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Moore v. Superior Court of Los Angeles County

August 19, 2010


Ct.App. 2/3 B198550 Los Angeles County Super. Ct. No. ZM008445. Judge: Marcelita Haynes.

The opinion of the court was delivered by: Baxter, J.

Defendant Ardell Moore was convicted of forcible oral copulation against a teenage girl he abducted in 1978. He was imprisoned and then paroled in 1981. In 1984, he kidnapped and sexually assaulted another female victim he did not know, and served a lengthy prison term following his conviction for those crimes. Upon his release from prison in 2000, defendant was tried and committed as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA or Act). (Welf. & Inst. Code, § 6600 et seq.)*fn1 Such commitment involved confinement and treatment in a secure hospital setting.

This case arises from a proceeding to extend defendant's commitment as an SVP. Between the time the trial court found probable cause that he would likely reoffend if released and the time the recommitment petition was set to be tried, defendant moved to stay the proceedings and to determine his mental competence to stand trial. The court denied the motion on the ground such procedure was not statutorily authorized or constitutionally compelled under the SVPA. Defendant sought mandate in the Court of Appeal. He claimed due process prevented him from being tried as an SVP if he could not understand the proceedings or cooperate with counsel. The Court of Appeal agreed. It relied heavily on People v. Allen (2008) 44 Cal.4th 843 (Allen), which recognized the due process right of an alleged SVP to testify over counsel's objection at his commitment trial.

We granted the People's petition for review to decide whether the defendant in an SVP proceeding has a due process right not to be tried or civilly committed while mentally incompetent. Consistent with the conclusion reached by every out-of-state decision to consider the issue, the answer is "no." Allen focused on the extent to which the defendant, as to whom no competence issue was raised, could testify at his trial to explain his own conduct and dispute the foundation of expert opinion about his mental disorders and dangerousness. There, to the extent such testimony was even relevant, it arguably enhanced the reliability of the SVP determination, allowed commitment under the Act, and imposed no significant impediment to enforcement of the SVPA's legitimate goals in an appropriate case.

Here, however, we confront a wholly different situation, which is likely to arise in countless other cases. Defendant insists that the diagnosed mental disorders that allegedly make him a sexually dangerous predator also impair his mental competence to stand trial, and that the state therefore cannot try or commit him as an SVP unless or until his competence is restored. Thus, unlike in Allen, recognition of the due process right claimed here could prevent an SVP determination from being made at all. Such a scenario, which could often recur, would undermine the purpose and operation of the Act. The State could not confine and treat some of its most dangerous sex offenders under conditions targeting their disorders, and public safety could suffer as a result. For these reasons, courts in other states with similar statutes have uniformly held that due process does not prevent the trial and commitment of SVP's while mentally incompetent. The same approach is followed under at least one other civil commitment scheme in this state. We therefore reverse the Court of Appeal.


On February 11, 2005, the State Department of Mental Health (DMH), in a letter signed by the acting medical director at Atascadero State Hospital (Atascadero), asked the Los Angeles County District Attorney to seek an extension of defendant's commitment as an SVP. The letter said that he continued to meet the criteria for commitment, and that his term would expire soon.

Attached to the DMH letter were "Recommitment Evaluations" prepared in January 2005 by Shoba Sreenivasan, Ph.D. and Elaine Finnberg, Ph.D. Both evaluators were licensed psychologists, apparently retained by the DMH. They began their reports by describing defendant's two criminal cases, as follows.*fn2

First, a jury convicted defendant of forcible oral copulation against Maria M. in 1978, when she was 16 years old. (See Pen. Code, § 288a, subd. (c)(2).) Defendant (who was then age 21) forced the victim, a stranger, from a public bus into a residence. He grabbed her by the neck, told her to suck his penis, and made her strip from the waist down in order to rape her. The victim screamed and managed to flee when someone interrupted the attack. Defendant served a three-year prison term and was paroled in 1981.*fn3

Second, a jury convicted defendant of kidnapping (see Pen. Code, § 207, subd. (a)), forcible rape (id., § 261, subd. (a)(2)), and forcible rape in concert (id., § 264.1) against Genetta S. in 1984. Defendant offered a car ride to the 26-year-old victim, a stranger he met late one night. He forced her to enter an abandoned building in which other men were lurking. Defendant beat and bound the victim, after ordering her to undress. He then orally copulated, raped, and sodomized her. At least one other man sexually assaulted her too. She later escaped. Defendant was sentenced to 25 years in prison.*fn4

The recommitment evaluations described defendant's behavior while imprisoned for the Genetta S. crimes, as follows: He often broke prison rules by exposing his penis and masturbating in the presence of female staff. Such sexual misconduct occurred in addition to numerous other rule violations, including possessing makeshift weapons, destroying state property, assaulting an inmate, resisting staff, and refusing to provide required DNA samples.

The reports by Drs. Sreenivasan and Finnberg noted that defendant's misdeeds continued after he first entered Atascadero as an SVP in April 2000, upon his release from prison. In October 2001, his parole was revoked and he was returned to prison for indecent exposure in Atascadero. He was recommitted as an SVP and readmitted to the hospital in April 2003. Throughout his time in Atascadero, both before and after the parole revocation, defendant frequently committed rule violations -- sometimes more than once a day. He verbally abused and threatened male and female staff, sexually propositioned other patients, and subjected female staff to a wide range of sexually inappropriate and hostile acts (e.g., staring at them, soliciting and discussing sex, walking around nude, and masturbating).

Both experts diagnosed defendant with a multidimensional mental disorder under the "DSM-IV-TR."*fn5 First, he suffers from paraphilia, involving intense and recurrent sexual fantasies, urges, or acts against non-consenting persons. Dr. Sreenivasan explained that the condition has spanned defendant's adulthood and has involved sadistic tendencies. Dr. Finnberg concurred, and found evidence of exhibitionism due to defendant's indecent exposure and masturbation in custody. Second, the experts tendered a diagnosis of schizoaffective disorder with bipolar and psychotic components. Symptoms included paranoid and persecutory thoughts (e.g., people wanting to hurt or annoy him), delusions (e.g., his victims sexually tempting him), hypomania (e.g., pressurized and rambling speech, and tangential thought processes), and florid psychosis (e.g., auditory hallucinations). Third, both evaluators diagnosed defendant with antisocial personality disorder, manifested by his persistent disregard of societal norms and the rights of others. Dr. Finnberg noted that defendant has shown no remorse or empathy, and has denied committing any crimes or sexual misdeeds.*fn6

Regarding treatment for these conditions, both evaluators described the "Sex Offender Commitment Program" made available to SVP's at Atascadero. It involves five intensive phases of specialized education and behavior training, and includes ancillary therapies for anger management and substance abuse. Dr. Sreenivasan noted that defendant had declined to participate in any phase of the program and had resisted taking medications that would reduce his sexual impulses. Dr. Finnberg opined that defendant's mental disorders made him both unwilling and unable to accept structured treatment, and that he refused to do anything that would reduce sexual arousal. Sometimes, however, he participated in group recreational activities, and met on an individual basis with a staff psychologist.

Finally, the experts agreed that defendant was likely to engage in sexually violent predatory criminal acts in the future without appropriate treatment and custody. They reviewed risk factors under the "Static-99" scale, and gave defendant a score of either nine (Dr. Sreenivasan) or 10 (Dr. Finnberg), placing him in the "high risk" range covering anyone who scores six or higher. Many factors contributed to his risk of reoffense (e.g., nature and severity of psychiatric disorders, nonparticipation in treatment, willingness to blame his victims, refusal to show remorse or admit wrongdoing, and continued sexual misconduct in a structured setting). No mitigating factors were found. Dr. Sreenivasan observed that defendant indulges his sexual urges "when he wants and how he wants," and remains "undeterred" by any criminal or civil sanction.

On March 8, 2005, the People petitioned to extend defendant's commitment under the SVPA.*fn7 The petition alleged that defendant had been convicted of three sexually violent offenses in two different cases (forcible oral copulation, rape, and rape in concert), that he suffers from a diagnosed mental disorder, and that he is dangerous and likely to reoffend without proper treatment and custody. The DMH evaluations supporting these allegations were cited in the petition and apparently attached thereto. Other supporting documents sought an arraignment and probable cause hearing, and asked that defendant, whose commitment expired on May 7, 2005, be held in a secure facility until the petition was resolved.

On April 12, 2005, counsel was appointed for defendant, and he was arraigned. The defense denied the allegations of the petition. After reviewing the petition and attached mental evaluations, the trial court found sufficient facts which, if true, would constitute probable cause to believe that defendant was likely to commit sexually violent predatory criminal acts if released. Defendant, who apparently was housed at Atascadero at the time, was ordered to remain in custody pending the probable cause hearing.

Before such hearing, and for reasons not clear from the record, defendant moved for new counsel under People v. Marsden (1970) 2 Cal.3d 118. According to a minute order issued on June 23, 2005, defendant appeared in court, and the Marsden motion was argued and denied.

On August 18, 2005, the trial court held a hearing to determine whether there was probable cause to believe that defendant was likely to engage in sexually violent predatory criminal acts if released. The People called Drs. Sreenivasan and Finnberg to testify in this regard. Consistent with their written evaluations, which were admitted into evidence, both witnesses described defendant's sexually violent offenses, his diagnosed mental disorders, and his high risk of reoffense. The trial court found probable cause to hold defendant to answer on the allegations of the petition, and ordered him confined at Atascadero until trial was complete. A pretrial hearing was set for November 16, 2005. However, for reasons that are not clear from the record, the matter was continued to long after that date.

On or about February 5, 2007, defendant, acting through counsel, filed the motion at issue here. He asked the trial court to order a mental competence hearing and to stay recommitment proceedings until his competence to stand trial under the SVPA was determined. In his motion, defendant acknowledged that there was no statutory basis for his request either under the SVPA (which does not mention mental competence to stand trial), or under Penal Code section 1367 et seq. (which regulate the mental competence of criminal defendants in pending prosecutions). Nevertheless, defendant insisted that the fundamental liberty interests at stake in involuntary civil commitment proceedings weighed in favor of recognizing a due process right to mental competence under the SVPA analogous to the one criminal defendants possess. (See Medina v. California (1992) 505 U.S. 437, 439 (Medina) [U. S. Const. prohibits criminal prosecution of person who is incompetent to stand trial].) He urged the court to "improvise" and create appropriate competence procedures for alleged SVP's.

Attached to the motion was a letter from a psychologist, Vianne Castellano, Ph.D., to defense counsel, dated January 12, 2007.*fn8 Based on interviews held shortly before that date, Dr. Castellano found that defendant was not competent to participate in the "upcoming hearing." She opined that he could not understand the nature and purpose of the proceedings, or cooperate in a rational manner with counsel or mental health experts. A "possible diagnosis" was bipolar disorder with depressive and hypomanic episodes (recurrent and severe), and with psychotic features. Dr. Castellano emphasized defendant's "fixed and pervasive delusional system." Symptoms included mood swings accompanied by paranoid and persecutory thoughts, auditory hallucinations, tangential thought processes, and pressurized and confused speech. In Dr. Castellano's view, defendant seemed anxious, and possessed a superficial awareness of events.

The People opposed defendant's effort to stay or halt proceedings to recommit him as an SVP. On March 21, 2007, the trial court heard and submitted the matter. Defendant's motion was denied on April 9.

In its ruling, the trial court noted that the SVPA covers sexually violent offenders who suffer from mental disorders that can affect their competence to stand trial. According to the court, allowing defendants to avoid an SVP trial while incompetent would substantially interfere with the purpose of the Act to protect public safety by confining and treating such persons for their mentally disordered sexual dangerousness. Thus, in declining to recognize such a due process right, the court concluded that the interests of the defendant -- who receives many procedural rights under the SVPA, including the right to counsel -- were outweighed by the interests of the public. No basis was found for defendant's assertion that "competency training" (which he never described), should prevail over treatment under the SVPA, or that a mentally incompetent SVP cannot benefit from treatment to control his sexual dangerousness. In reaching its conclusion, the trial court followed certain out-of-state cases that had reached the same result under analogous circumstances, including Commonwealth v. Nieves (Mass. 2006) 846 N.E.2d 379, 385-386 (Nieves).*fn9

On April 30, 2007, defendant petitioned the Court of Appeal for a writ of mandamus and/or prohibition to vacate the trial court's order denying a hearing on his mental competence to be tried as an SVP, and to stay recommitment proceedings until the issue was resolved. On May 9, 2007, the Court of Appeal, Second Appellate District, Division Three, stayed all such proceedings in the present case pending further order of that court. The appellate court also directed the People, represented by the District Attorney of Los Angeles County, to file a response to the petition. On July 3, 2007, the Court of Appeal issued an order to show cause why the requested relief should or should not be granted.

The Court of Appeal heard oral argument on September 17, 2007. Subsequently, on July 9, 2008, the Court of Appeal vacated submission to await a decision in Allen, supra, 44 Cal.4th 843, which was then pending before this court. Allen was decided on July 28, 2008. On June 4, 2009, after vacating submission two more times, the Court of Appeal filed its decision granting writ relief.

The Court of Appeal accepted defendant's claim that an SVP has a constitutional right not to be tried while mentally incompetent. The Court of Appeal observed that Allen, supra, 44 Cal.4th 843, after balancing the interests at stake in that case, held that an SVP defendant has a federal and state due process right to testify and to present his story at trial, even where counsel objects. Concerned that a mentally incompetent SVP cannot participate meaningfully in his own defense, the Court of Appeal concluded that the constitutional balance favored defendant in this case, as follows: "(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 [SVP's] 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."

The Court of Appeal acknowledged that several decisions from other states had "all" held that a mentally incompetent person can be tried under schemes similar to the SVPA. However, the court found those cases to be unpersuasive, saying they had focused too narrowly on "the nominally civil nature" of commitment as an SVP.

Exercising its inherent power, and alluding to the mental competence scheme applicable in criminal prosecutions (see Pen. Code, § 1367 et seq.), the Court of Appeal issued this order: "[O]n remand the trial court is directed to conduct a hearing into [defendant's] competence to stand trial as an [SVP]. In the event the trial court determines [defendant] is not presently competent to stand trial, the court shall order [him] held in a state hospital for the care and treatment of the mentally disordered until such time as he is restored to competence."

The People petitioned for review to address the constitutional issue decided by the Court of Appeal. On September 17, 2009, we granted the petition.


The SVPA targets a select group of convicted sex offenders whose mental disorders predispose them to commit sexually violent acts if released following punishment for their crimes. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1144 (Hubbart).) The Act confines and treats such persons until their dangerous disorders recede and they no longer pose a societal threat. SVP trials are " 'special proceedings of a civil nature,' " wholly unrelated to any criminal case. (People v. Yartz (2005) 37 Cal.4th 529, 535.) They are not punitive in purpose or effect. (Hubbart, supra, at pp. 1144 & fn. 5, 1170-1179.)

Commitment depends upon whether the person is found to be an SVP -- a finding that ensures the Act applies to only "the most dangerous offenders." (People v. Hurtado (2002) 28 Cal.4th 1179, 1187 (Hurtado).) When defendant's recommitment proceeding began in the trial court, an SVP was defined as someone 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 violent criminal behavior." (Former § 6600, subd. (a)(1), as amended by Stats. 2000, ch. 643, § 1.)*fn10 A "[s]exually violent offense" consists of certain enumerated crimes committed by "force, violence, duress, ...

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