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

Story continued from part I..

3. The Trial in an Initial SVPA Commitment Proceeding Cannot Be Held While the Defendant Is Incompetent

Although the narrow holding in Allen, supra, 44 Cal.4th 843, does not itself compel the conclusion that the trial in an initial SVPA commitment proceeding cannot be held while the defendant is incompetent, its analytic frameworkthe balancing of the four factors relevant to a determination of the due process protections required in a particular civil proceedingnecessarily leads to that result. First, as the Court recognized, the private interests at stake in an SVPA proceedingthe affirmative restraint on liberty through involuntary commitment and the stigma of being classified as a sexually violent predatorare substantial. (Allen, at p. 863; see People v. Otto, supra, 26 Cal.4th at p. 210.) Indeed, because the issue before us is whether an initial SVPA hearing can be held while the defendant is incompetent, while the question addressed in Allen was whether the defendant had a right to testify at a hearing to extend his commitment (see Allen, at p. 849), the fundamental liberty interest at stake here is arguably even greater than that in Allen. (See McKee, supra, 47 Cal.4th at p. 1191 [due process requirements for initial SVPA commitment proceedings greater than those for subsequent proceedings to determine whether defendant should be released].)

Second, the risk of an erroneous deprivation of liberty is at least as great in subjecting an incompetent defendant to an SVPA commitment proceeding as it is in precluding a defendant from testifying over the objection of his or her counsel. A mentally incompetent defendant is unable to dispute facts, challenge admissible hearsay evidence (see People v. Otto, supra, 26 Cal.4th at pp. 214-215 [circumstances of predicate offense in SVPA proceeding may be established by hearsay evidence]) or contradict erroneous factual assumptions used by expert witnesses, factors the Allen Court found critical to ensuring the reliability of the proceedings. (See Allen, supra, 44 Cal.4th at p. 867.)

Those risks are neither eliminated nor even substantially ameliorated by the SVPA defendants statutory right to be represented by counsel. Because a mentally incompetent defendant, by definition, lacks a rational and factual understanding of the proceedings against him, as well as the sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding (Dusky v. United States (1960) 362 U.S. 402 [80 S.Ct. 788,789, 4 L.Ed.2d 824, 825]; accord, Indiana v. Edwards (2008) ___ U.S. ___ [128 S.Ct. 2379, 2383, 171 L.Ed.2d 345]), he or she is unable to discuss the case or assist counsel in any meaningful way, severely hampering counsels ability to effectively challenge the Peoples evidence, whether it be directed to the circumstances surrounding the defendants predicate offenses (see People v. Otto, supra, 26 Cal.4th at pp. 214-215) or the factual assumptions used by expert witnesses to classify him or her as a sexually violent predator (see, e.g., People v. Hubbart (2001) 88 Cal.App.4th 1202, 1234 [details of prior uncharged sexual assaults admissible to establish defendant was sexually violent predator; [a]lthough there was expert testimony on those issues, the details of the crimes were helpful for the jurys understanding of the experts opinions and diagnoses].)

For the same reason, the mentally incompetent defendants dignity interest in meaningfully participating in the proceedings (the fourth factor) is also wholly undermined if he or she is forced to stand trial in an SVPA commitment proceeding. In such circumstances, the defendant is a mere spectator at the SVPA proceeding, with little, if any, power to affect the outcome. (Allen, supra, 44 Cal.4th at p. 869; see also Drope v. Missouri, supra, 420 U.S. at p. 171 [the mentally incompetent defendant, though physically present in the courtroom, is in reality afforded to no opportunity to defend himself].)

On the other side of the scale, of course, is the states compelling interest in protecting the public from a sexually violent predator and providing appropriate treatment for the individual defendant. (Allen, supra, 44 Cal.4th at p. 857; see People v. Vasquez (2001) 25 Cal.4th 1225, 1232 [government has substantial interest in protecting public from sexually violent predators and providing treatment to those persons]; see also Hubbart v Superior Court (1999) 19 Cal.4th 1138, 1151 [[T]he state may involuntarily commit persons who, as the result of a mental impairment, are unable to care for themselves or are dangerous to others. Under these circumstances, the states interest in providing treatment and protecting the public prevails over the individuals interest in being free from compulsory confinement.].)

Both of these interestsprotecting the public and providing treatmentwill be compromised, the People argue, if a threshold mental competency requirement is imposed on initial SVPA commitment proceedings. Unlike Allen, which involved only the minimal burden of allowing an additional witness (the defendant) to testify at an SVPA hearing, here, the People insist, the due process right advanced by Wilson could undermine the entire SVPA process for mentally incompetent sexually violent predators. Suspending the SVPA trial pending restoration of the defendants competency could delay proceedings for years, and some defendants might never regain competency (and thus could never be found to be a sexually violent predator).

The People attempt to illustrate the unacceptable consequences that would flow from recognizing a due process right to be competent during an initial SVPA commitment proceeding by posing a series of questions: What is to become of the mentally incompetent defendant found by two mental health experts to be a danger to society and likely to engage in sexually violent and predatory behavior if released? Under what authority can the alleged sexually violent predator who has served his or her sentence for the offense(s) for which he or she had been convicted remain in custody, if any? How will he or she receive appropriate treatment directed to sexually violent behavior if he or she, because of incompetency, has not stood trial as a sexually violent predator? The answer to each of these questions, the People suggest, is the same: The mentally incompetent defendant alleged to be a sexually violent predator would have to be released.

The Peoples questions are reasonable; their proposed answer flawed. At the threshold, the Peoples response to Wilsons claim of a right to be tried and committed as a sexually violent predator only if he is mentally competent ignores the essential fact that the states interest in protecting the public and providing treatment is inexorably tied to the reliability of the SVPA proceedings. The state has no interest in the involuntary civil confinement of persons who have no mental disorder or who are not dangerous to themselves or others. (McKee, supra, 47Cal.4th at p. 1189, quoting Addington v. Texas (1979) 441 U.S. 418, 426 [99 S.Ct. 1804, 60 L.Ed.2 323].) As recognized in numerous appellate decisions, the reliability of an adversarial proceeding is severely compromised if a defendant is unable to assist or meaningfully communicate with counsel or to understand the proceedings. (See People v. Pokovich, supra, 39 Cal.4th at p. 1250 [[t]he policy that a mentally incompetent person not be subjected to a trial has its roots in our constitutional, statutory, and common law]; Cooper v. Oklahoma, supra, 517 U.S. at p. 354; see also Drope v. Missouri, supra, 420 U.S. at p. 171 [[o]ne who becom[es] mad after the commission of an offense should not be arraigned for it because he is not able to plead to it with that advice and caution that he ought. Similarly if he became mad after pleading, he should not be tried, for how can he make his defense?] quoting 4 Blackstone, Commentaries 24.)^[1]

Moreover, there is simply no merit to the Peoples assertion any individual with a diagnosed mental disorder, who is sexually dangerous and predatory, and also mentally incompetent, must be released to society following completion of his or her prison sentence if a due process right not to be tried and committed under the SVPA while incompetent is recognized. As discussed, section 6602 requires a probable cause hearing following the filing of an SVPA petition. If the judge determines there is probable cause to believe the defendant is likely to engage in sexually violent predatory criminal behavior upon his or her release, the judge must order the defendant to remain in custody in a secure facility until a trial is completed. ( 6602, subd. (a).) When, as here, the issue of a defendants competency arises only after a probable cause determination that the defendant is a sexually violent predator, the defendant can be held in custody in a state hospital and treated in accordance with the SVPA under section 6602 pending restoration of his or her competence.^[2] Thus, even if found incompetent and thus not now subject to commitment under the SVPA, Wilson will not be released from his current confinement.

Even if, unlike Wilson, some defendants could not be held under these provisions of the SVPA (because their incompetency either precedes or pervades the probable cause hearing), an incompetent defendant who is likely to engage in sexually violent predatory criminal behavior should be subject to involuntary civil commitment under different statutory schemes directed to mentally disordered individuals who present a danger to others, including the Lanterman-Petris-Short (LPS) Act ( 5000 et seq.)^[3]and the Mentally Disordered Offenders (MDO) Act (Pen. Code, 2960 et seq).^[4] (See, e.g., People v. Lara (March 8, 2010, S155481) ___ Cal.4th ___ [when petition for extension of commitment of MDO or person found not guilty by reason of insanity (NGI defendant) is filed too late to allow defendant reasonable time to prepare for trial, defendant is entitled to release from custody under MDO and NGI statutory schemes pending commitment extension trial; nonetheless, defendant may still be subject to custody under LPS Act].)

Finally, to the extent there may be, at least in theory, a narrow gap in existing civil commitment statutes that arguably prevents the state from retaining a defendant in confinement pending restoration of competency, the remedy is for the Legislature to authorize such a commitment procedure, not to deny defendants their due process rights. (See, e.g., In reMoye (1978) 22 Cal.3d 457, 467 [finding unconstitutional existing statutory procedures for extending the confinement of persons committed to a state institution following acquittal of a criminal offense on the ground of their insanity beyond the maximum term of punishment for the underlying offense and directing the state to utilize the more demanding procedures in the former Mentally Disordered Sex Offender Act [t]o the extent practicable, and in the absence of further legislation on the subject]; see also Conservatorship of Hofferber (1980) 28 Cal.3d 161, 176-178 [finding former  5008, subd. (h)(3), authorizing involuntary conservatorship for an incompetent criminal defendant, constitutionally inadequate because it lacked a requirement of proof beyond a reasonable doubt that the defendant represented a current danger to others as a result of a mental disorder]; In re Smith (2008) 42 Cal.4th 1251, 1255, 1269-1270 [narrowly construing  6601, subd. (a)(2), which prohibits dismissal of SVPA petition because defendants custody was unlawful if unlawful custody was the result of a good faith mistake of fact or law, and directing release of defendant against whom SVPA petition was pending, to avoid difficult constitutional questions].)

People v. Calderon (2004) 124 Cal.App.4th 80, in which this court considered the admissibility in an SVPA commitment proceeding of evidence the defendant was also amenable to an LPS Act involuntary conservatorship, does not compel a different result. In agreeing with the trial court that such evidence was irrelevant and, if admitted, might have misled the jury into thinking the defendant was not a sexually violent predator merely because he could be placed in an involuntary conservatorship, we observed the LPS Act and the SVPA were intended to serve different purposes. Attempts by the defendant to substitute an involuntary conservatorship under the LPS Act for SVPA confinement, we explained, would frustrate the SVPAs purpose of treating and confining a small but extremely dangerous group of sexually violent predators. (Calderon, at p. 90.)

The constitutional issue presented in this proceeding is far different from the evidentiary question in Calderon. By identifying alternatives to the release of incompetent defendants in situations in which the SVPA commitment proceedings may be stayed for an indefinite period, we do not intend to suggest the LPS Act is the functional equivalent of the SVPA. Rather, we simply observe, as have the Supreme Court and the Legislature in analogous circumstances, that involuntary confinement and treatment under the LPS Act is available when a defendants mental incompetency prevents him or her on due process grounds from being subjected to initial commitment proceedings under the SVPA. (Cf. People v. Lara, supra, __ Cal.4th at p. __ [in circumstances where MDO or NGI defendant remains a danger to society but, under those statutory schemes, is entitled to release pending trial on a petition to extend his or her commitment, LPS commitment is viable alternative; this approach honors due process, and ensures both that the defendant will be treated and the public protected]; Pen. Code, 1370, subds. (b), (c) [if there is no substantial likelihood that criminal defendant will regain competency, civil commitment should be sought under LPS Act].)

The People also suggest the LPS Act is inadequate to protect the governments interest in treating sexually violent predators because treatment under the LPS Act would be directed toward restoring competency and not to the defendants sexually violent and predatory predispositions. The People fail to explain why the LPS Act treatment would be so focused or provide any support for their assertion. Nonetheless, even assuming its accuracy, the states interest in providing appropriate treatment to a sexually violent predator would appear to be bolstered, rather than undermined, by a threshold competency requirement, since treatment of the predatory behavior of a mentally incompetent is typically recognized by experts in the field as futile. (See Abrams et al., The Case for a Threshold for Competency in Sexually Violent Predator Civil Commitment Proceedings (2007) 28 American Journal of Forensic Psychiatry, issue 3, 7, 22-23 [[A]ttempting to curb the compulsively lurid behaviors of a SVP [sexually violent predator] that precipitate within the matrix of a florid psychosis or severe cognitive impairment would prove futile. This realization is further buttressed by the fact that, aside from pharmacological intervention . . . currently available treatments for SVPs find [their] provenance in rational, goal-directed, even insightful cognition].) Of course, amenability to treatment is not a constitutionally mandated precondition to commitment as a sexually violent predator. (Kansas v. Hendricks (1997)521 U.S. 346, 366 [117 S.Ct. 2072, 138 L.Ed.2d 501].)

4. Neither the Fourth Districts Decision in People v. Angeletakis nor the Out-of-State Authority Cited by the People Justifies Proceeding with an SVPA Commitment Trial While the Defendant Is Incompetent

In People v. Angeletakis (1992) 5 Cal.App.4th 963 (Angeletakis) the Court of Appeal held an NGI defendant involuntary committed under Penal Code section 1026.5^[5]had no due process right to be mentally competent during a hearing to extend his commitment. The court explained, [T]he interests of a person facing a commitment extension are adequately protected by competent counsel and other procedural safeguards afforded to him [or her]. Requiring the court to suspend proceedings until the committee is able to understand the nature of the proceedings and assist in the conduct of his defense adds minimal protection in this context, especially when balanced against the administrative burdens involved. (Angeletakis, at pp. 970-971.)

Angeletakis, supra, 5 Cal.App.4th 963, however, involved a commitment extension hearing, not the initial commitment proceeding at issue in the case at bar. A defendant like Wilson confronting a trial for his or her initial commitment, be it an NGI or SVPA commitment proceeding, is entitled under the due process clauses of the federal and California Constitutions to a higher level of procedural protections than is required for subsequent extension proceedings under the same statutory scheme. (See McKee, supra, 47 Cal.4th at p. 1191.) As the Supreme Court recently explained in McKee, once the findings that serve as the basis for the initial commitment have been made, any subsequent extension of the period of institutionalization poses less risk of improper factfinding, and, therefore, requires less rigorous due process protection. (See ibid. [initial sexually violent predator finding is for present constitutional purposes, the functional equivalent of the NGI acquittal in Jones [v. United States (1983) 463 U.S. 354 [103 S.Ct. 3043, 77 L.Ed.2d 694]]; once a beyond-a-reasonable-doubt finding has been made in connection with initial commitment, the danger of an improper recommitment is greatly diminished].)

We are well aware, as the People note, that several other jurisdictions have rejected a threshold mental competency requirement in sexually violent predator trials. (See, e.g., Commonwealth v. Nieves (Mass. 2006) 846 N.E.2d 379; State ex rel. Nixon v. Kinder (Mo. Ct. App. 2003) 129 S.W.3d 5; State v. Cubbage (Iowa 2003) 671 N.W.2d 442; In re Commitment of Fisher (Tex. 2005) 164 S.W.3d 637; but see In re Commitment of Branch (Fla. Dist. Ct. 2004) 890 So.2d 322 [recognizing a due process right to be competent in sexually violent predator commitment proceeding when state elects to rely on unchallenged hearsay to establish any element of its case].) These jurisdictions have relied primarily on the fact a sexually violent predator commitment proceeding is civil, not criminal, and concluded statutorily afforded procedural protections, including the right to counsel, adequately protect the defendant from an erroneous deprivation of liberty. (See, e.g., Nixon, at pp. 9-11; Cubbage, at p. 448; Fisher, at pp. 653-654; see also Nieves, at p. 386 [the choices provided a defendant in sexually violent predator commitment proceeding are quintessentially the types of choices that attorneys regularly make with respect to their competent clients; accordingly, representation by counsel is adequate to protect defendants due process rights in sexually violent predator civil commitment proceeding].)

We are unpersuaded by these decisions. Under established California law, and in particular Allen, supra, 44 Cal.4th 843, recognizing the civil nature of the SVPA commitment proceedings marks the beginning of the necessary due process analysis, not the end. For the reasons discussed above, balancing the factors articulated by the United States and California Supreme Courts to identify the procedural guarantees appropriate for this context under the due process clauses of the federal and California Constitutions, we hold the state may not proceed with an initial SVPA commitment trial while the defendant is incompetent.

5. The Trial Court Has Inherent Power To Adopt Procedures To Hold a Competency Hearing in Connection with an SVPA Commitment Proceeding

Finally, the People urge us to reject a mental competency requirement for initial SVPA commitment proceedings because no statutory procedures are available to determine competency in SVPA cases or, indeed, in civil cases generally. Neither the authority nor the resourcefulness of the courts is as limited as the People suggest.

As the Supreme Court directed in People v. Moye, supra, 22 Cal.3d at page 467 when confronting unconstitutional statutory procedures for extending the confinement of NGI defendants beyond the maximum term of punishment for the underlying offense, in the absence of further legislation on the subject, the trial courts should proceed to the extent practicable by adopting the procedures specified in an analogous statutory scheme. Similarly here, because the SVPA fails to provide for the determination of the defendants legal competence, the procedures articulated in Penal Code sections 1368 and 1369,^[6]to the extent practicable, can be utilized. (See James H. v. Superior Court (1978) 77 Cal.App.3d 169, 175 [adopting Pen. Code, 1368s competency procedures in juvenile case; [c]ourts have inherent power to create new forms of procedure in particular pending cases where, in absence of rule, court would be unable to function]; see generally Code Civ. Proc.,  187 [[w]hen jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of its jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code].)

DISPOSITION

The petition is granted. Let a peremptory writ of mandate issue directing respondent Los Angeles County 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; if Wilson is not now competent, to order Wilson to remain in appropriate custody pending restoration of his competency; and to conduct further proceedings not inconsistent with this opinion.

PERLUSS, P. J.

We concur:

ZELON, J.

JACKSON, J.

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^[1] To the extent the People suggest (without any statistical support) there is necessarily a large number of defendants properly identified as sexually violent predators who are also mentally incompetent, and thus argue the burden of conducting competency hearings for all such defendants will be considerable, they improperly conflate (and confuse) the concepts of mental disorder and mental incompetency. (See In re Qawi (2004) 32 Cal.4th 1, 17 [mental illness often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently . . . many mentally ill persons retain the capacity to function in a competent manner].) Indeed, [c]ompetence is not a clinical, medical, or psychiatric concept. It does not derive from our understanding of health, sickness, treatment, or persons as patients. Rather, it relates to the world of law, to societys interests in deciding whether an individual should have certain rights (and obligations) relating to person, property and relationships. (Ibid.) In other words, a defendant may be mentally disordered, resulting in sexually violent and predatory behaviors, but, from a legal perspective, quite competent to stand trial.

^[2] Trial on the SVPA petition must occur within a reasonable time after the courts probable cause finding. (See People v. Litmon (2008) 162 Cal.App.4th 383, 406 [Peoples lengthy without-good-cause delay in bringing alleged sexually violent predator to trial following probable cause determination required dismissal of SVPA petition].) The question whether a reasonable time could be something less than the time necessary to restore the defendant to competency is not before us. As discussed in the text, however, if the delay were too long or if the defendant is unlikely ever to have his or her competency restored, involuntary commitment under another civil commitment statute might well be appropriate. (Cf. Pen. Code, 1370, subds. (b), (c) [if there is no substantial likelihood that criminal defendant will regain competency, commitment should be sought under Lanterman-Petris-Short Act].)

^[3] As the People acknowledge, competency is not a threshold requirement for civil commitment under the LPS Act, which does not rely on a prior adjudication of criminal conduct as a predicate for civil commitment. (See, e.g., 5008.)

^[4] A prisoner is eligible for MDO commitment if he or she has committed certain crimes of violence, including rape, forcible sodomy and oral copulation and lewd acts on a child under the age of 14 years. (See Pen. Code, 2962, subd. (e).) However, in light of the holding in McKee, supra, 47 Cal.4th at pages 1203-1204, that sexually violent predators and mentally disordered offenders are similarly situated for many purposes, we recognize the question whether mentally disordered offender proceedings may be initiated against an incompetent defendant must be addressed in an appropriate case.

^[5] Penal Code section 1026.5, subdivision (a), allows for the involuntary commitment of defendants acquitted of their crimes by reason of insanity. Subdivision (b) of section 1026.5 authorizes recommitment beyond the maximum term authorized for their crime only after a recommitment hearing and a finding by the court that the NGI defendant poses a substantial danger of physical harm to others by reason of a mental disease, defect or disorder.

^[6] Penal Code section 1368 authorizes the trial judge, upon a declared doubt of the defendants mental competency, to suspend criminal proceedings and to hold a trial pursuant to procedures outlined in Penal Code section 1369. Among other things, Penal Code section 1369 authorizes the appointment of psychological experts, provides for the order of proceedings and articulates the preponderance-of-the-evidence burden-of-proof standard borne by the party seeking a finding of incompetency.