People v. Consiglio
| Decision Date | 19 December 2022 |
| Docket Number | D079883 |
| Citation | 86 Cal.App.5th 615,303 Cal.Rptr.3d 9 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Sam CONSIGLIO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
The Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq. )1 provides that certain convicted sex offenders who have completed their criminal sentences may be civilly committed in a state hospital indefinitely until they no longer present a threat to society. ( In re Lucas (2012) 53 Cal.4th 839, 845, 137 Cal.Rptr.3d 595, 269 P.3d 1160.) Once a person is committed, the SVPA requires the State Department of State Hospitals (DSH) to perform an annual evaluation to determine whether he continues to meet the definition of a sexually violent predator (SVP). (§ 6604.9.) If the DSH determines that the person no longer qualifies as an SVP, it must authorize him to petition the court for an unconditional discharge. (§ 6604.9, subd. (d).) The court must then hold a show cause hearing to determine whether there is probable cause to believe that the committed person no longer qualifies as an SVP, and if so, conduct a full hearing on the issue at which the state bears the burden of proof beyond a reasonable doubt, and the committed person is afforded rights including jury trial, experts, and appointed counsel. (§§ 6604.9, subd. (f), 6605, subd. (a)(1)-(3).)
In 2012, at the age of 61, Sam Consiglio was committed to Coalinga State Hospital (Coalinga) as an SVP. For every subsequent year until 2021, the annual DSH evaluation concluded that he still qualified as an SVP. In 2021, however, a DSH psychologist, Dr. Michelle Vorwerk, performed the annual evaluation and concluded that Consiglio was no longer likely to commit sexually violent predatory crimes because of his age (then 70) and a severe and progressively worsening heart condition that impaired his ability to breathe and exert himself. In a 61-page report, she concluded that Consiglio no longer met the definition of an SVP.
After Consiglio filed a petition for unconditional release, the trial court held a show cause hearing, rejected Dr. Vorwerk's opinion, and found no probable cause to believe Consiglio was no longer an SVP. Accordingly, the court did not set the matter for a full hearing under section 6605, subdivision (a)(2)-(3). Consiglio appeals from the trial court's probable cause ruling.
We conclude that the trial court failed to apply the proper reasonable person standard for determining probable cause, and improperly rejected Dr. Vorwerk's opinion based on its own personal belief that Consiglio still qualified as an SVP. In so doing, the trial court overstepped its limited authority to make credibility determinations and reject expert opinion at the probable cause stage. Based on our independent review applying the correct probable cause standard, we find that Dr. Vorwerk's opinion and the supporting evidence cited in her report met the low probable cause threshold. Thus, the trial court was required to conduct a further hearing on the issue under section 6605, subdivision (a)(2)-(3).
We emphasize that we are expressing no opinion on the ultimate question whether Consiglio still qualifies as an SVP. On this record, that is solely for the trier of fact to determine after a proper hearing, not for us or the trial court to adjudicate summarily at the probable cause stage. We merely apply the governing probable cause standard to conclude that a full hearing is necessary because a reasonable person evaluating the evidence could at least entertain a strong suspicion that Consiglio no longer qualifies as an SVP. Accordingly, we reverse and remand for further proceedings in accordance with this opinion.
Between 1968 and 2011, Consiglio committed, was convicted of, and served sentences for numerous sexual offenses against women, including forcible rape, aggravated assault, sodomy, and oral copulation. In 2012, at the age of 61, Consiglio was found to be an SVP and committed to DSH for an indeterminate term. (See § 6600 et seq. ) In annual DSH evaluations conducted from his commitment up through 2020, psychologists found he still met the criteria for an SVP and he remained involuntarily committed.
In 2020, and again in 2021, DSH psychologist Michelle Vorwerk was assigned to conduct the annual evaluation of Consiglio pursuant to section 6604.9. According to declarations she submitted with her reports, Dr. Vorwerk had been conducting SVP evaluations for DSH since 2013. Sources of information for her 2020 report included a two-and-a-half hour forensic evaluation and interview with Consiglio, standardized risk assessments, treatment team interviews, DSH medical and psychiatric records, and prior SVP evaluations.
Dr. Vorwerk noted in her 2020 report that Consiglio had been diagnosed with paraphilic disorder and antisocial personality
disorder, and that he had not completed sexual offender treatment at his facility. She reported that he was 69 years old, suffered from congestive heart failure, and had an ejection fraction of only 20 percent, which meant his heart was functioning at limited capacity.2 While Consiglio could walk and move around with the help of a wheelchair, he could not walk fast or run. Dr. Vorwerk noted that Consiglio was "declining to have coronary bypass
surgery and if he were to elect to have the surgery his ejection fraction could improve. At the present time, he is provided some level of protection [against reoffending] due to his coronary heart disease, but it should be noted that this could change if he has the bypass surgery."
Using an actuarial measure of risk for sexual offense recidivism called the "Static-99R" assessment, Dr. Vorwerk determined that Consiglio was in the "Above Average Risk" category for being charged or convicted of another sexual offense.
When she evaluated Consiglio using another risk assessment called the "Violence Risk Scale – Sex Offender Version" (VRS-SO), Dr. Vorwerk determined that his score placed him in the "Well Above range" risk category. As for psychopathy, Dr. Vorwerk opined that Consiglio showed a "high degree [of] psychopathy." In light of his Static-99R, VRS-SO, psychopathy, and other risk factors, Dr. Vorwerk concluded that Consiglio still fit the definition of an SVP. She noted that although his coronary disease
mitigated his risk to some extent, the possibility that he could have bypass surgery to improve his health made this "protective factor" less relevant.
The following year, in October 2021, Dr. Vorwerk completed another annual evaluation of Consiglio pursuant to section 6604.9. In addition to the sources of information she relied on in 2020, Dr. Vorwerk conducted another one hour and 20-minute video forensic evaluation and interview with Consiglio, interviewed more of Consiglio's treatment team members at Coalinga, consulted updated DSH records, and reviewed outside medical records relating to his heart condition. Dr. Vorwerk wrote a 61-page, single-spaced report discussing topics including Consiglio's psychosocial, medical, and criminal history, as well as his treatment progress, hospital behavior, release plan, and risk assessment results.
Dr. Vorwerk's findings regarding Consiglio's mental disorders, Static-99R and VRS-SO risk scores, degree of psychopathy, and lack of participation in sex offender treatment were essentially the same as the previous year's report. This time, however, Dr. Vorwerk's report contained additional information about Consiglio's heart condition and physical limitations, including information from Consiglio's outside cardiology records from 2017 through 2021, which she did not review as part of her 2020 evaluation.
According to Dr. Vorwerk's summary of these cardiology records, Consiglio's ejection fraction had steadily declined from 25-30 percent in November 2017, to 20 percent in February 2020, and most recently to 15-20 percent in June 2021. The June 2021 result meant that 80-85 percent of his blood remained in the ventricles due to his heart not pumping all the oxygen-infused blood he needed. The unpumped blood remaining in the ventricles backed up into the lungs and caused shortness of breath, which made it difficult for Consiglio to breathe and walk.
In a June 2021 visit with his cardiologist, Consiglio "was experiencing shortness of breath with exertion" and "reported he did not walk often and relied on his wheelchair to get around." He had been diagnosed with coronary artery disease
, hypertension, hyperlipidemia, and congestive heart failure, and had undergone coronary intervention of the left anterior descending artery (also known as the " ‘widow maker’ ") along with the insertion of an intra-aortic balloon pump in 1998.
Consiglio's cardiologist noted: "This patient is quite symptomatic and gets angina after walking for 100 feet distance as well as shortness of breathing. He has severe angina and heart failure
symptoms with the minimal exertion as mentioned above. An echocardiogram was performed which revealed severely depressed left ventricle systolic function with ejection fraction of only 15-20%.... [¶] ... [T]his patient has severe heart failure symptoms as well as angina symptoms .... [¶] His native coronary artery disease is very severe and [he] is not a candidate for further revascularization."
Dr. Vorwerk tried to speak to Consiglio's cardiologist directly, but was unable to reach him, so she obtained additional information about Consiglio's heart condition from the chief physician at Coalinga, Dr. Jonathan Hamrick. Dr. Hamrick confirmed that Consiglio has a " ‘serious heart condition.’ " "Bypass...
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