People v. Oliver

• Decision Date: 30 September 2020
• Docket Number: A155715
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAFFAR YAHYA OLIVER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JAFFAR YAHYA OLIVER, Defendant and Appellant.

A155715

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

September 30, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. FC49326)

Jaffar Yahya Oliver appeals the trial court's denial of his petition for release from confinement with the Department of State Hospitals (DSH) as a Sexually Violent Predator (SVP) arguing that the trial court incorrectly denied his petition for a variety of procedural and substantive reasons, and denied his due process rights by relying on a report from the DSH, the accuracy of which he says he had no meaningful opportunity to challenge without appointment of counsel. We conclude the trial court was right to deny the petition without a hearing, and we reject Oliver's due process claim. We therefore affirm.

I.

According to the statutorily required¹ "Declaration of Annual Report: Sexually Violent Predator," dated April 26, 2018, submitted by Dr. Michelle Vorwerk in the Forensic Services Department at the DSH-Coalinga (the Vorwerk Declaration), Oliver, who has been diagnosed with "Pedophilic Disorder, Sexually Attracted to Females Nonexclusive Type," has a "long history of sexual interest in prepubescent children." In the 1990's, starting at age 21, he "committed sexual offenses over a period of eight years," including "three [Welfare and Institutions Code] § 6600 Qualifying Offenses against three victims . . . rang[ing] in age from 8 to 13 years old. . . . All of his victims were females and his sexual acts with his victims included fondling, vaginal intercourse, digital penetration, and oral copulation." "In addition," Dr. Vorwerk reported, Oliver has been diagnosed with "Alcohol Use Disorder, Moderate, in a Controlled Environment, Stimulant Use Disorder (Amphetamine), Moderate, in a Controlled Environment, and Antisocial Personality Disorder."

By the spring of 2018, Oliver had been receiving treatment at DSH-Coalinga for nearly nine years, having been committed there as an SVPunder Welfare and Institutions Code section 6608² in July 2009. According to the Vorwerk Declaration, Oliver continued to suffer from a "diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent criminal behavior" and therefore, as of that date, still "meets the definition of a Sexually Violent Predator." The Vorwerk Declaration points out that "[t]o date, Mr. Oliver has not completed sexual offense treatment program (SOTP) at DSH-[Coalinga] and he has not had sufficient treatment for his diagnosed mental condition and other dynamic risk factors." It concludes that, "[a]t this time, neither conditional nor unconditional release is appropriate" and that "[t]he best interest of Mr. Oliver and the adequate protection [of] the community cannot be assured in a less restrictive treatment setting."

Without the concurrence of the director of the DSH, Oliver filed a pro se petition for conditional release under section 6608, subdivision (a). Oliver served his petition on James McEntee, the attorney who represented him in his commitment trial in 2009. He did not serve it on the DSH, as he was required to do under section 6608, subdivision (a). To sustain the petition, the burden was on Oliver to show at a hearing (§ 6608, subd. (k)) that he "would not be a danger to others due to his . . . diagnosed mental disorder while under supervision and treatment in the community" (§ 6608, subd. (g)). But Oliver was not entitled to a hearing as of right. If the court determined the petition was "based upon frivolous grounds," denial "without a hearing" was mandatory. (§ 6608, subd. (a).)

Centrally at issue in this appeal is the threshold question of whether Oliver's pro se petition is frivolous. To make an assessment of frivolousness,the trial court was entitled to look to Dr. Vorwerk's declaration (People v. Olsen (2014) 229 Cal.App.4th 981, 996) in addition to the facts alleged on the face of the petition. (Ibid.) We glean the following from the face of the petition. It alleges various undisputed background facts (such as the date and length of Oliver's commitment and his participation in various treatment programs) and it sets forth some rudimentary legal analysis (such as citation to and discussion of various statutes and cases), but the only specific facts offered to justify a grant of conditional release are these: (1) Oliver "has endured . . . at least three (3) revisions of the sex-offender program[,] which started with the Phase Program, then, the Good Lives Model, and now is the S.O.T.P model"; (2) Oliver has a "vested interest in obtaining release from his present confinement [and] he is not in any way trying to harass" state or local officials or the court; (3) in addition to Oliver's participation in the aforementioned treatment programs, he has "received numerous 'CERTIFICATES OF COMPLETION' from auxiliary groups that are aimed at addressing [his] dynamic risk factors and any deviant sexual behaviors that [he] may have exhibited prior to his commitment"; (4) to the extent Oliver could not provide more detail about his "enthusiastic participation" in the aforementioned treatment programs and the progress he made in them, that is beyond his control because the programs were cancelled or revised while he was attempting to complete them and his records of participation were taken away when a personal thumb drive was confiscated from him; and (5) finally, he subjectively "believes he no longer poses a danger to the health and safety of others, in that it is not likely that he will engage in sexually violent criminal behavior if released to a less restrictive treatment alternative and environment."

The trial court denied Oliver's petition for three reasons: (1) he initiated the proceeding pro se, even though he had counsel, McEntee, and therefore had no right to file a section 6608 petition on his own; (2) he failed to serve his petition on the DSH pursuant to section 6608, subdivision (a); and (3) his petition is frivolous because "any reasonable attorney . . . would agree that [it] is totally and completely without merit."

This appeal followed.

II.

The trial court was incorrect to deny Oliver's petition because he filed it pro se. It may well be that, if a committee is currently represented by counsel of record in connection with his commitment status, he would be barred from filing an action independent of that attorney, which is what occurred in the case the trial court relied upon to support denial on this ground, albeit in the context of capital litigation. (See In re Barnett (2003) 31 Cal.4th 466, 469.) But because in this case Oliver sought conditional release for the first time nine years after a commitment trial in which he was represented by appointed counsel, it is not reasonable to infer continuing representation from the fact that he still knew that attorney's address, and served him. As Oliver puts it, "[a] trial attorney who accepts an appointment to defend against an initial commitment does not consent to a lifetime appointment should the person be found an SVP and sent to the state hospital for an indeterminate commitment."

But neither that error nor the defect in service (which Oliver does not contest) is material. The third ground for denial—the trial court's conclusion that the petition was frivolous—is sufficient to justify affirmance. As a preliminary matter, the parties disagree on the appropriate standard of appellate review. Citing People v. Olsen, supra, 229 Cal.App.4th at page 994,and People v. Reynolds (2010) 181 Cal.App.4th 1402, 1408, the DSH contends our review should be for abuse of discretion, while Oliver contends we should conduct a de novo review, giving the trial court's determination no deference. According to Oliver, there is lack of clarity in the case law on this specific question, with some courts deciding the issue without any clear indication of the applicable standard of review (People v. Smith (2013) 216 Cal.App.4th 947, 951), and some reviewing for abuse of discretion (People v. Olsen, supra, 229 Cal.App.4th at p. 994) or for substantial evidence (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1504). By analogy to a variety of other procedural settings, Oliver contends we must review the trial court's summary denial of his petition by drawing inferences for him and evaluating the question independently.³

This preliminary skirmish over the intensity of review is academic. We see no need to choose from among the various standards cited by the parties because, under any standard, the trial court's determination that Oliver'spetition is frivolous must be affirmed. The governing rule is an objective one. A petition is frivolous if, to any reasonable attorney, it is totally and completely without merit. (People v. Collins (2003) 110 Cal.App.4th 340, 349; see People v. McKee (2010) 47 Cal.4th 1172, 1192, citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Whether the standard of review is abuse of discretion, substantial evidence, or de novo, we conclude that on this record no reasonable attorney would believe that Oliver's petition is anything but totally and completely without merit.

Oliver claims his petition made a facially sufficient showing that he was entitled to relief. We disagree. Oliver alleges nothing that calls into question Dr. Vorwerk's opinion that he currently remains a sexually violent predator, that he currently poses a danger to the health and safety of others, and that, if released to a less restrictive treatment alternative...