Lead Opinion
Defendant Ardell Moore was convicted of forcible oral copulation against a teenage girl he abducted in 1978. He was imprisoned and then paroled in 1981. In 1984, he kidnapped and sexually assaulted another female victim he did not know, and served a lengthy prison term following his conviction for those crimes. Upon his release from prison in 2000, defendant was tried and committed as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA or Act) (Welf. & Inst. Code, § 6600 et seq.).
This case arises from a proceeding to extend defendant’s commitment as an SVP. Between the time the trial court found probable cause that he would likely reoffend if released and the time the recommitment petition was set to be tried, defendant moved to stay the proceedings and to determine his mental competence to stand trial. The court denied the motion on the ground such procedure was not statutorily authorized or constitutionally compelled under the SVPA. Defendant sought mandate in the Court of Appeal. He claimed due process prevented him from being tried as an SVP if he could not understand the proceedings or cooperate with counsel. The Court of Appeal agreed. It relied heavily on People v. Allen (2008)
We granted the People’s petition for review to decide whether the defendant in an SVP proceeding has a due process right not to be tried or civilly committed while mentally incompetent. Consistent with the conclusion reached by every out-of-state decision to consider the issue, the answer is “no.” Allen focused on the extent to which the defendant, as to whom no competence issue was raised, could testify at his trial to explain his own conduct and dispute the foundation of expert opinion about his mental disorders and dangerousness. There, to the extent such testimony was even relevant, it arguably enhanced the reliability of the SVP determination, allowed commitment under the Act, and imposed no significant impediment to enforcement of the SVPA’s legitimate goals in an appropriate case.
I. Case History
On February 11, 2005, the State Department of Mental Health (DMH), in a letter signed by the acting medical director at Atascadero State Hospital (Atascadero), asked the Los Angeles County District Attorney to seek an extension of defendant’s commitment as an SVP. The letter said that he continued to meet the criteria for commitment, and that his term would expire soon.
Attached to the DMH letter were “Recommitment Evaluations” prepared in January 2005 by Shoba Sreenivasan, Ph.D., and Elaine Finnberg, Ph.D. Both evaluators were licensed psychologists, apparently retained by the DMH. They began their reports by describing defendant’s two criminal cases, as follows.
First, a jury convicted defendant of forcible oral copulation against Maria M. in 1978, when she was 16 years old. (See Pen. Code, § 288a, subd. (c)(2).) Defendant (who was then age 21) forced the victim, a stranger, from a public bus into a residence. He grabbed her by the neck, told her to suck his penis, and made her strip from the waist down in order to rape her.
Second, a jury convicted defendant of kidnapping (see Pen. Code, § 207, subd. (a)), forcible rape (id., § 261, subd. (a)(2)), and forcible rape in concert (id., § 264.1) against Genetta S. in 1984. Defendant offered a car ride to the 26-year-old victim, a stranger he met late one night. He forced her to enter an abandoned building in which other men were lurking. Defendant beat and bound the victim, after ordering her to undress. He then orally copulated, raped, and sodomized her. At least one other man sexually assaulted her too. She later escaped. Defendant was sentenced to 25 years in prison.
The recommitment evaluations described defendant’s behavior while imprisoned for the Genetta S. crimes, as follows: He often broke prison rules by exposing his penis and masturbating in the presence of female staff. Such sexual misconduct occurred in addition to numerous other rule violations, including possessing makeshift weapons, destroying state property, assaulting an inmate, resisting staff, and refusing to provide required DNA samples.
The reports by Drs. Sreenivasan and Finnberg noted that defendant’s misdeeds continued after he first entered Atascadero as an SVP in April 2000, upon his release from prison. In October 2001, his parole was revoked and he was returned to prison for indecent exposure in Atascadero. He was recommitted as an SVP and readmitted to the hospital in April 2003. Throughout his time in Atascadero, both before and after the parole revocation, defendant frequently committed rule violations—sometimes more than once a day. He verbally abused and threatened male and female staff, sexually propositioned other patients, and subjected female staff to a wide range of sexually inappropriate and hostile acts (e.g., staring at them, soliciting and discussing sex, walking around nude, and masturbating).
Regarding treatment for these conditions, both evaluators described the “Sex Offender Commitment Program” made available to SVP’s at Atascadero. It involves five intensive phases of specialized education and behavior training, and includes ancillary therapies for anger management and substance abuse. Dr. Sreenivasan noted that defendant had declined to participate in any phase of the program and had resisted taking medications that would reduce his sexual impulses. Dr. Finnberg opined that defendant’s mental disorders made him both unwilling and unable to accept structured treatment, and that he refused to do anything that would reduce sexual arousal. Sometimes, however, he participated in group recreational activities, and met on an individual basis with a staff psychologist.
Finally, the experts agreed that defendant was likely to engage in sexually violent predatory criminal acts in the future without appropriate treatment and custody. They reviewed risk factors under the “Static-99” scale, and gave defendant a score of either nine (Dr. Sreenivasan) or 10 (Dr. Finnberg), placing him in the “high risk” range covering anyone who scores six or
On March 8, 2005, the People petitioned to extend defendant’s commitment under the SVPA.
On April 12, 2005, counsel was appointed for defendant, and he was arraigned. The defense denied the allegations of the petition. After reviewing the petition and attached mental evaluations, the trial court found sufficient facts which, if true, would constitute probable cause to believe that defendant was likely to commit sexually violent predatory criminal acts if released. Defendant, who apparently was housed at Atascadero at the time, was ordered to remain in custody pending the probable cause hearing.
Before such hearing, and for reasons not clear from the record, defendant moved for new counsel under People v. Marsden (1970)
On or about February 5, 2007, defendant, acting through counsel, filed the motion at issue here. He asked the trial court to order a mental competence hearing and to stay recommitment proceedings until his competence to stand trial under the SVPA was determined. In his motion, defendant acknowledged that there was no statutory basis for his request either under the SVPA (which does not mention mental competence to stand trial), or under Penal Code section 1367 et seq. (which regulate the mental competence of criminal defendants in pending prosecutions). Nevertheless, defendant insisted that the fundamental liberty interests at stake in involuntary civil commitment proceedings weighed in favor of recognizing a due process right to mental competence under the SVPA analogous to the one criminal defendants possess. (See Medina v. California (1992)
Attached to the motion was a letter from a psychologist, Vianne Castellano, Ph.D., to defense counsel, dated January 12, 2007.
The People opposed defendant’s effort to stay or halt proceedings to recommit him as an SVP. On March 21, 2007, the trial court heard and submitted the matter. Defendant’s motion was denied on April 9.
In its ruling, the trial court noted that the SVPA covers sexually violent offenders who suffer from mental disorders that can affect their competence to stand trial. According to the court, allowing defendants to avoid an SVP trial while incompetent would substantially interfere with the purpose of the Act to protect public safety by confining and treating such persons for their mentally disordered sexual dangerousness. Thus, in declining to recognize such a due process right, the court concluded that the interests of the defendant—who receives many procedural rights under the SVPA, including the right to counsel—were outweighed by the interests of the public. No basis was found for defendant’s assertion that “competency training” (which he never described), should prevail over treatment under the SVPA, or that a mentally incompetent SVP cannot benefit from treatment to control his sexual dangerousness. In reaching its conclusion, the trial court followed certain out-of-state cases that had reached the same result under analogous circumstances, including Commonwealth v. Nieves (2006)
On April 30, 2007, defendant petitioned the Court of Appeal for a writ of mandamus and/or prohibition to vacate the trial court’s order denying a hearing on his mental competence to be tried as an SVP, and to stay recommitment proceedings until the issue was resolved. On May 9, 2007, the Court of Appeal, Second Appellate District, Division Three, stayed all such proceedings in the present case pending further order of that court. The appellate court also directed the People, represented by the District Attorney of Los Angeles County, to file a response to the petition. On July 3, 2007, the Court of Appeal issued an order to show cause why the requested relief should or should not be granted.
The Court of Appeal heard oral argument on September 17, 2007. Subsequently, on July 9, 2008, the Court of Appeal vacated submission to await a
The Court of Appeal accepted defendant’s claim that an SVP has a constitutional right not to be tried while mentally incompetent. The Court of Appeal observed that Allen, supra,
The Court of Appeal acknowledged that several decisions from other states had “all” held that a mentally incompetent person can be tried under schemes similar to the SVPA. However, the court found those cases to be unpersuasive, saying they had focused too narrowly on “the nominally civil nature” of commitment as an SVP.
Exercising its inherent power, and alluding to the mental competence scheme applicable in criminal prosecutions (see Pen. Code, § 1367 et seq.), the Court of Appeal issued this order: “[Ojn remand the trial court is directed to conduct a hearing into [defendant’s] competence to stand trial as an [SVP]. In the event the trial court determines [defendant] is not presently competent to stand trial, the court shall order [him] held in a state hospital for the care and treatment of the mentally disordered until such time as he is restored to competence.”
The People petitioned for review to address the constitutional issue decided by the Court of Appeal. On September 17, 2009, we granted the petition.
II. SVPA Procedures
The SVPA targets a select group of convicted sex offenders whose mental disorders predispose them to commit sexually violent acts if released following punishment for their crimes. (Hubbart v. Superior Court (1999) 19
Commitment depends upon whether the person is found to be an SVP—a finding that ensures the Act applies to only “the most dangerous offenders.” (People v. Hurtado (2002)
In addition, a “ ‘[d]iagnosed mental disorder’ ” refers to “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c); see People v. Williams (2003)
The process for determining whether a convicted sex offender meets these standards occurs in several stages, and ensures a seamless transition from prison to a secure treatment facility if commitment occurs. First, the
The trial court then determines whether there is “probable cause” to believe that the defendant “is likely to engage in sexually violent predatory criminal behavior” upon release. (§ 6602, subd. (a); see § 6601.5.) While such hearing is underway, the defendant must “remain in custody.” (§ 6602, subd. (a).) If probable cause is found, “the judge shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted . . .” to determine whether he meets the statutory definition of an SVP. (Ibid.) The term “secure facility,” as used in the probable cause statute and elsewhere in the Act, has a particularized meaning. (Hubbart, supra,
At trial, the following statutory protections apply; “[The defendant] 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. In the case of a person who is indigent, the court shall appoint
Regarding evidence admitted at trial, prior crimes play a limited role in the SVP determination. (Hubbart, supra,
Adjudication as an SVP entails confinement and appropriate treatment “in a secure facility” (§ 6604) within the meaning of section 6600.05. When the present proceeding began in the trial court, such persons were committed “for two years.” (Former § 6604, as amended by Stats. 2000, ch. 420, § 3, p. 3139.) Under the same version of the law, any subsequent extended commitment was also for two years. (Former § 6604.1, subd. (a), as amended by Stats. 2000, ch. 420, § 4, p. 3140.) As noted, statutory changes affecting the length of the term have since occurred. (See, ante, fn. 7.) Various posttrial provisions, which we discuss further below, require ongoing evaluation of the SVP in custody, and ensure that involuntary commitment does not continue if his mental condition materially improves. (See §§ 6605, 6608.)
Finally, the secure nature of confinement under the SVPA does not negate its therapeutic features. The DMH “shall afford the person with treatment for his or her diagnosed mental disorder.” (§ 6606, subd. (a).) This treatment obligation exists even where the person resists (id., subds. (a) & (e)),
III. Discussion
Criminal defendants have a constitutional right not to be tried while mentally incompetent. (Medina, supra,
In Allen, supra,
Here, as below, the parties debate the significance of Allen with respect to the due process implications of being tried as a mentally incompetent SVP. Defendant insists that, after weighing the relevant factors, Allen recognized the constitutional right of an SVP to “meaningfully participate” at trial, i.e., to tell his version of events on the witness stand against counsel’s advice. According to defendant, an alleged SVP whose incompetence prevents him from understanding the proceedings or rationally assisting counsel cannot meaningfully participate in his defense under Allen. Defendant thus reasons he has a constitutional right, analogous to the one afforded to the testifying defendant in Allen, to participate in the proceedings only when mentally competent to do so.
The People, the petitioners here, urge a more restrained reading of Allen, which they insist has nothing to do with mental competence under the SVPA. In the People’s view, both defendant and the Court of Appeal have failed to appreciate that the interests weighed for due process purposes are significantly different where the claimed constitutional right concerns mental competence of an alleged SVP to be tried and committed altogether, as opposed to the right of a presumably competent defendant to testify on discrete factual issues under the Act.
Following our own careful review of Allen, we conclude the People have the better view. As we will explain, the strong governmental interest in protecting the public through the proper confinement and treatment of
To highlight the considerations that distinguish this case from Allen, we begin with a detailed analysis of our recent decision.
A. The Right to Testify Under Allen
Allen, like this case, concerned a jury trial to determine whether the defendant (Allen) required recommitment as an SVP. The prosecution presented three mental health experts who had reviewed extensive background documentation, and who had either interviewed Allen or treated him at Atascadero. (Allen, supra,
Through this testimony, the People established the following criminal history: Allen was convicted of committing forcible rapes against two women he did not know by entering their vehicles and using weapons to threaten them with harm. Allen also attacked female victims in three other incidents with which he was never charged. They involved a physical assault on an acquaintance in her car, a sexual assault on someone he met in a friend’s apartment, and another sexual assault on a teenager he met outside a store. (Allen, supra,
All three expert witnesses described Allen’s behavior in custody. Notably, he had a long history of sexual misconduct toward female staff in both prison and Atascadero (e.g., staring at them, stalking and sexually propositioning them, exposing his penis, and masturbating in their presence). He denied such acts, and would not stop after being rebuked. He also believed the women he harassed were in love with him. In addition, the experts testified about Allen’s poor treatment progress. He had not graduated beyond the early phases of the program, and denied committing any sexual crimes. He often refused medication, saying it was unnecessary and dangerous. Sometimes, he took medication only at low doses and in exchange for special privileges. (Allen, supra,
In testifying that Allen met the standards for recommitment as an SVP, the experts made clear they relied not only on the defendant’s past conduct (i.e., adjudicated and unadjudicated crimes, and sexual misconduct in custody), but also on numerous other factors (e.g., lack of remorse or empathy, denial and deceit, delusional and confused thoughts, and poor treatment progress). The consensus from the expert witnesses at trial was that Allen suffered from a
During trial, the court learned that Allen sought to testify against counsel’s advice. Such proffered testimony covered three topics: (1) Allen’s claim that his victims had consented to the sex acts underlying his criminal convictions and uncharged crimes, (2) physical side effects that made him resist taking medication, and (3) his insistence that his sexual conduct in custody was prompted by the flirtatious behavior of female staff. Counsel alluded to certain tactical reasons for objecting to his client’s testimony under such circumstances, including its “ ‘counterproductive’ ” nature and the prospect of damaging rebuttal. (Allen, supra,
On review, this court agreed with Allen that he had a federal and state constitutional right to testify at trial, and that counsel lacked the ultimate authority to overrule that decision. (Allen, supra,
At the outset, we made clear that Allen did not have the same fundamental right as a criminal defendant to testify over counsel’s objection. (See People v. Robles (1970)
The first factor concerned “the private interests at stake.” (Allen, supra,
Second, Allen considered “the risk, in the absence of a right to testify, of an erroneous finding that the defendant is a sexually violent predator and the probative value, in reducing this risk, of allowing him or her to testify over the objection of counsel.” (Allen, supra,
Along these lines, Allen acknowledged that the defendant’s testimony, even if truthful from his perspective, could harm his case if it confirms expert opinion that he suffers from a dangerous and disordered view of reality. Allen, for instance, sought to testify that some of his victims either consented to or provoked his sexual crimes and misconduct. The clear implication was that the risks inherent in such testimony are often present when counsel decides not to call his client to the stand. (Allen, supra,
Third, Allen considered “ ‘the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’ ” (Allen, supra,
The fourth factor that Allen addressed was “ ‘the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.’ ” (Allen, supra,
Based on its analysis of the competing interests, Allen concluded that there was a due process right to testify over counsel’s objection, and that it had been violated in that case. Allen further determined, however, that the error did not require reversal, because it was harmless beyond a reasonable doubt. The reason was that the facts to which Allen sought to testify were largely tangential to the jury’s determination that he was a mentally disordered and dangerous sexual offender. According to Allen, no reasonable juror would have rejected the strong expert testimony in this regard. Hence, the judgment recommitting Allen as an SVP was affirmed. (Allen, supra,
B. Defendant’s Mental Incompetence Claim
We agree with the People that, notwithstanding Allen, defendant has not carried his “heavy burden” of invalidating efforts to recommit him under the SVPA based on the trial court’s refusal to decide his mental competence to stand trial. (Otto, supra,
The liberty and dignitary interests affected by commitment under the SVPA—which appeared first and fourth, respectively, on Allen’s list—are no less significant here than in any other civil commitment case. To a greater or lesser extent, a mentally incompetent defendant may be in the position of “filtering” his contribution in an SVP proceeding through counsel, experts, and other witnesses. (Allen, supra,
Nevertheless, defendant overstates the risk of error in the present case. Defendant insists that only a mentally competent person can meaningfully contribute to his defense by providing counsel and mental experts with relevant firsthand information that could help show he is not mentally disordered or dangerous, and that could be used to rebut hearsay and other evidence used against him at trial. However, as Allen, supra,
Nor can we ignore the numerous procedural safeguards available to prevent an erroneous commitment in any SVP case, regardless of the contribution the particular defendant is willing or able to make. First, during trial, no defendant, including one who may be mentally incompetent, must proceed without “the assistance of counsel,” or without “the right to retain experts or professional persons to perform an examination” on his behalf. (§ 6603, subd. (a).) Even Allen recognized that, as a general rule, such “mandatory representation,” coupled with expert assistance, “generally is beneficial” to the defense. (Allen, supra,
The most critical factor, of course, involves the “ ‘governmental] interests]’ ” that weigh against allowing SVP’s to avoid being tried or committed while mentally incompetent—an issue that Allen, supra,
The state’s interest in enforcing these procedures, and in protecting the public, would be substantially impaired if an alleged SVP could claim, based on his diagnosed mental disorders, that he was too incompetent to undergo a trial leading to such targeted confinement and treatment. Indeed, as the exhibits supporting defendant’s writ petition suggest, we can reasonably assume that significant potential overlap exists between those mental disorders that qualify someone for commitment as an SVP, on the one hand, and those that produce an inability to comprehend the proceedings or assist in one’s defense on the other. Here, all three experts diagnosed defendant with a similar condition (bipolar and/or schizoaffective disorder with paranoid delusions, mood disorders and psychotic features). Two of them linked this
We are not the first court to reach this result. Similar public safety concerns have been expressed in an unbroken line of cases from other states—states with commitment schemes that closely resemble the SVPA. These cases make clear that mentally incompetent persons may be tried, confined, and treated as SVP’s. No due process right to avoid trial on mental competence grounds has been found. Unlike the instant Court of Appeal, we do not read the out-of-state cases as relying solely on the civil nature of the proceedings, or believe their views can be ignored. (See Nieves, supra,
Two of these decisions are particularly instructive. In Nieves, supra,
For similar reasons, the appellate court in Kinder, supra,
No California case addresses whether a mentally incompetent person can be tried and committed as an SVP. However, in People v. Angeletakis (1992)
On appeal, the court rejected any suggestion that the defendant was entitled to the same statutory procedures or constitutional rights that applied to mentally incompetent persons being tried in a criminal case. Rather, the court examined and weighed the factors generally deemed relevant for determining the nature of due process protections in civil commitment proceedings. The court perceived little risk of error in light of the procedural safeguards available under the particular statutory scheme, including the right to counsel. The court also observed that such provisions provided for confinement and treatment under conditions designed to address the defendant’s mental health concerns. On balance, no due process right to prevent recommitment on incompetence grounds was found. Only “minimal protection” would be gained by suspending trial until the defendant could “understand the nature of
Finally, we observe that substantial “administrative burdens” and practical difficulties appear to arise if a convicted sexually violent offender who qualifies as an SVP cannot be tried and committed as such while mentally incompetent. (Allen, supra,
We agree that any effort to apply Penal Code section 1367 et seq. under circumstances suggested by the Court of Appeal only serves to highlight the uncertainty that would arise were we to recognize a due process right not to be tried as an incompetent SVP. For example, the nature of any placement under the statutory scheme for incompetent criminal defendants depends in large part upon the “charges” pending against the person when the incompetence finding is made and criminal proceedings are suspended. It is uncertain how such a “nature of charges” distinction would apply to SVP defendants, who have already been convicted of, and imprisoned for, one or more sexually violent crimes.
It also is not clear where incompetent SVP defendants would be confined pending their restoration to competency, or what treatment, if any, they would be offered during that time. We note that an incompetent criminal defendant “charged with a violent felony” may not be placed in a state hospital or other treatment facility unless it either has a “secured perimeter” or is “locked and controlled,” and the court finds that public safety will be protected in the particular case. (Pen. Code, § 1370, subd. (a)(1)(D).) Here, the Court of Appeal ordered that defendant be moved to “a state hospital for the care and treatment of the mentally disordered” if he was found incompetent to undergo another SVP trial.
However, neither the Penal Code provisions on which the Court of Appeal so loosely relied, nor the provisions of the Court of Appeal’s order, track the definition of “secure facility” under the SVPA, including its exclusions and
Balancing all the foregoing factors, and placing special weight on the “paramount” interest in public safety, we conclude that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial under the SVPA. (Nieves, supra,
IV. Conclusion
We reverse the judgment of the Court of Appeal.
George, C. J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
Notes
All further statutory references are to the Welfare and Institutions Code except as otherwise stated.
The experts stated in their reports that they met briefly with defendant, who was then 47 years old. Each time, after being told of the nature and purpose of the interview, he declined to participate. Dr. Sreenivasan noted that defendant would not sign a form she gave him, and generally seemed alert and oriented. Dr. Finnberg commented on defendant’s polite manner. He read the form she gave him, refused to sign it, and asked her to contact his attorney. Both evaluations made clear that they were based on court documents, police and probation reports, prison and hospital records, and medical and psychological evaluations.
Both reports noted that in 1978, when he attacked Maria M., defendant was on probation for another sex crime committed in 1977, when he was 20 years old. There, defendant orally copulated a boy in a public restroom while working as a custodian at an elementary school. He pled guilty to trespass. (See Pen. Code, § 602.) His sentence included county jail time, community service, and probation.
The evaluators mentioned civil commitment efforts that may have occurred while defendant was being prosecuted or punished for his sex crimes. Dr. Sreenivasan reported that, after his conviction in the Maria M. case, defendant was diagnosed as a mentally disordered sex offender, admitted to the state hospital system, found unamenable to treatment, and returned to prison to serve his sentence. The same report further asserts, without explanation, that defendant was found incompetent while standing trial for the Genetta S. crimes at some point between 1984 and 1987, and that he entered Atascadero as a mentally disordered prisoner between 1990 and 1994. Dr. Finnberg reported that between 1978 and 1980, during the Maria M. case, defendant was hospitalized because he was found to be both mentally incompetent and a mentally disordered sex offender.
This abbreviation refers to the current version, or “Text Revision,” of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association (4th ed. 2000).
Drs. Sreenivasan and Finnberg also found evidence of polysubstance abuse (i.e., alcohol and illegal drugs).' This maladaptive behavior began in defendant’s teenage years, triggered withdrawal symptoms in 1985 after his arrest for the Genetta S. crimes, and continued at least through 1994, when he was suspected of drug trafficking in Atascadero. Dr. Finnberg predicted the problem would resurface if defendant were released.
At the time the petition was filed, the statutory scheme authorized a two-year period of confinement and treatment for persons adjudicated as SVP’s. (See former § 6604, as amended by Stats. 2000, ch. 420, § 3, p. 3139.) Subsequent commitments extending the term for two years could be obtained under procedures similar to those regulating initial commitments. (See former § 6604.1, subds. (a) & (b), as amended by Stats. 2000, ch. 420, §4, p. 3140.) On November 7, 2006, California voters passed Proposition 83, The Sexual Predator Punishment and Control Act: Jessica’s Law (Proposition 83), which, among other things, amended the SVPA in certain respects, effective November 8, 2006. One such change provided for an indeterminate commitment term subject to certain conditions not relevant here. (See §§ 6604, 6604.1, 6605; see also People v. McKee (2010)
The circumstances under which Dr. Castellano became involved in this case are not clear from the record. In her letter to counsel, she simply states that she was appointed by the court on October 24, 2006. Minute orders corresponding to the same date do not refer to Castellano or to any mental competence concerns.
At the time, defendant was housed in Coalinga State Hospital. He had been transferred there from Atascadero between November 2005 and April 2006. According to the DMH Web site, Coalinga was built in 2005, and is the state’s newest secure mental treatment facility. Its patient population consists of “forensically committed individuals—mostly sexually violent predators who were transferred from Atascadero State Hospital—in early September 2005.” (DMH, Coalinga State Hospital <http://www.dmh.ca.gov/Services_and_ Programs/State_Hospitals/Coalinga/default.asp> [as of Aug. 19, 2010].)
Proposition 83 amended the definition of an SVP to include persons who have been convicted of a “sexually violent offense against one or more victims.” (§ 6600, subd. (a)(1), italics added.)
Section 6600.05 states: “(a) Until a permanent housing and treatment facility is available, Atascadero State Hospital shall be used whenever a person is committed to a secure facility for mental health treatment pursuant to this article and is placed in a state hospital under the direction of the State Department of Mental Health unless there are unique circumstances that would preclude the placement of a person at that facility. If a state hospital is not used, the facility to be used shall be located on a site or sites determined by the Director of Corrections and the Director of Mental Health. In no casé shall a person committed to a secure facility for mental health treatment pursuant to this article be placed at Metropolitan State Hospital or Napa State Hospital. [f] (b) A permanent facility for the housing and treatment of persons committed pursuant to this article shall be located on a site or sites determined by the Director of Corrections and the Director of Mental Health, with approval by the Legislature through a trailer bill or other legislation. The State Department of Mental Health shall be responsible for operation of the facility, including the provision of treatment.” It appears from the record regarding defendant’s placement in this case, and from counsel’s statements at oral argument in this court, that Coalinga State Hospital offers “permanent housing and treatment” for persons committed as SVP’s, and serves as a “secure facility” under section 6600.05. (See, ante, fn. 9.)
Section 6606, subdivision (a) states: “A person who is committed under this article shall be provided with programming by the State Department of Mental Health which shall afford the person with treatment for his or her diagnosed mental disorder. Persons who decline
Section 6606, subdivision (b) states, “Amenability to treatment is not required for a finding that any person is a person described in Section 6600, nor is it required for treatment of that person. Treatment does not mean that the treatment be successful or potentially successful, nor does it mean that the person must recognize his or her problem and willingly participate in the treatment program.”
Section 6606, subdivision (c) states: “The programming provided by the State Department of Mental Health in facilities shall be consistent with current institutional standards for the treatment of sex offenders, and shall be based on a structured treatment protocol developed by the State Department of Mental Health. The protocol shall describe the number and types of treatment components that are provided in the program, and shall specify how assessment data will be used to determine the course of treatment for each individual offender. The protocol shall also specify measures that will be used to assess treatment progress and changes with respect to the individual’s risk of reoffense.”
Two of the three witnesses at Allen’s trial also diagnosed him with cocaine dependence. The evidence showed cocaine use in almost all of his criminal offenses, including the rape convictions. (Allen, supra, 44 Cal.4th 843, 850-854.)
At oral argument in this court, counsel debated the mental health treatment available at a secure facility, like Coalinga State Hospital, for someone who was mentally incompetent when adjudicated as an SVP. Defendant seems concerned that—even after trial is complete and competence to assist therein is no longer in issue—the mental condition underlying such incompetency could interfere with the sex offender treatment program required under the SVPA, and that such condition might go unaddressed during the commitment term. On the one hand, we decline to question the benefits the Legislature obviously believed both society and the SVP would gain from treatment targeting his dangerous sexual disorders, or to assume that any person committed as an SVP is unable, by reason of his mental condition, to benefit from such treatment. On the other hand, we see nothing in the SVPA to prevent treatment from being provided for the full range of diagnosed disorders that might impair the SVP’s receptivity to sexual therapies, or that might otherwise enhance his prospect for restoration to full mental health.
Dissenting Opinion
I respectfully dissent.
“Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a
The majority characterizes the right at issue as “an SVP’s right to delay or avoid targeted confinement and treatment for a sexually violent mental disorder because his mental problems make him incompetent to stand trial.” (Maj. opn., ante, at p. 820.) Such characterization assumes that SVP’s would assert claims of incompetence merely to delay or avoid commitment. Not so. The right at issue here is the due process right to be competent at an SVPA proceeding. Furthermore, the substantial safeguards in criminal cases against claims of incompetence made simply for purposes of delay would also apply in the SVPA context. For instance, as is true of criminal trials, the question of competency in SVPA proceedings would not be raised by the defendant' but by the court or the defendant’s attorney. (Pen. Code, § 1368.) Moreover, even when counsel expresses a doubt about competency, the trial court need only conduct a competency hearing when it “ ‘is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial.’ ” (People v. Lewis (2008)
Along these same lines, I reject the majority’s speculation that recognizing the right to be competent at an SVPA proceeding would open the floodgates to incompetency claims. (Maj. opn., ante, at pp. 825-826.) Few individuals would be deemed incompetent to undergo SVPA trials. The reason is simple:
As the majority acknowledges, Allen provides a four-part balancing test with which we determine what process is due SVP’s. (Maj. opn., ante, at p. 819.) “ ‘(1) [T]he private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest though the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government’s 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 in enabling them to present their side of the story before a responsible government official.’ ” (Allen, supra, 44 Cal.4th at pp. 862-863.)
The majority concedes that “[t]he liberty . . . interest^ affected by commitment under the SVPA . . . [is] no less significant here than in any other civil commitment case.” (Maj. opn., ante, at p. 824.) Having made this concession, however, the majority quickly minimizes the importance of the liberty interest. The majority is wrong. That interest is as significant, if not more significant here, than it was in Allen. It is worth pausing and reflecting upon what we said about that interest a little more than two years ago.
“We begin with the private interests at stake. As we noted in [People v.] Otto [(2001)]
Nor is it an answer, as the majority asserts, that competency is not required because “the nature of the issues, evidence, and findings in an SVP proceeding prevents any defendant from playing much more than a supporting role.” (Maj. opn., ante, at p. 824.) I find no support in Allen for such a global characterization of the defendant’s role in an SVPA proceeding.
If, then, we recognized in Allen that a defendant’s testimony might be potentially game changing with respect to the liberty interest—and such testimony is but one aspect of the defendant’s potential participation in an SVPA proceeding—how much more vital is it that a defendant be competent during that proceeding not just to testify but to assist counsel in evaluating and responding to the state’s case against the defendant? The answer is clear: Forcing an incompetent defendant to undergo an SVPA trial will, in every such case, create a risk of depriving the defendant of his or her liberty interest. Thus, this factor weighs mightily in favor of recognizing a due process right to be competent during an SVPA trial.
The second Allen factor, which balances the risk of deprivation of the liberty interest under current procedures against the probable value of additional procedural safeguards, also weighs heavily in favor of recognizing a right to be competent in SVPA proceedings. As noted, an incompetent defendant is powerless to vindicate his or her liberty interests under the current procedural regime, which does not contain a process for guaranteeing competency. The majority uses this very lack of a safeguard as a reason to deny it. The majority argues that, because the SVPA is silent as to the issue of incompetency, no “relevant template” exists by which to process incompetent SVP defendants. (Maj. opn., ante, at p. 829.) I strongly disagree. If a court cannot remedy a due process violation, then judicial power is for naught. It is well established that courts possess an inherent power to adopt procedures which promote due process rights in the face of statutory silence. (Citizens Utilities Co. v. Superior Court (1963)
Most relevantly, in James H. v. Superior Court (1978)
The majority concedes that the dignitary interest—the fourth Allen factor— weighs in defendant’s favor in this case. Again, it is worth pausing to examine what that interest entails as we explained it in Allen. The central facets of the dignitary interest are (1) “ ‘informing individuals of the nature, grounds, and consequences of the action,’ ” and (2) “ ‘enabling them to present their side of the story before a responsible government official.’ ” (Allen, supra, 44 Cal.4th at pp. 862-863.) Of course, if a defendant is incompetent for the purposes of Penal Code section 1367—unable to understand the proceedings or to assist counsel—then, by definition, that individual cannot be informed of the nature, grounds and consequences of the proceeding. Nor would that individual have the capacity to present his or her side of the story. Again, it matters no more in the competency context than in the right to testify whether “a defendant generally can communicate his or her version to and through the experts and counsel and through other witnesses . . . .” (Allen, supra,
Against these three factors that weigh in favor of a due process right to competency in SVPA proceedings, the majority cites the governmental interest—factor (3)—which it identifies as public safety. (Maj. opn., ante, at p. 825.) According to the majority, “ ‘the strong [governmental] interest in protecting the public’ ” (ibid.) would be “substantially impaired” if courts recognized an SVP’s right to a competency determination (id. at pp. 825-826). This is true, the majority reasons, because SVP’s “present a substantial and credible risk that they will commit sexually violent predatory crimes if released.” (Id. at p. 825.)
It is, of course, true that protecting the public is the paramount aim of the SVPA but it is not true that recognizing an SVP’s right to be competent at an SVPA proceeding would result in the release of deranged sexual predators on a defenseless public. Rather, a defendant found to be incompetent would remain civilly committed in a secure facility while receiving treatment designed to restore competency and, once competency was restored, would then be subject to SVPA proceedings. The result: an unbroken internment, whereby the defendant would remain in custody while incompetent, or remain incarcerated as an SVP.
Finally, I strongly disagree with the theme that runs through the majority opinion conflating the disorders which render one an SVP and those which render one incompetent to stand trial. In a breathtaking example of ipse dixit reasoning the majority asserts—without a shred of scientific evidence or a legal authority—that we can “reasonably assume” that “significant potential overlap exists” between those mental health disorders that quality someone for commitment as an SVP and those rendering one incompetent to stand trial. (Maj. opn., ante, at p. 825.)
This assertion is simply wrong as a matter of relevant statutory comparison. Under the SVPA, a defendant is deemed to be an SVP if the defendant 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.” (§ 6600, subd. (a)(1).) A “diagnosed mental disorder” is defined as “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (Id., subd. (c).) Thus, the mental disorders which render one an SVP relate to sexual aberrations that increase the likelihood one will engage in sexually violent criminal behavior. By contrast, under Penal Code section 1367, “[a] defendant is mentally incompetent... if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Pen. Code, § 1367, subd. (a).) The two definitions are not congruent. An individual can be a pedophile or a rapist and thus suffer a mental disorder for purposes of the SVPA while remaining perfectly competent to understand the nature of, and
In short, it is my view that the majority, under the pretext of distinguishing Allen, eviscerates that opinion. Of course, it is true that Allen did not address the competency issue we consider here, but that does not render the due process analysis we set forth in Allen inapplicable here. To the contrary, compelling an incompetent defendant to submit to an SVPA hearing is, if anything, a more serious due process violation than denying a competent defendant the right to testify on his own behalf at such proceeding. Denying a defendant the right to testify over counsel’s objection implicates but one discrete aspect of the defendant’s overall defense. By comparison, forcing an incompetent defendant to endure an entire SVPA proceeding impacts virtually every aspect of the defense. Not only would defendants be robbed of the opportunity to testify in a competent manner, they would also be deprived of the ability to communicate meaningfully with their attorneys and with the court, and to confront adverse witnesses. A mentally incompetent defendant is unable to dispute facts, challenge admissible hearsay evidence or contradict erroneous factual assumptions used by expert witnesses—factors the Allen court found critical to ensuring the reliability of the proceedings.
By contrast, recognizing a right to be competent in SVPA proceedings would provide a safeguard against the unsavory prospect of subjecting individuals who are not SVP’s to SVPA confinement and treatment. Moreover, restoring to competence those who actually are SVP’s would avoid the “futile” exercise of attempting SVPA treatment on incompetent subjects. (See Abrams et al., The Case for a Threshold for Competency in Sexually Violent Predator Civil Commitment Proceedings (2007) 28 Am. J. Forensic Psychiatry 7, 22-23 [“[Attempting to [treat the] behaviors of an SVP that precipitate within the matrix of a florid psychosis or severe cognitive impairment would prove futile. . . . [Currently available treatments for SVPs find [their] provenance in rational, goal-directed, even insightful cognition.”].) Thus, contrary to the majority, no Pandora’s box would be opened by extending the right to competency to defendants in an SVPA proceeding. Rather, competent SVP’s who would benefit from treatment would receive it while those few
For all these reasons, I must dissent.
Kennard, J., concurred.
Apparently, the majority’s characterization of the defendant’s role in an SVPA proceeding as “supporting” is based on the particular circumstance in Allen that Allen’s testimony would not have been particularly useful to him. But even in that circumstance, we rejected the argument that the “supporting role” status of a defendant is sufficient to overcome the risk of deprivation of the liberty interest. “Although ... we agree with the Court of Appeal that defendant’s testimony would not have assisted him in preserving his liberty interests in this case, here we seek to establish a rule of general application in proceedings under the SVPA. ‘[Procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.’ (Matthews v. Eldridge (1976)
The majority suggests that in this case there is significant overlap between the mental disorders that qualify defendant as an SVP and those that affect his competence. (Maj. opn., ante, at pp. 825-826.) I have examined the submissions by the three experts who diagnosed defendant and I am not wholly persuaded that this characterization is correct, but even if it is, as was true in Allen, the due process right to be competent in an SVPA proceeding is “ ‘shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.’ [Citation.]” (Allen, supra,