the person is a sexually violent predator beyond a reasonable doubt. (§ 6604.) If it is so determined, the person shall be committed for a period of two years "to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility...." (Ibid.) "[T]he person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment...." (Ibid.)

The SVP's confinement is subject to annual review and is entitled to the appointment of an expert and review of all records. (§ 6605, subd. (a).) The SVP is entitled to an annual "show cause hearing" whereby his or her mental condition is reviewed. (§ 6605, subd. (b).) The SVP may also petition for conditional release after a year of commitment (§ 6608), and the DMH can request conditional release (§ 6607) at any time.

While confined, the SVP must be provided with treatment for his or her diagnosed mental disorder, whether or not he or she is amenable to treatment. (§ 6606, subds.(a) & (b).) The treatment "shall be consistent with current institutional standards for the treatment of sex offenders ...."(§ 6606, subd. (c).)

Butler

On May 14, 1996, Butler was found to be a sexually violent predator and committed to the custody of the DMH for a two-year period. On May 8,1998, a few days before Butler's commitment was set to expire, the District Attorney of Santa Cruz County filed a new petition seeking to recommit Butler for another two-year period. Attached to the petition for commitment was an April 9, 1998, evaluation of defendant performed by DMH clinical psychologist Diane Imren. In her evaluation report, Dr. Imren recommended that Butler be recommitted: "It is the opinion of the treatment team that Mr. Butler has a diagnosed mental disorder.... Based on Mr. Butler's history, his current level of functioning and known risk factors associated with reoffense, Mr. Butler is more likely than not to engage in sexually violent criminal behavior in the future."

The trial court set the probable cause hearing (§ 6602) on the petition for recommitment for June 25, 1999, after numerous continuances related to the pending appeal in People v. Butler, supra, 68 Cal.App.4th 421, 80 Cal.Rptr.2d 357. The district attorney moved into evidence Dr. Imren's April 9, 1998, evaluation report, as well as a June 10, 1999, addendum to that report.

Dr. Imren testified at the probable cause...