In re Butler

• Citation: 55 Cal.App.5th 614,269 Cal.Rptr.3d 649
• Decision Date: 07 October 2020
• Docket Number: A159122, A159247
• Court: California Court of Appeals
• Parties: IN RE Terrance BUTLER on Habeas Corpus.

55 Cal.App.5th 614

269 Cal.Rptr.3d 649

IN RE Terrance BUTLER on Habeas Corpus.

A159122, A159247

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

Filed October 7, 2020

Nancy E. O'Malley, District Attorney, Armando Pastron, Jr., Deputy District Attorney, for Petitioner the People.

Rudy Kraft, under appointment by the Court of Appeal, for Respondent Terrance Butler

Sanchez, J. Terrance Butler was convicted in 1993 of raping two women and assault with intent to commit rape of a juvenile and sentenced to 18 years in state prison. Prior to his release, the Alameda County District Attorney filed a petition in November 2006 to commit Butler as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (See Welf. & Inst. Code,¹ § 6600 et seq. ) Despite numerous demands from Butler that he receive a trial as soon as possible and explicit direction to the Alameda County Public Defender's office that it was not authorized to waive time on his behalf, no trial was ever held.

Butler was confined to a state hospital for 13 years awaiting trial on his SVP petition, during which time eight public defenders and six prosecutors cycled through his case, three trial dates were set and vacated, and more than 50 continuances were granted without a single objection raised by opposing counsel or a finding of good cause made by the trial court. There is no evidence that any of Butler's public defenders ever consulted or retained a defense expert in this matter, and the prosecution never declared it was prepared to go to trial or insisted that a trial date be set. Indeed, after the trial court ordered a new probable cause hearing in May 2012, no such hearing was held, and Butler was detained for the next six years without a finding of probable cause.

After the public defender declared a conflict in January 2019, Butler's appointed private counsel filed a petition for writ of habeas corpus. The habeas court found, following an evidentiary hearing and close examination of the procedural record, that Butler's due process right to a timely trial had been violated and that the public defender, district attorney, and trial court all bore some responsibility for this "extraordinary" delay. In December 2019, the court granted Butler's habeas petition, dismissed the SVP petition, and ordered Butler's release. We stayed the habeas court's order pending our review of the district attorney's appeal.

The district attorney contends that she has no affirmative obligation to bring a person to trial on an SVP petition and that the trial court erred by failing to attribute to Butler the entirety of the delay in this matter. We disagree. Because involuntary civil confinement involves a substantial deprivation of liberty, an alleged SVP defendant is entitled under the due process clause to a trial at a meaningful time and in a meaningful manner. We reaffirm the principle that the ultimate responsibility for bringing an accused SVP detainee to trial rests with the state. The record here amply supports the habeas court's finding that blame for the delay must be shared between a district attorney's office that abdicated its responsibility for prosecuting this case, a public defender's office that disregarded Butler's repeated demands for trial, and a trial court that took no meaningful action to set deadlines or otherwise ensure that Butler's right to a timely trial was protected. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The SVPA

"Under the SVPA, the state can civilly commit individuals found to be SVPs after they conclude their prison terms." ( Reilly v. Superior Court (2013) 57 Cal.4th 641, 646, 160 Cal.Rptr.3d 410, 304 P.3d 1071 ( Reilly ).) Section 6600, subdivision (a)(1), defines an SVP as "a person who has been convicted of a sexually violent offense against one 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." The SVPA is intended " ‘to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment for their disorders.’ " ( People v. McKee (2010) 47 Cal.4th 1172, 1203, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee ).)

"Before a petition may be filed under the [SVPA], the inmate must first be screened by the Department of Corrections and Rehabilitation, generally at least six months before his or her scheduled release date. (§ 6601, subd. (a).) This screening is conducted in accordance with a structured screening instrument and is ‘based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history.’ (Id. , subd. (b).) If the Department of Corrections and Rehabilitation determines that the inmate is likely to be an SVP, it refers the matter to the Department of State Hospitals for a ‘full evaluation’ regarding whether the inmate meets the criteria in section 6600. (§ 6601, subd. (b).)" ( People v. Superior Court (Couthren ) (2019) 41 Cal.App.5th 1001,1008, 254 Cal.Rptr.3d 603 ( Couthren ).)

The Department of State Hospitals then assigns two psychiatrists or psychologists (§ 6601, subd. (d)) to examine the person "in accordance with a standardized assessment protocol which requires an ‘assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders.’ (§ 6601, subd. (c).)." ( Couthren , supra , 41 Cal.App.5th at p. 1009, 254 Cal.Rptr.3d 603.) If two independent professionals concur that the inmate meets the criteria for commitment as an SVP, the director of the Department of State Hospitals forwards a request that a commitment petition be filed to the county in which the inmate was convicted of the offense for which he or she is currently incarcerated. (§ 6601, subds. (f), (h)(1) & (i).) If designated counsel in that county concurs with the recommendation, he or she then files a commitment petition in superior court. (Id. , subd. (i)).

"Once an SVP petition has been filed, ‘[a] judge of the superior court shall review the petition and shall determine whether 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, subd. (a).) The probable cause hearing is not a determination of the merits of the petition. Rather—as in preliminary proceedings under the criminal law—the sole purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the petition. [Citation.] Thus, the trial court at a probable cause hearing under the [SVPA] must 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.’ [Citations.] A failure to find probable cause leads to dismissal of the petition. (§ 6602, subd. (a).)" ( Couthren , supra , 41 Cal.App.5th at p. 1009, 254 Cal.Rptr.3d 603.)

If, on the other hand, there is a finding of probable cause, the court orders "that the person remain in custody in a secure facility until a trial is completed and 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, subd. (a).) Either party may demand a jury trial in an SVP commitment proceeding. (§ 6603, subds. (a), (b).) The alleged SVP has the right to the assistance of counsel, to retain experts, and to access relevant psychological and medical reports. (Id. , subds. (a) & (j).) The SVPA also contains "provisions for the evaluations to be updated or replaced after the commitment petition is filed in order ‘to obtain up-to-date evaluations, in light of the fact that commitment under the SVPA is based on a "current" mental disorder.’ " ( People v. Superior Court (Vasquez ) (2018) 27 Cal.App.5th 36, 43, 238 Cal.Rptr.3d 14 ( Vasquez ).)

The People must prove beyond a reasonable doubt that each of the statutory elements under the SVPA has been established (§ 6604), and a jury verdict must be unanimous (§ 6603, subd. (g). If the court or jury determines that the person is a sexually violent predator, the person is "committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment and confinement in a secure facility designated by the Director of State Hospitals."² (§ 6004.)

After commitment, an SVP is evaluated every year to consider "whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative, pursuant to Section 6608, or an unconditional discharge, pursuant to Section 6605, is in the best interest of the person and conditions can be imposed that would adequately protect the community." (§ 6604.9) Under certain circumstances, an SVP may petition the court for either conditional release (§ 6608) or unconditional discharge (§ 6605).

B. The SVP Petition

In November 2006, the district attorney filed a petition to commit Butler as an SVP prior to his upcoming release from prison. The petition alleged that Butler had been convicted of five sexually violent offenses within the meaning of section 6600, including a 1991 rape and three 1992 rapes ( Pen. Code, § 261 ) and a 1992 assault to commit rape (id. , § 220). It further alleged that Butler suffered from a diagnosed mental disorder and posed a danger to the health and safety of others within the meaning of section 6600, subdivisions (c) and (d).

i. From 2006 through 2011

For the first year after the petition was filed, Butler was represented by Assistant Public Defender Clif Taylor. Butler appeared at the first four court appearances, including the...