Gonzalez v. Superior Court

Gonzalez v. Superior Court







Filed 1/6/12 Gonzalez v. Superior Court CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

EFREN GONZALEZ, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

G045226 (Super. Ct. No. M-13975) O P I N I O N

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Petition denied.
Deborah A. Kwast, Public Defender, Frank Ospino, Interim Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Denise Gragg, Assistant Public Defender, Mark S. Brown, Deputy Public Defender, for Petitioner.
Tony Rackauckas, District Attorney, Elizabeth Molfetta, Deputy District Attorney, for Real Party in Interest.
* * *
Under the Sexually Violent Predator Act (SVPA), a petition to involuntarily commit a person suspected of being a sexually violent predator (SVP) can only be filed if two mental health professionals agree the person meets the criteria for commitment. Contending that requirement has not been met in this case, Efren Gonzalez seeks a writ of mandate/prohibition directing the trial court to dismiss the commitment petition that is currently pending against him. We find the petition was properly filed and deny Gonzalez’s claim for relief.
FACTS
Gonzalez has a history of molesting children and is currently incarcerated for engaging in sexual misconduct with a minor. In 2010, pending his release from prison, he was identified by correctional officials as a person who is likely to be an SVP. Consequently, he was referred to the Department of Mental Health for an evaluation to determine his risk of reoffending. As part of the evaluation process, psychologists James Barker and Laljit Sidu were designated to render their opinions as to whether Gonzalez meets the criteria for commitment as an SVP. Dr. Barker concluded Gonzalez does meet the criteria, and Dr. Sidu concluded he does not. (We will sometimes refer to Drs. Barker and Sidu jointly as the “initial evaluators.”)
Given this split of opinion, Gonzalez was evaluated by two independent psychologists, Drs. Mark Schwartz and Hy Malinek. Dr. Malinek concluded Gonzalez does meet the criteria for commitment, and Dr. Schwartz concluded he does not.
In the wake of this second split of opinion, Orange County Deputy District Attorney Donde McCament contacted Dr. Sidu and informed him she had some new information regarding a 1995 incident of alleged sexual misconduct by Gonzalez. McCament asked Dr. Sidu if this information would be relevant to his diagnosis of Gonzalez, and he said it would. Therefore, McCament sent Dr. Sidu a report about the 1995 incident for his consideration.
Upon reviewing the report, Dr. Sidu filed an addendum report on Gonzalez. In light of the new information he received from McCament, he concluded Gonzalez does meet the criteria for commitment as an SVP. That led McCament to file a petition for commitment against Gonzalez in superior court.
At the probable cause hearing, all of the evaluators’ reports were submitted into evidence, and Drs. Barker and Sidu were examined about their findings and conclusions. Gonzalez moved to dismiss the petition on the ground the requisite concurrence of expert opinion was lacking, but the court denied the motion. Based on Dr. Barker’s opinion and Dr. Sidu’s opinion as rendered in his addendum report, the court determined the concurrence requirement was satisfied and bound the case over for trial.
DISCUSSION
Gonzalez contends the court should have granted his motion to dismiss the petition because the two independent evaluators, Drs. Schwartz and Malinek, reached conflicting conclusions about whether he qualifies for commitment. We disagree.
The procedural framework for filing a petition to commit a person as an SVP is set forth in the SVPA under Welfare and Institutions Code section 6601.[1] If an inmate is identified as someone who is likely to be an SVP, he is required to undergo an evaluation to determine his risk of reoffending. (Subds. (a)-(c).) As part of the evaluation process, “the person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director of Mental Health . . . . If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of Mental Health shall forward a request for a petition for commitment under Section 6602 to the county designated in subdivision (i).” (Subd. (d).)
Subdivision (e) addresses the situation where there is a divergence of opinion between the initial evaluators. It states, “If one of the professionals performing the evaluation pursuant to subdivision (d) does not concur that the person meets the criteria specified in subdivision (d), but the other professional concludes that the person meets those criteria, the Director of Mental Health shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g).” (Subd. (e).)
Per subdivision (f), “If an examination by independent professionals pursuant to subdivision (e) is conducted, a petition to request commitment under this article shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d).” (Subd. (f).)
Once a petition is filed, the person is entitled to an evidentiary hearing to determine whether there is probable cause to believe he is likely to engage in sexually violent predatory criminal behavior upon his release from prison. (§§ 6601.5, 6602.) If probable cause is found to exist, the person then has the right to a jury trial on the commitment petition. (§ 6603.) At trial, the burden is on the People to prove beyond a reasonable doubt the person is an SVP, in that he suffers from a current mental disorder that makes him presently dangerous and likely to reoffend in the future. (§§ 6603, 6604; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1169.)
The purpose of the SVPA is to identify, control and treat persons whose criminal history and mental state render them sexually violent predators. (People v. Allen (2008) 44 Cal.4th 843, 857; Albertson v. Superior Court (2001) 25 Cal.4th 796, 801.) Given these objectives, it is hardly surprising the SVPA contemplates a need for updated evaluations when new and relevant information becomes available during the commitment process. An updated evaluation may be requested whenever “the attorney petitioning for commitment . . . determines that updated evaluations are necessary in order to properly present the case for commitment[.]” (§ 6603, subd. (c)(1); Albertson v. Superior Court, supra, 25 Cal.4th at p. 804 [statute applies to pretrial and trial proceedings alike].)
Therefore, contrary to Gonzalez’s suggestion, it was not improper for Deputy District Attorney McCament to contact Dr. Sidu and request an updated evaluation based on the information she had regarding the 1995 incident. Because Dr. Sidu had not been aware of the new information, and it had obvious bearing on his opinion as to whether Gonzalez meets the criteria for commitment under the SVPA, the trial court properly considered Dr. Sidu’s addendum report in deciding whether the petition against Gonzalez was properly filed.
The more difficult question is whether Dr. Sidu’s addendum report supplied the requisite concurrence of opinion to justify the filing of a commitment petition against Gonzalez. Gonzalez argues it did not because, by the time Dr. Sidu filed his addendum report, the two independent evaluators had already rendered a split opinion on the issue of Gonzalez’s suitability for commitment. Gonzalez argues this split forecloses the filing of a petition in this case.
Gonzalez is correct that, by its express terms, subdivision (f) prohibits the filing of an SVP petition unless the independent evaluators agree the subject meets the criteria for commitment, which in this case they did not. However, it is equally apparent that subdivision (d) authorizes the filing of a petition when the initial evaluators agree the subject is suitable for commitment. Subdivision (d) does not contain any qualifications as to when the initial evaluators must agree; rather, it simply states a petition for commitment may be requested if the evaluators concur the person meets the criteria for commitment. Therefore, despite the fact the requisite concurrence did not occur until after Dr. Sidu reevaluated Gonzalez based on the new information he received from McCament, subdivision (d) still applies in this case.
What we have then is a situation where the SVPA both allows, per subdivision (d), and prohibits, per subdivision (f), the filing of a petition under the Act. In deciding which provision controls, we must aim to advance the overriding legislative intent of the statute. (People v. Bermudez (2009) 172 Cal.App.4th 966, 972.) As stated above, the goal of the SVPA is to identify, control and treat that small but extremely dangerous group of offenders who qualify as SVP’s. (People v. Calderon (2004) 124 Cal.App.4th 80, 90.) We must remember “[t]he problem targeted by the Act is acute, and the state interests – protection of the public and mental health treatment – are compelling. [Citations.]” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1153, fn. 20.)
If the goal of the SVPA is to identify potential SVP’s, then it only makes sense to consider all relevant information bearing on the inmate’s suitability for commitment. And that includes new information that comes to light during the evaluation process. While the new information could cut either way, for or against the inmate, here it happened to go against Gonzalez, in that it led Dr. Sidu to conclude he meets the criteria for commitment. As far as public safety is concerned, it would not do any good to ignore Dr. Sidu’s opinion in that regard, simply because the independent evaluators were not in agreement on the issue. After all, unlike Dr. Sidu, the independent evaluators did not have access to all of the information he relied on. We do not know whether the new information would have changed Dr. Schwartz’s opinion. Therefore, we do not believe their failure to reach a consensus should be dispositive in this case.
Given the compelling state interest in protecting the public from the danger posed by violent sex offenders  and given the fact the issue before us is whether petitioner should be moved on to the next level of evaluation rather than whether he is an SVP  we hold Dr. Sidu’s updated opinion created the requisite concurrence of opinion to justify commitment proceedings against Gonzalez under subdivision (d). Even though the independent evaluators were unable to agree on Gonzalez’s suitability for commitment, the agreement between Dr. Sidu and Dr. Barker provided a sufficient basis for the commitment petition in this case. Therefore, the trial court properly denied Gonzalez’s request to dismiss the petition.
DISPOSITION
The petition for a writ of mandate/prohibition is denied.






BEDSWORTH, ACTING P. J.


WE CONCUR:



FYBEL, J.



IKOLA, J.