THE PEOPLE, Plaintiff and Respondent, v. WILLIAM KARL OLSEN, Defendant and Appellant.
No. H039814
Sixth Dist.
Sept. 12, 2014
229 Cal.App.4th 980
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
BAMATTRE-MANOUKIAN, Acting P. J.—
I. INTRODUCTION
Defendant William Karl Olsen was committed for an indeterminate term to the State Department of Mental Health (now, State Department of State Hospitals; hereafter the Department) after a jury determined defendant to be a sexually violent predator within the meaning of the Sexually Violent Predator Act (SVPA). (
Defendant appealed from the judgment, contending that the indeterminate term of commitment violated equal protection, due process, and the ex post facto and double jeopardy clauses. This court reversed the judgment and remanded the matter to the trial court for the limited purpose of reconsidering defendant‘s equal protection argument in light of People v. McKee (2010) 47 Cal.4th 1172 [104 Cal.Rptr.3d 427, 223 P.3d 566] (McKee I) and the resolution of the proceedings on remand in that case. (People v. Olsen (Sept. 11, 2012, H036654) [nonpub. opn.] (Olsen).)
After remand proceedings were concluded in People v. McKee (2012) 207 Cal.App.4th 1325 [144 Cal.Rptr.3d 308] (McKee II), the trial court again ordered defendant committed to the Department for an indeterminate term under the SVPA. Defendant appealed and this court affirmed the judgment. (People v. Olsen (Nov. 26, 2013, H039298) [nonpub. opn.].)
In the present appeal, defendant challenges the trial court‘s June 21, 2013 order denying defendant‘s petition for conditional release under
A. Criminal Offenses
“In 1972, Olsen used a handgun to abduct a 27-year-old woman in her car. After a struggle, Olsen got out of the car and left. There was no indication that a sexual offense had occurred and Olsen was convicted of ‘grand theft of a person.’ He served a jail sentence and was placed on probation.
“The next incident took place in July 1973, when Olsen picked up two teenage girls, M. and T., who were hitchhiking. After taking the girls to an isolated area where his truck got stuck in the dirt, Olsen had them stand on the truck bed to gain traction. He then pushed T. down a 75-foot ravine and hogtied M. After finding T. and threatening her with a knife, Olsen saw that T. was bleeding profusely. He untied M. and together they brought T. back up to the truck. When the girls asked Olsen why he was doing this, he said he intended to rape them. Olsen did not rape the girls and instead took them home.
“In August 1973, Olsen picked up a[] 19-year-old hitchhiker, M.L., and took her to an isolated area. When Olsen took out a rope, M.L. pleaded with him not to tie her up. Olsen then ripped off M.L.‘s blouse and M.L. said she would do what he wanted her to do. After placing M.L. on the truck bed and raping her, Olsen apologized. M.L. asked him to take her to the hospital because she recently had surgery following a miscarriage. Olsen took M.L. to the hospital and checked himself into the psychiatric unit next door.
“Olsen was incarcerated in 1974 and paroled in 1978. He was discharged from parole in 1979 and committed his next sexual offenses in 1980. C., a 16-year-old girl, was picked up by Olsen in January 1980 while she was hitchhiking and taken to Stevens Creek Dam. After arriving, Olsen, who had [a] knife, hit C. below the eye and tied her up with rope. Olsen then took C. to another location in the mountains. There, Olsen put a rope around C.‘s neck and walked her up a trail to a desolate location, where he orally copulated C., sat on her, untied her, and forced her to orally copulate him. Olsen also sodomized C. and raped her. He then apologized and took C. home.
“The next incident occurred in June 1980 and involved S.P., age 19. Olsen picked S.P. up while she was hitchhiking. He put his knife to her throat and cut her slightly, and also orally copulated her. Next, Olsen took S.P. to an
“The last incident occurred on July 9, 1980, about one month after the incident involving S.P. K. was a 17-year-old beauty college student who met Olsen when he used a pay phone after she used it during her lunch hour. Later that day, Olsen called K. over to his car when she came out of the beauty college. Olsen then pulled K. into his car by holding a knife to her throat. Olsen had pictures of K. in his car and threatened to kill her.
“After getting K. into his car, Olsen tied a rope painfully tight around her neck and gagged her with a cloth and shoestrings. Olsen then drove K. to an isolated area in the hills. On the way, Olsen undressed K. and fondled her. After arriving, Olsen tied K. to a log with ropes attached to her wrists, legs, and neck. He then hit K. in the buttocks with a stick, causing bruises, and sodomized and raped her. After finishing the assault, Olsen was pleasant and talkative with K. He also showed her how to shoot his BB gun. But when K. made the comment, ‘well, everyone needs friends,’ Olsen became very angry and violent. He pushed K. down, sodomized her again, bit her neck, and hit her on the buttocks with his BB gun, breaking it.
“Following the 1980 offenses, Olsen pleaded guilty to the sodomy and oral copulation of C. and the sodomy and rape of K. He has been in custody since 1980.” (Olsen, supra, H036654.)
B. Commitment Proceedings Under the SVPA
“On September 26, 2008, the People filed an amended petition to extend Olsen‘s commitment as a sexually violent predator under the SVPA. The petition stated that on October 5, 2000, Olsen was committed as a sexually violent predator to [the Department] for two years, and since that date he ‘has been consistently committed to a new term as a [s]exually [v]iolent [p]redator.’ [Fn. omitted.] The People asserted that Olsen ‘continues to meet the criteria for commitment as a sexually violent predator in that he continues to have a current diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior in the future.’
“After a probable cause hearing was held, the trial court issued its July 2, 2010 order finding that there was probable cause to believe that (1) Olsen had been convicted of a qualifying sexually violent offense against at least one victim; (2) he has a diagnosable mental disorder; (3) the disorder makes it
“On February 18, 2011, the jury rendered its verdict finding the petition alleging that Olsen was a sexually violent predator within the meaning of section 6600 to be true. On February 22, 2011, the trial court issued its order committing Olsen to the custody of [the Department] for an indeterminate term for appropriate treatment and confinement in a secure facility, pursuant to section 6604. The order further states that it is ‘subject to a hearing consistent with [McKee I, supra, 47 Cal.4th 1172].‘” (Olsen, supra, H036654.)
On appeal from the February 2011 order, defendant argued, among other things, that the “indeterminate commitment under the SVPA violates his constitutional right to equal protection” and “the SVPA violates his due process rights and the ex post facto and double jeopardy clauses and the Eighth and Fourteenth Amendments of the federal constitution.” (Olsen, supra, H036654.) This court reversed the judgment and remanded the case to the trial court “for the limited purpose of reconsidering [defendant‘s] equal protection argument in light of [McKee I], and the resolution of the proceedings on remand in that case (id. at pp. 1208-1211).” (Olsen, supra, H036654.) This court further ordered the trial court to “suspend further proceedings in this case pending finality of the proceedings on remand in McKee [I]. ‘Finality of the proceedings’ shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court.” (Olsen, supra, H036654.)
On January 25, 2013, after the California Supreme Court denied review of McKee II, the trial court again ordered defendant committed to the Department for an indeterminate term under the SVPA. Defendant appealed the order on the ground, among other things, that commitment for an indeterminate term violated the equal protection clause. This court affirmed the judgment. (Olsen, supra, H039298.)
C. Annual Report
On February 11, 2013, the Department‘s medical director filed an annual report regarding defendant in superior court pursuant to former
The 2013 annual report was prepared by senior psychologist supervisor S.J. Van de Putte, Ph.D., and dated January 23, 2013. Noting that defendant is a “transgendered male,” Dr. Van de Putte stated that for purposes of the annual report, defendant would be “referred to by female pronouns.” Dr. Van de Putte concluded that “Ms. Olsen‘s mental condition HAS NOT changed such that she no longer meets the definition of Sexually Violent Predator. As a result of a mental disorder, Ms. Olsen remains a danger to the health and safety of others in that she is likely to engage in sexually violent predatory criminal behavior in the future. The best interest of Ms. Olsen and adequate protection for the community cannot be assured in a less restrictive treatment setting at this time.”
D. Section 6608 Petition for Conditional Release
On May 24, 2013, defendant filed a petition for conditional release pursuant to former
In the petition for conditional release, defendant asserted that defendant‘s “condition has so changed that [defendant] will not be a danger to others due to [defendant‘s] previously diagnosed mental disorder if unconditionally discharged into the community.” In support of the petition, defendant attached the April 15, 2013 “Recommitment Clinical Evaluation” prepared by psychologist James J. Park, Ph.D. Dr. Park concluded that defendant “is NOT likely to engage in sexually violent predatory criminal behavior as a result of a diagnosed mental disorder without appropriate treatment in custody. Her risk to the community is low at this time. . . . [I]t is my professional opinion, based on objective, scientifically reliable data, that [defendant] does not meet criteria as a sexually violent predator as described in Section 6600. . . .”
On May 29, 2013, the People filed a response to defendant‘s petition for conditional release under
In his 2010 evaluation, Dr. Park concluded that defendant “is NOT likely to engage in sexually violent predatory criminal behavior as a result of a diagnosed mental disorder without appropriate treatment in custody. Her risk to the community is low at this time. She knows what she needs to do to maintain her sobriety and her relapse prevention plan is very realistic, as well as grounded to continue outpatient therapy and use those around [her] who are aware of her past behaviors to keep her in line by her sharing what her needs are appropriately. . . . [I]t is my professional opinion, based on data, that [defendant] does not meet criteria as a sexually violent predator as described in Section 6600. . . .”
The People further argued that “next to nothing has changed since the 2011 jury trial that would justify release, conditional or otherwise. Dr. Park‘s opinion then, as now, appears to be that [defendant] suffers from no mental disorder and is not at risk to reoffend. . . . This petition is nothing more than a request to relitigate the same issues presented in the 2011 trial. . . . It is simply not possible that any court could find facts in this petition upon which to find that Mr. Olsen‘s condition has so changed as to warrant even a hearing.”
F. The Trial Court‘s Order
On June 21, 2013, the trial court held a hearing on defendant‘s petition for conditional release at which both defense counsel and the prosecutor appeared and argued. On the same day, June 21, 2013, the trial court issued its order denying defendant‘s
Before addressing the merits of the petition, the court stated in its order that the
Relying on the decisions in People v. Smith (2013) 216 Cal.App.4th 947 [157 Cal.Rptr.3d 208] (Smith II) and People v. Smith (2013) 212 Cal.App.4th 1394 [152 Cal.Rptr.3d 142] (Smith I), the trial court compared Dr. Park‘s 2010 and 2013 evaluations of defendant. The court found that Dr. Park had “reveal[ed] his advocacy” and also found there were only minor differences between the two evaluations. The court also reviewed the January 23, 2013 annual report, noting in particular Dr. Van de Putte‘s statements that defendant had repeatedly refused to participate in either the sex offender treatment program or substance abuse treatment and that defendant was “‘continuing her work to gain release through legal means.‘”
The trial court concluded that the petition was frivolous because, although it was a “close call,” “the petition falls short in comparison with the supporting information in Smith II.” (Underscoring omitted.)
Defendant filed a timely notice of appeal from the June 21, 2013 order.
III. DISCUSSION
On appeal, defendant contends that the June 21, 2013 order denying the
A. The SVPA
The SVPA provides for the involuntary civil commitment, for treatment and confinement, of an individual who is found by a unanimous jury verdict (§ 6603, subds. (e), (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent predator” (ibid.). The definition of “sexually violent predator” is set forth in
The SVPA was amended twice in 2006. Prior to those amendments, an individual determined to be a sexually violent predator was committed to the
On September 20, 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) was signed into law and amended the SVPA effective immediately. (
Less than two months later, voters approved Proposition 83, which amended the SVPA effective November 8, 2006. (See
B. Conditional Release Under the SVPA
At the time defendant filed the petition for conditional release in 2013, the SVPA “specifie[d] two different procedures, in sections 6605 and 6608, for determining whether the mental condition of a person committed as an SVP has improved sufficiently to entitle the person to either conditional release in a community-based facility or unconditional release.” (Smith I, supra, 212 Cal.App.4th at p. 1399.)
Former
Where the Department does not authorize the committed person to apply for conditional release,
1. Threshold Determination of Frivolousness
After the
The SVPA does not include a statutory definition of “frivolous grounds.”4 The California Supreme Court, employing the definition for a frivolous appeal established in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 [183 Cal.Rptr. 508, 646 P.2d 179] (Flaherty), has instructed that a petition that is frivolous within the meaning of
If the trial court summarily denies the petition for conditional release as based upon frivolous grounds, the committed person may seek appellate review of the denial order. (See, e.g., Smith II, supra, 216 Cal.App.4th at pp. 949-950; Collins, supra, 110 Cal.App.4th at pp. 345-346; see also McKee I, supra, 47 Cal.4th at p. 1192, fn. 6 [“nothing we say here precludes an individual from challenging an erroneous judicial determination that a petition is frivolous“].)
The trial court has abused its discretion if appellate review shows that the petition is not based upon frivolous grounds. (Collins, supra, 110 Cal.App.4th at p. 349; see People v. Reynolds, supra, 181 Cal.App.4th at p. 1408 (Reynolds) [abuse of discretion standard applies to review of order denying petition for unconditional release as frivolous]; but see Smith II, supra, 216 Cal.App.4th at p. 953 [applying substantial evidence standard of review to finding that petition is totally and completely without merit].)
2. Evidentiary Hearing
Where the trial court determines that the petition for conditional release is not frivolous,
The current version of
Defendant argues that the trial court erred in determining that the
Defendant also argues that the trial court improperly considered evidence submitted by the People in their response to defendant‘s
Defendant therefore contends that the trial court determines whether the petition for conditional release has been presented on nonfrivolous grounds by reviewing only the face of the petition and its supporting attachments. Since the trial court based its denial of defendant‘s petition for conditional release on the court‘s comparison of Dr. Park‘s 2013 evaluation, which was attached to the petition, and Dr. Park‘s 2010 evaluation, which was attached to the People‘s response, defendant contends that the court failed “to evaluate [the] issue before the court: the facial adequacy of the petition to state a basis for relief.” Defendant further contends that the petition is not frivolous because it alleges facts that would justify conditional release.
According to the People, the trial court did not abuse its discretion in denying defendant‘s petition for conditional release as frivolous. They contend that the trial court is not limited to reviewing only the petition and its supporting documents in determining whether a petition for conditional release is frivolous, since that would improperly bar the court from considering the Department‘s annual report. The People assert that “[i]n instances where a petitioner‘s statements could be factually disputed or omissions could be brought to light, the better approach is to allow the court to consider such information before going forward with a hearing.”
The People also argue that the trial court properly determined that defendant‘s petition was frivolous because it was supported only by Dr. Park‘s 2013 evaluation, which did not provide any evidence to show that defendant‘s “circumstances had changed since [the] 2010 jury trial such that [defendant] no longer posed a danger to the community if conditionally released.”
We agree with defendant that the trial court did not apply the correct standard in determining whether a petition for conditional release is frivolous under
As we have discussed, the statutory scheme for conditional release under the SVPA has two steps where, as here, the committed person has filed a petition for conditional release without Department authorization. First, the trial court makes a threshold determination as to whether the petition for conditional release is based upon frivolous grounds because any reasonable attorney would agree that the petition is totally and completely without merit. (§ 6608, subd. (a); see McKee I, supra, 47 Cal.4th at p. 1192; Flaherty, supra, 31 Cal.3d at p. 650.)
To make this threshold determination, the trial court reviews the petition and any supporting attachments to determine “if the defendant‘s position has some merit on the issue of whether he or she may qualify for conditional release.” (McKee I, supra, 47 Cal.4th at p. 1192, fn. 6.) A petition for conditional release is not based on frivolous grounds if the defendant has made a showing that he or she “would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community.” (§ 6608, subd. (e); see Smith II, supra, 216 Cal.App.4th at p. 951.)
We are not convinced by defendant‘s argument that the trial court‘s threshold determination of frivolousness is limited to the face of the petition for conditional release and its supporting attachments, since
In Collins the appellate court also determined that the trial court had erred in denying a petition for conditional release under
We are also not convinced by defendant‘s contention that the People may not appear or oppose the petition for conditional release prior to the evidentiary hearing authorized by
Moreover, we believe that the trial court has the inherent authority to allow the People to appear and to consider the People‘s response to the petition. It is “well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. [Citation.]” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th
If the People respond to the petition for conditional release at the time the trial court makes its threshold determination of whether the petition is frivolous, the court‘s consideration of the People‘s response should not result in an evidentiary hearing on the issue of frivolousness. The trial court conducts an evidentiary hearing on the petition for conditional release only if the court has previously determined that the petition for conditional release is not frivolous. (§ 6608, subds. (b), (e).) During this second step of the process, the trial court makes a factual determination on the basis of the evidentiary hearing as to whether the defendant qualifies for conditional release because he or she “would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community.” (§ 6608, subd. (e); see People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1504 [52 Cal.Rptr.3d 598] [construing former § 6608, subd. (d).]
Thus,
In the present case, the record reflects that the trial court reviewed defendant‘s petition for conditional release, the Department‘s 2013 annual report, the People‘s response to the petition, the psychological evaluations submitted by the parties, and heard argument from the parties’ attorneys. In its order denying the petition, the trial court compared Dr. Park‘s 2010 and 2013 evaluations, and found that the petition was frivolous because defendant‘s evidentiary showing was inadequate in comparison to the evidentiary showing made in support of the petition for conditional release at issue in Smith II, supra, 216 Cal.App.4th 947. The court stated that although it was a “close call,” “the petition falls short in comparison with the supporting information in Smith II.” (Underscoring omitted.)
On this record, we find that the trial court did not apply the correct standard in making the threshold determination of whether defendant‘s
We recognize that the trial court indicated in its June 21, 2013 order denying defendant‘s petition for conditional release that the court lacked guidance with respect to the proper standard for the threshold determination of frivolousness. Among other things, the court stated, “What are the boundaries the court can consider in making the ‘frivolous’ assessment? Can the court consider the context of the case? I.e., the law of the case? The unpublished affirmance of the finding of True by the Jury that [defendant] is an SVP.”
Since we have outlined the appropriate standard for the trial court‘s threshold determination of whether a petition for conditional release is based upon frivolous grounds within the meaning of
If the court determines that the petition is not frivolous, the court shall proceed to an evidentiary hearing as to whether defendant qualifies for conditional release because he or she “would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community.” (§ 6608, subd. (e).)
Having reached this conclusion, we need not address defendant‘s alternate contention that summary denial of a petition for conditional release is unconstitutional because it violates the equal protection and due process clauses.
The June 21, 2013 order denying the petition for conditional release is reversed. The matter is remanded for reconsideration of whether the petition for conditional release should be summarily denied because it is based upon frivolous grounds within the meaning of
Márquez, J., and Grover, J., concurred.