People v. Reynolds, E047192.

• Decision Date: 10 February 2010
• Docket Number: No. E047192.,E047192.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. STEVEN ARTHUR REYNOLDS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

181 Cal.App.4th 1402

THE PEOPLE, Plaintiff and Respondent, v. STEVEN ARTHUR REYNOLDS, Defendant and Appellant.

No. E047192.

Court of Appeals of California, Fourth District, Division Two.

February 10, 2010.

[181 Cal.App.4th 1405]

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf, Kristen Kinnaird Chenelia and Stacy A. Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

Defendant, Steven Arthur Reynolds, a sexually violent predator (SVP) (Welf. & Inst. Code,¹ § 6600 et seq.), filed a petition for unconditional release (§ 6608), pro se, after he had been recommitted as an SVP, and while that recommitment was on appeal. The petition alleged only that (a) it has been nearly four years since his original commitment, and (b) prior to his recent recommitment proceeding, he was ready to go to trial with an expert available to testify on his behalf. Counsel was appointed. The People made a motion to dismiss the petition, and, at the hearing on the petition, defense counsel acknowledged there were no changed circumstances. The court dismissed defendant's petition without prejudice to refile when defendant's circumstances change.

On appeal, defendant argues (1) the trial court abused its discretion by failing to review defendant's petition prior to dismissing it; (2) the petition was not frivolous; and (3) defendant's counsel provided ineffective assistance by "abandoning" defendant in conceding the petition lacked merit. We affirm.²

BACKGROUND

At defendant's request, we have taken judicial notice of defendant's prior appeal, E044582. Defendant was first deemed an SVP in 2001, and was found to meet the criteria for commitment in subsequent evaluations. In March 2006, another recommitment petition was filed based on two evaluations which concluded defendant still met the criteria for commitment as an SVP.

On June 11, 2007, the People made a motion to retroactively apply an indeterminate term to defendant's initial commitment, which was granted on October 12, 2007. Defendant appealed that decision, and we reversed on June 4, 2009. (People v. Taylor (2009) 174 Cal.App.4th 920 .)

While that appeal was pending, on April 23, 2008, defendant filed a petition for unconditional release, pro se, pursuant to section 6608. The petition alleged that (1) it has been nearly four years since his initial commitment making it less likely he will reoffend, and (2) prior to the retroactive conversion of his original commitment to an indeterminate term, he had been ready to go to trial and had an expert witness available to testify on his behalf. On June 20, 2008, the People filed a petition for subsequent recommitment. Attached to the recommitment petition were the evaluations of two psychologists conducted in April 2008, who concluded that defendant still met the criteria for commitment as an SVP. On June 25, 2008, the court appointed two experts to conduct current evaluations.

On October 23, 2008, the People responded to defendant's petition for unconditional release, requesting that the petition be denied as frivolous. On October 30, 2008, the court granted the People's motion to dismiss defendant's petition for unconditional release. On November 19, 2008, defendant appealed the dismissal of his petition.

DISCUSSION

1. The Trial Court Did Not Abuse Its Discretion in Dismissing Defendant's Petition Where Defendant Did Not Oppose the Dismissal Motion and Conceded There Were No Changed Circumstances at the Hearing.

Defendant argues that the dismissal of his petition for unconditional release must be reversed because the trial court did not review the petition, and it improperly considered two recent evaluations by the State Department of Mental Health (DMH) concluding defendant was still an SVP. Because defendant waived any opposition to the People's motion to dismiss the petition and conceded there were no changed circumstances, there was no error.³

(1) A person committed as an SVP may petition for conditional release or an unconditional discharge, notwithstanding the lack of recommendation or concurrence by the Director of Mental Health.⁴ (§ 6608, subd. (a).) Upon receipt of such a petition 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." (§ 6608, subd. (a).) If the petition is not found to be frivolous, 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. (§ 6608, subd. (d).) At the hearing, the person petitioning for release has the burden of proof by a preponderance of the evidence. (§ 6608, subd. (i); People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1503 (Rasmuson).) The court is only required to hold a hearing if the petition is not based on frivolous grounds. (Rasmuson, at p. 1503.)

(2) Where a hearing is ordered on the petition for unconditional release, the standard of review is the substantial evidence standard. (Rasmuson, supra, 145 Cal.App.4th at pp. 1503-1504.) We have found no cases discussing the standard of review applicable where the court dismisses the petition without a hearing. However, in any type of proceeding, the movant (or petitioner) bears the burden of alleging and showing entitlement to the relief sought. (People v. Lopez (1997) 52 Cal.App.4th 233, 251 ; see also Conservatorship of Hume (2006) 140 Cal.App.4th 1385, 1388-1389 [a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting].) In habeas corpus proceedings, analogous in nature to a petition for release from involuntary treatment, a discretionary writ will be summarily denied without a hearing unless the petitioner meets his burden of alleging and proving the facts supporting his claim for relief. (In re Miranda (2008) 43 Cal.4th 541, 575 [76 Cal.Rptr.3d 172, 182 P.3d 513].)

(3) We therefore interpret section 6608 to require defendant to allege facts in his petition that will show he is not likely to engage in sexually violent criminal behavior due to his diagnosed mental disorder, without supervision and treatment in the community, since that is the relief defendant requested. On appeal from a dismissal without a hearing, we will therefore review the facial adequacy of the petition to state a basis for relief. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [function of pleadings in summary judgment proceedings].)

(4) Defendant assumes that we review the trial court's ruling for abuse of discretion. We agree. SVP proceedings are special proceedings of a civil nature. (People v. Yartz (2005) 37 Cal.4th 529, 535 [36 Cal.Rptr.3d 328, 123 P.3d 604].) As such, the provisions of the Code of Civil Procedure relative to mandatory dismissals have been held inapplicable. (See People v. Evans (2005) 132 Cal.App.4th 950, 955-956 .) However, the trial court has inherent authority under section 187 of the Code of Civil Procedure to ensure the orderly administration of justice, including the authority to dismiss an SVP petition for unreasonable prosecutorial delay. (Evans, at p. 957.) We interpret this to mean that a trial court may exercise its inherent authority to dismiss a defendant's petition for unconditional release.

We therefore apply the abuse of discretion standard and review the record to determine if, considering all the circumstances before it, the trial court exceeded the bounds of reason. Where there is a basis for the trial court's ruling and it is supported by the evidence, we will not substitute our opinion for that of the trial court. (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 987 .)

In the present case, after defendant filed his pro se petition for unconditional release, he was represented by counsel. At the hearing, defendant's appointed counsel agreed defendant's circumstances had not changed in a way that would justify going forward on the petition. The record supports this conclusion. The two most recent evaluations, conducted in the same month as defendant's petition was filed, unanimously concluded defendant was yet an SVP who presented a danger to the health and safety of others. The petition did not allege any facts to the contrary.

(5) It was forthright of the court to admit it had only glanced at the pleadings before dismissing the petition, but defendant did not object to the dismissal. To the contrary, he expressly agreed to a dismissal without prejudice to permit defendant to refile at a later date, once his circumstances change. A party forfeits his or her right to attack error by implicitly agreeing or acquiescing at trial to the procedure objected to on appeal. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686 .) A party who requests the court to act as it did has invited error. (See People v. Williams (2008) 43 Cal.4th 584, 629 [75 Cal.Rptr.3d 691, 181 P.3d 1035].) Thus, unless the failure to object constitutes ineffective assistance of counsel, which we discuss in the next section, any error was forfeited.

(6) Under these circumstances, it was not an abuse of discretion for the trial court to dismiss the petition after merely glancing at it, where no one requested that the court read it carefully and defendant conceded there was no change in defendant's circumstances such that the court might conclude defendant was no longer a danger to others.

2. Trial Counsel Provided Effective Assistance of Counsel in Not Opposing the Motion to Dismiss Where There Were...