(Super. Ct. No. SCV19296) ORIGINAL PROCEEDINGS in mandate. James D. Garbolino, Judge.
The opinion of the court was delivered by: Robie , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)*fn2 provides that, under certain circumstances, a person who has been committed as a sexually violent predator (SVP) can be conditionally released into the community under a program of outpatient supervision and treatment. (See § 6608-6609.3.) In October 2010, the Placer Superior Court determined that the real party in interest in this proceeding, Tibor Karsai, who has been committed as an SVP since 1998, should be conditionally released. A year and one-half later, after an exhaustive but ultimately unsuccessful search for an acceptable residence for Karsai, the superior court ordered that Karsai was to be conditionally released into Santa Barbara County without a fixed residence, i.e., as a transient.
In this mandamus proceeding, the District Attorney for Santa Barbara County (Santa Barbara) seeks a writ of mandate to prevent Karsai's release without a fixed residence, contending "there is no provision [of law] whatsoever that allows an SVP to be released as a transient." Santa Barbara also contends the superior court erred in determining that Santa Barbara County was Karsai's county of domicile immediately before the incarceration that preceded his commitment as an SVP, and Santa Barbara argues that the superior court failed to comply with statutory notice requirements before ordering Karsai's release.
In the published portion of our opinion, we conclude there is nothing in the SVPA that precludes a court from ordering the conditional release of a person committed as an SVP even though no fixed residence has been located for the person before his release. We do not decide whether it was an abuse of discretion to release Karsai under the facts of this case because that question is not before us. Instead, we decide only what we are called upon to decide by Santa Barbara's writ petition, namely, that conditional release as a transient is not prohibited by the SVPA.
Given this conclusion, it bears noting that the provisions of the SVPA, and the conditional release program under the SVPA, have been carefully designed to protect the public regardless of whether a person on conditional release has a fixed residence at the time of release. Under the provisions of the SVPA, a person committed as an SVP can be conditionally released only upon a determination by a court of law that the person will pose no danger to others if under outpatient supervision and treatment in the community. That means that in every case in which conditional release is permitted, it has been determined that the person released into the community will not be a sexually violent predator when provided with proper supervision and treatment. Moreover, whether the person released into the community has a fixed residence, the conditional release program involves "an intensive regimen of treatment and supervision" that includes "at least weekly individual contact, weekly group treatment, [and] weekly drug screening" and that can include "surveillance, polygraph examinations, anti-androgen therapy, Global Positioning System [tracking], increased supervision through random visits and Penal Code [section] 290 . . . community notification." *fn3 Thus, even a transient participating in the conditional release program will be under near constant supervision.
It also bears noting that at any given time the number of persons conditionally released into the community following a commitment as a sexually violent predator is actually quite small. As of July 2011, only 717 persons had been committed as sexually violent predators since the advent of the commitment program in 1996. (Assem. Com. on Appropriations, Analysis of Sen. Bill No. 760 (2011-2012 Reg. Sess.) as amended Aug. 6, 2012.) Of this number, only eight were in the conditional release program as of May 2011. (Cal. State Auditor, Sex Offender Commitment Program (July 2011) p. 9.)
In the unpublished portion of our opinion, we reject Santa Barbara's challenge to the superior court's determination of Karsai's county of domicile, as well as Santa Barbara's notice argument. Accordingly, we will deny Santa Barbara's writ petition and dissolve the stay of the order releasing Karsai as a transient into an outpatient program in Santa Barbara County.
FACTUAL AND PROCEDURAL BACKGROUND
Karsai was committed as an SVP in 1998. In October 2010, the superior court found (pursuant to subdivision (d) of section 6608) that Karsai would not be a danger to the health and safety of others in that it was not likely that he would engage in sexually violent criminal behavior due to his diagnosed mental disorder if under supervision and treatment in the community. Based on this finding, the court ordered Karsai placed with an appropriate forensic conditional release program. (§ 6608, subd. (d).)
Between December 2010 and July 2011, the court reviewed the status of Karsai's proposed placement in the community five times. At some point during that period, prior to the middle of May 2011, the court apparently determined that Santa Barbara County was Karsai's county of domicile.*fn4 On May 17, 2011, the department gave official notice that it was recommending to the court that Karsai be placed at an address in Santa Barbara County (his mother's home). Santa Barbara opposed the proposed placement and moved for reconsideration of the determination of domicile in Santa Barbara County, arguing that the county of domicile was instead San Luis Obispo County. The San Luis Obispo District Attorney appeared and argued that the court's initial determination of domicile in Santa Barbara County was correct.
On July 22, 2011, the court considered the domicile issue again and determined that Santa Barbara County was the proper domicile for purposes of conditionally releasing Karsai.
In September 2011, the court reviewed the status of Karsai's proposed placement once again, ordering that the court be given an update on placement efforts made by Liberty Healthcare (manager of the California Conditional Release Program) and requesting that the parties provide the court with briefing on the issues that could constrain a placement in Karsai's mother's home in Santa Maria. Thereafter, on October 25, 2011, the matter came on for hearing. Liberty reported that its staff had traveled 6,793 miles in a year of searching for a residence for Karsai and had viewed 1,261 properties in Santa Barbara, Ventura, and San Luis Obispo Counties. The only potential residence Liberty had found was Karsai's mother's home in Santa Maria. At the end of that hearing, the court ordered Liberty to place Karsai at that location pending further order of the court and set a hearing for December to hear further comment before issuing a final order.
In an order shortly following the October 2011 hearing, the court determined that Karsai's mother's home was not disqualified as a potential residence for Karsai despite its proximity to a park and an elementary school. In November 2011, however, Liberty informed the court that Karsai's family had withdrawn his mother's home as a placement/residence site because the family had been beset by the local media. Liberty asked the court if it should continue the housing search elsewhere. Following the hearing in December, the court found that extraordinary circumstances existed within the meaning of section 6608.5, subdivision (a), justifying a search for " 'any' " available placement "without being constrained to San Luis Obispo or Santa Barbara County."
In February 2012, Liberty reported that it had now reviewed more than 1,830 sites and had identified two possible locations: an apartment in Sacramento and a small home in Auburn. At a hearing that same month, the People (presumably represented by the Placer County District Attorney's Office) and Karsai both objected to placement at either of those locations. The People objected because of the proximity to one of Karsai's victims, and both sides objected "on the basis that the placements would provide no support structure for Mr. Karsai." Agreeing that it would be "fruitless" to pursue those placements, the court ordered Liberty to check into the option of placing Karsai in a travel trailer on a pad next to the San Luis Obispo Sheriff's Department. A review date was set for March 19, 2012.
A week before the review hearing, Liberty informed the court there were objections to placement in the trailer and that the pad was "not Jessica Law compliant." At the March hearing, the court concluded that "[t]he statutory scheme for placement of persons to be placed on conditional release from [the] SVP program is simply not working." Noting that "the SVP statutory scheme contemplates that the [department] or its designee makes the decision regarding proposed placement options," the court determined that it did not have the authority to "compel the housing of Mr. Karsai at some public institution," "order that the [d]department . . . purchase property that meets the needs of Mr. Karsai for a residence," or "order the State of California to make available suitable housing within vacant or closed state facilities." Because it appeared to the court that "there is no suitable placement available either in Mr. Karsai's county of domicile, or elsewhere," the court ordered that Karsai be "released in Santa Barbara County as a transient." The court also ordered ...