People v. Superior Court (Preciado)

• Citation: 87 Cal.App.4th 1122,105 Cal.Rptr.2d 159
• Decision Date: 19 March 2001
• Docket Number: No. D036024.,D036024.
• Court: California Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Antonio Olguin PRECIADO, Real Party in Interest.

105 Cal.Rptr.2d 159

87 Cal.App.4th 1122

The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent;

Antonio Olguin PRECIADO, Real Party in Interest.

No. D036024.

Court of Appeal, Fourth District, Division 1.

March 19, 2001.

Review Denied June 27, 2001.

Paul J. Pfingst, District Attorney, Thomas F. McArdle and D. Michael Ebert, Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Steven J. Carroll, Public Defender, and Matthew C. Braner, Deputy Public Defender, for Real Party in Interest.

BENKE, J.

In this case we find that although a petition alleging that a person is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA or Act) (Welf & Inst.Code, § 6600 et seq.)¹ should not be filed until two psychotherapists have evaluated the alleged SVP and found that his condition meets the requirements of the Act, a failure to do so may be cured by the People after the petition is filed. Thus, in this case, where the People's petition was timely and the required evaluations were performed prior to the end of the alleged SVP's previous commitment, the trial court erred in dismissing the petition.

FACTS AND PROCEDURAL HISTORY

In 1980 real party in interest Antonio Olguin Preciado was convicted of three counts of forcible rape while using a deadly weapon, one count of attempted rape, and two counts of forcible oral copulation. He was sentenced to 33 years in prison.

In June 1997, prior to his release from prison, the People filed a petition to compel Preciado's involuntary commitment for treatment as an SVP. On January 12, 1998, a jury found Preciado was an SVP within the meaning of section 6600. Pursuant to the terms of section 6604, Preciado was committed to the Department of Mental Health for treatment for a period of two years. Preciado's original commitment under the SVPA was scheduled to expire on January 12, 2000.

On November 16, 1999, before the expiration of Preciado's commitment term, the People filed a petition to continue his commitment under the SVPA. Attached as an exhibit to the petition was an evaluation of Preciado prepared by Dawn Starr, Ph.D. Starr's evaluation concluded Preciado continued to suffer from a diagnosable mental disorder that made him likely to engage in sexually violent criminal behavior.

On December 17, 1999, Preciado was arraigned on the petition.

On January 5, 2000, a second evaluation was conducted by Jill Nelson, Ph.D. Nelson also concluded Preciado continued to meet the criteria of an SVP. Nelson's evaluation was transmitted to Preciado's counsel on January 12, 2000.

On April 20, 2000, the People filed an amended petition. Attached to the amended petition was the original evaluation conducted by Starr and the later evaluation conducted by Nelson. Preciado was arraigned on the amended petition on April 28, 2000. At a probable cause hearing conducted on May 17 and May 23, 2000, Drs. Nelson and Starr testified for the People and were cross-examined by Preciado's counsel.

On May 23, 2000, Preciado moved to dismiss both the original petition and the amended petition. Preciado argued that a petition for continued commitment under section 6600 requires an evaluation by two psychologists or psychiatrists and that a petition must be filed before a commitment term expires. He argued the original petition was defective because at the time it was filed only one psychological evaluation had been performed. He argued the amended petition was untimely because it was filed after his term of commitment had expired. In asserting the evaluation of two psychologists is needed to sustain a petition, Preciado relied upon two cases rendered after the People's initial petition in this case was filed: Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 93 Cal. Rptr.2d 468 (Butler), and Peters v. Superior Court (2000) 79 Cal.App.4th 845, 94 Cal.Rptr.2d 350 (Peters).

On July 7, 2000, the superior court granted Preciado's motion to dismiss both the initial petition and amended petition and ordered his release. The court stayed its release order to permit the People to file the instant petition.

We stayed the trial court's order and issued an order to show cause.

DISCUSSION

I

In Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144, 81 Cal.Rptr.2d 492, 969 P.2d 584, the Supreme Court found that in enacting the SVPA the Legislature had "expressed concern over a select group of criminal offenders who are extremely dangerous as the result of mental impairment, and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes. The Legislature indicated that to the extent such persons are currently incarcerated and readily identifiable, commitment under the SVPA is warranted immediately upon their release from prison. The Act provides treatment for mental disorders from which they currently suffer and reduces the threat of harm otherwise posed to the public. No punitive purpose was intended. [Citation.]" (Fn.omitted.)

Under the Act, prior to the end of any prison commitment an alleged SVP must be evaluated by either two practicing psychologists, two practicing psychiatrists or a practicing psychologist and a practicing psychiatrist chosen by the Director of Mental Health (DMH). (§ 6601, subd. (d).) If both professionals agree that the criteria set forth in section 6600 exists, the DMH is required to send the evaluations to the county which was responsible for the alleged SVP's incarceration and request that an SVPA petition be filed. (§ 6601, subd. (d).) If the professionals do not agree, the DMH must appoint two independent professionals, not employed by the state, to evaluate the alleged SVP. (§ 6601, subds.(e), (g).) If, but only if, the two independent evaluators find that the SVP criteria exists, the DMH must request that an SVPA petition be filed. (§ 6601, subd. (f).)

In Butler, supra, 78 Cal.App.4th at pages 1180-1181, 93 Cal.Rptr.2d 468, and Peters, supra, 79 Cal.App.4th at page 850, 94 Cal.Rptr.2d 350, the courts found that under this statutory scheme a petition to recommit someone who is under a current SVPA commitment cannot be filed unless two evaluators under section 6601, subdivisions (d) or (e), have found that the condition continues to meet the requirements of the Act. In both cases the People had argued that in the case of a petition for recommitment under the SVPA, as opposed to an initial petition for recommitment, only one evaluation should be required. The result in these cases was recently codified by the Legislature in urgency legislation amending section 6604.1, subdivision (b). (Stats.2000, ch. 420, § 4 (S.B.2018) eff. Sept. 13, 2000.) By its terms section 6604.1, subdivision (b), now expressly requires that two evaluations be obtained before any recommitment petition is filed and provides for the appointment of independent evaluators in the event of disagreement by the evaluators appointed by the DMH.

A petition under the SVPA must not only be based upon two evaluations, it must also be filed before the end of any current commitment. (People v. Superior Court (Ramirez) (1999) 70 Cal.App.4th 1384, 1389, 83 Cal.Rptr.2d 402.) However, once a petition is filed, there is no additional limit on the time in which the allegations of the petition must be tried. (Ibid.)

The filing of a petition commences a new round of proceedings in the trial court. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1144, 81 Cal.Rptr.2d 492, 969 P.2d 584.) "The superior court first holds a hearing to determine whether there is `probable cause' to believe that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. (§ 6602, as amended by Stats.1966, ch. 4, § 4, and by Stats.1998, ch. 19, § 3.) The alleged predator is entitled to the assistance of counsel at this hearing. If no probable cause is found, the petition is dismissed. However, if the court finds probable cause within the meaning of this section, the court orders a trial to determine whether the person is an SVP under section 6600. The alleged predator must remain in a `secure facility' between the time probable cause is found and the time trial is complete. (§ 6602.)

"At trial, the alleged predator 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 have access to all relevant medical and psychological records and reports.' (§ 6603, subd. (a).) Either party may demand and receive trial by jury. (Id., subds. (a) & (b); see id., subd. (c).)

"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. (d).) If the state fails to carry this burden, the person is released from prison when his term expires. (§ 6604.)" (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1146-1147, 81 Cal.Rptr.2d 492, 969 P.2d 584, fns. omitted.)

II

Here, Preciado argues the failure to obtain two evaluations prior to filing the initial petition deprived the trial court of jurisdiction to proceed on the petition once his term of commitment expired. He contends the amended petition, which was filed after his commitment had expired, was untimely. We disagree with his analysis of the statute.

First, we note that proceedings under the Act are civil in nature. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1171, 81 Cal.Rptr.2d 492, 969 P.2d 584; In re Parker (1998) 60 Cal.App.4th 1453, 1461, 71 Cal.Rptr.2d 167.) Accordingly, unless otherwise indicated on the face of the statute, rules of civil procedure will operate. (See e.g. People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 834, 58 Cal.Rptr.2d 32; People, v. Superior Court (Johannes) (1999) 70 Cal.App.4th 558, 561, 82 Cal.Rptr.2d 852.)

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