Moore v. Super. Ct. - 50 Cal. 4th 802, 237 P.3d 530, 114 Cal. Rptr. 3d 199 S174633 - Thu, 08/19/2010

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Citation 50 Cal. 4th 802, 237 P.3d 530, 114 Cal. Rptr. 3d 199

Moore v. Super. Ct.

Filed 8/19/10

IN THE SUPREME COURT OF CALIFORNIA

ARDELL MOORE,

Petitioner,

S174633

v.

Ct.App. 2/3 B198550

THE SUPERIOR COURT OF

LOS ANGELES COUNTY,

Los Angeles County

Respondent;

Super. Ct. No. ZM008445

THE PEOPLE,

Real Party in Interest.

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.)1 Such commitment involved

confinement and treatment in a secure hospital setting.

1

All further statutory references are to the Welfare and Institutions Code

except as otherwise stated.

1

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) 44 Cal.4th 843 (Allen), which recognized the due process right of

an alleged SVP to testify over counsel‟s objection at his commitment trial.

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.

Here, however, we confront a wholly different situation, which is likely to

arise in countless other cases. Defendant insists that the diagnosed mental

disorders that allegedly make him a sexually dangerous predator also impair his

mental competence to stand trial, and that the state therefore cannot try or commit

him as an SVP unless or until his competence is restored. Thus, unlike in Allen,

2

recognition of the due process right claimed here could prevent an SVP

determination from being made at all. Such a scenario, which could often recur,

would undermine the purpose and operation of the Act. The State could not

confine and treat some of its most dangerous sex offenders under conditions

targeting their disorders, and public safety could suffer as a result. For these

reasons, courts in other states with similar statutes have uniformly held that due

process does not prevent the trial and commitment of SVP‟s while mentally

incompetent. The same approach is followed under at least one other civil

commitment scheme in this state. We therefore reverse the Court of Appeal.

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.2

2

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.

3

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. The victim screamed and

managed to flee when someone interrupted the attack. Defendant served a three-

year prison term and was paroled in 1981.3

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.4

3

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.

4

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.

4

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).

Both experts diagnosed defendant with a multidimensional mental disorder

under the “DSM-IV-TR.”5 First, he suffers from paraphilia, involving intense and

recurrent sexual fantasies, urges, or acts against nonconsenting persons. Dr.

Sreenivasan explained that the condition has spanned defendant‟s adulthood and

has involved sadistic tendencies. Dr. Finnberg concurred, and found evidence of

exhibitionism due to defendant‟s indecent exposure and masturbation in custody.

5

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).

5

Second, the experts tendered a diagnosis of schizoaffective disorder with bipolar

and psychotic components. Symptoms included paranoid and persecutory

thoughts (e.g., people wanting to hurt or annoy him), delusions (e.g., his victims

sexually tempting him), hypomania (e.g., pressurized and rambling speech, and

tangential thought processes), and florid psychosis (e.g., auditory hallucinations).

Third, both evaluators diagnosed defendant with antisocial personality disorder,

manifested by his persistent disregard of societal norms and the rights of others.

Dr. Finnberg noted that defendant has shown no remorse or empathy, and has

denied committing any crimes or sexual misdeeds.6

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.

6

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 was released.

6

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 higher. Many

factors contributed to his risk of reoffense (e.g., nature and severity of psychiatric

disorders, nonparticipation in treatment, willingness to blame his victims, refusal

to show remorse or admit wrongdoing, and continued sexual misconduct in a

structured setting). No mitigating factors were found. Dr. Sreenivasan observed

that defendant indulges his sexual urges “when he wants and how he wants,” and

remains “undeterred” by any criminal or civil sanction.

On March 8, 2005, the People petitioned to extend defendant‟s commitment

under the SVPA.7 The petition alleged that defendant had been convicted of three

sexually violent offenses in two different cases (forcible oral copulation, rape, and

rape in concert), that he suffers from a diagnosed mental disorder, and that he is

dangerous and likely to reoffend without proper treatment and custody. The DMH

7

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.) 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.) 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) 47
Cal.4th 1172, 1186-1187; Allen, supra, 44 Cal.4th 843, 849, fn. 4, 858-859 & fns.
10-13.)

7

evaluations supporting these allegations were cited in the petition and apparently

attached thereto. Other supporting documents sought an arraignment and probable

cause hearing, and asked that defendant, whose commitment expired on May 7,

2005, be held in a secure facility until the petition was resolved.

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) 2 Cal.3d 118. According

to a minute order issued on June 23, 2005, defendant appeared in court, and the

Marsden motion was argued and denied.

On August 18, 2005, the trial court held a hearing to determine whether

there was probable cause to believe that defendant was likely to engage in sexually

violent predatory criminal acts if released. The People called Drs. Sreenivasan

and Finnberg to testify in this regard. Consistent with their written evaluations,

which were admitted into evidence, both witnesses described defendant‟s sexually

violent offenses, his diagnosed mental disorders, and his high risk of reoffense.

The trial court found probable cause to hold defendant to answer on the allegations

of the petition, and ordered him confined at Atascadero until trial was complete.

A pretrial hearing was set for November 16, 2005. However, for reasons that are

not clear from the record, the matter was continued to long after that date.

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

8

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) 505

U.S. 437, 439 (Medina) [U. S. Const. prohibits criminal prosecution of person who

is incompetent to stand trial].) He urged the court to “improvise” and create

appropriate competence procedures for alleged SVP‟s.

Attached to the motion was a letter from a psychologist, Vianne Castellano,

Ph.D., to defense counsel, dated January 12, 2007.8 Based on interviews held

shortly before that date, Dr. Castellano found that defendant was not competent to

participate in the “upcoming hearing.” She opined that he could not understand

the nature and purpose of the proceedings, or cooperate in a rational manner with

counsel or mental health experts. A “possible diagnosis” was bipolar disorder

with depressive and hypomanic episodes (recurrent and severe), and with

psychotic features. Dr. Castellano emphasized defendant‟s “fixed and pervasive

delusional system.” Symptoms included mood swings accompanied by paranoid

and persecutory thoughts, auditory hallucinations, tangential thought processes,

8

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.

9

and pressurized and confused speech. In Dr. Castellano‟s view, defendant seemed

anxious, and possessed a superficial awareness of events.

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 (Mass. 2006) 846 N.E.2d 379, 385-386 (Nieves).9

9

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].)

10

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

decision in Allen, supra, 44 Cal.4th 843, which was then pending before this court.

Allen was decided on July 28, 2008. On June 4, 2009, after vacating submission

two more times, the Court of Appeal filed its decision granting writ relief.

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, 44 Cal.4th 843, after balancing the interests at

stake in that case, held that an SVP defendant has a federal and state due process

right to testify and to present his story at trial, even where counsel objects.

Concerned that a mentally incompetent SVP cannot participate meaningfully in his

own defense, the Court of Appeal concluded that the constitutional balance

favored defendant in this case, as follows: “(1) the liberty interest at stake in an

SVPA proceeding is significant; (2) proceeding with an SVPA trial against an

incompetent defendant poses an unacceptable risk of an erroneous deprivation of

liberty; (3) the governmental interest in protecting its citizens and treating [SVP‟s]

is not significantly burdened by providing for a competency determination in the

11

SVPA context; and (4) the defendant‟s dignitary interest in presenting his side of

the story is protected by ensuring the defendant is competent to stand trial.”

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: “[O]n 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 Cal.4th 1138,

1143-1144 (Hubbart).) The Act confines and treats such persons until their

dangerous disorders recede and they no longer pose a societal threat. SVP trials

are “ „special proceedings of a civil nature,‟ ” wholly unrelated to any criminal

case. (People v. Yartz (2005) 37 Cal.4th 529, 535.) They are not punitive in

purpose or effect. (Hubbart, supra, at pp. 1144 & fn. 5, 1170-1179.)

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.”

12

(People v. Hurtado (2002) 28 Cal.4th 1179, 1187 (Hurtado).) When defendant‟s

recommitment proceeding began in the trial court, an SVP was defined as

someone 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.” (Former § 6600, subd. (a)(1), as

amended by Stats. 2000, ch. 643, § 1.)10 A “[s]exually violent offense” consists

of certain enumerated crimes committed by “force, violence, duress, menace, fear

of immediate and unlawful bodily injury on the victim or another person, or

threatening to retaliate in the future against the victim or any other person . . . .”

(§ 6600, subd. (b).)

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) 31 Cal.4th 757, 774 [such disorder requires “serious difficulty”

controlling behavior].) We have made clear that a person is predisposed and likely

to reoffend as an SVP if, because of a current mental disorder making it difficult to

restrain sexually violent behavior, he presents “a substantial danger, that is, a

serious and well-founded risk” that he will commit such crimes if released.

(People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922, italics omitted.)

This sexually violent criminal behavior must be “predatory” (Hurtado, supra, 28

Cal.4th 1179, 1186), which includes acts targeting strangers (§ 6600, subd. (e)).

10

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.)

13

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 Department of

Corrections and Rehabilitation screens inmates at least six months before their

scheduled release from prison, and refers those likely to be SVP‟s to the DMH for

full mental evaluations. (§ 6601, subds. (a)(1) & (b).) Where two evaluators

agree that the inmate is an SVP, the Director of Mental Health transmits a request

for a petition for commitment to the county in which the inmate was convicted of

the offense for which he is imprisoned. (§ 6601, subds. (d), (h) & (i).) If the

county‟s SVP counsel (either the district attorney or county counsel, as designated

by the county board of supervisors) concurs with the recommendation, a petition

for commitment is filed in the trial court. (Id., subd. (i).)

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, 19 Cal.4th 1138, 1147,

fn. 11.) The definition excludes most state hospitals by name or description, and

refers to a facility dedicated to the housing and treatment of SVP‟s. (§ 6600.05.)11

11

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

(footnote continued on next page)

14

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 counsel to assist

him or her, and, upon the person‟s request, assist the person in obtaining an expert

or professional person to perform an examination or participate in the trial on the

person‟s behalf.” (§ 6603, subd. (a).) In addition, the trier of fact is required to

determine whether the defendant is an SVP “beyond a reasonable doubt.”

(§ 6604.) Any jury verdict on the issue must be “unanimous.” (§ 6603, subd. (f).)

Regarding evidence admitted at trial, prior crimes play a limited role in the

SVP determination. (Hubbart, supra, 19 Cal.4th 1138, 1145.) “Conviction of one

or more [sexually violent offenses] shall constitute evidence that may support a

(footnote continued from previous page)

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 case 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. [¶] (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.)

15

court or jury determination that a person is a sexually violent predator, but shall

not be the sole basis for the determination.” (§ 6600, subd. (a)(3).) Within certain

limits, documentary evidence may be used to prove relevant circumstances

surrounding such an offense. (Ibid.; see People v. Otto (2001) 26 Cal.4th 200,

210-211 (Otto) [requiring victim hearsay statements to contain special indicia of

reliability where used to establish predicate offenses or support expert opinion].)

To ensure commitment under proper standards, “[j]urors shall be admonished that

they may not find a person a sexually violent predator based on prior offenses

absent relevant evidence of a currently 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)(3).)

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.) 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.) 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

16

exists even where the person resists (id., subds. (a) & (e)),12 and where treatment

has only a low chance of success in the particular case. (Id., subd. (b).)13 The

program must meet “current institutional standards for the treatment of sex

offenders,” and must follow “a structured treatment protocol” developed by the

DMH. (Id., subd. (c).) The outline of the protocol appears in the Act.14

12

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 treatment shall be offered the opportunity to
participate in treatment on at least a monthly basis.” Subdivision (e) of the same
section states: “The department shall meet with each patient who has chosen not
to participate in a specific course of offender treatment during monthly treatment
planning conferences. At these conferences the department shall explain treatment
options available to the patient, offer and re-offer treatment to the patient, seek to
obtain the patient‟s cooperation in the recommended treatment options, and
document these steps in the patient‟s health record. The fact that a patient has
chosen not to participate in treatment in the past shall not establish that the patient
continues to choose not to participate.”

13

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.”

14

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 address treatment
progress and changes with respect to the individual‟s risk of reoffense.”

17

III. DISCUSSION

Criminal defendants have a constitutional right not to be tried while

mentally incompetent. (Medina, supra, 505 U.S. 437, 439; accord, Drope v.

Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson (1966) 383 U.S. 375, 384-

386; People v. Rogers (2006) 39 Cal.4th 826, 846.) However, SVP proceedings

are civil, not criminal, in nature. (Kansas v. Hendricks (1997) 521 U.S. 346, 361-

369; Hubbart, supra, 19 Cal.4th 1138, 1170-1179.) It is well settled that rights

available in criminal trials do not necessarily apply in civil commitment

proceedings. (Allen, supra, 44 Cal.4th at p. 860; see Allen v. Illinois (1986) 478

U.S. 364, 375 [5th Amend. privilege against compulsory self-incrimination does

not apply in SVP proceeding]; Otto, supra, 26 Cal.4th 200, 214 [same as to 6th

Amend. right to confront and cross-examine witnesses].) But because civil

commitment involves a significant restraint on liberty, the defendant in an SVP

proceeding is entitled to certain due process protections. (Allen, supra, 44 Cal.4th

843, 862, citing Foucha v. Louisiana (1992) 504 U.S. 71, 80.)

In determining “what process is due” to a potential civil committee

(Morrissey v. Brewer (1972) 408 U.S. 471, 481), we employ a balancing test.

There are four factors: (1) the private interest that will be affected by the official

action; (2) the risk of an erroneous deprivation of such interest through 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 843, 862-863; see Otto, supra, 26 Cal.4th 200, 210.)

18

In Allen, supra, 44 Cal.4th 843, we held that the defendant in an SVP

recommitment proceeding has the right to testify in his own behalf, even over his

counsel‟s objection. Under the particular circumstances there presented, we

concluded that the private interests advanced by affording such a right outweighed

the minimal fiscal and administrative burden it would impose upon the state.

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 petitioner 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 SVP‟s — an interest

not significantly undermined by allowing a competent defendant to testify over his

counsel‟s objection — would be substantially impeded by recognizing an SVP‟s

19

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.

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, 44 Cal.4th 843, 849.)

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, 44 Cal.4th 843,

850-851.)

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

20

unnecessary and dangerous. Sometimes, he took medication only at low doses and

in exchange for special privileges. (Allen, supra, 44 Cal.4th 843, 851-854.)

In testifying that Allen met the standards for recommitment as an SVP, the

experts made clear they relied not only on 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 diagnosed mental

disorder consisting of paraphilia, psychosis, and antisocial personality disorder.

Because his condition had not materially improved while hospitalized, he was

viewed as posing a continued high risk of offense. (Allen, supra, 44 Cal.4th 843,

852-854.)15 Despite this expert evidence of Allen‟s substantial mental disorders,

Allen made, so far as appears, no claim that his mental state rendered him

incompetent to participate and assist in his SVP trial.

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, 44 Cal.4th 843, 856-857.) The court deferred to counsel. Hence, no

15

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.)

21

testimony by Allen, or by any other defense witness, was introduced. The jury

ultimately found Allen to be an SVP under the Act. (Id. at p. 857.)

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, 44 Cal.4th 843, 848, 863, fn. 14, 870.)

However, our analysis was carefully tailored to the substance of the right being

asserted and the nature of the interests being weighed.

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) 2 Cal.3d 205, 215.) Allen explained that proceedings to commit an

individual as an SVP serve to protect the public and are civil in nature. Hence,

various constitutional rights afforded to defendants in criminal trials simply do not

apply in this context. (Allen, supra, 44 Cal.4th 843, 860.) However, because

commitment under the Act involves significant restrictions on liberty, Allen

assessed the claimed right to testify in due process terms. The four-part balancing

test commonly used for this purpose was applied. (Id. at pp. 862-863.)

The first factor concerned “the private interests at stake.” (Allen, supra, 44

Cal.4th 843, 863.) Allen observed that commitment under the Act affects

significant interests, including liberty, reputation, and freedom from unwanted

treatment. These interests, Allen concluded, weighed in favor of adopting all

reasonable procedures to prevent their erroneous deprivation, including a right to

testify where counsel objects.

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, 44 Cal.4th 843, 863.) Allen observed that an

SVP‟s testimony at trial “typically will concern his or her conduct.” (Id. at

22

p. 866.) In other words, a defendant who testifies over counsel‟s objection at trial

would describe the sexually violent offenses of which he was convicted, any

unadjudicated crimes, and any misconduct or other relevant behavior in custody.

Allen explained that such information is relevant to the “ „foundation‟ ” of the SVP

finding insofar as it supports or undermines expert opinion at trial on whether the

defendant is mentally disordered and dangerous. (Id. at p. 866.)

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, 44 Cal.4th 843, 865-866 & fn. 16.)

Nevertheless, Allen observed that attorneys are not infallible in making such

assessments. For this reason, Allen could not eliminate the possibility that a

defendant testifying against counsel‟s advice might “raise a reasonable doubt

concerning the facts underlying the experts‟ opinions.” (Id. at p. 866.)

Guaranteeing a right to testify over counsel‟s objection, even on the narrow range

of issues to which such testimony relates, could conceivably reduce the risk of

error, at least in the latter cases. Hence, Allen viewed this factor as favoring such

a constitutional right to testify.

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, 44 Cal.4th 843, 866.) Allen

highlighted the “strong interest” in protecting the public from SVP‟s, and in

confining and treating them for the mental disorders that predispose them to

reoffend. (Ibid.) Allen theorized that, at least where the defendant‟s testimony

23

materially enhances the facts supporting expert opinion at trial, his participation as

a witness over counsel‟s objection might help secure an accurate SVP finding.

Because such a constitutional right would serve the state‟s interest in identifying

persons requiring commitment under the Act, this factor did not undercut Allen‟s

due process claim.

As to any fiscal and administrative burdens that might arise in such cases,

Allen observed they were “de minimis.” (Allen, supra, 44 Cal.4th 843, 867.)

Allen noted, for instance, that where the defendant testifies over counsel‟s

objection and such testimony proves to be beneficial to his case, the People must

decide whether to present additional evidence in rebuttal. Allen suggested that this

circumstance did not add to the burden that the People already bore in responding

to defendants who testify at SVP trials with counsel‟s consent. Likewise, the

constitutional right claimed by Allen would not lengthen the proceedings or

increase costs except in that “subset of cases” in which the defendant rejects

counsel‟s advice and testifies. (Id. at p. 867.)

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, 44 Cal.4th 843, 868.) Allen reiterated that a defendant

should be allowed to testify no matter how “strategically misguided” his decision

seemed to be. (Id. at p. 869.) In that situation, the state had “no interest” in

treating him merely as a spectator, or in requiring that his story be filtered through

counsel or other witnesses. (Ibid.) Such concerns were found to favor Allen.

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

24

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, 44 Cal.4th 843, 870-875.)

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, 26 Cal.4th 200, 209.) Contrary to what both defendant and the

dissent would have us conclude, Allen, supra, 44 Cal.4th 843, is distinguishable in

material respects. The due process right to testify recognized there, and the

considerations supporting it, are substantially different from those present here.

No issue was raised in the SVP trial itself, or argued or addressed on review, that

Allen was mentally incompetent to stand trial, such that he could not understand

the proceedings or assist in his defense. The People therefore ask that we assess

the relevant due process factors anew, guided by the general principles discussed

in Allen, while considering the special concerns raised by the complete bar to trial

asserted here. We do so now.

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, 44 Cal.4th 843, 869.) Even so, the defendant in an SVP trial is

entitled to a fair and accurate determination of his status as an SVP, under

25

procedures assuring that his liberty and other personal rights are not erroneously

impaired.

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, 44 Cal.4th 843, 866, made clear, the nature

of the issues, evidence, and findings in an SVP proceeding prevents any defendant

from playing much more than a supporting role. His account of his own history

and conduct may supplement the foundation on which experts rely in forming their

opinions. But it is the combined substance of such opinion evidence, including all

the other information on which it is based, that resolves the critical question

whether, “as of the date of the trial, defendant had a mental disorder that made it

likely he would engage in sexually violent criminal behavior.” (Id. at p. 873.)

Thus, any chance that an SVP‟s mental incompetence would significantly impair

his contribution to his defense seems relatively attenuated.

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, 44

Cal.4th 843, 868.) Other heightened statutory requirements, like jury unanimity

26

and the reasonable doubt standard of proof, help mitigate the risk that an

incompetent person would be erroneously adjudicated as an SVP in the first place.

Second, the circumstances underlying the SVP determination are monitored

over time to determine whether a material change has occurred and whether

continued commitment is warranted. Under the current scheme, persons

adjudicated and confined as SVP‟s — including, presumably, those who may have

been incompetent at trial — must have their mental condition examined “at least

once every year.” (§ 6605, subd. (a).) An annual report on whether the person

“currently meets the definition of a sexually violent predator” must be filed with

the committing court. (Ibid.) Such defendant may petition for conditional release

or unconditional discharge with, or without, the authorization or concurrence of

the DMH. (See §§ 6605, subds. (b)-(d), 6608, subd. (a).) Defendants involved in

this process are entitled to assistance from mental health experts and counsel. (See

§§ 6605, subds. (a) & (d), 6608, subd. (a).) As a practical matter, such provisions

mitigate the effects of any “error” in the commitment proceeding attributable to

the reduced participation of a mentally incompetent SVP. For all these reasons,

we cannot say that the risk-of-error factor weighs heavily toward finding the

claimed due process right.

The most critical factor, of course, involves the “ „government[al]

interest[s]‟ ” that weigh against allowing SVP‟s to avoid being tried or committed

while mentally incompetent — an issue that Allen, supra, 44 Cal.4th 843, 866, did

not confront or decide. Chief among these is the “strong interest in protecting the

public from sexually violent predators, and in providing treatment to these

individuals.” (Ibid.) As we have seen, such persons include those who have been

convicted of qualifying sexually violent offenses, who have been diagnosed with

mental disorders that seriously impair volitional control, and who present a

substantial and credible risk that they will commit sexually violent predatory

27

crimes if released. The Legislature has set forth comprehensive and detailed

means for providing specialized treatment to persons adjudicated and committed

as SVP‟s. In the process, as the SVPA provides, they are housed in secure

facilities specifically dedicated to the confinement and treatment of persons whose

mental disorders make them likely to commit violent predatory sexual offenses.

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 disorder to his SVP diagnosis, while

the third one found it affected his competence to stand trial. To allow anyone and

everyone in this situation to seek a competence determination could require

unknown numbers, possibly scores, of SVP commitment trials to be stayed

indefinitely, and perhaps permanently, unless and until competence was restored

under circumstances not involving confinement and treatment under the SVPA.

Such concerns weigh heavily, and in fact dispositively, against recognition of a

due process right of this kind.

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

28

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, 846 N.E.2d 379, 385-386; In re Commitment

of Fisher (Tex. 2005) 164 S.W.3d 637, 653-654; In re Commitment of Luttrell

(Wis.Ct.App. 2008) 754 N.W.2d 249, 251-252; State v. Ransleben (Wn.Ct.App.

2006) 144 P.3d 397, 398-399; State ex rel. Nixon v. Kinder (Mo.Ct.App. 2003)

129 S.W.3d 5, 8-10 (Kinder); see also In re Detention of Cubbage (Iowa 2003)

671 N.W.2d 442, 445-448; cf. In re Commitment of Branch (Fla.Ct.App. 2004)

890 So.2d 322, 326-328 [declining to find general due process right not to be tried

as mentally incompetent SVP, but preventing state from relying solely on hearsay

evidence of uncharged crimes to commit such persons as SVP‟s].)

Two of these decisions are particularly instructive. In Nieves, supra, 846

N.E.2d 379, which the trial court invoked in the present case, the Supreme Judicial

Court of Massachusetts balanced the competing interests, as we do here, to

determine whether due process prevented a defendant who had been found

mentally incompetent from being tried and civilly committed under the state‟s

Sexually Dangerous Persons Act. The liberty interests were deemed substantial,

especially since the scheme contemplated commitment for an indefinite term.

Nevertheless, the court held that due process was not offended by requiring the

mentally incompetent defendant, while represented by counsel, to undergo a

commitment trial: “[T]he defendant‟s interest must, with appropriate safeguards,

yield to the Commonwealth‟s paramount interest in protecting its citizens. We see

no reason why the public interest in committing sexually dangerous persons to the

care of the treatment center must be thwarted by the fact that one who is sexually

dangerous also happens to be incompetent.” (Kinder, supra, at p. 385.)

29

For similar reasons, the appellate court in Kinder, supra, 129 S.W.3d 5,

held that trial should not have been stayed under Missouri‟s version of the SVPA

to determine the defendant‟s mental competence. The court noted that the “very

nature of civil commitments” is to provide treatment for those who are dangerous

to themselves or others because they suffer from a mental disorder that prevents

them from comprehending and responding to reality. (Id. at p. 8.) The court

observed that due process permits the civil commitment and confinement of

criminal defendants found chronically incompetent to stand trial. (Id. at p. 10,

citing Jackson v. Indiana (1972) 406 U.S. 715, 738.) Kinder thus found nothing

wrong with allowing a mentally incompetent person whose disorders involve

sexual dangerousness to be committed, not for incompetence, but as an SVP, to

afford him the most appropriate treatment and provide the public with the greatest

protection. A contrary approach, the court said, would “thwart the proper exercise

of legislative authority for the health and welfare of the state‟s citizens . . . .”

(Kinder, at p. 10.) For these reasons, Kinder held, the SVP defendant there failed

to show that he had a due process right not to be tried while mentally incompetent.

No California case addresses whether a mentally incompetent person can be

tried and committed as an SVP. However, in People v. Angeletakis (1992) 5

Cal.App.4th 963 (Angeletakis), the Court of Appeal declined to find such a due

process right under closely related circumstances. There, the defendant had been

found not guilty by reason of insanity of a felony offense, and committed to Patton

State Hospital. Several years later, during a hearing to extend his commitment for

the third time (see Pen. Code, § 1026.5), the defendant claimed through counsel

that he was mentally incompetent to proceed. Without hearing any evidence on

the issue, the trial court rejected the claim. At the ensuing trial, several experts

testified that the defendant was a paranoid schizophrenic, that he was delusional

and dangerous, and that his deteriorating condition was not always helped by

30

medication. The jury found that the defendant presented a substantial danger of

physical harm to others if placed in an unsupervised setting. Commitment was

extended for two years. (Angeletakis, supra, at pp. 966-967.)

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 the proceedings and assist in the

conduct of his „defense.‟ ” (Angeletakis, supra, 5 Cal.App.4th 963, 971.)

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, 44 Cal.4th 843, 867.) It bears emphasis that the SVPA includes no

provisions for incompetency proceedings in the context of commitment trials. The

People thus contend that if the defendant is found incompetent to stand trial, and

all proceedings under the SVPA are suspended as a result, courts are left without

clear statutory guidance on such issues as the nature and length of any permissible

placement, the provision of any treatment while the person remains incompetent,

and the availability of civil commitment under another statutory scheme if

competence is never regained. The People suggest that, while the Court of Appeal

31

sought to “fill the gap” by adopting procedures reminiscent of those used for

incompetent criminal defendants under Penal Code section 1367 et seq., its

decision largely provides no satisfactory answers to these questions.

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

limitations on the state mental hospitals that may be used to house SVP‟s both

during and after trial. (§ 6600.05.) Nor do the criminal incompetency statutes

provide for special treatment “protocol[s],” as set forth in the SVPA. (§ 6606,

32

subd. (c).) These strict standards and protocols, whose purpose is to keep the

community safe from the sexually predatory propensities of persons who qualify

as SVP‟s, also help protect patients and workers inside the state mental hospital

system. The danger to these groups would be enhanced if persons allegedly too

incompetent to be tried and committed as SVP‟s were to be housed indefinitely,

and perhaps permanently, in places not designed and staffed to deal with the

peculiar risks they pose. Thus, as the People suggest, we would have no relevant

template if we allowed SVP defendants to avoid trial while incompetent. These

concerns seem particularly troubling where, as here, the defendant has already

been committed under the SVPA, probable cause has been found that he is likely

to reoffend, he has been ordered to remain in a “secure facility” pending trial, and

proceedings to recommit him and continue his placement are underway.16

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, 846 N.E.2d 379, 385.)

16

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.

33

IV. CONCLUSION

We reverse the judgment of the Court of Appeal.

BAXTER, J.

WE CONCUR:

GEORGE, C.J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

34

DISSENTING OPINION BY MORENO, J.

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

criminal defendant while he or she is mentally incompetent. [Citations.]” (People

v. Rogers (2006) 39 Cal.4th 826, 846.) An individual is mentally incompetent to

stand trial “if, as a result of a 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), italics added.) This deeply embedded due process principle

arises from a repugnance, both legal and moral, in forcing a criminal defendant

into a trial that may result in substantial loss of liberty when the defendant is

incapable of understanding the proceeding, or assisting in the defense. In my

view, it is equally repugnant to force an individual to stand trial as a sexually

violent predator (SVP) and face a potential lifetime term of civil commitment

when that person lacks the competence to understand, or participate meaningfully

in, the Sexually Violent Predator Act (SVPA) proceeding. (Welf. & Inst. Code,

§ 6600 et seq.; statutory cites are to this code unless otherwise designated.) I

believe that this conclusion is compelled by our decision in People v. Allen (2008)

44 Cal.4th 843 (Allen).

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

1

because his mental problems make him incompetent to stand trial.” (Maj. opn.,

ante, at pp. 19-20.) 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)

43 Cal.4th 415, 524.) Additionally, as in criminal proceedings, an SVP‟s

competence would be evaluated by mental health professionals who can certainly

assess whether an individual is malingering.

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 p. 28.) Few individuals would be

deemed incompetent to undergo SVPA trials. The reason is simple: All

individuals in SVPA proceedings have been convicted of criminal offenses and

were thus necessarily mentally competent at the time of the conviction. Thus,

only those defendants who could demonstrate that they had become incompetent

while serving their sentences could assert a competency claim.

As the majority acknowledges, Allen provides a four-part balancing test

with which we determine what process is due to SVP‟s. (Maj. opn., ante, at p.

18.) “(1) the private interest that will be affected by the official action; (2) the risk

2

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. 25.) 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)] 26 Cal.4th 200, „the private interests that will be affected by [a

finding that the defendant continues to be a sexually violent predator] are the

significant limitations on [the defendant‟s] liberty, the stigma of being classified as

[a sexually violent predator], and subjection to unwanted treatment. [Citation.]‟

(Id. at p. 210.) . . . „[T]he California Legislature has recognized that the interests

involved in civil commitment proceedings are no less fundamental than those in

criminal proceedings and that liberty is no less precious because forfeited in a civil

proceeding than when taken as a consequence of a criminal conviction.‟ (In re

Gary W. (1971) 5 Cal.3d 296, 307 [96 Cal. Rptr. 1, 486 P.2d 1201] . . . .) Thus, the

first factor weighs heavily in favor of providing all reasonable procedures to

3

prevent the erroneous deprivation of liberty interests.” (Allen, supra, 44 Cal.4th at

p. 863, fn. omitted.)

If those observations were true with respect to a defendant‟s right to testify

at his or her SVPA proceeding, they apply with even greater force to a defendant‟s

right to be competent at that proceeding. A defendant who is unable to understand

the nature of the proceeding or to meaningfully assist counsel is subject to the

same deprivation of liberty, the same stigma of being classified as an SVP and the

same subjection to unwanted — and, because incompetent, ineffective —

treatment.

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. 26.) I find no support in Allen for such a global characterization

of the defendant‟s role in an SVPA proceeding.1 To the contrary, in discussing

1

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.
„[P]rocedural 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) 424 U.S. 319, 344 [47 L.Ed.2d 18, 96, 96 S. Ct.
893].) Therefore, we consider generally whether allowing a defendant in a
proceeding under the SVPA to testify over the objection of his or her counsel may
aid the defendant in preventing the erroneous deprivation of liberty interests,
rather than whether the right would aid the particular defendant before us.” (Allen,
supra, 44 Cal.4th at p. 865.) A fortiori, an incompetent defendant, by definition,

(footnote continued on next page)

4

the importance of allowing a defendant to testify, even over the objection of

defendant‟s counsel, we observed: “[A]s has been recognized in cases in which a

sexually violent predator has asserted the privilege against self-incrimination, the

defendant‟s participation in the proceedings, through pretrial interviews and

testimony at trial, generally enhances the reliability of the outcome. Moreover, as

observed in Otto, supra, 26 Cal.4th 200, if critical information, such as the details

surrounding the commission of the predicate offenses, is questionable, „a

significant portion of the foundation of the resulting [sexually violent predator]

finding is suspect.‟ (Otto, supra, 26 Cal.4th at pp. 210-211.) Because the

testimony of a defendant typically will concern his or her conduct, this testimony

may relate to information that is critical to the experts‟ testimony. . . . In some

cases, the defendant‟s testimony may raise a reasonable doubt concerning the facts

underlying the experts‟ opinions. Accordingly, in every case there exists a risk

that allowing counsel to preclude the defendant from testifying will lead to an

erroneous deprivation of rights. Guaranteeing the defendant a right to testify,

even over counsel‟s objection, will mitigate this risk.” (Allen, supra, 44 Cal.4th at

pp. 865-866, fn. omitted, italics added.)

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

(footnote continued from previous page)

cannot play any role — whether starring or supporting — in preventing the
erroneous deprivation of his liberty interests.

5

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. 33.) 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) 59 Cal.2d 805, 812-813 [it is “beyond dispute that „Courts have inherent

power . . . to adopt any suitable method of practice, both in ordinary actions and

special proceedings, if the procedure is not specified by statute or by rules adopted

by the Judicial Council”].)

Most relevantly, in James H. v. Superior Court (1978) 77 Cal.App.3d 169,

the Court of Appeal held that “in the absence of any statutory procedure for so

doing the juvenile court has the inherent power to determine a minor‟s mental

6

competence to understand the nature of [juvenile] proceedings . . . and to assist

counsel in a rational manner at that hearing.” (Id. at p. 172.) The court in James

H. relied on its “inherent powers to formulate procedures which have not yet

attained legislative approval” (id. at p. 176) and referred the trial court to Penal

Code section 1367. Here, too, Penal Code section 1367 et seq., provides an

established framework for assessing incompetency and dealing with SVPA

defendants who are found to be incompetent. I agree with the Court of Appeal

that “this is an appropriate case for the exercise of [this court‟s] inherent power to

look to [Penal Code section 1367] in order to fill the gap in the SVPA, so as to

enable the Act to function in a constitutional manner.”

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 through other

witnesses.” (Allen, supra, 44 Cal.4th at p. 869.) In either case, denying a

defendant the right to present his or her side of the story “relegate[s]” the

defendant “to the role of a mere spectator, with no power to attempt to affect the

7

outcome.” (Ibid.) Thus, compelling an incompetent defendant to endure an

SVPA commitment proceeding thoroughly violates his dignitary interests.

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. 28.)

According to the majority, “the strong governmental interest in protecting the

public” (id. at p. 19) would be “substantially impaired” if courts recognized an

SVP‟s right to a competency determination. (Id. at pp. 27-28.) 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. 27.)

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.

Indeed, civil commitment to restore competency would precede, not

replace, any targeted SVP treatment. No confined SVP would be released until

after a jury had determined that he or she was no longer dangerous. Defendants

never restored to competency would be confined indefinitely, and while the

majority expresses a concern that doing so would enable defendants to avoid trial,

it fails to explain how this indefinite commitment would endanger the public.

(Maj. opn., ante, at p. 28.) The majority erroneously frames this issue as a choice

between recognizing the right to be competent during an SVPA proceedings and

compromising public safety. In fact, the real choice here is between shuffling

8

incompetent defendants through SVPA proceedings and treating them in a secure

environment until competence is restored. Thus, contrary to the majority‟s

assertion, I do not find that the governmental interest in public safety outweighs

the other three Allen factors that tip the scale toward recognizing a defendant‟s due

process right to be competent.

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.

28.)

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), italics added.) A “[d]iagnosed mental disorder”

is defined as “a congenital or acquired condition affecting the emotional 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.”

9

(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 participate in, an SVPA proceeding.2 Accordingly, I reject as

unsupported the assertion by the majority that substantial overlap exists between

those mental disorders that qualify an individual as an SVP and those rendering an

individual incompetent.

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

2

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 p. 28.) 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, 44 Cal.4th at p. 865.)

10

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 No. 3, Am. J. Forensic Psychiatry, 7, 22-23

[“[A]ttempting to [treat the] behaviors of an SVP that precipitate within the matrix

of a florid psychosis or severe cognitive impairment would prove futile. . . .

[C]urrently 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 deemed to be incompetent would

be restored to competency so that the issue of their SVP status could be

determined and, if they were found to be SVP‟s, offered treatment.

For all these reasons, I must dissent.

MORENO, J.

I CONCUR:

KENNARD, J.

11

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Moore v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 174 Cal.App.4th 856
Rehearing Granted

__________________________________________________________________________________

Opinion No. S174633
Date Filed: August 19, 2010
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Marcelita Haynes

__________________________________________________________________________________

Attorneys for Appellant:

Michael P. Judge, Public Defender, Albert J. Menaster, Karin King and Jack T. Weedin, Deputy Public
Defenders, for Petitioner.

Alan A. Abrams and Maheen Patel for American College of Forensic Psychiatry as Amicus Curiae on
behalf of Petitioner.

Michael J. Aye as Amicus Curiae on behalf of Petitioner.

Nortin & Melnik and Todd L. Melnik as Amici Curiae on behalf of Petitioner

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Steve Cooley, District Attorney, Irene Wakabayashi, Head Deputy District Attorney, Phyllis Asayama and
Roberta T. Schwartz, Deputy District Attorneys, for Real Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jack T. Weedin
Deputy Public Defender
320 West Temple Street, Room 590
Los Angeles, CA 90012
(213) 974-3058

Roberta T. Schwartz
Deputy District Attorney
320 West Temple Street, Room 540
Los Angeles, CA 90012
(213) 974-1616

Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case presents the following issue: Can the trial in a commitment proceeding under the Sexually Violent Predator Act be held while the defendant is incompetent?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 08/19/2010	50 Cal. 4th 802, 237 P.3d 530, 114 Cal. Rptr. 3d 199	S174633	Review - Criminal Original (non-H.C.)	submitted/opinion due	WILSON v. S.C. (PEOPLE) (S182340) MORSE (RICHARD E.) ON H.C. (S182635)

Parties

1	Moore, Ardell (Petitioner) Represented by Jack T. Weedin Office of the Los Angeles County Public Defender 320 W. Temple Street, Room 590 Los Angeles, CA
2	Superior Court of Los Angeles County (Respondent) Represented by Frederick R. Bennett Superior Court of Los Angeles County 111 N. Hill Street, Suite 620 Los Angeles, CA
3	The People (Real Party in Interest) Represented by Pamela C. Hamanaka Office of the Attorney General 300 S. Spring Street, 5th Floor Los Angeles, CA
4	The People (Real Party in Interest) Represented by Irene Taye Wakabayashi Office of the District Attorney--Appellate Division 320 W. Temple Street, Suite 540 Los Angeles, CA
5	The People (Real Party in Interest) Represented by Roberta Schwartz Office of the District Attorney/Appellate Division 320 W. Temple Street, Suite 540 Los Angeles, CA

Opinion Authors
Opinion	Justice Marvin R. Baxter
Dissent	Justice Carlos R. Moreno

Dockets
Jul 14 2009	Petition for review filed Real Party in Interest: The PeopleAttorney: Roberta Schwartz The People, Real Party in Interest Roberta Schwartz, Retained counsel
Jul 16 2009	Received Court of Appeal record
Sep 4 2009	Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including October 9, 2009, or the date upon which review is either granted or denied.
Sep 17 2009	Petition for review granted Votes: George, C.J., Baxter, Chin, Moreno and Corrigan, JJ.
Oct 16 2009	Opening brief on the merits filed Real Party in Interest: The PeopleAttorney: Roberta Schwartz
Nov 16 2009	Answer brief on the merits filed Petitioner: Moore, ArdellAttorney: Jack T. Weedin
Dec 7 2009	Reply brief filed (case fully briefed) Real Party in Interest: The PeopleAttorney: Roberta Schwartz
May 5 2010	Case ordered on calendar to be argued Wednesday, May 26, 2010, at 9:00 a.m., in San Francisco
May 13 2010	Received: Letter dated 5-12-2010 from Jack T. Weedin, Deputy Public Defender - Los Angeles, re cite. (Faxed copy)
May 14 2010	Stipulation filed Stipulation by counsel Roberta Schwartz, that real party in interest has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 14 2010	Stipulation filed Stipulation by counsel Jack Weedin, that petitioner has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 17 2010	Received: Letter dated 5-12/2010 from Jack T. Weedin, Deputy Public Defender, re notice of intent to cite recent case.
May 17 2010	Received: Letter dated 5/14/2010 from Roberta Schwartz, Deputy District Attorney - Los Angeles re cite.
May 20 2010	Received: Letter dated 5/19/2010 from Roberta Schwartz, Deputy D.A. - Los Angeles, re notice of intent to cite opinion filed 5/17/2010.
May 26 2010	Stipulation filed Stipulation by counsel Jack Weedin, that petitioner has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 26 2010	Stipulation filed Stipulation by counsel Roberta Schwartz, that real party in interest has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 26 2010	Cause argued and submitted

Briefs
Oct 16 2009	Opening brief on the merits filed Real Party in Interest: The PeopleAttorney: Roberta Schwartz
Nov 16 2009	Answer brief on the merits filed Petitioner: Moore, ArdellAttorney: Jack T. Weedin
Dec 7 2009	Reply brief filed (case fully briefed) Real Party in Interest: The PeopleAttorney: Roberta Schwartz

Brief Downloads
Petitioner's Answer Brief on the Merits.pdf (112212 bytes)
Amicus Brief to Petition for Writ of Mandate and or Prohibition in Support of Petitioner.pdf (330669 bytes)
Petition for Review.doc (179200 bytes)
Real Party's Opening Brief on the Merits.doc (178688 bytes)
Real Party's Reply Brief on the Merits.doc (111104 bytes)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 18, 2011
Annotated by daisy sanchez

FACTS:
This case arises from a proceeding to extend defendant’s civil commitment under the Sexually Violent Predators Act (SVPA). Several months prior to the expiration of defendant’s civil commitment, psychologists for the California State Department of Mental Health (DMH) found that without continued treatment and custody, defendant was likely to engage in sexually violent predatory criminal acts in the future. Per the request and recommendation of DMH, the Los Angeles County District Attorney petitioned the trial court to extend defendant’s civil commitment as a sexually violent predator.

The defendant asked the court to order a mental competency hearing and moved to stay the recommitment proceedings until his competency to stand trial was determined. The trial court denied defendant’s motion holding that such a hearing was not statutorily sanctioned by SVPA or constitutionally required.

PROCEDURAL HISTORY:
Defendant successfully challenged the trial court’s decision in a petition to the Court of Appeals for a writ of mandate. The Court of Appeals took the position that a defendant cannot be tried as a sexually violent predator if he is mentally incompetent to stand trial. The Court of Appeals ordered the trial court to conduct a hearing to determine the defendant’s mental competency.
The Supreme Court of Los Angeles County petitioned the Supreme Court of California for review and review was granted.

ISSUE:
Does a defendant in a proceeding under the Sexually Violent Predators Act have a due process right to not be tried or civilly committed if he is mentally incompetent to stand trial?

HOLDING:
No. “Due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial under the” Sexually Violent Predators Act.

ANALYSIS:
Although there is a difference in the constitutional protections afforded to civil and criminal defendants, the defendant in said proceedings are entitled to certain due process protections because an SVP proceeding, which is civil in nature, involves a “significant restraint on liberty.”

The court disagreed with the Court of Appeals and found that People v. Allen, 44 Cal.4th 843 (2008), did not establish precedent for this case. Allen addressed whether an SVP defendant, whose mental competency was not challenged, has a due process right to testify at all in the commitment trial over counsel’s objections. It did not determine whether a defendant in an SVP proceeding must be mentally competent to stand trial.

However, to determine what process is due to a defendant in an SVP proceeding, the court employed a four-part balancing test established in Allen. The four factors are: (1) private interest affected (in this case, defendant’s liberty interest); (2) risk of erroneous deprivation of such interest; (3) government’s interest, including fiscal and administrative burdens; and (4) dignitary interest in the defendant’s ability to understand the proceedings and enable him to present his side of the story.

Factors 1 and 4: Private Interest and Dignitary Interest
The court reasoned that defendant’s mental competence will not significantly impair his contribution to his defense because the court does not solely rely on the defendant’s testimony to make the SVP determination. A finding of the defendant’s eligibility for commitment or an extension thereof is made based on the defendant’s testimony of his own behavioral and mental history and the conduct and foundation on which the experts rely in their recommendation for civil commitment as an SVP.

Factor 2: Erroneous Commitment
The court reasoned that a defendant’s mental incompetency will not lead to a higher likelihood of erroneous commitment because there are numerous procedural safeguards in place to prevent a flawed determination that a defendant is likely to engage in sexually violent predatory behavior in the future. The defendant has the right to assistance of counsel and to retain experts in order to present his best case at trial. For indigent defendants, the court will appoint counsel and fund the hiring of experts. Furthermore, the district attorney must prove beyond a reasonable doubt and the jury must unanimously find that defendant meets the civil commitment criteria under SVPA. Finally, the circumstances that may give rise to an SVP proceeding are monitored over time to ascertain whether a defendant’s mental health or behavioral propensity has materially changed and whether civil commitment is warranted.

Factor 3: Government Interest
The court identifies the state’s interest as the need to protect the public from sexually violent predators and provide treatment for them. The court assumes that there is significant overlap between individuals with mental disorders that cause a propensity to engage in sexually violent behavior and those with mental disorders that debilitate their ability to stand trial. Thus, the state interest would be undermined because of the significant overlap. Furthermore, the SVPA is silent on what type of treatment or commitment facility a mentally incompetent SVP defendant should receive while mentally incompetent to stand trial. The state interest in protecting the public and the administrative burdens outweigh the benefit of staying proceedings when an SVP defendant is mentally incompetent.

RULING:
Reversed the judgment of the Court of Appeal.

CONCURRING: (George, C.J.; Werdegar, J.; Chin, J.; and Corrigan, J.)

DISSENTING OPINION (Moreno, J):
Justice Moreno disagreed with the majority in that it is his view that due process requires that a defendant in an SVP proceeding be mentally competent to stand trial. Moreno states that such requirement would not increase the number of incompetency claims because the defendant would have to have been previously found competent in order to have been convicted for his crimes. Furthermore, a requirement of mental competency to stand trial would not undermine the state’s interest to protect the public because the defendant would remain committed until mental competency was restored. Finally, Moreno disagrees with the majority’s assumption that there is significant overlap between mental disorders that qualify one as an SVP and those that cause a person to be incompetent to stand trial. The statutory requirements and definitions for each are very different and do not significantly overlap with each other.

TAGS:
Mental competency; sexually violent predator; commitment; incomptency; due process; stand trial; mental disorder, writ of mandate, Sexually Violent Predators Act; petition for writ of mandate; California State Department of Mental Health; private interest; government interest; dignitary interest; erroneous deprivation of liberty.

KEY RELATED CASES AND STATUTES:
Sexually Violent Predators Act, Welf. & Inst. Code, § 6600 et seq.
Medina v. California, 505 U.S. 437 (1992)
http://scholar.google.com/scholar_case?case=13208225725422201051&q=Medin...
People v. Allen, 44 Cal.4th 843 (2008)
http://scholar.google.com/scholar_case?case=3154390361433057700&q=People...

Annotation by: Daisy Sanchez

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Advocates On This Case

Jack T. Weedin (Office of the Los Angeles County Public Defender)

Frederick R. Bennett (Superior Court of Los Angeles County)

Pamela C. Hamanaka (Office of the Attorney General)

Irene Taye Wakabayashi (Office of the District Attorney--Appellate Division)

Roberta Schwartz (Office of the District Attorney/Appellate Division)

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