People v. Putney

• Decision Date: 27 July 2016
• Docket Number: A142012
• Citation: 205 Cal.Rptr.3d 600,1 Cal.App.5th 1058
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thomas Earl PUTNEY, Defendant and Appellant.

1 Cal.App.5th 1058

205 Cal.Rptr.3d 600

The PEOPLE, Plaintiff and Respondent

v.Thomas Earl PUTNEY, Defendant and Appellant.

A142012

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

Filed July 27, 2016

Ronald R. Boyer, Berkeley, by appointment of the Court of Appeal under the First District Appellate Project, for Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Jeffrey M. Laurence & Laurence K. Sullivan, Supervising Deputy Attorneys General, Bridget Billeter, Deputy Attorney General, for Respondent.

Humes

, P.J.

Thomas Putney appeals from an order recommitting him to the State Department of State Hospitals (SDSH) for an indeterminate term after a jury found him to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA).¹ During the pendency of the SVP proceeding, Putney was sentenced to 25 years to life in prison for an intervening criminal offense. We conclude that the trial court lacked authority to recommit Putney as an SVP once his sentence for the intervening criminal conviction became final, and we therefore reverse the order with directions to dismiss the recommitment petition.

I.

Factual and Procedural

Background

During the summer of 1990, Putney sexually molested his two- and four-year-old cousins, with whom he lived at the time, and a nine-year-old neighbor. The following year, he pleaded no contest to three felony counts of lewd acts on a child under age 14 based on his offenses against the four- and nine-year-old, and he was sentenced to 10 years in prison.²

In October 2002, shortly before Putney was due to be released on parole, the People filed a petition seeking his commitment to a state hospital as an SVP.³ He admitted to the petition's allegations, and in February 2003 the trial court committed him to Atascadero State Hospital for two years. At the end of the two-year term, the People did not seek to recommit Putney as an SVP, and he was released on parole in February 2005. He moved several times due to public outcry about his presence, became suicidal, and sought help from his parole officer. Putney returned to prison in approximately August 2005 after no other facility would accept him, and his parole was revoked “based upon [the] psychiatric return.”

In September 2005, about a month before Putney was due to be released, the People filed a second petition seeking his commitment to a state hospital as an SVP. He did not contest the petition, and the following month the trial court committed him to Atascadero for another two-year term. The People filed the instant petition to recommit Putney as an SVP in July 2007, a few months before the expiration of that two-year term. In February 2008, the trial court found that the petition established probable cause to believe that Putney was an SVP, and a jury trial was set for later that spring.

The SVP trial was continued many times and ultimately did not begin until April 2014, almost seven years after the recommitment petition was filed. Only one of the many reasons for the delay is relevant to the resolution of this appeal: in November 2010, Putney was charged with a felony count of possession of a dirk and dagger based on an incident at Coalinga State Hospital, where he was then housed. (People v. Putney (July 2, 2012, F062165) [nonpub. opn.].)⁴ He pleaded no contest to the charge and admitted three prior convictions for a serious or violent felony (strikes). (Ibid. ) A Fresno County trial court sentenced him to 25 years to life in prison in late January 2011. (Ibid. ) The Fifth District Court of Appeal affirmed the criminal judgment on July 2, 2012, and, after our state Supreme Court denied review, the remittitur issued on September 27, 2012. (California Courts, Appellate Courts Case Information id=1975541& doc_no=F062165> [as of July 27, 2016].)

Although our record does not contain any reporter's transcripts from the hearings that occurred in this proceeding while the criminal case was pending, the minute orders make clear that the trial court was aware of that case. The same day that Putney committed the weapons-possession offense, the court vacated the then-scheduled SVP trial date. Minute orders entered in December 2010 noted that Putney was in Fresno County Jail, and a minute order entered the week after he was sentenced in the criminal case the following month noted that he was “in custody in another county (25 years to life).” Finally, while Putney's criminal appeal was pending, the court continued this case for an update on the “appeal or writ on Fresno County case.” (Some capitalization omitted.) While the record thus reveals that the court was aware of the criminal case, it does not reflect that the parties and court ever discussed the propriety of proceeding to trial despite the criminal case's disposition.

At trial, two psychologists, Drs. Jack Vognsen and Harry Goldberg, testified as experts for the People. Both diagnosed Putney with pedophilia, and both identified other disorders contributing to his impaired ability to control his behavior, including antisocial personality disorder

and substance-abuse disorder. They concluded that Putney was substantially likely to reoffend if released from custody, although both acknowledged that due to his criminal sentence he would not be released for many years. Two other psychologists, Drs. Robert Halon and Jay Adams, testified as experts for the defense and concluded that Putney did not have pedophilia because there was no evidence he was currently attracted to children. The jury found that Putney was an SVP, and the trial court committed him to Coalinga for an indeterminate term.⁵

II.

Discussion

We requested supplemental briefing from the parties on whether Putney was properly recommitted as an SVP despite having a decades-long prison term left to serve. We conclude that the trial court should have dismissed this action after the criminal sentence became final. Although Putney joins the Attorney General in contending that the sentence did not prevent his recommitment, we decline to accept this concession because it is completely at odds with the SVPA's language and purposes and would send a faulty message that trial courts may commit criminal defendants under the SVPA years before their sentences of incarceration are set to end.⁶ (See People v. Sanders (2012) 55 Cal.4th 731, 740, 149 Cal.Rptr.3d 26, 288 P.3d 83

.)

A. The SVPA.

Under the SVPA, an offender who is determined to be an SVP is subject to involuntary civil commitment for an indeterminate term “ ‘immediately upon release from prison.’ ” (People v. Yartz (2005) 37 Cal.4th 529, 534, 36 Cal.Rptr.3d 328, 123 P.3d 604

; § 6604.) To establish that an offender is an SVP, the People must prove beyond a reasonable doubt that the offender (1) has been convicted of a sexually violent offense against at least one victim and (2) “has a diagnosed mental disorder that makes [him or her] 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.” (§§ 6600, subd. (a)(1), 6604.) The SVPA is designed “ ‘to provide “treatment” to mentally disordered individuals who cannot control sexually violent criminal behavior’ ” and to keep them confined until they no longer pose a threat to the public. (People v. McKee (2010) 47 Cal.4th 1172, 1194, 104 Cal.Rptr.3d 427, 223 P.3d 566.) Thus, “[t]he SVPA is not punitive in purpose or effect,” and proceedings under it are “ ‘special proceedings of a civil nature.’ ” (Yartz , at pp. 535–536, 36 Cal.Rptr.3d 328, 123 P.3d 604.)

Originally, the SVPA provided for a two-year term of commitment (former § 6604

), and any extension required the People to file a petition for recommitment for another two-year term. (Former §§ 6604, 6604.1, subd. (a) ;

Moore v. Superior Court (2010) 50 Cal.4th 802, 817, 114 Cal.Rptr.3d 199, 237 P.3d 530

.) On November 7, 2006, California voters passed Proposition 83, which amended the SVPA effective the following day. (People v. McKee, supra, 47 Cal.4th at p. 1186, 104 Cal.Rptr.3d 427, 223 P.3d 566.) Among other changes, Proposition 83 altered “an SVP commitment from a two-year term to an indefinite commitment.” (McKee , at p. 1186, 104 Cal.Rptr.3d 427, 223 P.3d 566.) Under the previous scheme, a subsequent petition to extend an offender's commitment required a new trial to prove that the offender was an SVP. (Id. at p. 1194, 104 Cal.Rptr.3d 427, 223 P.3d 566 ; former § 6604.) But “[a]fter Proposition 83, once a person is committed as an SVP, he [or she] remains in custody until he [or she] successfully bears the burden of proving he [or she] is no longer an SVP”—through a petition for unconditional discharge under section 6605 or conditional release under section 6608—“or the [SDSH] determines he [or she] no longer meets the definition of an SVP.” (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1287, 68 Cal.Rptr.3d 142

(Bourquez

).) “The purpose of the change was ‘to protect the civil rights of those persons committed as [an SVP] while at the same time [to] protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.’ [Citation.] The change also served to reduce costs for SVP evaluations and court testimony.” (Ibid. )

As amended by Proposition 83, “the SVPA no longer contains any express statutory provision authorizing recommitment of a person previously committed ... for treatment as an SVP.” (People v. Castillo (2010) 49 Cal.4th 145, 150, 109 Cal.Rptr.3d 346, 230 P.3d 1132

.) Despite this, trial courts retain jurisdiction to consider a petition for recommitment for an indeterminate term that, like the petition here, was filed after Proposition 83 became effective. (People v. Whaley (2008) 160 Cal.App.4th 779, 798–799, 73 Cal.Rptr.3d 133 ; Bourquez, supra, 156 Cal.App.4th at p. 1280, 68 Cal.Rptr.3d 142 ; People v. Shields (200...