Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F96553751-9. John Vogt, Judge.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
The trial court sustained a petition to extend defendant Edward Flores’s commitment to the state hospital as a sexually violent predator (SVP). The parties entered into a stipulation by which defendant would not contest the petition, the People would not contest defendant’s petition for conditional release, and defendant could appeal on a single pretrial issue decided against him by the trial court: whether the petition should be dismissed because the Department of Mental Health could not, as the time of trial approached, produce two experts who agreed that defendant satisfied the criteria for continued commitment. Since the department’s two experts agreed that defendant satisfied those criteria back when the department forwarded the request for recommitment to the District Attorney—the only stage at which this agreement is statutorily required—the trial court was correct to deny defendant’s motion to dismiss. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
In our opinion in an earlier appeal by defendant, of which we take judicial notice, we set forth the background facts. (People v. Flores (2006) 144 Cal.App.4th 625.) In 1997, when he was released from prison, defendant was committed to the state hospital as an SVP for a two-year term pursuant to former Welfare and Institutions Code section 6604. The appellate record did not indicate the factual basis for this original commitment, but there was evidence that defendant self-reported sexual offenses against 15 to 18 victims. Defendant did not contest the 1997 petition or a recommitment petition filed in 1999. (People v. Flores, supra, at p. 627.)
Section 6604 was subsequently amended to provide for indeterminate terms instead of two-year terms. The current and former versions do not differ in any other way relevant to this appeal, so we will refer to the current version in this opinion. Subsequent statutory references are to the Welfare and Institutions Code unless stated otherwise.
Additional two-year recommitment petitions were filed in 2001 and 2003. Defendant contested them and, after delays, they were tried together in 2005. Defendant argued, among other things, that he could not be found likely to commit future offenses because he had been chemically and surgically castrated, at his own request, while in the hospital. (People v. Flores, supra, 144 Cal.App.4th at p. 628.) A jury found that he remained an SVP. We affirmed. (Id. at pp. 631, 633.)
Anticipating the 2005 expiration of the commitment on the 2003 petition, the Department of Mental Health (the department) obtained evaluations of defendant from two psychological evaluators, Dr. Craig Updegrove and Dr. Douglas Korpi. Both opined that defendant continued to meet the criteria for commitment as an SVP. Their reports were forwarded to the district attorney, who filed a petition on February 1, 2005, to re-extend defendant’s commitment.
The petition was still pending about a year later when defendant requested that the court order the department to provide updated psychological evaluations. The court granted the request on February 16, 2006.
The same two evaluators re-examined defendant. This time, Dr. Updegrove believed defendant still satisfied the criteria for commitment as an SVP, but Dr. Korpi did not. The department then appointed two new evaluators, Dr. Zoen and Dr. Goldberg. These also disagreed, one opining that defendant satisfied the criteria and the other opining that he did not.
The petition was set to be tried on September 12, 2006. On that date, defendant made a motion to dismiss the petition. He argued that section 6601, subdivision (f), implied that the petition must be dismissed if, at any time before trial, the department’s evaluators disagree about the defendant’s status, and then a second pair of evaluations also results in disagreement. The court denied the motion, relying on Gray v. Superior Court (2002) 95 Cal.App.4th 322.
The parties then entered into the following agreement to dispose of the case: Defendant waived his right to a jury trial and stipulated that there was a factual basis for finding the petition true and extending his commitment another two years to May 12, 2007. The People agreed not to oppose defendant’s petition for conditional release. The court ordered that defendant be evaluated for outpatient treatment and stated its intention to sign an order allowing outpatient placement after the appropriate medical recommendations were completed. The court agreed to issue a certificate of probable cause to allow defendant to take an appeal based on the denial of his motion to dismiss. The court issued the certificate on October 18, 2006.
DISCUSSION
The essential facts are undisputed and the issue preserved by the parties’ stipulation is a pure question of law. We review the trial court’s resolution of this issue de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Topanga and Victory Partners v. Toghia (2002) 103 Cal.App.4th 775, 779-780.)
As a threshold matter, it is unclear whether defendant’s motion to dismiss was procedurally proper. Generally speaking, a motion to dismiss a civil action lies only for grounds specified in the Code of Civil Procedure, such as nonjoinder of necessary parties or failure to timely serve the summons. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 7:370, p. 7-134; see also Gray v. Superior Court, supra, 95 Cal.App.4th at p. 330, fn. 15.) Further, defendant’s motion to dismiss was not a demurrer, a motion for judgment on the pleadings, or a motion for summary judgment. It has sometimes been held that a nonstatutory motion to dismiss can serve the same function as a demurrer. (McKay v. County of Riverside (1959) 175 Cal.App.2d 247, 248-249; Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 299.) Yet, since it was not an attack on the pleadings, it does not seem that defendant’s motion could be regarded as equivalent to a demurrer. As for summary judgment, one Court of Appeal panel has held that a motion for summary judgment does not lie in an SVPA proceeding. (Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1682.) In any event, the parties have not briefed this question and we will assume for the sake of argument that some appropriate procedural basis existed for defendant’s request for dismissal. (See, e.g., People v. Superior Court (Gary) (2000) 85 Cal.App.4th 207, 212, 213 [upholding dismissal of SVPA petition where petition not supported by concurrence of two psychological evaluations when it was filed].)
Under the Sexually Violent Predators Act (§ 6600 et seq.) (SVPA), the Director of Corrections must refer an inmate for evaluation if the director determines that the inmate may be an SVP and the inmate is serving a determinate sentence or has had his parole revoked. (§ 6601, subd. (a)(1).) The inmate is initially screened by the Department of Corrections and the Board of Prison Terms, which determine whether he is likely to be an SVP based on whether he has committed a sexually violent predator offense and other factors. If he is likely to be an SVP, the Department of Corrections must refer him to the Department of Mental Health for a psychological evaluation. (§ 6601, subd. (b).) That department must then have two practicing psychiatrists or psychologists evaluate the inmate according to a standardized protocol and render opinions on whether he is an SVP. (§ 6601, subds. (c), (d).) “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 department “shall forward” a request for a commitment petition to the district attorney or county counsel of the county in which the inmate committed the offense for which he was incarcerated. (§ 6601, subds. (d), (i).)
If the two evaluators do not agree that the inmate is an SVP, the department must arrange for psychological evaluations by two “independent professionals.” (§ 6601, subd. (e).) In that case, “a petition to request commitment … shall only be filed if both” of these additional evaluators “concur that the person meets the criteria for commitment .…” (§ 6601, subd. (f).)
If the department requests a petition for commitment and the district attorney or county counsel files one, the district attorney or county counsel may later request updated psychological evaluations. If the updated evaluations result “in a split opinion as to whether the person … meets the criteria for commitment,” the department must conduct two additional evaluations “in accordance with subdivision (f) .…” (§ 6603, subd. (c)(1).) Under the former law (which provided for two-year commitments rather than indeterminate commitments, as under the current law), all these procedures applied to petitions for recommitment as well as to the original petition for commitment—except for the procedures pertaining to actions by the Department of Corrections and the Board of Prison Terms, which were not involved in recommitments, since the defendant was already housed in the state hospital. (Former § 6604.1, subd. (b).)
Defendant’s argument that the trial court was required to dismiss the petition is based on these provisions. The Court of Appeal considered a similar contention in Gray v. Superior Court, supra, 95 Cal.App.4th 322. Gray was evaluated by two evaluators in 1996 who agreed that he met the criteria for commitment as an SVP. A commitment petition was filed under the SVPA. In 1999, with a scheduled trial date imminent, Gray petitioned the Court of Appeal for dismissal on the ground that three new evaluations had been conducted, two of which concluded that he did not meet the criteria for commitment. The petition was denied. Trial was delayed again. In January 2001, two additional evaluations again disagreed about Gray’s status. Two more evaluations rendered in March 2001 reflected a split of opinion yet again. Gray moved for summary judgment, arguing that section 6601, subdivision (f), meant prosecution of the petition was authorized only if two evaluators still believed he was an SVP at that point. The motion was denied and Gray filed another writ petition in the Court of Appeal. (Gray v. Superior Court, supra, 95 Cal.App.4th at pp. 324-325.)
That court denied the petition. Like defendant in the present case, Gray argued that section 6601, subdivision (f), and section 6603, subdivision (c), meant the petition, although proper when filed, could not go forward if a pair of evaluators did not agree afterward. (Gray v. Superior Court, supra, 95 Cal.App.4th at pp. 325-327.) As the court described it, Gray’s argument was that section 6601, subdivision (f), should be read as if it said “in part (with changes in the language italicized): ‘[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). Furthermore, if the independent professionals who evaluate the person—after a split of opinion has resulted from an updated or replacement opinion—do not concur, a pending proceeding under this Act shall be forthwith dismissed.’” (Gray v. Superior Court, supra, at pp. 327-328.)
The Gray court believed this view of the statute was “not implausible.” “Arguably,” the court stated, “it would be desirable to provide that if the factors which supported the filing of a petition no longer exist, proceedings should terminate.” (Gray v. Superior Court, supra, 95 Cal.App.4th at p. 328.)
The court rejected this position, however. It pointed out, first, that section 6601 simply does not state that the petition must be dismissed if, after it is filed, a split of opinion arises between the department’s evaluators. Instead, it sets forth conditions that must exist for a petition to be filed in the first place. “To say that a petition may not be filed unless certain conditions are met is not the same as to say that proceedings ‘may not go forward’ if those conditions cease to exist.” (Gray v. Superior Court, supra, 95 Cal.App.4th at p. 328.) If the Legislature had also wished to provide for dismissal in cases where the conditions cease to exist, it could easily have done so. (Ibid.)
Second, although section 6603, subdivision (c), provides for post-filing appointment of independent professionals if the original evaluators split when asked for updated opinions, it says nothing about what should happen if the independent professionals also disagree (or, for that matter, what should happen if they agree). There is no need to infer that dismissal must follow if they disagree. “[W]e think it more likely that the required new evaluations are intended for informational and evidentiary purposes,” the court opined. (Gray v. Superior Court, supra, 95 Cal.App.4th at p. 328.) “[T]he prosecuting attorney might well elect to dismiss the proceeding” if a disagreement among the appointed evaluators arises, since this could be a sign that the evidence against the defendant is weak. (Id. at p. 329, italics added.) The prosecuting attorney might decide the opposite, however, after considering possible qualitative differences between the conflicting expert opinions and reviewing the other evidence. Mandating dismissal “would deprive the trier of fact of the opportunity to make a qualitative assessment of the experts’ opinions. As the opinions accumulate, such an analysis becomes ever more important and desirable; it is not the number of opinions that matters, but their persuasiveness.” (Ibid.)
We agree with Gray. The requirement of two concurring evaluations in section 6601 serves the purpose of limiting the filing of petitions to those that have a likelihood of succeeding at trial. The provisions in section 6603 for obtaining post-filing evaluations serve the purpose of making updated information available to inform the prosecutor’s discretion. Neither set of provisions says a petition proper when filed must be dismissed if a split of opinion afterward develops. Defendant has presented no considerations that would compel the creation of that requirement. That a split of opinion between the department’s appointed experts develops post-filing does not necessarily mean the trial evidence against the defendant will be inadequate or weak. Juries routinely hear conflicting expert testimony in SVP cases, but often properly find facts requiring commitment in spite of this situation. Under these circumstances, we would be exceeding the limits of our judicial function if we were to infer a dismissal requirement not expressly set forth in the statute.
Defendant argues that Gray is distinguishable because the trial court there made a finding of probable cause for proceedings on the petition to go forward, while no probable cause hearing was held in this case. (Gray v. Superior Court, supra, 95 Cal.App.4th at p. 329 [“Once a petition under the Act has been filed, and the trial court (as here) has found probable cause to exist, the matter should proceed to trial”].) According to defendant, the probable cause finding in Gray supplied “the required factual basis for proceeding to trial” and therefore served as a substitute for the continued agreement of two evaluators. This reasoning is mistaken. As we have explained, the continued agreement of two evaluators is not required as a basis for proceeding to trial, since the two-evaluations requirement is only a condition for the filing of the petition. Consequently, there is no basis for the notion that a probable cause hearing is necessary as a substitute. The holding of Gray is consistent with this conclusion and inconsistent with defendant’s argument. The Gray court held that the petition should not be dismissed because no post-filing requirement of two concurring evaluators existed, not because the probable cause finding performed the same function that this requirement would perform.
In light of our conclusion, we need not resolve the parties’ disagreement about whether the record reflects a valid waiver (or any waiver) of the probable cause hearing. Defendant’s argument fails even assuming the probable cause hearing was neither held nor waived.
Defendant also contends that Gray was decided wrongly. He first states that “[t]he implied conclusion that proceedings under the Act do not contemplate concurrence of two evaluators finding that the Act applies to the alleged SVP appears to contradict the plain language of the Act .…” Gray contains no such implied conclusion. It held that the statute requires concurrence of two evaluators as a condition of filing the petition, but does not require any pairs of evaluations obtained post-filing to concur as a condition of proceeding to trial.
Next, defendant asserts that Gray violated “the mandate from our Supreme Court that involuntary commitment statutes are ‘subject to the most rigorous form of constitutional review’ [citation]” and must be construed narrowly. Defendant has made no constitutional claim in this case—he does not say he was denied his liberty without due process of law, for instance—so his reference to rigorous constitutional review is not germane. Further, the Gray court’s conclusion was consistent with narrow construction of the statute. Narrow construction does not require a court to infer a defense-favoring requirement unsupported by the statute’s language.
Finally, defendant cites Gary, supra, 85 Cal.App.4th 207 and Butler v. Superior Court (2000) 78 Cal.App.4th 1171. In Gary, this court held that an SVPA petition properly was dismissed where it was not supported by the concurrence of two evaluators at the time it was filed. (Gary, supra, 85 Cal.App.4th at pp. 211-212, 213.) In Butler, the court ordered dismissal of SVPA recommitment petitions supported by only one evaluation when filed; it rejected the view that the two evaluations supporting each original commitment petition could be relied on again at the recommitment stage. (Butler v. Superior Court, supra, 78 Cal.App.4th at pp. 1173, 1179-1180.) In Gary and Butler, the petitions were filed improperly because they were not supported by two concurring evaluations at the time of filing. We have explained why the requirement of two concurring evaluations as a condition of filing the petition does not imply that a petition that was so supported when filed—like the petition at issue in this case—must be dismissed when a split between evaluators arises later.
For all these reasons, we reject defendant’s claim. The trial court was not required to dismiss the petition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Levy, J.