People v. Superior Court of San Diego

CourtCalifornia Court of Appeals
Citation105 Cal.Rptr.2d 159
Decision Date19 March 2001
Parties(Cal.App. 4 Dist. 2001) THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; ANTONIO OLGUIN PRECIADO, Real Party in Interest. D036024 Filed

105 Cal.Rptr.2d 159 (Cal.App. 4 Dist. 2001)
THE PEOPLE, Petitioner,
ANTONIO OLGUIN PRECIADO, Real Party in Interest.
Filed 3/19/01

PROCEEDINGS in mandate after court order granting motion to dismiss initial petition and amended petition brought pursuant to the Sexually Violent Predators Act. Charles G. Rogers, Judge. Petition granted.

(San Diego County Super. Ct. No. CR49725)

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.



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.


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 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 (Butler), and Peters v. Superior Court (2000) 79 Cal.App.4th 845 (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.


In Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144, 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, and Peters, supra, 79 Cal.App.4th at page 850, 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...

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1 cases
  • People v. Superior Court (Preciado), D036024.
    • United States
    • California Court of Appeals
    • March 19, 2001
    ... 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. [105 Cal.Rptr.2d 1......

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