ORIGINAL PROCEEDINGS. Petition for Writ of Mandate. Thomas I. McKnew, Jr., Judge. Petition granted. (Super. Ct. No. ZM003215)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
The Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)*fn1 authorizes the state to identify individuals who suffer from mental disorders that predispose them to commit violent sexual crimes and to confine and treat them until they no longer threaten society. (People v. Allen (2008) 44 Cal.4th 843, 857 (Allen).) A proceeding under the SVPA is civil in nature and, although it may result in the involuntary commitment of the defendant, is not equivalent to a criminal prosecution. (Id. at pp. 860-861.) Nonetheless, because it involves a significant deprivation of liberty, a defendant in an SVPA proceeding is entitled to due process protections. (Id. at p. 862; see People v. McKee (2010) 47 Cal.4th 1172, 1188 (McKee) ["[t]here is no question that civil commitment itself is constitutional so long as it is accompanied by the appropriate constitutional protections"].)
In Allen, supra, 44 Cal.4th 843, applying the balancing test articulated in Mathews v. Eldridge (1976) 424 U.S. 319, 344 [96 S.Ct. 893, 47 L.Ed.2d 18] and People v. Otto (2001) 26 Cal.4th 200, 210, a unanimous Supreme Court held the defendant in an SVPA proceeding has a right under the due process clauses of the federal and state Constitutions to testify over the objection of his or her counsel. (Allen, at pp. 869-870.) Does that same balancing test preclude the state from proceeding with an initial SVPA commitment trial*fn2 while the defendant is incompetent-that is, unable, as a result of mental disorder or developmental disability, to understand the nature of the proceedings or to assist his or her counsel in the conduct of a defense in a rational manner? Although the issue is not free from doubt,*fn3 we believe the answer must be yes. The private interests at stake are high: a substantial limitation on the defendant's liberty, the stigma of being classified as a sexually violent predator and subjection to unwanted treatment. The dignitary interest of the defendant subject to the SVPA commitment proceeding-his or her ability to be an active participant, rather than being relegated to the role of a mere spectator-is strong. And the risk of an erroneous finding that the defendant is a sexually violent predator and the probable value in reducing this risk by proceeding on an SVPA petition only against a competent defendant are at least as great as in Allen, in which the defendant sought to testify on his own behalf over the objection of his counsel in an SVPA extension proceeding. On the other hand, the state's compelling interest in both protecting the public and providing appropriate treatment to those individuals found to be sexually violent predators will not be significantly burdened by a threshold requirement that defendants in initial SVPA proceedings be mentally competent.
Accordingly, we grant the petition for writ of mandate filed by Mark Richard Wilson and direct respondent Los Angeles Superior Court to suspend the SVPA commitment proceedings now pending against Wilson, to conduct a hearing to determine his ability to understand the nature of the proceedings and to rationally assist his counsel in the conduct of a defense and, if Wilson is not now competent, to order Wilson to remain in appropriate custody pending restoration of his competency.
FACTUAL AND PROCEDURAL BACKGROUND
Wilson was convicted in 1977 of rape by threat and placed on five years probation. In 1981, while still on probation for the 1977 offense, he sexually attacked a young woman. Wilson was convicted of forcible oral copulation; his probation was revoked; and he was sentenced to an aggregate state prison term of eight years and remanded to Patton State Hospital as a mentally disordered sex offender. He was discharged in May 1989.
In 1993, while a patient at Metropolitan State Hospital, Wilson was convicted of assault with a deadly weapon and sentenced to nine years in prison. Prior to his release on parole, he was found to meet the criteria for a mentally disordered offender and was committed to Atascadero State Hospital for treatment. (Pen. Code, § 2962.) In April 1999, while receiving treatment at Atascadero, the Director of the California Department of Mental Health designated two mental health professionals to evaluate Wilson to determine whether, in addition to being a mentally disordered offender, he is also a sexually violent predator within the meaning of the SVPA.*fn4 Both psychologists concluded Wilson has a mental disorder that makes it likely he will engage in predatory sexual violence if he is released from custody without appropriate treatment.
In May 1999 the People filed a petition to commit Wilson as a sexually violent predator. (§ 6601, subd. (a).) In addition to identifying Wilson's two prior sex-related convictions, the petition alleged Wilson has a diagnosed mental disorder, is a danger to the health and safety of others and is likely to engage in sexually violent and predatory criminal behavior upon his release from custody. (§§ 6601, subds. (f), (h) & (i).) Wilson was arraigned on the petition on May 13, 1999, and the public defender was appointed as counsel. (§ 6603.) Wilson remained in custody pending a probable cause hearing on the sexually violent predator petition.
After multiple continuances, many of which were requested by Wilson,*fn5 the trial court held a probable cause hearing in December 2004. The court found probable cause to believe Wilson suffered from a diagnosed mental disorder and was likely to engage in sexually violent and predatory behavior upon his release. Since the probable cause determination, Wilson has remained in the custody of the state hospital pending trial on the SVPA petition. (§ 6602, subd. (a).)
In February 2009 Wilson's counsel moved to stay the SVPA commitment proceedings pending a determination of Wilson's competency. The motion papers included reports from mental health professionals opining that Wilson was delusional and psychotic and unable to comprehend reality. After submission of written briefs and a hearing, the trial court denied the motion, concluding Wilson had no statutory right to be mentally competent during the civil SVPA proceedings and, in light of the procedural protections provided by statute, including the right to counsel, it would not violate Wilson's right to due process to proceed with the SVPA trial even if he were mentally incompetent.
On May 20, 2009 Wilson petitioned this court for a writ of mandate to compel the trial court to initiate mental competency proceedings. On June 17, 2009 we issued an order to show cause as to why the requested relief should not be granted and stayed all proceedings in the trial court pending further order of this court. On July 2, 2009 the People filed their return to the petition, and on July 17, 2009 Wilson filed his reply.
The procedures for civilly committing a person as a sexually violent predator pursuant to the SVPA were recently summarized in Allen: The process "begins when the Secretary of the Department of Corrections and Rehabilitation determines that an individual in the custody of the department may be a sexually violent predator, and the Secretary refers the individual to the State Department of Mental Health for an evaluation. If two evaluators concur that the individual meets the statutory criteria of a sexually violent predator, the Director of Mental Health shall request the county in which the person was convicted of the offense for which he or she is ...