People v. Collins, D040624.

• Decision Date: 09 July 2003
• Docket Number: No. D040624.,D040624.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Roger Thomas COLLINS, Defendant and Appellant.

1 Cal.Rptr.3d 641

110 Cal.App.4th 340

The PEOPLE, Plaintiff and Respondent, v. Roger Thomas COLLINS, Defendant and Appellant.

No. D040624.

Court of Appeal, Fourth District, Division 1.

July 9, 2003.

Review Denied September 24, 2003.

Steven J. Carroll, County Public Defender, Stephen M. Cohan and Gary R. Nichols, Deputy County Public Defenders, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley A. Weinreb and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, J.

Roger Thomas Collins appeals orders denying his petition for conditional release under Welfare and Institutions Code section 6608¹ of the Sexually Violent Predator Act (SVPA) and his motion for reconsideration of that order. Collins contends the court erred in denying his petition as frivolous because it was supported by substantial evidence and was not totally and completely without merit. We agree the petition was not based on frivolous grounds and thus reverse the court's order denying Collins's petition.

FACTUAL AND PROCEDURAL BACKGROUND

In April 1998, the superior court found Collins to be a sexually violent predator and committed him to Atascadero State Hospital (Atascadero) under the SVPA. In February 2000, the superior court extended his commitment for an additional two years. In March 2002, the People petitioned for a second extension of Collins's commitment. In the petition the People alleged Collins continued to have a diagnosed mental disorder that made him a danger to the health and safety of others in that it was likely he would engage in sexually violent behavior. It attached forensic reports prepared in December 2001 and February 2002, respectively, by psychiatrist Jay Seastrunk, M.D., and clinical psychologist Mark Scherrer. Dr. Seastrunk and Scherrer both found Collins met the criteria for a sexually violent predator and recommended his commitment be extended. Collins waived his right to be present at pretrial proceedings on the People's petition, on the ground his medical needs would not be met on his travel to and incarceration in San Diego.

On July 1, 2002, Collins petitioned for conditional release under section 6608, subdivisions (a) and (d) and sought a hearing on the issue. In points and authorities, he argued he had undergone medroxyprogesterone acetate injections, commonly known as hormone suppression treatment or chemical castration,² which was a change of condition justifying his release into the community. He also asserted he had successfully completed two phases of a sex offender treatment program, as well as courses in human sexuality and interpersonal skills. Collins contended these circumstances, combined with his health problems, demonstrated he did not have a serious difficulty controlling his sexually violent behavior and was not likely to reoffend if placed under appropriate supervision in the community. Collins attached a report prepared in June 2002 by staff psychiatrist Mary Flavan, M.D., Collins's treating psychiatrist, in which she reviewed Collins's history of pedophilia and medical treatment in advance of further SVPA proceedings. In that report, Dr. Flavan stated it was her opinion that Collins's risk was greatly reduced and he could be managed in the community if he were released and placed in a nursing-home-type setting. Collins's counsel submitted a declaration in support of the petition. He averred Dr. Flavan had agreed to accept a subpoena for a hearing on the petition and would testify Collins had been chemically castrated, and additional Atascadero staff would testify based on their professional expertise and personal knowledge that Collins was not likely to reoffend if released to proper supervision in the community.

The superior court denied Collins's petition. It first observed Collins was a chronic recidivist, reoffending with multiple victims at one point, and also noted Flavan's report did not endorse his entry into the conditional release program. The court ruled (1) Collins's petition was frivolous under section 6608; and (2) even if it were not frivolous, Collins was not an appropriate candidate for release on the ground there was a reasonable likelihood he was going to recidivate. On July 3, 2002, Collins sought reconsideration, submitting a letter from Dr. Flavan in which she wrote Collins's treatment team, including herself and Warren Icke, Ph.D., believed Collins "can be managed safely in the community if released under appropriate conditions." The court denied reconsideration.

On August 8, 2002, Collins filed a notice of appeal of the superior court's July 1, 2002 order denying his petition for conditional release and July 3 2002 order denying reconsideration of its ruling. The next day, Collins waived jury trial on the People's petition to extend his commitment an additional two years, withdrew his opposition, and submitted that issue to the court based on Dr. Seastrunk's and Scherrer's evaluations. The superior court ordered Collins recommitted to the California Department of Mental Health (DMH) for another two years so that his commitment period extended to March 13, 2004.

DISCUSSION

I. SVPA Proceedings for Conditional Release

The issues in this appeal involve proceedings for conditional release under section 6608 of the SVPA, which we briefly summarize. Because the SVPA is designed to ensure a committed person does not remain confined any longer than he or she qualifies as a sexually violent predator, it provides means for that individual to obtain review of his or her mental condition to determine if civil confinement is still necessary. (People v. Cheek (2001) 25 Cal.4th 894, 898, 108 Cal.Rptr.2d 181, 24 P.3d 1204 (Cheek).) One of two ways such review may be had is by petition for conditional release before expiration of the committed person's two-year term of commitment under section 6608. (Cheek, at p. 898, 108 Cal.Rptr.2d 181, 24 P.3d 1204; § 6608, subd. (a).)³

Conditional release proceedings can be initiated by the DMH if it "determines that the person's diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community." (§ 6607, subd. (a).) But absent the DMH's recommendation, the committed person can petition the court for conditional release any time after one year of commitment. (§ 6608, subd. (c).) Section 6608 subdivision (a) provides: "Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release and subsequent unconditional discharge without the recommendation or concurrence of the Director of Mental Health. If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, then the court shall deny the subsequent petition unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the concurrence of the director, the court shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing. The person petitioning for conditional release and unconditional discharge under this subdivision shall be entitled to assistance of counsel."

Before acting on a petition for conditional release under section 6608, subdivision (a), the superior court must first obtain the written recommendation of the director of the treatment facility to which the person is committed. (Id., subd. (j).) The court reviews the petition in order to "determine if it is based upon frivolous grounds," and if it so finds, it "shall deny the petition without a hearing." (Id., subd. (a).) Section 6608, subdivision (b) provides: "The court shall give notice of the hearing date to the attorney designated in subdivision (i) of Section 6601, the retained or appointed attorney for the committed person, and the Director of Mental Health at least 15 court days before the hearing date."

Section 6608, subdivision (d) provides in part: "The court shall hold a hearing to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community. If the court ... determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year." (Italics added.) "At the end of one year, the court shall hold a hearing to determine if the person should be unconditionally released from commitment on the basis that, by reason of a diagnosed mental disorder, he or she is not a danger to the health and safety of others in that it is not likely that he or she will engage in sexually violent criminal behavior. The court shall not make this determination until the person has completed at least one year in the state-operated forensic conditional release program." (Ibid.)

II. Waiver

We first address the People's contention that Collins waived his claims by relinquishing his right to a trial...