APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman, Judge. Affirmed. (Super.Ct.No. RIC369237).
The opinion of the court was delivered by: Ramirez P.J.,
CERTIFIED FOR PUBLICATION
Defendant, Steven Arthur Reynolds, a sexually violent predator (SVP) (Welf. & Inst. Code,*fn1 § 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 the 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.
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, et al. (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.
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 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.*fn2
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.*fn3 (§ 6608, subd. (a).) Upon receipt of a 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 ...