WILSONv.SUPERIORCOURTOFLOS ANGELESCOUNTY,

Filed 3/22/10

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ORIGINAL PROCEEDINGS. Petition for Writ of Mandate. Thomas I. McKnew, Jr., Judge. Petition granted.

Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menaster, Craig Osaki, Jack T. Weedin, Deputy Public Defenders for Petitioner.

No appearance for Respondent.

Steve Cooley, District Attorney of Los Angeles County, Phyllis Asayama, Roberta Schwartz, Deputy District Attorneys for Real Party in Interest.

_______________

The Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,  6600 et seq.)^[1]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^[2]while the defendant is incompetentthat 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,^[3]we believe the answer must be yes. The private interests at stake are high: a substantial limitation on the defendants 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 proceedinghis or her ability to be an active participant, rather than being relegated to the role of a mere spectatoris 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 states 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.^[4] 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 Wilsons 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,^[5]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 Wilsons counsel moved to stay the SVPA commitment proceedings pending a determination of Wilsons 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 Wilsons 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.

DISCUSSION

1. Overview of the SVPA

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 incarcerated to file a petition for commitment under the SVPA. ( 6601.) (Allen, supra, 44 Cal.4th at pp. 857-858; see also McKee, supra, 47 Cal.4th at pp. 1185-1187.)

If the trial court determines that the petition establishes probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release, the court shall order a trial to determine whether the person is a sexually violent predator. ( 6601.5, 6602.) The individual shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. ( 6603, subd. (a).) If the individual is indigent, the court shall appoint counsel to assist the individual in obtaining an expert evaluation and expert assistance at trial. (Ibid.) To secure the individuals commitment, the district attorney must prove beyond a reasonable doubt that the person is a sexually violent predator. ( 6604.) When a jury decides the case, its verdict must be unanimous. ( 6603, subd. (f).) (Allen, supra, 44 Cal.4th at pp. 857-858.)

As amended in 2006,the SVPA provides, if the trier of fact finds beyond a reasonable doubt the person is a sexually violent predator within the meaning of the section 6600, the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health . . . . ( 6604.)^[6] A person committed as a sexually violent predator has the right pursuant to the SVPA to an annual medical review of his or her mental condition. ( 6605, subd. (a).) If the report concludes the person no longer meets the definition of a sexually violent predator or conditional release is appropriate, the Department of Mental Health must authorize the person to petition the committing court for release ( 6605, subd. (b)). If the court determines there is probable cause to believe the persons mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal activity, the court must set a hearing to determine whether the persons release or conditional release is appropriate. ( 6605, subd. (c); McKee, supra, 47 Cal.4th at p. 1187.)

2. Due Process Protections and SVPA Proceedings

The conviction of an accused person while he or she is legally incompetent violates due process. (Pate v. Robinson (1966) 383 U.S. 375, 378 [86 S.Ct. 836, 15 L.Ed.2d 815]; People v. Hale (1988) 44 Cal.3d 531, 539; see Drope v. Missouri (1975) 420 U.S. 162, 171 [95 S.Ct. 896, 43 L.Ed.2d 103, 112-113] [[i]t has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial].) Competence to stand trial is rudimentary, for upon it depends the main part of those rights deemed essential to a fair trial, including the right to effective assistance of counsel, the rights to summon, to confront, and to cross-examine witnesses, and the right to testify on ones own behalf or to remain silent without penalty for doing so. (People v. Pokovich (2006) 39 Cal.4th 1240, 1250, quoting Cooper v. Oklahoma (1996) 517 U.S. 348, 354 [116 S.Ct. 1373, 134 L.Ed.2d 498].)

Because SVPA proceedings are civil in naturedesigned not to punish the defendant but to provide treatment for him or her and to protect the public from sexual predatorsa defendant facing involuntary commitment as a sexually violent predator is not entitled to the full panoply of rights recognized in criminal cases. (See Allen, supra, 44 Cal.4th at pp. 861-862.) Determining which procedural protections, in addition to those mandated by statute, must be afforded in an initial SVPA commitment proceeding requires the balancing of four factors: (1) [T]he private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and enabling them to present their side of the story before a responsible government official. (Allen, supra, 44 Cal.4th at p. 863; accord, People v. Otto, supra, 26 Cal.4th at p. 210; see also Mathews v. Eldridge, supra, 424 U.S. at p. 344.) The Supreme Courts application of this four-factor balancing test in Allen is the essential starting point for determining whether Wilson has a right under the due process clauses of the United States and California Constitutions to an evaluation of his mental competency and, if not competent, to a stay of the initial SVPA commitment proceedings until his competency is restored.^[7]

In Allen, supra, 44 Cal.4th 843 the Supreme Court considered whether a defendant in an SVPA proceeding had a due process right to testify over his or her counsels objection. (See id. at p. 870.) The Court began its analysis by identifying the private interests at stake in a SVPA commitment proceedingthe risk of significant limitations on [the defendants] liberty, the stigma of being classified as [a sexually violent predator], and subjection [of the defendant] to unwanted treatment. (Id. at p. 863, third bracketed insertion added.) The risk of the deprivation of those significant individual interests, the Court recognized, is scarcely mitigated by the fact that the commitment is civil rather than criminal. (Ibid.)

Second, the Court found the risk of an erroneous deprivation of the SVPA defendants liberty interest, when balanced against the probable value in allowing the defendant to testify over the objection of his or her counsel, weighed heavily in favor of permitting the defendant to testify, because the defendants participation in the proceedings through testimony at trial could greatly enhance the reliability of the outcome. (See Allen, supra, 44 Cal.4th at p. 866 [Because the testimony of a defendant typically will concern his or her conduct, this testimony may relate to information that is critical to the experts testimony. . . . In some cases, the defendants testimony may raise a reasonable doubt concerning the facts underlying the experts opinion. Accordingly, in every case there exists a risk that allowing counsel to preclude the defendant from testifying will lead to an erroneous deprivation of rights.].)

Third, the Court found the states strong interest in protecting the public from sexually violent predators, and in providing treatment to th[ose] individuals is furthered, rather than undermined, by allowing the defendant to testify at trial notwithstanding his or her counsels objection. (Allen, supra, 44 Cal.4th at p. 866; see also ibid. [[b]ecause the defendants participation in the proceedings through his or her testimony at trial generally enhances the reliability of the outcome, the recognition of a right to testify over the objection of counsel may serve the governments interest in securing an accurate factual determination concerning the defendants status as a sexually violent predator].)

Finally, the Court observed, the SVPA defendants dignity interest in presenting his or her side of the story is greatly impaired in SVPA proceedings if the defendants counsel ignores his or her clients desire and refuses to allow the defendant to testify. In such cases the SVPA defendant, with no right of self-representation, is reduced to a mere spectator, with no power to attempt to affect the outcome. (Allen, supra, 44 Cal.4th at p. 869; see ibid.[because denial of a right to testify over the objection of counsel would impair the defendants ability to be heard, we conclude that the fourth factor weights in favor of allowing the defendant to testify against the advice of counsel].)

Wilson insists Allen is dispositive here: Because a witness must be competent in order to testify (see Evid. Code, 701, subd. (a)), necessarily the defendant who has a personal, due process right to testify on his or her own behalf at an SVPA proceeding must have the corollary due process right to be mentally competent during those proceedings. Yet Allen actually held only that a defendant in an SVPA proceeding has the right to testify, in accordance with the rules of evidence and procedure, over the objection of counsel. (Allen, supra, 44 Cal.4th at p. 870.) The inadmissibility of an incompetent defendants testimony does not deprive a defendant of his or her due process right to testify any more than limiting testimony to relevant matters or other evidentiary rules restricting the scope of proffered testimony undermines that right. The right to testify, even if rooted in the due process clauses of the federal and California Constitutions, is still subject to evidentiary disqualifications. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428 [[a]s a general matter, the [proper] [a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendants right to present a defense].)

To be continue as part II

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1]Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]We refer to the initial SVPA commitment proceeding or trial to distinguish between the original involuntary civil commitment under the SVPA ( 6601)the issue in this caseand a hearing for release initiated by an individual previously adjudicated to be a sexually violent predator ( 6605, 6608).

^[3]The question whether the trial in a commitment proceeding under the SVPA can be held while the defendant is incompetent is currently pending in the Supreme Court. (Moore v. Superior Court (2009) 174 Cal.App.4th 856, review granted, Sept. 17, 2009, S174633.) Although we are mindful our opinion will likely be short-lived in light of Moore, its publication is mandated by the California Rules of Court. (See Cal. Rules of Court, rule 8.1105(c).)

^[4] At the time the petition was filed in 1999 the SVPA defined a sexually violent predator as a person 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. 1996, ch. 462, 4, p. 2818.) Proposition 83, the Sexual Predator Punishment and Control Act: Jessicas Law, approved at the November 2006 general election, amended the definition to include individuals who have been convicted of a sexually violent offense against one or more victims. ( 6600, subd. (a)(1).)

^[5] At each hearing prior to his probable cause hearing, Wilson, through his counsel, waived the good cause requirement for continuing the probable cause hearing. ( 6602, subd. (b).)

^[6] Prior to the passage of Proposition 83, the SVPA had provided for an initial two-year commitment, subject to renewal upon petition by the People. (See former 6604, Stats. 2000, ch. 420, 3.)

^[7] Although Wilson does not distinguish between his rights under the California and United States Constitutions, the analysis is similar for both. (See Allen, supra, 44 Cal.4th at p. 863, fn. 14 [[a]lthough the state and federal Constitutions differ somewhat in determining when due process rights are triggered, once it has been concluded that a due process right exists we balance similar factors under both approaches to decide what process is due].)