Cooley v. Superior Court

• Decision Date: 25 November 2002
• Docket Number: No. S094676.,S094676.
• Citation: 127 Cal.Rptr.2d 177,29 Cal.4th 228,57 P.3d 654
• Court: California Supreme Court
• Parties: Stephen L. COOLEY, as District Attorney, etc., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Paul Marentez, Real Party in Interest.

127 Cal.Rptr.2d 177

29 Cal.4th 228

57 P.3d 654

Stephen L. COOLEY, as District Attorney, etc., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Paul Marentez, Real Party in Interest.

No. S094676.

Supreme Court of California.

November 25, 2002.

As Modified on Denial of Rehearing January 15, 2003.

Stephen L. Cooley and Gil Garcetti, District Attorneys, George M. Palmer, Patrick D. Moran and Fred Klink, Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Michael P. Judge, Public Defender, Albert J. Menaster, John Douglas and Jack T. Weedin, Deputy Public Defenders, for Real Party in Interest.

As Modified on Denial of Rehearing per Sup. Ct. Minutes on January 15, 2003.

MORENO, J.

The Sexually Violent Predators Act (SVPA) (Welf. & Inst.Code, § 6600 et seq.)¹ allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms. The issues we address here arise out of the provision of the SVPA that requires the superior court to hold a "probable cause hearing" as the initial step in the judicial process required to civilly commit a potential sexually violent predator (SVP). (§ 6602, subd. (a).)

Here, after a probable cause hearing was conducted pursuant to section 6602, subdivision (a), the superior court dismissed a petition filed by the District Attorney of Los Angeles County alleging that real party in interest, Paul Marentez, was an SVP. The Court of Appeal vacated the superior court's order and set the matter for trial.

We now resolve several issues related to the scope and substance of the probable cause determination required by section 6602, subdivision (a), and we determine whether the Court of Appeal correctly decided that there was sufficient evidence to establish probable cause to believe that Marentez was likely to engage in sexually violent predatory criminal behavior upon his release.

We conclude that the section 6602 hearing requires the superior court to determine whether a reasonable person could entertain a strong suspicion that the petitioner 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.

We also conclude that the phrase "likely to engage in sexually violent predatory criminal behavior upon ... release," as it appears in section 6602, subdivision (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, and that the superior court must consider the offender's amenability to treatment when making this determination.

We further conclude that although we would ordinarily apply the standard of review used in appellate review of criminal preliminary hearings, in this case remand to the superior court is appropriate. The entire superior court proceeding was infected with error because the expert evidence presented by both the district attorney and Marentez failed to consider whether potential sexual violence would be "predatory" in nature and all the experts applied the wrong definition of "likely." It would be improper, therefore, under these circumstances, to uphold any factual findings made by the superior court, or to independently review the record to make our own factual findings.

We reverse the Court of Appeal's judgment vacating the superior court's order and remand with the instruction that the Court of Appeal should, in turn, remand the matter to the superior court in order to conduct a new probable cause hearing consistent with the views expressed herein.

FACTS

In 1988, and again in 1994, Marentez was convicted of lewd conduct with a minor under the age of 14. (Pen.Code, § 288, subd. (a).) In the 1988 offense, he lured a three-year-old boy into a bathroom at a church and orally copulated him. At the time of his arrest, he also indicated that in 1980 he had digitally molested and orally copulated a six-year-old girl, although he was acquitted of these crimes by a jury. The 1994 offense involved his girlfriend's six-year-old son. He took the boy swimming at the YMCA, where, in the shower, he touched the boy's penis for several minutes and placed the child's hand on his own penis for about a minute. He served prison terms for both crimes.

In 1998, before the scheduled date for his release on parole, the district attorney filed a petition for Marentez's commitment under the SVPA. (§§ 6600, 6601, subd. (i).)

In 2000, the superior court conducted a probable cause hearing. The district attorney presented evidence, including written evaluations and testimony by two experts, to the effect that Marentez was likely to commit sexually violent offenses in the future. Marentez presented rebuttal evidence, consisting of written evaluations and testimony by three experts, to the effect that he was not likely to reoffend.

Because our resolution of this case turns on both the evidence presented by the experts at the hearing and on the contents of the superior court's ruling we summarize both in some detail below.

Testimony of the District Attorney's Experts

The district attorney's first expert, Barrie Glen, Ph.D., a licensed psychologist, prepared a written report concluding that Marentez had been convicted of a statutorily defined qualifying offense involving two victims, had the qualifying mental disorder pedophilia, and was likely to engage in sexually violent criminal behavior on his release. For the latter determination, she relied, in her initial report, on several risk factors. She noted his lack of insight into his actions, lack of empathy for others, and long history of substance abuse. She also observed that his last qualifying offense was committed while he was on parole, and that he lived in a residence where children were present, in violation of the terms of his parole. He denied committing sexual offenses, blaming his incarceration on drug use. He had never undergone sex offender treatment and had no positive plans for dealing with his sexual urges toward children or with his substance abuse. In her initial report, Glen did not define the term "likely" and did not give any specific probability of the likelihood of reoffense.

In a supplemental report, Glen confirmed her prior assessment, adding that her conclusion was supported by Marentez's score on a new actuarial instrument, the Static-99 test, which analyzes the potential for risk of reoffense on the basis of certain variables, including age, marital status, number of criminal offenses committed, gender of the victims, whether the victims were strangers or relatives, and whether the most recent sex offense involved the use of violence. Marentez's score of 6 on the Static-99 test put him in the "high risk" category for reoffense, with a 52 percent minimum risk of reoffense within 15 years.

Glen's direct testimony at the probable cause hearing focused on disputing the judgment of Marentez's expert witnesses. Specifically, she challenged their reliance on various mitigating factors and their dependence on self-reporting by Marentez. She also reiterated the findings contained in her supplemental report, suggesting that "when you give [Marentez] the predictor instrument he comes out over 50 percent, and when you start looking at the other risk factors, he looks like he has enough of them [so that] he is well over 50 percent."

At the close of cross-examination she stated that "I didn't rely on clinical judgment in this case" because "[h]e fits in very well with actuarial stuff." When asked by the court to clarify her previous statement, she stated, "I am a clinician; so of course my clinical judgment is in there." She explained that she had meant that it was not necessary to "go outside any sort of actuarial data and just completely rely on clinical judgment."

Jack Vognsen, Ph.D., a licensed psychologist, also prepared a written evaluation for the prosecution. He, too, emphasized Marentez's record of sexual crimes against children and his child-related parole violations. Indeed, Marentez had explained that he took on the relationship with his latest victim "in order to prove to the court that the prohibition against being around children was unnecessary." Vognsen observed that Marentez had "us[ed] his position as a trusting, caregiving adult to make his victims cooperate in sexual conduct." Although Marentez complained that he had not been offered sex offense counseling, he asserted that "I need no therapy." Similarly, although he blamed substance abuse for his mishaps, he indicated no interest in drug abuse counseling, boasting "I am my only rehab." He did not accept blame for his sexual offenses, either denying them or stating that he could not remember whether he had committed the offense because he was under the influence of alcohol and drugs. He showed little self-awareness: "Mr. Marentez does not appear to listen to himself, and he certainly does not expect his ideas and attitudes to be reasonable."

Vognsen reiterated his conclusions in a supplemental report, noting that they were further supported by Marentez's high score on the Static-99 test. At the hearing, he testified that Marentez was unable to control his urges toward children, basing his opinion on past behavior and the fact that Marentez had violated parole conditions by being around children. He referred to the results of the Static-99, conceding that the actuarial test is "only moderately reliable as an overall instrument," but observing that it is "the best we can come up with.... ...