ORIGINAL PROCEEDINGS in mandate. Marcelita Haynes, Judge. Petition granted. (Los Angeles County Super. Ct. No. ZM008445).
The opinion of the court was delivered by: Klein, P. J.
CERTIFIED FOR PUBLICATION
Ardell Moore (Moore), the defendant in a petition by the People to commit him as a sexually violent predator under the Sexually Violent Predator Act (SVPA or the Act) (Welf. & Inst. Code, § 6600 et seq.),*fn1 seeks a writ of mandate directing respondent superior court to initiate a competency evaluation and to stay the SVPA proceeding until the issue of his mental competency can be determined.
We grant Moore‟s petition. In this case of first impression in California, we hold, as a matter of constitutional due process, that a defendant cannot be subjected to trial as an alleged sexually violent predator while mentally incompetent. Our decision is based on the following factors: (1) the liberty interest at stake in an SVPA proceeding is significant; (2) proceeding with an SVPA trial against an incompetent defendant poses an unacceptable risk of an erroneous deprivation of liberty; (3) the governmental interest in protecting its citizens and treating sexually violent predators is not significantly burdened by providing for a competency determination in the SVPA context; and (4) the defendant‟s dignitary interest in presenting his side of the story is protected by ensuring the defendant is competent to stand trial. (People v. Allen (2008) 44 Cal.4th 843, 862-863, 869-870 (Allen).)*fn2
FACTUAL AND PROCEDURAL BACKGROUND
1. Events Leading up to the SVPA Petition
In 1980, Moore was convicted of forcible oral copulation. He was paroled in 1981.
In 1987, Moore was convicted of kidnapping, forcible rape and forcible rape in concert and was sentenced to 25 years in state prison.
Prior to Moore‟s scheduled release on parole, the Director of the State Department of Mental Health designated two mental health professionals to evaluate Moore.
They determined Moore has a diagnosed mental disorder such that he remains likely to engage in predatory sexual violence without custody and appropriate treatment.
On March 8, 2005, the People filed a petition for Moore‟s commitment as a sexually violent predator. The People alleged Moore was convicted of three sexually violent offenses in 1980 and 1987, that he has a diagnosed mental disorder, is a danger to the health and safety of others, and is predatory.
Moore was arraigned on April 12, 2005, and the public defender was appointed as counsel. On August 18, 2005, a probable cause hearing was held, at which time the trial court found Moore was likely to engage in sexually violent behavior if released. (§ 6602.) Moore has remained in custody during subsequent delays.
2. The Motion to stay the SVPA Trial and to Initiate competency Proceedings
In February 2007, Moore‟s counsel filed a motion for an order initiating a competency evaluation and a stay of the SVPA trial pending a competency determination. The motion was supported by a letter from Vianne Castellano, Ph.D., who interviewed Moore on January 4 and January 11, 2007. Dr. Castellano opined "Mr. Moore is not presently competent to participate in the evaluation procedures or in the actual testimony relating to his upcoming [SVPA] hearing in March of 2007. He is neither able to understand the nature and the purpose of these proceedings nor is he able to cooperate in a rational manner with his counsel or the psychological evaluators."
The district attorney opposed the motion, contending there is no constitutional or statutory right to stay SVPA proceedings to litigate competency issues because an SVPA proceeding is civil in nature rather than punitive; accordingly, a defendant in an SVPA proceeding can be tried and committed even if that person is incompetent.
On April 9, 2007, the matter came on for hearing. Moore‟s counsel conceded the competency procedures of Penal Code section 1368 are inapplicable because an SVPA proceeding is civil in nature. However, Moore‟s counsel argued the court had the inherent power to fashion a judicial remedy to protect Moore‟s due process rights, pursuant to James H. v. Superior Court (1978) 77 Cal.App.3d 169 (James H.)*fn3
After hearing arguments of counsel, the trial court denied Moore‟s motion to stay the SVPA proceeding and to initiate a competency hearing. The trial court recognized it possesses the inherent power to fashion a remedy but declined to do so because it concluded due process does not require a competency determination in SVPA proceedings. The trial court reasoned that even assuming Moore is incompetent, due process is not offended by proceeding with the SVPA trial where the defendant is represented by an attorney.
The trial court also quoted with approval from a Massachusetts case, to wit: "We see no reason why the public interest in committing sexually dangerous persons to the care of the treatment center must be thwarted by the fact that one who is sexually dangerous also happens to be incompetent." (Com. v. Nieves (Mass. 2006) 846 N.E.2d 379, 385 (Nieves).)
3. Moore's Petition for a Writ of Mandate
On April 30, 2007, Moore filed the instant petition for writ of mandate. In the petition, Moore seeks the issuance of a peremptory writ directing the trial court to vacate its previous order and to enter a new and different order requiring the trial court to initiate competency proceedings.
On May 9, 2007, this court issued a stay of the SVPA proceedings, and requested the People to file a response to the petition. On July 3, 2007, this court issued an order to show cause. Following oral argument, we deferred submission in order to allow for supplemental briefing, including amicus briefing, and to await the Supreme Court‟s recent decision in Allen, supra, 44 Cal.4th 843.
Moore contends: the trial court has the inherent power to determine the competency of an individual subject to prosecution under the SVPA; and the due process clauses of the United States and California Constitutions require that individuals subject to an SVPA commitment be competent.
1. Overview of Statutory Scheme
The SVPA was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society. (Allen, supra, 44 Cal.4th at p. 857.)
At the time the People filed the underlying petition to commit Moore as a sexually violent predator, in 2005, the SVPA defined a sexually violent predator as "a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually ...