Santa Clara County Superior Court No. 201555 Hon. Gilbert T. Brown
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Elisa A. Brandes. under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, 1 assistant Attorney General, and Bridget Billeter, Deputy District Attorney, for Plaintiff and Respondent.
BAMATTRE-MANOUKIAN, ACTING P. J.
Defendant William Karl Olsen was committed for an indeterminate term to the California Department of Mental Health (now, State Department of State Hospitals; hereafter the Department) after a jury determined defendant to be a sexually violent predator within the meaning of the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.)
Defendant appealed from the judgment, contending that the indeterminate term of commitment violated equal protection, due process, and the ex post facto and double jeopardy clauses. This court reversed the judgment and remanded the matter to the trial court for the limited purpose of reconsidering defendant’s equal protection argument in light of People v. McKee (2010) 47 Cal.4th 1172 [104 Cal.Rptr.3d 427, 223 P.3d 566] (McKee I) and the resolution of the proceedings on remand in that case. (People v. Olsen (Sept. 11, 2012, H036654) [nonpub. opn.] (Olsen).)
After remand proceedings were concluded in People v. McKee (2012) 207 Cal.App.4th 1325 [144 Cal.Rptr.3d 308] (McKee II), the trial court again ordered defendant committed to the Department for an indeterminate term under the SVPA. Defendant appealed and this court affirmed the judgment. (People v. Olsen (Nov. 26, 2013, H039298) [nonpub. opn.].)
In the present appeal, defendant challenges the trial court’s June 21, 2013 order denying defendant’s petition for conditional release under section 6608 as frivolous on the grounds that (1) the petition is not frivolous; and (2) summary denial of a section 6608 petition for conditional release violates the equal protection and due process clauses. For reasons that we will explain, we will reverse the June 21, 2013 order and remand the matter to the trial court with directions to reconsider the issue of whether the petition for conditional release is based upon frivolous grounds within the meaning of section 6608, subdivision (a).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Criminal Offenses
“In 1972, Olsen used a handgun to abduct a 27-year-old woman in her car. After a struggle, Olsen got out of the car and left. There was no indication that a sexual offense had occurred and Olsen was convicted of ‘grand theft of a person.’ He served a jail sentence and was placed on probation.
“The next incident took place in July 1973, when Olsen picked up two teenage girls, M. and T., who were hitchhiking. After taking the girls to an isolated area where his truck got stuck in the dirt, Olsen had them stand on the truck bed to gain traction. He then pushed T. down a 75-foot ravine and hogtied M. After finding T. and threatening her with a knife, Olsen saw that T. was bleeding profusely. He untied M. and together they brought T. back up to the truck. When the girls asked Olsen why he was doing this, he said he intended to rape them. Olsen did not rape the girls and instead took them home.
“In August 1973, Olsen picked up a 19-year-old hitchhiker, M.L., and took her to an isolated area. When Olsen took out a rope, M.L. pleaded with him not to tie her up. Olsen then ripped off M.L.’s blouse and M.L. said she would do what he wanted her to do. After placing M.L. on the truck bed and raping her, Olsen apologized. M.L. asked him to take her to the hospital because she recently had surgery following a miscarriage. Olsen took M.L. to the hospital and checked himself into the psychiatric unit next door.
“Olsen was incarcerated in 1974 and paroled in 1978. He was discharged from parole in 1979 and committed his next sexual offenses in 1980. C., a 16-year-old girl, was picked up by Olsen in January 1980 while she was hitchhiking and taken to Stevens Creek Dam. After arriving, Olsen, who had [a] knife, hit C. below the eye and tied her up with rope. Olsen then took C. to another location in the mountains. There, Olsen put a rope around C.’s neck and walked her up a trail to a desolate location, where he orally copulated C., sat on her, untied her, and forced her to orally copulate him. Olsen also sodomized C. and raped her. He then apologized and took C. home.
“The next incident occurred in June 1980 and involved S.P., age 19. Olsen picked S.P. up while she was hitchhiking. He put his knife to her throat and cut her slightly, and also orally copulated her. Next, Olsen took S.P. to an
isolated area in the mountains, where he tied her hands behind her back with a belt. S.P. screamed in pain when Olsen put his fingers in her anus and then sodomized her. He also made derogatory sexual statements during the course of the sodomy.
“The last incident occurred on July 9, 1980, about one month after the incident involving S.P. K. was a 17-year-old beauty college student who met Olsen when he used a pay phone after she used it during her lunch hour. Later that day, Olsen called K. over to his car when she came out of the beauty college. Olsen then pulled K. into his car by holding a knife to her throat. Olsen had pictures of K. in his car and threatened to kill her.
“After getting K. into his car, Olsen tied a rope painfully tight around her neck and gagged her with a cloth and shoestrings. Olsen then drove K. to an isolated area in the hills. On the way, Olsen undressed K. and fondled her. After arriving, Olsen tied K. to a log with ropes attached to her wrists, legs, and neck. He then hit K. in the buttocks with a stick, causing bruises, and sodomized and raped her. After finishing the assault, Olsen was pleasant and talkative with K. He also showed her how to shoot his BB gun. But when K. made the comment, ‘well, everyone needs friends, ’ Olsen became very angry and violent. He pushed K. down, sodomized her again, bit her neck, and hit her on the buttocks with his BB gun, breaking it.
“Following the 1980 offenses, Olsen pleaded guilty to the sodomy and oral copulation of C. and the sodomy and rape of K. He has been in custody since 1980.” (Olsen, supra, H036654.)
B. Commitment Proceedings Under the SVPA
“On September 26, 2008, the People filed an amended petition to extend Olsen’s commitment as a sexually violent predator under the SVPA. The petition stated that on October 5, 2000, Olsen was committed as a sexually violent predator to [the Department] for two years, and since that date he ‘has been consistently committed to a new term as a [s]exually [v]iolent [p]redator.’ [Fn. omitted.] The People asserted that Olsen ‘continues to meet the criteria for commitment as a sexually violent predator in that he continues to have a current diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior in the future.’
“After a probable cause hearing was held, the trial court issued its July 2, 2010 order finding that there was probable cause to believe that (1) Olsen had been convicted of a qualifying sexually violent offense against at least one victim; (2) he has a diagnosable mental disorder; (3) the disorder makes it
likely that he will engage in sexually violent criminal conduct if released; and (4) the sexually violent criminal conduct will be predatory in nature. Thereafter, the case proceeded to a jury trial.” (Olsen, supra, H036654.)
“On February 18, 2011, the jury rendered its verdict finding the petition alleging that Olsen was a sexually violent predator within the meaning of section 6600 to be true. On February 22, 2011, the trial court issued its order committing Olsen to the custody of [the Department] for an indeterminate term for appropriate treatment and confinement in a secure facility, pursuant to section 6604. The order further states that it is ‘subject to a hearing consistent with [McKee, supra, 47 Cal.4th 1172].’ ” (Olsen, supra, H036654.)
On appeal from the February 2011 order, defendant argued, among other things, that the “indeterminate commitment under the SVPA violates his constitutional right to equal protection” and “the SVPA violates his due process rights and the ex post facto and double jeopardy clauses and the Eighth and Fourteenth Amendments of the federal constitution.” (Olsen, supra, H036654.) This court reversed the judgment and remanded the case to the trial court “for the limited purpose of reconsidering [defendant’s] equal protection argument in light of [McKeeI], and the resolution of the proceedings on remand in that case (id. at pp. 1208-1211).” (Olsen, supra, H036654.) This court further ordered the trial court to “suspend further proceedings in this case pending finality of the ...