HERNAN OROZCO, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. B168989
Second Dist., Div. Three.
Mar. 29, 2004.
A petition for a rehearing was denied April 28, 2004
117 Cal.App.4th 170
Petitioner‘s petition for review by the Supreme Court was denied June 30, 2004. Kennard, J., was of the opinion that the petition should be granted.
Hernan Orozco, in pro. per.; and Jean F. Matulis, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
OPINION
ALDRICH, J.—Petitioner Hernan Orozco (Orozco) seeks a writ of mandate directing the trial court to vacate its order denying his motion to dismiss the People‘s petitions to recommit him pursuant to the Sexually Violent Predator Act (SVP Act or the Act) (
The essential issue presented is whether there is a jurisdictional requirement under the Act that a recommitment order be obtained before the expiration of the previous term.
The statutory scheme requires that the recommitment petition be filed before the expiration of the prior term, but there is no requirement that the recommitment order be obtained before the term expires. (People v. Superior Court (Ramirez) (1999) 70 Cal.App.4th 1384, 1389-1391 [83 Cal.Rptr.2d 402].) Therefore, we deny Orozco‘s petition insofar as it seeks dismissal of the recommitment proceedings. However, we direct the issuance of a peremptory writ of mandate directing respondent superior court to set the first recommitment petition for trial forthwith, and to proceed expeditiously with a probable cause hearing on the second recommitment petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. The initial commitment.
On May 21, 1996, the People filed a petition for commitment of Orozco as a sexually violent predator pursuant to
2. Events during the two-year period ending May 13, 2003, during what would have been the first term of recommitment.
On April 12, 2001, within the initial term of commitment, the People filed a recommitment petition (the first recommitment petition) (LA Super. Ct. No. ZM004526) to commit Orozco for another two years, through May 13, 2003.
On June 4, 2001, Orozco, with counsel, appeared at a hearing to set the date for a probable cause hearing on the recommitment petition. Orozco‘s attorney, a deputy public defender, asked the court “to put this over for a probable cause hearing setting date . . . [for] the week of the 16th of July.” The trial court then inquired whether there would be a time waiver.2 Orozco responded that he refused to waive time. The trial court then set the matter for July 16, 2001, anyway, stating: “Notwithstanding that refusal, since there are no time limits applicable to the probable cause hearing, and it‘s . . . just as [comity] that the inquiry was made.”
Then matter then was continued from July 16 to July 24, 2001, at which time Orozco waived his right to a probable cause hearing. The trial court accepted the waiver and found “a strong suspicion that [Orozco] has been convicted of two (2) predicate offenses; and that he has a diagnosed mental disorder that makes him a danger to the health and safety of others; in that it is likely that he would engage in sexually violent behavior if released from the jurisdiction of the Department of Corrections.”
Thereafter, the matter was repeatedly continued. It is unclear from the limited record before us who sought the continuances. The People assert that it was the public defender who sought the continuances, in order to obtain experts and prepare a defense. Orozco denies this and points out the minute orders do not indicate which party requested the continuances. It is true the minute orders do not indicate which party sought the continuances. However, the People state they were ready to go to trial on the first recommitment petition at any time—all they needed was the court file on the initial commitment proceeding and the treatment records from Atascadero.
On February 25, 2003, the trial court granted Orozco‘s motion to represent himself in the matter. At the hearing, the People indicated they would be
On March 18, 2003, about two months before expiration of what would have been the first term of recommitment, the People filed the second recommitment petition (LA Super. Ct. No. ZM006055) for the two-year period running through May 13, 2005. On March 27, 2003, Orozco was arraigned on the second recommitment petition.
Meanwhile, the proceedings on the first recommitment petition were still ongoing. On March 20, 2003, the deputy public defender turned over the case file to Orozco, and the trial court granted Orozco‘s request for a reporter‘s transcript of certain proceedings of February 25, 2003.
On March 27, 2003, Orozco, now representing himself, filed a request for appointment of an expert witness and an investigator. At that time, the People requested an updated evaluation interview.
On April 3, 2003, Orozco filed a request for indigent funds and supplies. The trial court awarded Orozco funds for supplies and gave him a list of investigators and evaluators from which he could select an appointment.
On April 9, 2003, Orozco requested and obtained orders for shoes, and for appointments of an investigator and an expert witness, as well as an order granting said expert access to him.
On May 12, 2003, one day before the expiration of what would have been the first term of recommitment, Orozco was presented in court, at which time the trial court continued the matter to June 26, 2003, without objection by Orozco.
3. Events during what would be the second term of recommitment: the two-year period running through May 13, 2005.
On June 16, 2003, Orozco filed a motion in the trial court to dismiss both recommitment petitions, arguing that because a trial on the first recommitment petition was not held within the two-year period of the first recommitment, the trial court had lost jurisdiction to proceed on the petitions and he was entitled to immediate and unconditional release.
On June 26, 2003, the trial court heard and denied the dismissal motion, ruling “[t]here‘s nothing right now in the case law that says these petitions can‘t overlap. There‘s nothing that says I must dismiss the action.”
On August 4, 2003, Orozco filed the instant petition for writ of mandate, seeking to overturn the trial court‘s order denying his dismissal motion. This court issued an order to show cause and ordered that counsel be appointed for Orozco.
CONTENTIONS
Orozco contends: a subsequent extended commitment order must be obtained prior to keeping petitioner in custody beyond a two-year commitment period under the SVP Act; jurisdiction does not survive unlawful custody in this case; and, due process requires dismissal.
DISCUSSION
1. The statutory scheme.
We begin with a general overview of the SVP Act (
The Legislature stated its purpose in adopting the SVP Act as follows: “The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society. [] The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing threat to society. The continuing danger posed by these individuals
The SVP Act establishes a procedure that may result in the civil commitment of a sexually violent predator, which it defines 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. (
Under the SVP Act, the Department of Corrections is authorized to refer “an individual who is in custody under the jurisdiction of the Department of Corrections and who is either serving a determinate prison sentence or whose parole has been revoked” for an initial screening and an evaluation by the state Department of Mental Health to determine whether the person is a sexually violent predator. (
If both mental health professionals concur that the individual is a sexually violent predator, the Director of Mental Health must forward a request for a petition for commitment to the county in which the prisoner was convicted. (
A person determined at trial to be a sexually violent predator must be committed to the custody of the state Department of Mental Health for appropriate treatment and confinement in a secure facility for two years, and is subject to extended commitments incident to the filing of new petitions. The SVP Act also includes provisions for an annual review of the individual‘s mental condition, conditional release, and discharge upon a determination at a hearing of a change in that condition. (
“The procedure for extending an SVP‘s commitment has not been widely considered by the courts.” (Cooley v. Superior Court (2001) 89 Cal.App.4th 785, 787 [107 Cal.Rptr.2d 724].) However, People v. Superior Court (Ramirez), supra, 70 Cal.App.4th 1384, speaks to the issue herein. In Ramirez, the trial court dismissed a recommitment petition on the ground it lacked jurisdiction because the trial on the recommitment petition would not be completed before the expiration of the original commitment term. (Id., at pp. 1386-1387.) The reviewing court issued a peremptory writ directing the trial court to vacate its order dismissing the recommitment petition and to proceed with a trial on the petition. (Id., at p. 1391.)
Ramirez explained the SVP Act does not specify “a time by which the trial must be commenced or concluded. Indeed, the only reference to time limits appears to envision that trials might end after expiration of the initial commitment.
Ramirez further observed that since the SVP Act was enacted after the Mentally Disordered Offender Act (
Here, Orozco was in custody and both recommitment petitions were filed before the expiration of the respective underlying terms. The statutory scheme does not require that the recommitment order be obtained before the expiration of the underlying term.5
The issue thereafter is simply whether the delay in trial violated Orozco‘s right to due process. The record reflects the delay in bringing the matter to trial was attributable to Orozco‘s counsel and/or to Orozco himself. Orozco has never announced that he is ready for trial. After repeated delays with respect to the first recommitment petition stemming from Orozco‘s lack of preparedness for trial, Orozco waited until June 16, 2003, shortly after the expiration of what would have been the first recommitment term, to file a dismissal motion on the ground the delay had deprived the trial court of jurisdiction to proceed. The motion was meritless because, as explained, the SVP Act does not specify the time within which the recommitment trial must occur. Obviously, trial on a recommitment petition should occur within a reasonable time after the probable cause hearing. (
Moreover, Orozco, by his conduct, waived the issue of delay in bringing the matter to trial. The record reflects that in May 2003, at the expiration of the two-year period that would have constituted the first recommitment term, Orozco was still preparing his defense to the first recommitment
In sum, the People’s failure to obtain a recommitment order within the two-year period ending May 13, 2003, did not deprive the trial court of jurisdiction to entertain the two recommitment petitions. The trial court correctly denied Orozco’s dismissal motion.6
3. Orozco must remain in custody pending trial.
Alternatively, Orozco asks that he be released from custody pending a trial on the petitions. The argument is meritless.
DISPOSITION
The order to show cause is discharged. The petition, insofar as it seeks dismissal of the proceedings, is denied. Let a peremptory writ of mandate issue directing respondent court to set the first recommitment petition for trial forthwith, and to proceed expeditiously with a probable cause hearing on the second recommitment petition.
Croskey, J., concurred.
KLEIN, P, J., Concurring.—I concur in the majority opinion in that Orozco, by his conduct, waived the issue of delay in bringing the matter to trial. However, I write separately to set forth my concerns with respect to the statutory scheme as it relates to recommitment petitions.
However, certain principles are self-evident. It is the People, as the party bringing the recommitment petition, who have the burden to move the case forward. The trial court, in turn, upon determining “that there is probable cause, . . . shall order that a trial be conducted.” (
Here, neither the People, nor the trial court, nor Orozco, acted with alacrity. As a consequence, all that has happened on the two recommitment petitions is that Orozco has had a probable cause hearing on the first recommitment petition. Neither of the two recommitment petitions has been tried, and there has not been even a probable cause hearing on the second recommitment petition. Thus, we are presented with the peculiar situation of Orozco’s remaining in custody after having completed the two-year term of his initial commitment due to the pendency of the two recommitment petitions.
What would have been the first two-year term of recommitment expired on May 13, 2003. Meanwhile, Orozco remains in custody pursuant to a finding of probable cause on the first recommitment petition, awaiting trial on said petition, even though he already has completed what would have been the entire two-year term of that recommitment.
Consequently, the trial court will be in the surreal position of conducting a trial on the first recommitment petition after the expiration of what would have been that term of recommitment. What if the jury ultimately determines at the trial on the first recommitment petition that Orozco was not a sexually violent predator? By that time, said recommitment term already would have expired.
To prevent these peculiar circumstances from recurring, these aspects of the statutory scheme need clarification to impose timetables for conducting the probable cause hearing on a recommitment petition and for the subsequent recommitment trial.
A petition for a rehearing was denied April 28, 2004, and petitioner‘s petition for review by the Supreme Court was denied June 30, 2004. Kennard, J., was of the opinion that the petition should be granted.