(Napa County Super. Ct. No. CR149855) Trial Court: The Superior Court of Napa County Trial Judge: Honorable Raymond A. Guadagni
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PUBLICATION
Before us is a consolidated appeal from the denial of Michael James Smith's petition for conditional release as a sexually violent predator (SVP) pursuant to the provisions of the Sexually Violent Predator Act (the Act) (Welf. & Inst. Code,§ 6600 et seq.)*fn1 and Smith's petition for a writ of habeas corpus alleging that he received inadequate assistance of counsel because his appointed attorney requested relief under the wrong provision of the Act. The consolidated cases present, first, the question of whether under the amended provisions of the Act, an SVP may seek conditional release under the provisions of section 6605 as well as under the provisions of section 6608. We conclude that he may. Since both parties and the trial court proceeded on a contrary assumption, we then confront the task of disentangling these proceedings and determining an appropriate remedy. We conclude that, if intervening events have not rendered the matter academic, Smith is entitled to a new hearing under the procedures specified in section 6605.
Smith was previously found to be an SVP and committed for indeterminate treatment. The annual post-commitment examination report required by section 6605, subdivision (a), issued in July 2009, reported that in the opinion of the examining psychologist, "conditional release to a less restrictive alternative is in the best interest of Mr. Smith and supervised release would likely constitute conditions to adequately protect the community." Smith thereupon filed a "Petition for Conditional Release under Code 6605, 6608." Under the view shared by counsel and the court that "the appropriate code section" for addressing a petition for conditional release is section 6608, the court scheduled a hearing to be conducted pursuant to the provisions of that section. Before the hearing occurred, Smith received and submitted to the court his 2010 evaluation report that indicated the psychologist then believed Smith was no longer an SVP and was entitled to unconditional release. Following an evidentiary hearing at which conflicting evidence was presented concerning Smith's mental condition, the court denied the petition, finding that Smith "has failed to carry his burden of proof by a preponderance of the evidence. The court determines that Mr. Smith would be a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior due to his diagnosed mental disorder if under supervision and treatment in the community."
Smith argues on appeal that the trial court erred in not proceeding under section 6605 after the submission of the 2010 examination report. However, his ineffective-assistance-of-counsel claim raises the question of whether the 2009 report and Smith's initial petition referring to both sections 6605 and 6608 should have triggered proceedings under section 6605. To that question we turn first.
1. Section 6605 now applies to petitions for both unconditional and conditional release.
As this court summarized in People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 193, "The SVPA was first enacted in 1995 (Stats. 1995, ch. 763, § 3, p. 5922) and has since been amended numerous times by the Legislature and by popular initiative. The measure is designed to accomplish the dual goals of protecting the public, by confining sexual offenders likely to reoffend, and providing treatment to those offenders. [Citations.] The statute 'allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms.' [Citation.] Those committed pursuant to the SVPA are to be treated 'not as criminals, but as sick persons.' (§ 6250) They are to receive treatment for their disorders and must be released when they no longer constitute a threat to society. (§§ 6606, 6607; [citation].)"
"The Act was 'designed to ensure that the committed person does not "remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness." ' " (People v. McKee (2010) 47 Cal.4th 1172, 1186.) Prior to amendments that were made to the Act in 2006, a person found to be an SVP was committed to the State Department of Public Health for a period of two years at the expiration of which the individual was entitled to a new trial at which, in order to extend the commitment, the People were required to prove that the person remained an SVP. (Former § 6604; Stats. 2000, ch. 420 § 3.) The Act also required that the SVP "have a current examination of his or her mental condition made at least once every year" and that the SVP receive annual notice of the "right to petition the court for conditional release under Section 6608." (Former § 6605, subds. (a), (b); Stats. 1995, ch. 763, § 3.)
The Act specifies two different procedures, in sections 6605 and 6608, for determining whether the mental condition of a person committed as an SVP has improved sufficiently to entitle the person to either conditional release in a community-based facility or unconditional release. The procedures specified in section 6605 are triggered by a petition based on a favorable report from the psychologist or psychiatrist performing the mandatory annual examination of the mental condition of the committed person.*fn2 Upon receiving such a petition, the court is required to conduct a hearing to determine if probable cause exists to believe the person is entitled to the recommended relief and, if there is probable cause, to schedule a hearing at which the committed person is entitled to all of the constitutional protections that were afforded at the initial commitment proceeding, including the appointment of counsel and the right to a jury trial, and the burden of proof is placed on the state to prove beyond a reasonable doubt that the committed person's mental condition continues to meet the criteria of an SVP. As the section read before the 2006 amendments, it applied solely to the determination of whether the person remained an SVP; section 6605 provided an avenue for obtaining unconditional release while section 6608 provided the procedure for obtaining conditional release. (Stats. 1995, ch. 763, § 3; see People v. Cheek (2001) 25 Cal.4th 894, 898.) Section 6608 authorizes the committed person, after confinement and care for not less than one year, to apply for conditional release to a facility providing supervision and treatment in the community "without the recommendation or concurrence of the Director of State Hospitals." (§ 6608, subd. (a).)*fn3 Section 6608 permits the court to deny the petition without a hearing if found to be frivolous (ibid.) or to conduct an evidentiary hearing before the court at which the committed person bears the burden of proof. (§ 6608, subds. (d), (i).) Without a favorable evaluation,"[u]nlike the hearing held under section 6605, the patient in a section 6608 proceeding must bear the burden of proving by a preponderance of the evidence that he or she is not likely to engage in sexually violent criminal behavior." (People v. Landau, supra, 199 Cal.App.4th at p. 37.)
In 2006, the Act was amended both by the Legislature and by initiative to change the term of commitment from two years to an indeterminate term. (§§ 6604, 6604.1; Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006) (Prop. 83); Stats. 2006, ch. 337, § 55.) At the same time, retaining the requirement that the SVP be reevaluated annually, the initiative added to section 6605, subdivision (a) the requirement that the annual report of the SVP's mental condition "include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative or unconditional release is in the best interest of the person and conditions can be imposed that would adequately protect the community." (Prop. 83.) Subdivision (b) of section 6605 was modified by the initiative to provide: "If the State Department of State Hospitals determines that either: (1) the person's condition has so changed that the person no longer meets the definition of a [SVP], or (2) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge." (Italics added; People v. McKee, supra, 47 Cal.4th at p. 1187; People v. Taylor (2009) 174 Cal.App.4th 920, 931.)*fn4 And section 6608 was amended to permit the filing of a petition, without the director's approval, seeking "conditional release or an unconditional discharge."*fn5
The changes made by the initiative created a significant ambiguity. As just indicated, section 6605, subdivision (a) was changed to explicitly require the annual evaluation to consider the committed person's suitability for conditional release and subdivision (b), as amended, explicitly requires the State Department of State Hospitals to authorize the SVP to petition the court for conditional release to a less restrictive alternative if it determines that would be in the person's best interests and adequate protective conditions can be imposed. Subdivision (b) was revised to provide that "[t]he court upon receipt of the petition for conditional release to a less restrictive alternative or unconditional release, shall order a show cause hearing at which the court can consider the petition and any accompanying documentation provided by the medical director, the prosecuting attorney, or the committed person." (Italics added.) However, the initiative made no changes in subdivisions (c), (d) or (e) of section 6605. These are the provisions that specify that if probable cause is found to exist, the court must set a hearing at which the committed person is entitled to the appointment of counsel and the right to a jury trial, the burden of proof is on the state, and the person is entitled to release if the jury finds in his or her favor. These subdivisions refer explicitly only to determining whether the person remains an SVP or is entitled to unconditional discharge; they contain no explicit reference to conditional release.
To reconcile the inconsistency, either the language concerning conditional release in subdivisions (a) and (b) of section 6605 must be disregarded or corresponding provisions must be inferred in subdivisions (c), (d) and (e). The Attorney General urges the court to adopt the first alternative, contending that the language added to section 6605, subdivisions (a) and (b) should be viewed as "merely a drafting oversight." Leaving section 6605, with its right to a jury trial and burden of proof on the state, as the exclusive procedure for obtaining unconditional release and section 6608, with no right to a jury and the burden of proof placed on the committed person, as the ...