THE PEOPLE, Plaintiff and Appellant, v. DERRICK MORRISON, Defendant and Respondent.
B291804 (Los Angeles County Super. Ct. No. ZM038715)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Filed 4/30/19
CERTIFIED FOR PUBLICATION
APPEAL from an Order of the Superior Court of Los Angeles County. Roberto Longoria, Judge. Reversed.
Jackie Lacey, Los Angeles County District Attorney,
Ricardo D. Garcia, Los Angeles County Public Defender, Albert J. Measter, Head Deputy Public Defender, Alvin Thomas, Deputy Public Defender, Lara Kislinger, Deputy Public Defender, for Respondent.
Near the end of his term of confinement, prison authorities identified Respondent Derrick Morrison as a potential sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act (
Morrison had been convicted of kidnapping and raping a fourteen-year-old girl, and forcing her to orally copulate him. While in prison for those crimes, Morrison repeatedly engaged in sexual misconduct and threatening sexualized behavior toward female prison medical professionals. He also admitted he had uncontrollable urges and was likely to rape again if released.
As part of the SVPA screening process, two psychologists employed by the state evaluated Morrison. Initially they disagreed with one another, with one evaluator saying Morrison met the criteria for commitment as an SVP, and the other opining he did not. Following statutory protocol, authorities then appointed two independent psychologists to evaluate Morrison again. They, too, disagreed with one another, with one expert opining Morrison met the SVP criteria and the other concluding he did not.
Authorities then referred the matter to a peer reviewer, who discovered the initial evaluator who concluded Morrison was not an SVP had failed to
The trial court dismissed the petition, however, agreeing with Morrison‘s contention that the statute required dismissal because
We reverse. Three of four experts concluded Morrison is an SVP. Morrison confided to a psychologist that, if released, he would rape again. Releasing him without submitting the issue to a jury would be an absurd result, frustrating the statutory purposes of protecting the public and providing treatment to sexually violent offenders. (See Stats.1995, ch. 763, § 1.) We conclude the statute required the Director of the Department of State Hospitals (DSH) to request the District Attorney to file a civil commitment petition, and therefore dismissal was unwarranted.
STATUTORY FRAMEWORK.
The SVPA took effect on January 1, 1996 and provides for the involuntary civil commitment of SVPs upon completion of their prison terms. (
The SVPA targets individuals presently in prison for any offense, or after a parole revocation, who have been convicted of a sexually violent offense—as defined by statute—against one or more victims, and who currently have “a
If the screening indicates the offender is a potential SVP, he or she is referred for evaluation by two psychologists or psychiatrists. (
If, under
At trial, the alleged SVP is entitled to the assistance of counsel, 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. (
Pursuant to Proposition 83, passed by the voters in 2006, a person committed under the SVPA is committed for an indefinite term until he or she can establish by a preponderance of the evidence that he or she is no longer an SVP. (People v. McKee (2010) 47 Cal.4th 1172, 1186-1188.)
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 1998, Morrison was convicted of violating
Morrison was due to be released from prison on September 23, 2017. CDCR conducted an initial evaluation in December 2016 and concluded Morrison met initial screening criteria to be evaluated as an SVP. In April 2017, DSH conducted a clinical review and recommended further evaluation of Morrison.
Pursuant to
The two psychologists initially disagreed whether Morrison met the SVP criteria: Dr. Jeko believed he did not, while Dr. Parecki believed he did.
Subsequently, as a result of this split of opinion, the matter was referred for additional evaluation by two independent psychologists under
Due to the split in opinions, DSH submitted all four evaluations for peer review before certification of the reports. Certification is the process by which DSH indicates the reports are ready either to be sent to the appropriate county to petition for commitment, or used to authorize closure of the case if there is no referral to a county District Attorney or County Counsel. DSH permits evaluators to alter their reports prior to certification.
Pursuant to the peer review process, the peer reviewer contacted Drs. Jeko and Alumbaugh to address DSH‘s comments regarding their reports. Dr. Alumbaugh responded and confirmed her opinion remained the same. But Dr. Jeko requested additional information regarding Morrison‘s history in response to the peer reviewer‘s observation that there were more CDCR 115 Rule reports (which document rule violations by prisoners) than Dr. Jeko noted in her report.
After reviewing the additional information, Dr. Jeko revised her evaluation to conclude Morrison is an SVP. The complete record revealed Morrison had close to 30 separate 115 Rule violations dating from 2002 to September 2016. These included repeated episodes of indecent exposure and/or masturbation in front of female nurses, physicians, and psychologists. For example, Morrison confronted a female psychologist in her office and exposed himself, masturbated during a session with a female physician, and masturbated and exposed himself through his cell door to another female psychologist. At least one female psychologist felt “very uncomfortable and quite threatened” by Morrison‘s misconduct. Morrison told a psychologist he had uncontrollable urges and, if released, he would rape again. Dr. Jeko diagnosed Morrison with Unspecified Paraphilia Disorder, Exhibitionist Disorder, and Antisocial Personality Disorder. Dr. Jeko‘s initial report was based on a significantly smaller and less detailed list of 115 Rule violations and did not reflect the extent and depth of Morrison‘s misconduct in prison.
On September 19, 2017, the District Attorney filed a petition to commit Morrison as an SVP pursuant to
Morrison then filed a motion to dismiss the petition, contending it did not comply with
At the hearing on the motion to dismiss, Morrison argued the plain language of
The court later heard additional argument. The District Attorney argued the court should not disregard the state‘s compelling interest in protecting the public from SVPs, and Morrison could not show his rights under the SVPA were in any way impaired. Morrison argued the statute unambiguously precludes filing of the petition in this case, and it was silent on quality assurance protocols.
The court observed, “the People . . . are asking this court to not only ignore the plain statutory language [of section] 6601(d), but to rewrite it to permit an original evaluator‘s report that changes from a negative to a positive to be substituted in when nothing in the construction of the statute in its language [sic] provides for this.” The court granted the motion to dismiss and this appeal followed. On August 29, 2018, we granted the People‘s petition for writ of supersedeas and stayed the matter pending appeal.
I. STANDARD OF REVIEW AND PRINCIPLES OF STATUTORY INTERPRETATION.
“We review de novo questions of statutory construction. In doing so, ’ “our fundamental task is to ‘ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ ” ’ [Citation.]” (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) “We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616 (City of San Jose).) We give words their usual, ordinary meanings. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.) “Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose.” (City of San Jose, supra, 2 Cal.5th at pp. 616-617.)
If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute‘s purpose, legislative history, and public policy. (City of San Jose, supra, 2 Cal.5th at pp. 616-617.) “We must . . . give [an ambiguous provision] a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers . . . which upon application will result in wise policy rather than mischief or absurdity.” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567, internal quotation marks omitted.)
Here, the Legislature included an express statement of its purpose and intent in an uncodified section of the statute, emphasizing a desire to protect the public from sexually violent predators, and to secure treatment for SVP‘s:
“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.” (Stats.1995, ch. 763, § 1.)
II. THE SVPA REQUIRES THE FILING OF A COMMITMENT PETITION WHEN BOTH INITIAL EVALUATORS CONCUR, EVEN IF THEY DO SO AFTER INITIAL DISAGREEMENT.
Morrison asserts the statutory language of subdivisions (d), (e) and (f) creates a decision tree providing for evaluations to take place in a specific order such that once a set of “independent” evaluations under subdivision (f) is conducted, those evaluations take precedence over earlier evaluations under subdivision (d). Under Morrison‘s view, the statute prohibits any reliance on the original evaluators once the independent set of evaluations is completed. Morrison bases his interpretation upon the language of subdivision (f) stating “[i]f an examination by independent professionals … is conducted, a petition to request commitment under this article shall only be filed if both independent professionals . . . concur” the person is an SVP.
Morrison misreads the statute. Subdivision (d) states, in relevant part, “If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of State Hospitals shall forward a request for a petition for commitment under Section 6602 to the county . . . .” (Emphasis added.) By using the word “shall” in subdivision (d), the Legislature required the Director of State Hospitals to forward a request for filing a petition if—as was the case here—both initial evaluators agree the subject meets the SVP criteria. The statute does not make an exception for the situation in this case: a concurrence among the original evaluators, coming after the peer review process, and after independent evaluators had completed their evaluations. Once Dr. Jeko revised her evaluation, the Director had a mandatory obligation to forward the request for filing, and the Director complied.
Subdivision (f) can be reconciled easily with the clear mandatory duty created in subdivision (d). If the two initial evaluators under subdivision (d) ultimately agree the person meets the SVP criteria, the request for filing must (“shall“) be forwarded to the relevant county. If, as happened here, the initial evaluators do not immediately agree, evaluations may also be conducted under subdivision (f). If the independent evaluators both agree, the Director may forward a request for filing based on the independent evaluations. He or she may not do so under subdivision (f) if the independent evaluators do not concur. (See
So understood, the filing of the petition here was in full compliance with the procedures of
Morrison assails DSH‘s use of a peer review process in connection with its screening of possible SVPs, but we conclude the use of that process is consistent with the statute‘s preference for accurate evaluations and its explicit directive to “conduct a full evaluation.” (
Obviously, the protocol of
As revealed by this case, the peer review serves the purpose of the SVP protocol, because it enhances the reliability of the evaluations by ensuring completeness and adherence to professional standards. Indeed, the peer review can work to the offender‘s benefit if it reveals positive information that an original evaluator neglected to consider. The statute ought not to be construed to put the public at risk or to deny release to a person being screened, based on an initial incomplete evaluation, and nothing in the statute precludes an initial evaluator from changing an opinion when the peer reviewer calls to his or her attention additional relevant information warranting a reevaluation.5
Permitting peer review of evaluations before filing the petition is consistent with the preliminary role evaluations play in the SVP commitment scheme. It is not in the pre-filing administrative process, but at trial that the critical SVP determination is made. (See People v. Superior Court (2001) 87 Cal.App.4th 1122, 1130 (Preciado).) “After the petition is filed, rather than demonstrating the existence of the two evaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior. [Citation.]” (Ibid.)
In Reilly, supra, 57 Cal. 4th 641, 655, our Supreme Court clarified that SVP petitions should not be dismissed based on errors in the administrative assessment process, absent a showing of material error, and even then the remedy may be reevaluation rather than dismissal. “Indeed, if an alleged SVP can demonstrate that a material error occurred in the evaluative process, for purposes of
Where, as here, the evaluators under
CONCLUSION
We discern no error in the pre-petition process and reverse the order dismissing the petition.
CERTIFIED FOR PUBLICATION
CURREY, J.
We Concur:
WILLHITE, Acting P.J.
COLLINS, J.