Opinion
A163325
03-17-2022
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA BRYAN COOLEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CV080941
Desautels, J. [*]
Joshua Bryan Cooley was committed to an indefinite term at a state hospital after he was found in 2010 to be a sexually violent predator under the Sexually Violent Predators Act (Welf. & Inst. Code, §6600 et seq. (SVPA)). (People v. Cooley (Dec. 9, 2015, A142099 [nonpub. opn.] (Cooley II).)In December 2016 the court found Cooley eligible for conditional release to an appropriate program for supervision and treatment in the community. However, in January 2021, after more than four years of unproductive hearings addressing proposed placements, the court noticed its own motion for the reconsideration of the 2016 order and, following briefing and argument, rescinded it.
Unless otherwise specified, further statutory citations are to the Welfare and Institutions Code.
In 2011 this court affirmed the SVP finding in large part in People v. Cooley (Sept. 30, 2011, A128278 [nonpub. opn.], review den. Jan. 4, 2012, S197743) (Cooley I), although we remanded the case to the trial court with directions to suspend further proceedings pending the Supreme Court's consideration of an equal protection claim in another case. (See Cooley II, supra, A142099.) In Cooley II, Cooley's 2015 appeal from the denial of a petition for conditional release, we reversed and remanded the matter to the trial court to consider the petition in accordance with the procedures specified in section 6608. (Cooley II, A142099.)
Cooley contends that (1) the court lacked jurisdiction to reconsider the 2016 order; (2) the 2021 order rescinding Cooley's conditional release was unsupported by substantial evidence; (3) the difference between statutory standards for community release for sexually violent predators (SVPs) and mentally disordered offenders (MDOs) violates his constitutional right to equal protection; and (4) efforts by the prosecutor and Department of State Hospitals (Department) to "stymie" and "derail" the conditional release process in the trial court violated his right to due process of law.
Upon careful review of the record, we are satisfied each of these contentions is without merit. The Welfare and Institutions Code calls for community release within 30 days after notice of a court finding that a person committed as an SVP qualifies for transfer to a conditional release program (CONREP), "unless good cause for not doing so is presented to the court." (§ 6608, subd. (i).) Here, more than four years passed in the search for a suitable conditional release placement before the court rescinded the conditional release order. Although we are troubled by the length of time consumed by the ultimately unansuccessful search, on this record we find no basis for Cooley's claims he was denied due process or equal protection of the law. His jurisdictional and evidentiary claims are also meritless, so we affirm.
BACKGROUND
The prior history of these proceedings is set out in Cooley I and Cooley II, which we incorporate by reference. For present purposes we start with Cooley II, where we concluded the trial court failed to comply with certain statutory procedures when it considered and denied a conditional release petition Cooley filed in 2013. We therefore remanded for a new hearing on that petition. (Cooley II, supra, A142099.)
In December 2016 the trial court found upon remand that Cooley would not be a danger to others on outpatient status. Accordingly, it granted his petition and ordered that Cooley be transferred to a conditional release program. The court specified that "before Mr. Cooley is placed in a state-operated forensic conditional release program the community program director designated by the [Department] shall submit a written recommendation to Humboldt County Superior Court a[s] to which forensic conditional release program is most appropriate for supervising and treating Mr. Cooley pursuant to [section] 6608[, subdivision] (h).) The court acknowledged, however, that "that the director of state hospitals may come back and advise that there is no appropriate conditional release program for Mr. Cooley. But I would like to have that explored at this time."
Section 6608, subdivision (h) provides: "Before placing a committed person in a state-operated forensic conditional release program, the community program director designated by the State Department of State Hospitals shall submit a written recommendation to the court stating which forensic conditional release program is most appropriate for supervising and treating the committed person. If the court does not accept the community program director's recommendation, the court shall specify the reason or reasons for its order on the record."
Liberty Healthcare of California, Inc. (Liberty) was charged with identifying a suitable conditional release program. In a January 2021 letter to the trial court, Liberty reviewed its January 2017 and November 2020 evaluations of Cooley's suitability for conditional release and reaffirmed its earlier determinations that he could not safely be managed and treated in the community: "Mr. Cooley remains untreated because he has not completed his treatment program at the state hospital. There remains [a] record of his serious difficulty in controlling his behavior. He has amassed serious incident reports (e.g., behavioral misconducts). Further, he continues to exhibit multiple mental health conditions and possesses high static and dynamic risk factors."
Liberty nonetheless complied with the court's directive to begin searching for suitable housing in Humboldt County, a process it explained was generally impeded by the "exceeding[]" difficulty of finding landlords willing to rent to SVP offenders, resistance from the local community, and the need for court approval of any potential placement. Due to such impediments, in December 2018 the court found extraordinary circumstances existed warranting an out-of-county placement pursuant to section 6608.5, subdivision (a)(1). The housing search was thereafter extended specifically to Tehama, Los Angeles, Sacramento, San Diego, and San Francisco counties, but with Liberty's agreement to inform the court if ongoing searches for other patients in Santa Cruz, San Mateo, Ventura, and Orange counties discovered options potentially suitable for Cooley. In fact, in December 2019, both court and defense counsel agreed that every county in California should be considered.
In July 2020 the Redwood Community Resource Center (RCRC) and a county probation officer were enlisted to assist in identifying an appropriate placement in Humboldt County. Although they were invited to multiple meetings, they neither attended nor proposed any properties for placement.
164 Cal.App.4th 183, 189, 198 (George), these obstacles are compounded by statutory limitations on where a sex offender may reside such as section 6608.5 subdivision (f) (prohibiting placement within one-quarter of a mile of a school) and Penal Code section 3003.5, subdivision (b) (barring registered sex offenders from living within 2, 000 feet of a school or park where children regularly gather). As this court noted in People v. Superior Court (George) (2008)
"A person who is conditionally released pursuant to this article shall be placed in the county of the domicile of the person prior to the person's incarceration, unless both of the following conditions are satisfied: [¶] (1) The court finds that extraordinary circumstances require placement outside the county of domicile. [¶] (2) The designated county of placement was given prior notice and an opportunity to comment on the proposed placement of the committed person in the county. . . ." (§ 6608.5, subd. (a).)
Between 2017 and June 2021 the court held more than 40 status and placement hearings regarding the search for a suitable conditional release placement. By January 2021 Liberty had evaluated over 9, 000 properties and proposed numerous placements to the court in compliance with the court's orders, despite its ongoing belief that Cooley was "not suitable for CONREP." These proposals included permanent housing in Humboldt and other counties as well as temporary placements in Humboldt County transient motels ("transient placement").
After tentatively approving several of these proposed placements, the court ultimately rejected each after hearings with testimony and public input that disclosed specific disqualifying details not known at the time of the tentative approvals.
On January 21, 2021, Cooley filed a petition for writ of mandate in this court seeking to compel the trial court to close an upcoming placement hearing to the public; prohibit the proceedings from being broadcast; disallow public comment at the proceedings; limit public input to written comments by the responsible agencies; and/or find the public had no due process or equal protection right to participate. We denied the petition but noted our concern that no placement had yet been approved more than four years after the trial court ordered conditional release. We cautioned that only compelling reasons would justify continued disapproval of proposed placements and directed that "[s]hould the trial court reject the currently proposed placement, its reasons for doing so should be clearly articulated to permit meaningful appellate review."
We take judicial notice of the writ proceedings. (Evid. Code, §§ 452, subd. (d) & 459, subd. (a).)
At a subsequent hearing on February 26, 2021, the trial court informed the parties it had tentatively decided to proceed with transient placement in Humboldt County despite previously considering such placement inappropriate, stating "at this point we have exhausted other options and other alternatives." The People opposed the proposal because Cooley had never engaged in sex offender treatment and, per Liberty, it "would not be able to adequately or appropriately supervise Mr. Cooley." The People further argued that "the motels and hotels that make themselves available for such a placement also are the homes of families, children, and, frankly, some of the most vulnerable individuals within our community who are oftentimes residing at the very same hotels."
Liberty community program director Dr. Cameron Zeidler stated that Liberty opposed transient releases "in every case" and strongly opposed it in Cooley's case where Cooley was "virtually untreated" and was "among our most high risk individuals that can ever be released . . . . Additionally, 75 percent of transient releases return to the State Hospital. That is an overwhelming amount of transient releases." Moreover, the GPS ankle monitoring Liberty employed was not precise enough to prevent a patient placed in a transient motel from entering other motel rooms or prevent other residents entering his without detection. "And so Mr. Cooley would effectively have 'a different audience' every two days because of the transient nature of motels and the motel patrons. That means that he would never be numb to the stimuli that he would be receiving on an outpatient basis. This means minors. This means adults. This means placing him in motels that accept SVP's that could very much be around crime, around weapons." Historically, Cooley had denied signing terms and conditions of supervision (he had only just signed here in anticipation of a permanent-not transient- housing placement), and Liberty was gravely concerned that Cooley might abscond.
Troubled by Cooley's lack of treatment engagement, rather than continuing to assess transient placement options, the court stated its intention to consider rescinding the December 2016 conditional release order.
On March 5, 2021 the court filed its own motion for reconsideration, identifying as reasons Cooley's ongoing refusal to participate in treatment while committed, his failure to cooperate with both community and institutional supervision, his consistently poor behavior in custody and under prior supervision in the community, and the extensive but fruitless search for an appropriate conditional release placement. It concluded, "As is evident from the foregoing, the Court is very concerned that its order for . . . Cooley's conditional release was premature and erroneous given Mr. Cooley's refusal to engage in treatment."
The People filed a brief in support of reconsideration, arguing Cooley remained a dangerous sexually violent predator whose safe release to a conditional release program had "been thoroughly explored and demonstrated ad nauseum to be an impossibility under the current circumstances," including his ongoing failure to engage in sex offender treatment. They submitted a January 28, 2021 letter from Liberty that summarized the history of its search for a suitable placement and asserted that Cooley could not be safely managed and treated in the community without an "exceptional level of resources and collaboration with law enforcement." Liberty explained: "Mr. Cooley has already been judicially determined a serious and well-founded risk pursuant to 6604 commitment. Mr. Cooley has consistently declined to participate in the sexual offense treatment program at DSH-Coalinga. He has not undergone treatment for his mental disorders that inflate his risk for sexual re-offense. He does not show ample progress on changing his underlying risk factors. His baseline risk is high and treatment is needed to mitigate his risk. Conditional release is designed as the last step in the [Department's] sexual offense treatment program and the steps are designed to build upon each other such that treatment in the conditional release program builds upon the skills developed in the preceding treatment modules at DSH-Coalinga. Mr. Cooley has not completed the preceding treatment modules. . . .
"Absent collaboration from law enforcement, we do not feel we can manage his risk to the degree necessary for this particular individual. His lack of motivation combined with lack of treatment achievement, along with his sex offending history and unresolved risk factors places him as having exceptional risk."
The People also submitted a January 2020 declaration by forensic psychologist Jay Malhotra, Ph.D., attaching Cooley's January 29, 2020 annual assessment. Dr. Malhotra opined that Cooley remained likely to engage in sexually violent criminal behavior due to his mental disorder. Cooley had not completed a sexual offense treatment program "and he has not had sufficient treatment for his diagnosed mental condition and other dynamic risk factors. At this time, neither conditional nor unconditional release is appropriate. The best interest of Mr. Cooley and the adequate protection of the community cannot be assured in a less restrictive treatment setting at this time."
In the 2020 assessment, Dr. Malhotra described numerous behavioral incidents during Cooley's time at Coalinga, both before and after the 2016 order, including verbal and physical aggression toward staff and peers; defiant and sexually suggestive behavior; buying drugs; leaving his unit without permission; and violating hospital rules. Cooley scored 7 on the Static-99R measure of risk for sexual reoffense, placing him well above average risk, and scored at the high range level for psychopathy.
Focusing on the post-2016 incidents, the report includes the following:
"Per [State Evaluator Dr.] Davis (2017), Mr. Cooley is noted to be a behaviorally difficult patient, verbally aggressive and threatening toward staff and using derogatory and profane language. On several occasions, Mr. Cooley targeted staff using racially insensitive statements and mocking staff members who spoke with an accent. Throughout 2017, Mr. Cooley continued to trade and sell items against hospital policy despite being instructed on numerous occasions to cease and desist. On 6/2/17, Mr. Cooley made a sexually inappropriate statement to a female staff member. The note for this incident reported. 'Mr. Cooley then stated to this writer. "Now I know why you and I get along. It's because we're both lesbians. I like pussy." Mr. Cooley then turned away from this writer laughing and proceeded to walk away while stating, "Hope you have a great day." '"Per Dr. Davis (2018), Mr. Cooley became involved with contraband buying. Throughout the year, Mr. Cooley was involved in a variety of behavior problems (11/7/17, 12/3/17, 12/18/17, 1/5/18, 5/8/18, 5/9/18, 7/12/18,7/25/18, 9/13/18, 10/12/18). He was involved in three incidents of aggression with other patients (12/3/17, 12/18/17, 5/8/18). On 12/3/18, Mr. Cooley was observed in the hallway yelling at another patient; the other patient had bumped into Mr. Cooley. On 12/18/17, Mr. Cooley was observed in a verbal altercation with a peer. On 5/18/18, he was involved in another verbal altercation with a peer in the patient dining room. Mr. Cooley was noted on numerous occasions being hostile and verbally aggressive to staff. On 11/7/17, while in the patient dining room, another patient came to visit Mr. Cooley which is against hospital protocol. Unit staff informed the visiting patient that he had to leave: Mr. Cooley became agitated with the staff member and continued to harass the staff member even after returning to the unit. On 1/5/18, Mr. Cooley used derogatory and profane language with the staff member after voicing a complaint about a new patient in his dorm room. On 5/9/18, Mr. Cooley made a threat toward a staff member and openly mocked staff members by laughing at them and getting other patients to laugh at and openly mock them. He is described as indifferent to 'treatment, treatment classes, or anything else remotely thought of as treatment.' When staff approach him, Mr. Cooley has said, 'Don't talk to me unless you have found housing for me.' He doesn't attend treatment teams, and when he does come to behavioral teams, he is not interested in discussing the behavior that brought him to be restricted to the unit. Mr. Cooley has also engaged in sexually suggestive behavior with female staff members. On 5/22/18, while at the courtyard, Mr. Cooley told a female staff member, 'you should take a walk with us. We will hold the umbrella for you, fan you, and feed you grapes.' On 6/17/18, Mr. Cooley was observed in the courtyard with his shirt off, flexing his muscles in front of female staff."
In opposition, Cooley contended the December 2016 order was a final order not subject to rescission or modification; that he was being penalized for the People's failure to secure a placement; and that his cognitive deficits prevented him from benefitting from the Department's sexual offender treatment, which would instead expose him to exploitation by other SVP participants. He further maintained there were no changed circumstances warranting rescission, and that no petition for revocation had been filed pursuant to sections 1608 and 1609.
Defense expert psychologist Brian Abbott, Ph.D., opined in a declaration that Cooley was unlikely to engage in sexually violent behavior if released with supervision and treatment. Dr. Abbott believed Dr. Malhotra had scored Cooley's Stable-2007 test for dynamic risk factors incorrectly and that Cooley's scores on that instrument and the Static-99R test for static risk factors indicated a lower risk level than Dr. Malhotra stated. Cooley had not engaged in inappropriate sexual behavior in custody; no longer exhibited symptoms of substance use or antisocial personality disorders; and would be subject to strict supervision, frequent assessment, and comprehensive individualized treatment upon release. Dr. Abbott recommended the court continue with its 2016 plan for conditional release.
Cooley also adduced a report from Dr. Alan Abrams, M.D. Dr. Abrams questioned the validity of the Department's diagnoses and the efficacy of its sexual offender treatment program. In his view, Cooley had reasonably refused sexual offender treatment because he did not suffer from conduct disorder, antisocial personality disorder, paraphilia, pedophilia, or any other mental disorder that predisposed him to commit sexually violent predatory behavior. Rather, Cooley's past offenses were the result of his and his minor victim's alcohol intoxication; he was at very low risk of reoffending and would best be served by substance abuse treatment in the community. Abrams further suggested that the Department's insistence that Cooley could not be released without first participating in its sexual offender treatment program "ha[d] all the earmarks of traditional minority racial oppression."
Cooley is Native American.
In August 2021, following a hearing on its motion for reconsideration, the court rescinded the 2016 conditional release order. Citing Dr. Malhotra's declaration and the Department's January 2021 annual assessment, the court explained its primary concern lay with Cooley's refusal to engage in treatment while at Coalinga and his poor supervisory history both in and out of custody, a factor related to increased risk for sexual reoffense. The court recounted Liberty's extensive search of "some 10, 000" potential placements and the multiple hearings on specific proposed placements in and beyond Humboldt County. Despite those efforts, "[a]n appropriate fixed placement location, that is, one that can adequately protect the community, has not been found for Mr. Cooley. Transient placements typically involve motels, hotels; the participant resides at one motel/hotel for three nights, and then moves to another motel/hotel. In correspondence dated February 24, 2021, Liberty Healthcare clearly stated its strong opposition to transient releases: [¶] '. . . the perpetual cycle of motel relocations triggers a host of unfavorable outcomes (e.g., CONREP's inability to prevent access to criminal elements; lifestyle instability, inability to establish community relationships or practice treatment skills, leisure and recreation impacts, etc.). The demographics of transient SVP CONREP placements cause instability of environment, and potential increase of risk factors.' "
Pursuant to section 6604.9, "(a) A person found to be a sexually violent predator and committed to the custody of the State Department of State Hospitals shall have a current examination of his or her mental condition made at least once every year. The report shall be in the form of a declaration and shall be prepared by a professionally qualified person. The person may retain or, if he or she is indigent and so requests, the court may appoint, a qualified expert or professional person to examine him or her, and the expert or professional person shall have access to all records concerning the person. [¶] (b) The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether conditional release to a less restrictive alternative, pursuant to Section 6608, or an unconditional discharge, pursuant to Section 6605, is in the best interest of the person and conditions can be imposed that would adequately protect the community."
The court also considered and rejected the possibility of unconditional release in view of authority from Division Three of this court that unconditional release is not a proper remedy for failure to place an SVP in a noncustodial program within the statutory deadline if he or she remains a danger to the public without supervision. The court found its conditional release order "was premature and erroneous given Mr. Cooley's refusal to engage in treatment" and therefore rescinded it.
George, supra, 164 Cal.App.4th at p. 198.
This appeal is timely.
DISCUSSION
I. Jurisdiction
Cooley contends the trial court had no authority to reconsider the conditional release order because it was a final order that may not be revisited other than through specific statutory procedures or on the limited grounds available for collateral attack. Relying on People v. DeLouize (2004) 32 Cal.4th 1223, 1231-1232 (DeLouize), he maintains the order was final because (1) it was appealable, which "[m]any courts use . . . as a test of whether an order is final"; and (2) treating it as final serves the policies of preserving confidence in the integrity of judicial process and avoiding repetitive relitigation of the same issues. The People, on the other hand, assert the conditional release order was an interim order that the trial court was free to reconsider. We agree.
A. The Statutory Framework
"The SVPA was first enacted in 1995 [citation] and has since been amended numerous times by the Legislature and by popular initiative. The measure is designed to accomplish the dual goals of protecting the public, by confining sexual offenders likely to reoffend, and providing treatment to those offenders. [Citations.] The statute 'allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms.' [Citation.] Those committed pursuant to the SVPA are to be treated 'not as criminals, but as sick persons.' [Citation.] They are to receive treatment for their disorders and must be released when they no longer constitute a threat to society." (George, supra, 164 Cal.App.4th at p. 193.)
To these ends, "[t]he SVPA provides for the involuntary civil commitment, for treatment and confinement, of an individual who is found by a unanimous jury verdict [citation], and beyond a reasonable doubt [citation], to be a 'sexually violent predator' [citation]. The definition of 'sexually violent predator' is set forth in section 6600, subdivision (a)(1) as follows:' "Sexually violent predator" means a person who has been convicted of a sexually violent offense against one 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.'" (People v. Olsen (2014) 229 Cal.App.4th 981, 991.) A person found to be an SVP is subject to an indefinite term of civil commitment but may petition for unconditional or conditional release under certain circumstances. (Id. at p. 992; see §§ 6605, 6608.)
When a person is committed to the Department as an SVP, the Department must prepare an annual report and evaluation that considers if the person then meets the definition of an SVP, whether conditional release pursuant to section 6608 or an unconditional discharge pursuant to section 6605 is in the SVP's best interest, and whether conditions can be imposed that would adequately protect the community. (§ 6604.9, subds. (a) & (b).) If the Department concludes the person is no longer an SVP or that conditional discharge would be appropriate, "the director shall authorize the person to petition the court for conditional release to a less restrictive alternative or for an unconditional discharge." (§ 6604.9, subd. (d).) Alternatively, as happened here, the committed person may petition for conditional release in the absence of the director's authorization. (§ 6608, subd. (a); People v. McKee (2010) 47 Cal.4th 1172, 1186.)
After receipt of such a petition, the trial court makes a threshold determination as to whether the petition is frivolous, i.e., if it indisputably has no merit. If so, the court must deny the petition without a hearing. (§ 6608, subd. (a); People v. Olsen, supra, 229 Cal.App.4th at p. 993.) If not, the court must hold a hearing to determine "whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community." (§ 6608, subd. (g).) The committed person has the burden of proof by a preponderance of the evidence unless the annual report concluded conditional release was appropriate. (§ 6608, subd. (k).)
"If the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court shall order the committed person placed with an appropriate forensic conditional release program operated by the state for one year." (§ 6608, subd. (g).) However, before the committed person can be placed in such a program "the community program director designated by [DSH] shall submit a written recommendation to the court stating which forensic conditional release program is most appropriate for supervising and treating the committed person. If the court does not accept the community program director's recommendation, the court shall specify the reason or reasons for its order on the record." (§ 6608, subd. (h); see § 6609.1, subd. (c) [court may approve, modify, or reject proposed placement based on input from responsible community agency].) If the court does determine that the committed person should be transferred to a conditional release program, "the community program director . . . shall make the necessary placement arrangements and, within 30 days after receiving notice of the court's finding, the person shall be placed in the community in accordance with the treatment and supervision plan unless good cause for not doing so is presented to the court." (§ 6608, subd. (i).)
B. Analysis
"Generally speaking, courts may correct judicial error in the making of interim orders or in limine rulings until pronouncement or entry of a judgment. [Citations.] On the other hand, judicial error in the making of a final order or judgment 'may not be corrected except pursuant to statutory procedures' or on the limited grounds available for a collateral attack." (DeLouize, supra, 32 Cal.4th at p. 1231.)
"Although courts have sometimes used appealability as a test for distinguishing final orders from interim orders [citations], a better approach here, we think, is to analyze the issue in terms of the policies underlying the general concept of finality. Orders and judgments are deemed final in the superior court, and not subject to reconsideration by that court, to preserve confidence in the integrity of judicial procedures and to avoid the delays and inefficiencies associated with repeated examination and relitigation of the same facts and issues. [Citation.] The concept of finality 'rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on an issue from again drawing it into controversy and subjecting the other party to further expense in its reexamination.'" (DeLouize, supra, 32 Cal.4th at p. 1232; see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 [court's inherent power to reconsider prior denial of summary judgment on its own motion].)
Neither party has identified any authority directly addressing whether a conditional release order issued pursuant to section 6608 should be classified as final or interim. Cooley asserts the order "could not be changed absent some statutory framework allowing it," but cites no authority for his claim the court lacked the power to reconsider it absent specific statutory authorization. To the contrary, the Supreme Court "has often recognized the 'inherent powers of the court . . . to insure the orderly administration of justice.' [Citations.] Although some of these powers are set out by statute [citation], it is established that the inherent powers of the courts are derived from the Constitution (art. VI, § 1 [reserving judicial power to courts]; [citations]), and are not confined by or dependent on statute.)" (Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267; accord People v. Castello (1998) 65 Cal.App.4th 1242, 1247.) As explained in Castello, those inherent powers "are wide" and "include authority to rehear or reconsider rulings: '[T]he power to grant rehearings is inherent, - is an essential ingredient of jurisdiction, and ends only with the loss of jurisdiction.'" (65 Cal.App.4th at p. 1248.)
In People v. Smith (2020) 49 Cal.App.5th 445, 456, Division Five of this court found it unnecessary to decide whether the trial court had the authority to reconsider a prior finding of probable cause to hold a trial on the defendant's petition for unconditional discharge from SVP status because (1) the court had inherent authority to dismiss the petition, even after finding probable cause; and (2) it properly dismissed the petition on the independent ground that the defendant was not on conditional release throughout the duration of the unconditional discharge proceedings, as required by section 6608, subdivision (m).)
Here, the statutory framework undermines Cooley's finality argument because it requires further trial court proceedings after a conditional release order. (See DeLouize, supra, 32 Cal.4th at p. 1231 [an order granting new trial is not final because it" 'does not finally dispose of the matter' "].) After Cooley was found suitable for conditional release, his release remained contingent on the court's acceptance of the Department's recommendation of an appropriate program for treatment and supervision. (§ 6608, subds. (g), (h).) A conditional release order under section 6608, subdivision (g) therefore does not "finally dispose of the matter," but, rather, initiates further proceedings in which the court must decide on the suitability of any recommended placement.
Finally, Cooley's view that permitting the trial court to revisit conditional release orders is contrary to the policies underlying the concept of finality (see DeLouize, supra, 32 Cal.4th at p. 1231) is inconsistent with the express mechanism for revoking outpatient status "at any time during the outpatient period" and "at any time during the outpatient period or placement" provided in Penal Code sections 1608 through 1610. Notably, Penal Code section 1610's authorization of reconfinement merely upon the filing of a request for revocation demonstrates the interim nature of any conditional release order. Cooley's 2016 conditional release order is yet more plainly interim, as he had not in fact been released into an outpatient program. Without an actual placement or requisite court placement approval, there was no finality prohibiting the court's reconsideration.
To the extent Cooley complains that Penal Code sections 1608 and 1609 limit the filing of such a petition to the "community program director," or "prosecutor," nothing in these provisions indicates the Legislature intended them as the exclusive means for revisiting decisions to grant conditional release. In fact, the requirement that those persons notify the court of any outpatient issues warranting revocation consideration evidences the court's ongoing jurisdiction and obligation to consider outpatient suitability. Penal Code sections 1608 and 1609 are made applicable to SVP offenders by Penal Code section 1600.
For all these reasons, we are not persuaded the trial court lacked authority to reconsider its 2016 conditional release order, particularly in view of Cooley's ongoing treatment and supervision issues and the information brought to light by the exhaustive search for a placement where Cooley could be treated and supervised without danger to the community.
II. Substantial Evidence
Cooley alternatively argues that, even if the court had the authority to reconsider its prior order, it erred substantively in deciding to rescind it in that (1) there was not substantial evidence to support the revocation of the 2016 order, and (2) Cooley's failure to participate in the sex offender treatment program (SOTP) was known at the time of the 2016 order and therefore, in 2021, provided an insufficient basis to change that outpatient order. The applicable standard of review is well settled.
"[W]e review the whole record to determine whether any rational trier of fact could have found the essential elements . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value . . . . [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Cooley asserts the trial court placed undue weight on his failure to engage in or complete the SOTP, relying on Drs. Abrams's and Abbott's disagreement with Dr. Malhotra's assessment and their views that (1) the SOTP was inadequate and potentially dangerous for someone with his neurocognitive deficits, and (2) Cooley did not pose a risk of reoffending if placed on conditional release in the community. Omitted from this argument, however, is contradictory evidence from Liberty and Dr. Malhotra, discussed in our background section at pages 8-10 and footnote 8, ante, of the risks to the public were Cooley to be released without completing the SOTP; his prior behavior under supervision in the community and continued poor behavior in custody; and the extensive unsuccessful efforts to locate an acceptable conditional release placement. This evidence is in fact "substantial" and demonstrates that it was not possible to release Cooley under supervision without threatening the public safety. That Cooley's experts disagreed about Cooley's diagnoses, dangerousness, and the significance of his refusing sexual offender treatment does not give us leave to override the trial court's assessment of that evidence.
We also disagree with Cooley's argument that there were no changed circumstances to justify the court's rescission of the 2016 order. In People v. Parker (2014) 231 Cal.App.4th 1423, 1434-1435, which Cooley cites to assert the 2016 order could not be revoked without a showing of changed circumstances, the issue at the revocation hearing was rather whether a defendant previously found suitable for release required extended inpatient treatment based on new evidence of her medical condition-i.e., whether her condition had changed such that release was no longer appropriate. Here, in contrast, the question posed on the court's motion for reconsideration was whether the 2016 conditional release order was "premature and erroneous given Mr. Cooley's refusal to engage in treatment." In this context, we are not persuaded there is any requirement to show a change of material circumstances.
That said, the record demonstrates that in the four-plus years between the court's 2016 order and the January 2021 indication of its intent to reconsider that order, circumstances had very much changed. In 2016, the court expressed hope that an appropriate outpatient placement could be found to address Cooley's individual needs. But in 2021, after extensive investigation into thousands of potential placements extending to multiple counties and including transient as well as permanent housing, it became apparent that the court's initial optimism was misplaced. In addition, the court reviewed and considered new expert evidence that Cooley posed a continued risk of reoffense, particularly in view of Cooley's ongoing unwillingness to participate in treatment or to comply with supervisory directives, thereby establishing the impossibility of safely releasing him to the community. This evidence demonstrated changed circumstances warranting the court's reconsideration and revocation of the 2016 order.
III. Equal Protection
Cooley contends the difference between the statutory standards for community release for SVPs and MDOs violates his constitutional equal protection rights. This is so, he argues, because SVPs must prove by a preponderance of the evidence that they would not be dangerous on conditional release (§ 6608, subd. (k)), while MDOs need only establish reasonable cause to believe they could be safely and effectively treated in an outpatient program. (Pen. Code, § 2972, subd. (d).) As numerous courts of review have decided before us, this is not so.
Although Cooley did not raise this issue in the trial court, we exercise our discretion to address it on its merits to avoid an ineffective assistance of counsel claim. (See, e.g., People v. Bocklett (2018) 22 Cal.App.5th 879, 894.)
"The Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution guarantee all persons the equal protection of the laws. To succeed on an equal protection claim, appellants must first show that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (People v. Edwards (2019) 34 Cal.App.5th 183, 195.) "Where a class of criminal defendants is similarly situated to another class of defendants who are treated differently, courts look to determine whether there is a rational basis for the difference. [Citation.] '[E]qual protection of the law is denied only where there is no "rational relationship between the disparity of treatment and some legitimate governmental purpose." '" (Ibid.)
In People v. McKee, supra, 47 Cal.4th 1172, the Supreme Court concluded that SVPs, MDOs, and persons found not guilty by reason of insanity (NGIs) are similarly situated for purposes of the equal protection clause. Accordingly, it remanded the matter for an evidentiary hearing to determine whether the People could demonstrate a constitutional justification for imposing on SVPs a greater burden than is imposed on MDOs and NGIs to obtain release from commitment. (Id. at pp. 1203, 1207-1209.)
Following remand in People v. McKee (2012) 207 Cal.App.4th 1325, 1347 (McKee II) the Court of Appeal affirmed the trial court's finding that the disparate treatment of SVPs (including by placing on them the burden to prove they should be released) was necessary to further the state's compelling interests in public safety and the humane treatment of those suffering mental disorders. "McKee II found substantial evidence to support a reasonable perception on the part of the electorate enacting the amended SVPA that the recidivism rate of released SVP's is greater than the rate of reoffense of other sex offenders; that the harm suffered by victims of sex offenses is greater than that caused by other types of offenses; that SVP's pose an increased risk of harm to children; that SVP's have significantly different diagnoses from those of MDO's and NGI's; and that treatment plans, rates of compliance and success rates are significantly different." (People v. McCloud (2013) 213 Cal.App.4th 1076, 1085-1086.) Thus, "SVP's as a class, pose a substantially greater risk to society than MDO's and NGI's, warranting the imposition of a greater burden before SVP's can be released from commitment." (Id. at p. 1086)
Since McKee II, multiple reported decisions have rejected equal protection challenges to SVPA procedures and clarified that the Supreme Court intended the post-McKee I remand to apply to the class of SVPs as a whole. (People v. Gray (2014) 229 Cal.App.4th 285, 291 ["Every published opinion to consider the issue has concluded the . . . SVPA passes constitutional muster under the strict scrutiny test."]; People v. Kisling (2014) 223 Cal.App.4th 544, 548; People v. McDonald (2013) 214 Cal.App.4th 1367, 1378; People v. McKnight (2012) 212 Cal.App.4th 860, 863-864.) These holdings are dispositive here.
IV. Due Process
We turn at last to Cooley's claim his due process rights were violated by "excessive and unauthorized continuances and placement delay" due to what he casts as efforts by the Department, the County, and the prosecutor to thwart any and all attempts to place him in the community. He asserts the Department and prosecutor "thumbed their institutional noses" at their obligations to identify appropriate placements, while the prosecutor "did whatever she could to stymie placement efforts," "rall[ied] out of county district attorneys to rouse community ire," incited a "torrent of misinformation and hysteria" at community hearings, and, along with the Humboldt County sheriff, inflated the gravity of Cooley's crimes. In a similar vein, Cooley faults the Department for consistently opposing as unsafe his release to the community and accuses it of intentionally "playing the doofus-card, fumbling around and acting confused" about statutory notice requirements to delay the proceedings. Cooley further argues there was no evidence to support the court's finding in December 2018 of extraordinary circumstances warranting extending the placement search beyond Humboldt County, which he claims caused further delay. (See § 6608.5, subd. (a)(1); p. 5, fn. 6, ante.)
Addressing first the out-of-county argument, Cooley failed to preserve the issue for appeal with objection; in fact, his own attorney specifically asked the court to extend Cooley's placement search beyond Humboldt County on multiple occasions. It is now far too late to complain of a ruling made in 2018; any objection is forfeited.
In addition, the argument fails on its merits. "Extraordinary circumstances" are defined as "circumstances that would inordinately limit the department's ability to effect conditional release of the person in the county of domicile." (§ 6608.5, subd. (c).) As noted at pages 4-7, ante, numerous reports and hearings between 2017 and 2021 concerning the search for a suitable placement document the difficulty of locating appropriate housing in Humboldt County where, due to obstacles including proximity to schools and children, remoteness from law enforcement, inadequate GPS coverage, community resistance, and Cooley's failure to engage in sexual offender or other treatment, he would not pose an undue risk to the public nor himself be at risk. The court could reasonably consider those factors as "circumstances that would inordinately limit the department's ability to effect conditional release." (§ 6608.5, subd. (c).)
Turning to Cooley's assertions of malfeasance and incompetence, we are satisfied the record does not support these accusations. After careful review, and while, as we noted in Cooley II, we remain concerned about the duration of the prolonged placement efforts, nothing in the expansive record indicates the placement search was delayed and ultimately thwarted by foot-dragging by the Department, Liberty, or the prosecutor, rather than by very real obstacles to securing housing where Cooley could be released on supervision without undue risk. Nor, as Cooley maintains, does the Department's consistent opposition to placements it believed to be unsafe, a delay of some months in designating the RCRC to assist Liberty with the search, or Cooley's (unobjected to) absence from hearings at which he was represented by counsel persuade us he was afforded less than the due process of law.
In any event, as Cooley acknowledges, RCRC's assistance "did not seem to do much in obtaining a placement."
Cooley also mistakenly claims the court "overlooked" a 2016 Marsden request and failed to rule on it. The request was denied in open court on November 16, 2016.
"The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'" (Mathews v. Eldridge (1976) 424 U.S. 319, 333.) Here, Cooley was represented by capable counsel throughout the proceedings; Liberty made extensive, documented efforts to locate an acceptable conditional release placement; and the court actively oversaw that search through numerous, near-monthly placement and status review hearings. Moreover, the record confirms that the vast majority of hearing dates, if not all, were set without objection and that, to the extent continuances were sought, the defense was at least equally responsible. On this record we are unpersuaded that those proceedings, although unfortunately protracted, violated Cooley's due process rights.
We also note that while the court initially noticed its motion for reconsideration of the 2016 order to be heard on April 16, 2021, it was not in fact heard until August 13, 2021, at Cooley's request, in order for him to secure additional expert assessments relied on in arguing before the trial court and here.
In making this determination, we are not suggesting that extended searches for outpatient placement of sexual offenders-usually lasting some nine months to two years-are appropriate or satisfactory. "Good cause" for delay must be critically assessed in each and every case. But, where placement difficulties are commonly acknowledged throughout the state, we would urge the Department, the Legislature, and other appropriate cooperative partners to develop safe outpatient alternatives-which may include building temporary housing-that would enable supervised placement in a much more timely manner. Failure to develop such alternatives may well give rise to due process violations in the future.
DISPOSITION
The order is affirmed.
WE CONCUR: Streeter, Acting P.J. Brown, J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.