People v. Morrison

• Decision Date: 30 April 2019
• Docket Number: B291804
• Citation: 246 Cal.Rptr.3d 734,34 Cal.App.5th 980
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Derrick MORRISON, Defendant and Respondent.

34 Cal.App.5th 980

246 Cal.Rptr.3d 734

The PEOPLE, Plaintiff and Appellant,

v.Derrick MORRISON, Defendant and Respondent.

B291804

Court of Appeal, Second District, Division 4, California.

Filed April 30, 2019

Jackie Lacey, Los Angeles County District Attorney, Phyllis C. Asayama, Deputy District Attorney, Matthew Brown, Deputy District Attorney for Plaintiff and Appellant.

Ricardo D. Garcia, Los Angeles County Public Defender, Albert J. Measter, Head Deputy Public Defender, Alvin Thomas, Deputy Public Defender, Lara Kislinger, Deputy Public Defender, for Respondent.

CURREY, J.

Near the end of his term of confinement, prison authorities identified Respondent Derrick Morrison as a potential sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act ( Welf. & Inst. Code, § 6600, et seq. ) (SVPA).¹ As discussed more fully below, the SVPA mandates a process for the identification and involuntary civil commitment of SVPs beyond the expiration of their prison terms. Civil commitment protects the public and allows the SVP to receive treatment.

Morrison had been convicted of kidnapping and raping a fourteen-year-old girl, and forcing her to orally copulate him. While in prison for those crimes, Morrison repeatedly engaged in sexual misconduct and threatening sexualized behavior toward female prison medical professionals. He also admitted he had uncontrollable urges and was likely to rape again if released.

As part of the SVPA screening process, two psychologists employed by the state evaluated Morrison. Initially they disagreed with one another, with one evaluator saying Morrison met the criteria for commitment as an SVP, and the other opining he did not. Following statutory protocol, authorities then appointed two independent psychologists to evaluate Morrison again. They, too, disagreed with one another, with one expert opining Morrison met the SVP criteria and the other concluding he did not.

Authorities then referred the matter to a peer reviewer, who discovered the initial evaluator who concluded Morrison was not an SVP had failed to consider and address all the reports of Morrison’s prison misconduct. The peer reviewer brought this oversight to the evaluator’s attention. After reviewing the reports, including reports Morrison had repeatedly exposed himself to and masturbated in front of female medical professionals, and engaged in other threatening sexual behavior, the evaluator changed her opinion. Authorities then certified the reports of the two original evaluators and passed them along to the Los Angeles County District Attorney, who filed the civil commitment petition in this case.

The trial court dismissed the petition, however, agreeing with Morrison’s contention that the statute required dismissal because section 6601, subdivision (f) provides in relevant part: "If an examination by independent professionals ... is conducted, a petition to request commitment under this article shall only be filed if both independent professionals who evaluate the person ... concur that the person meets the criteria for commitment...."²

We reverse. Three of four experts concluded Morrison is an SVP. Morrison confided to a psychologist that, if released, he would rape again. Releasing him without submitting the issue to a jury would be an absurd result, frustrating the statutory purposes of protecting the public and providing treatment to sexually violent offenders. (See Stats.1995, ch. 763, § 1.) We conclude the statute required the Director of the Department of State Hospitals (DSH) to request the District Attorney to file a civil commitment petition, and therefore dismissal was unwarranted.

STATUTORY FRAMEWORK.

The SVPA took effect on January 1, 1996 and provides for the involuntary civil commitment of SVPs upon completion of their prison terms. ( § 6600, et seq. ; Ghilotti, supra, 27 Cal.4th at p. 902, 119 Cal.Rptr.2d 1, 44 P.3d 949.) The process of determining whether a convicted sex offender meets the requirements of the SVPA takes place in several stages, both administrative and judicial.

The SVPA targets individuals presently in prison for any offense, or after a parole revocation, who have been convicted of a sexually violent offense—as defined by statute—against one or more victims, and who currently have "a diagnosed mental disorder" making them "a danger to the health and safety of others in that it is likely that [they] will engage in sexually violent criminal behavior." ( § 6600, subd. (a)(1) ; § 6601, subd. (d).) As a prisoner’s release date approaches, the California Department of Corrections and Rehabilitation (CDCR) is required to screen the inmate as a potential SVP. (§ 6601, subds. (a) & (b).)

If the screening indicates the offender is a potential SVP, he or she is referred for evaluation by two psychologists or psychiatrists. (§ 6601, subds.(c) & (d);³ Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584.) If after evaluating the inmate both professionals agree the inmate "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," an involuntary commitment petition shall be filed. (§ 6601, subds. (d) & (i).) When there is a split of opinion between the original evaluators, independent professionals are contacted to evaluate the inmate again. A petition "shall only be filed" if both independent evaluators believe the offender meets the criteria for involuntary commitment. (§ 6601, subds.(e) & (f).)⁴

If, under section 6601, subdivision (d) or (f) two evaluators agree, a commitment petition is filed in the superior court. (§ 6601, subd. (i).) It is in the superior court that the actual determination of SVP status takes place.

Because SVP commitment results in loss of liberty, the respondent is afforded a number of procedural protections typically granted a criminal defendant. The superior court first holds a hearing where the person is entitled to the assistance of counsel to determine whether probable cause exists to believe the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. (§ 6602.) If no probable cause is found, the petition is dismissed. However, if the court finds probable cause, the court orders a trial to determine whether the person is an SVP under section 6600. (§ 6602, subd. (a); Hubbart, supra , 19 Cal.4th at pp. 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584, fn. omitted.)

At trial, the alleged SVP is entitled to the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).) The trier of fact is charged with determining whether the requirements for classification as an SVP have been established beyond a reasonable doubt. (§ 6604.) Any jury verdict on the issue must be unanimous. (§ 6603, subd. (f).)

Pursuant to Proposition 83, passed by the voters in 2006, a person committed under the SVPA is committed for an indefinite term until he or she can establish by a preponderance of the evidence that he or she is no longer an SVP. ( People v. McKee (2010) 47 Cal.4th 1172, 1186–1188, 104 Cal.Rptr.3d 427, 223 P.3d 566.)

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In December 1998, Morrison was convicted of violating Penal Code section 288a, subdivision (c) (oral copulation with a minor 14 years of age or older) and section 261, subdivision (a)(2) (rape by force or fear), with an enhancement under section 667.8, subdivision (a) (kidnapping to commit a specified sex offense). Morrison met the victim at a bar, and—against her will—took her to a residence where he sexually assaulted her. He received a term of 20 years in prison.

Morrison was due to be released from prison on September 23, 2017. CDCR conducted an initial evaluation in December 2016 and concluded Morrison met initial screening criteria to be evaluated as an SVP. In April 2017, DSH conducted a clinical review and recommended further evaluation of Morrison.

Pursuant to section 6601, subdivision (d), in June 2017, Dr. David Parecki and Dr. Lisa A. Jeko, both psychologists, were assigned Morrison’s initial psychological and risk assessment. Both doctors’ reports were due July 31, 2017. Evaluators use a "standardized assessment protocol" promulgated in accordance with the Administrative Procedure Act. (§ 6601, subd. (c).) The protocol "shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffence among sex offenders." (§ 6601, subd. (c).)

The two psychologists initially disagreed whether Morrison met the SVP criteria: Dr. Jeko believed he did not, while Dr. Parecki believed he did.

Subsequently, as a result of this split of opinion, the matter was referred for additional evaluation by two independent psychologists under section 6601, subdivision (e). Dr. Robert M. Brook interviewed and evaluated Morrison and concluded Morrison did meet the SVP criteria. But, the second psychologist, Dr. Mary Jane Alumbaugh, concluded Morrison did not.

Due to the split in opinions, DSH submitted all four evaluations for peer review before certification of the reports. Certification is the process by which DSH indicates the reports are ready either to be sent to the appropriate county to petition for commitment, or used to authorize closure of the case if there is no referral to a county District Attorney or County Counsel. DSH permits evaluators to alter their reports prior to certification.

Pursuant to the peer review process, the peer reviewer contacted Drs. Jeko and Alumbaugh to address DSH’s comments regarding their reports. Dr. Alumbaugh responded and confirmed her opinion remained the same. But Dr. Jeko requested additional information regarding Morrison’s history in response to the peer reviewer’s observation that there were more CDCR 115 Rule reports ...