Opinion
D076494
02-24-2020
The PEOPLE, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Alvin Quarles, Real Party in Interest.
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Samantha Begovich, Deputy District Attorneys, for Petitioner. No appearance for Respondent. Angela Bartosik, Chief Deputy Primary Public Defender, Euketa Oliver, Deputy Public Defender, for Real Party in Interest.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part II.
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Samantha Begovich, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Angela Bartosik, Chief Deputy Primary Public Defender, Euketa Oliver, Deputy Public Defender, for Real Party in Interest.
HUFFMAN, Acting P. J. The Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq. ) provides that, under certain circumstances, a person who has been civilly committed as a sexually violent predator (SVP) can be conditionally released into the community under a program of outpatient supervision and treatment. (See §§ 6608–6609.3.) In June 2018, the superior court determined that Alvin Quarles, who had been committed as an SVP since 2014, should be conditionally released. The People unsuccessfully brought a motion for reconsideration of that order.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
In this mandamus proceeding, the People seek a writ of mandate to prohibit Quarles's conditional release. To this end, they contend: (1) the superior court misinterpreted the law and thus erred in ordering Quarles's conditional release; (2) substantial evidence supports Quarles's continued confinement because he remains dangerous and is likely to reoffend; (3) exclusion of certain polygraph evidence was error; and (4) all proceedings relating to Quarles's petition to be conditionally released should have been open to the public.
On the record before us, we are concerned whether the superior court applied the correct legal standard in granting Quarles's petition to be conditionally released. Because of the significance of conditionally releasing an SVP back into the community (especially one with a criminal history like Quarles's), we grant some of the requested relief and order the superior court to hold a new trial to determine whether Quarles should be conditionally released under the correct legal standard. We determine the other issues the People raise in their petition are without merit and deny the requested relief as to those issues accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
The media dubbed Quarles the "Bolder than Most" rapist based on his string of violent rapes during the 1980's. Quarles was arrested and taken into custody on February 22, 1988. Pursuant to a plea agreement entered on February 6, 1989, Quarles ultimately pled guilty to four counts of rape while armed with a knife, six counts of residential burglary, and two counts of robbery. The court sentenced him to prison for 50 years.
Quarles's crimes were odious and shocking. Below is a summary of some his offenses.
June 9, 1985, and April 25, 1986: On June 9, 1985, the victim, Diane, awoke to find Quarles standing in her bedroom holding a knife. He told her to be quiet and undress. He digitally penetrated her vagina, orally copulated her, and forced her to orally copulate him twice. Apparently unsatisfied, he told her, "This isn't gonna work. I want to fuck you." After suggesting they engage in anal sex, she told him she had herpes and showed him a yeast medication, after which he left. For this crime, he was convicted of burglary as part of his plea agreement.
On April 25, 1986, Quarles returned to Diane's residence, where she awoke to find him in her bedroom holding a knife. He told her he returned because he was angry that she called the police after the previous assault. He ordered her outside and instructed her to climb a fence into an alley, which she was unable to do even with his help. He then led her back into her house and stole $180 from her wallet. As part of his plea agreement, Quarles was convicted of burglary for these actions.
June 3, 1986: Quarles approached Michelle, who was a stranger sitting in a truck outside a bar. Quarles held a sledgehammer near her face. He asked her for her money and then offered to pay her for sex. She declined. After pulling her out of the truck and threatening to kill her, he entered the truck and ordered her to drive to a remote area. Once there, he ordered Michelle to remove her clothes, began masturbating, and ordered her to masturbate as well. After orally copulating her, he vaginally raped Michelle. He then attempted to apologize, gave her $80 and crystal methamphetamine, and asked if he could call her. Quarles was charged with kidnapping, rape by force, oral copulation, and assault. He pled guilty to battery and was sentenced to two years' probation and 58 days in jail.
December 5, 1986: Jean awoke to find Quarles standing over her, putting a knife against her chest. He covered her face and said, "I can't meet people or communicate very easily. This is the only way I can get sex. This is the first time I've done this. Just be nice and I won't hurt you." When Jean attempted to prevent Quarles from tying a pillowcase around her head, she was cut by Quarles's knife. The cut required 15 stitches. Quarles told her he had been "watching [her] for a long time." He ordered her to take her clothes off, and upon realizing she was bleeding profusely, attempted to wash her off and bandage her wound. They then sat on the bed and talked. She claimed to have recently had surgery such that a rape could paralyze her. Quarles responded, "If I can't have sex with you, why don't you wiggle my dick on you, and then you can suck me." Jean said no. He then asked, "Do you think you could really make love to me and enjoy it?" She responded in the negative to which Quarles replied, "I can't get out of this with nothing, so can I have your knives?" He left the residence with her knives and a door alarm. Upon leaving, he warned Jean, "Better watch yourself." For these actions, Quarles pled guilty to burglary under his plea agreement. February 23, 1987: Sandra and Danny were a couple, who were spending the night in a motel. They had begun to have sex when Quarles emerged from within their motel room holding a large knife. He ordered Danny into the bathroom and instructed him to lock the door, stating, "I just want to fuck her." Danny complied. Quarles ordered Sandra to get down "on all fours" with her buttocks facing him. In response to her pleading, he allowed her to "sit on the edge of the bed and suck it." After forcing her to orally copulate him, he pushed her face down on the bed and ran the knife down the side of her leg. He again made her get on her hands and knees and vaginally raped her. After, he forced her to get on top of him and engage in vaginal sex on the bed. He suddenly became nervous and fled. Danny later told authorities that Quarles attempted to "get a hit man after us." Pursuant to his plea agreement, Quarles was convicted of burglary for these acts.
March 18, 1987: Kathleen and her husband were staying at the same motel as Quarles's prior victims, Sandra and Danny. Quarles entered the room while they slept, lifted the covers on the bed, and stared at Kathleen's body while indicating with a knife that she should be quiet. He asked for money, but she had none. He then fondled Kathleen's breasts, stomach, leg, and vagina. When Kathleen's husband awoke, Quarles instructed him to cover his face with a pillow and go into the bathroom. He then stole $350 from the husband's wallet and covered Kathleen's face with her sweatshirt. Quarles pushed his penis into her mouth and forced her to orally copulate him for about five minutes. He then vaginally raped her for five minutes. After, Quarles instructed Kathleen's husband to come out of the bathroom and have sex with Kathleen. After watching television for a while, Quarles told Kathleen to orally copulate her husband, which she did. He then ordered the couple to "make love" but the husband could not get aroused. Quarles commanded the husband to return to the bathroom and forced Kathleen to orally copulate him. He subsequently vaginally raped her at knifepoint before masturbating and leaving. For these actions, Quarles pled guilty to forcible rape with a knife as part of his plea agreement. This was his first SVP qualifying offense.
September 12, 1987: Cynthia and Kevin awoke in their bed to find Quarles standing in their bedroom yielding a large knife. After informing them he was a "lunatic," he instructed Cynthia to make Kevin hard. After Quarles threatened to cut Kevin, Cynthia complied and orally copulated Kevin for 45 minutes to an hour. As Kevin was too afraid to get an erection, Quarles ordered the couple to "make out" for 15 minutes, and then Kevin orally copulated Cynthia while Quarles digitally penetrated her vagina. Quarles then vaginally raped Cynthia twice. At some point during the ordeal, Quarles threw a $100 bill on the bed and told them, "This is for the show." Cynthia threw the money back at him, to which he replied, "I'm not afraid to hurt you. I'm mentally ill. I've done this before." The incident ended when Quarles threatened the victims with a two-inch revolver ("Don't yell or move and remember this") and left. It was noted that he wore gloves during the incident and was concerned about fingerprints and physical evidence. As part of his plea deal, Quarles was convicted of forcible rape with a knife for these actions. This was his second SVP qualifying offense.
October 11, 1987: Laurie returned to her home to find Quarles standing in her living room holding a large knife. She approached him, grabbed the knife and said, "What the hell are you doing in my house?" He broke free and fled out the front door. For this event, he was convicted of burglary as part his plea agreement.
November 21, 1987: As Ericka and Robert were having sex in their motel room, they looked up and saw Quarles in their room staring at them. Holding a large knife in his hand, Quarles instructed them to "Keep on fucking because I want to [masturbate and] watch." He commented that if they had been reading the newspapers they should have heard about him, and he would not hesitate to kill them. Quarles informed them that if Robert did not have sex with Ericka then he would do it. Robert told Quarles that he would kill Quarles if Quarles touched Ericka. After taking their money and wiping doorknobs clean, Quarles left. As part of his plea bargain, Quarles was convicted of robbery for this offense.
December 13, 1987: Quarles entered Christina's motel room under the guise that he was a motel employee and needed to fix clogged pipes. He later approached Christina, who was sitting in bed, with a knife and began to remove her clothes. He then forced her to orally copulate him. He then orally copulated her and asked her if she liked it before he vaginally raped her. He requested she make noises, which she did, and he ejaculated. Before leaving, he ascertained that she did not have "nothin' of value" and wiped down areas in the room that he had touched. This offense was also adjudicated with the plea bargain, and Quarles was convicted of the SVP qualifying offense of armed forcible rape.
January 4, 1988: Michelle, who was taking a shower, was surprised by a knife yielding Quarles standing outside the shower. He threatened, "Don't scream or I'll kill you." He asked for money. She offered him a bracelet to which he replied, "I don't want that. You know what I want." He forced her to remove her towel and sit on her bed. When her roommate Mary returned, he requested her money, which she gave him. He told Mary to undress, sit next to Michelle, and asked if they were lesbians. They informed him, "We're Catholics," and pointed out "all the crosses around here." When Michelle resisted his attempts to force her legs apart he threatened, "Do as I say or I'll kill you." Upon Michelle's further resistance, he moved onto Mary and fondled her vagina and rubbed his penis on her legs. All the while Mary, later joined by Michelle, repeated prayers out loud over and over. He suddenly told Michelle that "You should be more like [Mary]. She saved you," and left. As part of his plea deal, Quarles was convicted of burglary for these offenses perpetrated against Michelle and Mary.
January 23, 1988: Anna and her husband, D., had been sleeping in their motel room. Anna awoke to find Quarles lying on the floor near their bed. She woke up D., who yelled at Quarles to leave. Quarles brandished a knife and threatened to kill him if he moved. After demanding and taking their money, Quarles instructed the couple to "make love" and threatened that if the husband could not do it, he would. He also ordered them to engage in a specific sex act but they were too afraid. Quarles then made D. watch as he vaginally raped Anna while holding a knife to her throat. As part of his plea deal, Quarles was convicted of forcible armed rape for these actions. This was his fourth SVP qualifying offense.
February 8, 1988: Janice and John were engaged in sexual activity in their motel room when they realized Quarles was kneeling over them with a large knife. Quarles instructed them to keep quiet and continue performing. As the sun began to shine into the room, Quarles told Janice to shut the window or close the drapes. When she got up to do so, she escaped from the room and, while naked, flagged down a motorist who drove her to the California Highway Patrol station. Pursuant to his plea agreement, Quarles was convicted of burglary for these actions.
Before Quarles was to be released from prison, in 2014, the People filed a petition to have him civilly committed as an SVP within the meaning of the SVPA. In response to the People's petition, Quarles stipulated that he was an SVP. The superior court ultimately committed Quarles to the California Department of State Hospitals to undergo sex offender treatment for an indeterminate term of commitment. He then was sent to Coalinga State Hospital (CSH).
In September 2016, under section 6608, Quarles petitioned the superior court for his release through the Conditional Release Program (CONREP) for sex offenders, which is administered by Liberty Healthcare Corporation (Liberty). The People opposed his release. The matter proceeded to trial in June 2018. At trial, Quarles argued that he should be conditionally released because of his improvement while in prison and subsequently at CSH. Specifically, Quarles became a devout Muslim, focused on overcoming his substance abuse problems, participated in hours of voluntary programs, and obtained certificates in a variety of different areas so he would have a means to earn a living once he was released from prison. While at CSH, Quarles was a "model patient" who did not miss any treatment.
Throughout the record, the parties and the court referred to the possibility of Quarles being conditionally released to CONREP or Liberty CONREP. At times, the parties and the court used the terms CONREP and Liberty CONREP interchangeably. From the context of the discussions in the record, it appears they were referring to CONREP as administered by Liberty.
In support of his petition, Quarles testified on his behalf and took responsibility for his actions and stated that he would not sexually assault anyone if conditionally released. He also testified that he understood why he committed his crimes as a young man in his 20's.
Dr. Frederick Winsmann, a clinical and forensic psychologist licensed in Massachusetts and New York, testified on behalf of Quarles. Winsmann opined that, if conditionally released, Quarles was not likely to reoffend.
Quarles also called as witnesses several individuals who treated him at CSH. For example, Miguel Arellano, a behavior specialist at CSH, testified that Quarles's approach to treatment was "rare" because "he takes on treatment." Clinical social worker Giovanna Buitrago discussed the many classes that Quarles completed. Buitrago explained that Quarles has good insight into his offending behavior.
These classes included exploring self-esteem, breaking barriers, DBT skills, interpersonal skills, building a better life, self-discovery, leading to empathy, values and actions, self-regulation problem solving, and positive decision-making.
Other witnesses testified favorably on Quarles's behalf. Behavioral specialist Eliseo Garcia described Quarles as having a positive attitude and wanting to learn. Charlotte Harder, a senior psychiatric technician, described Quarles as a model patient who does not exhibit any behavior issues. Sergio Segasta, Quarles's substance abuse counselor, testified about the commitment Quarles has made and the group work he has participated in to show he is committed to remaining sober. Behavioral specialist Lorraine Halonski testified regarding Quarles's commitment to treatment and completing his work. Quarles had voluntarily participated in random drug tests, all of which were negative.
Also supporting Quarles's argument that he should be conditionally released was a written report by Dr. Carolyn Murphy, a psychologist. After reviewing documents regarding Quarles's underlying offenses as well as his current treatment records, interviewing Quarles, and considering two recent polygraph examinations of Quarles, Murphy indicated that she supported Quarles's petition for conditional release under CONREP. In opposing Quarles's petition, the People relied on the opinion of Dr. Jeffrey Davis. Davis is a consulting psychologist at CSH. He wrote that Quarles meets the definition of an SVP. Specifically, Davis stated that Quarles suffers from a mental disorder and "will engage in sexually violent criminal behavior that makes him [a] danger to the health and safety of others such that further confinement in a secure forensic mental hospital is required." Davis also noted that Quarles had enrolled but had not completed the Department of State Hospitals Sex Offender Treatment Program.
In addition to relying on a written declaration by Davis, the People called Dr. Garrett Essres as a witness. Essres is a forensic psychologist who contracts with the Department of State Hospitals to provide annual evaluations. Essres testified that Quarles had been found to have a section 6600 qualifying sexual offense, has a mental disorder that predisposes him to commit criminal sexual acts, and is likely to pose a substantial danger as well as a well-founded risk of committing a future sex offense. Essres did not believe that Quarles could be adequately treated outside the confines of CSH. He believed a conditional release of Quarles would not provide the public with adequate protection from Quarles.
The People also called Dr. Cecilia Groman as a witness. Groman is the clinical director of Liberty and oversees CONREP. She opined that Quarles was not suitable for a conditional release. In support of her opinion, Groman noted, among other things, that Quarles had not completed his treatment at CSH.
After the close of evidence and listening to closing arguments, the court stated that Quarles had carried his burden and, thus, granted Quarles's petition for a conditional release. The court explained:
"We are in murky waters here when we are trying to predict future behavior, and I do agree probably the best indicator we have is the past, but again, that may be damning faint praise, wish we had better predictors, but the present state of the profession is I think that we don't, though I do think the [petitioner carried] his burden of proof by the preponderance of the evidence that there is no doubt of the predicate offenses, there is no doubt in my mind that he suffers—currently suffers from one or more of the diagnosed mental disorders that the testimony has related to, and I think there is substantial well-founded risk of reoffending, but I think that risk can be adequately addressed in the CONREP program and honor basic core value of protecting public safety while giving him an opportunity, I think."
The court then ordered Liberty "to initiate the efforts to find a suitable placement" for Quarles, during which time Quarles would remain at CSH. At a subsequent hearing, on October 12, 2018, the court considered public comment on the conditional release and placement of Quarles. The court ordered Quarles released to Liberty with a placement in a residence in Jacumba Hot Springs, California, on or about November 30, 2018. However, a few days after the October 12, 2018 hearing, a representative from Liberty informed counsel that placement was no longer available at the Jacumba Hot Springs residence. A new status conference was set for October 26, 2018.
Before the status conference, the People filed a motion to reconsider Quarles's conditional release and placement. At the October 26 status conference, off the record, the People informed the court that Quarles had failed two sexual history polygraph examinations. The People stated that they learned this information from talking with Dr. Tricia Busby, chief of forensics at CSH. The court then ordered an updated evaluation of Quarles, which was to be filed under seal.
After the court granted Quarles's petition to be conditionally released, Quarles returned to CSH to await placement. At that time, he took two polygraph examinations and was found to have been " ‘Not Truthful’ " in responding to certain questions.
An updated evaluation was provided by O'Sullivan in December 2018. O'Sullivan conducted an extensive review of Quarles's records and an in-person interview of Quarles. She concluded that Quarles could not be "safely released on a conditional basis at this time." In support of her conclusion, O'Sullivan explained: (1) Quarles possesses "a well above average risk of sexual recidivism"; (2) Quarles needs additional treatment at CSH, including completing module III; (3) the failed polygraph examinations indicate that Quarles had not been completely honest during his treatment and, as such, he did not receive adequate treatment to address his issues; (4) Quarles "has yet to fully understand and accept the extent and etiology of his sexual deviancy"; and (5) Quarles lacks sufficient insight into his mental disorders.
Although the record before us leaves much to be desired, it seems that the court held multiple evidentiary hearings regarding the People's motion for reconsideration. For example, there is a transcript for a hearing on July 25, 2019, in which the court heard testimony of two witnesses relating to Quarles's treatment at CSH. The People, however, do not explain the significance of these witnesses, if any, or otherwise explain why they included this transcript in the record but omitted transcripts of other hearing dates (the July 25 transcript clearly indicates that a witness testified on a previous date or time and additional testimony will be heard the following day).
The People have not cited to their motion to reconsider in the record. We were not able to locate the motion during our independent review of the record. However, we noted that Quarles's opposition to the motion to reconsider does appear to be in the record. Based on the opposition, the court held a hearing on the People's motion on March 8, 2019. However, there is no transcript of that hearing in the record.
On July 29, 2019, the court denied the People's motion to reconsider.
On September 18, 2019, the People filed a writ of mandate, asking this court to stay the superior court's order to release Quarles and issue orders to (1) keep Quarles in CSH; (2) release subpoenaed records related to Quarles's polygraph examinations; and (3) direct the superior court to keep all hearings in this matter open to the public. We requested an informal response to the petition from Quarles and stayed the superior court's order granting Quarles a conditional release.
On September 30, 2019, Quarles filed an informal response, urging this court to deny the People's petition. We subsequently issued an order to show cause and maintained the stay on the superior court's order. On November 1, 2019, Quarles filed a return, and on December 9, 2019, the People filed a reply.
DISCUSSION
I
THE SUPERIOR COURT'S GRANTING OF QUARLES'S PETITION FOR CONDITIONAL RELEASE
A. The People's Contentions
The People contend the superior court applied the wrong standard in granting Quarles's petition to be conditionally released under section 6608 of the SVPA. Specifically, they emphasize the court's multiple references to finding the "least restrictive setting" for Quarles and argue that the "least restrictive setting" should not have been part of the court's analysis below.
B.
SVPA Proceedings for Conditional Release
We previously summarized proceedings for conditional release under section 6608 of the SVPA in People v. Collins (2003) 110 Cal.App.4th 340, 1 Cal.Rptr.3d 641 ( Collins ).
"Because the SVPA is designed to ensure a committed person does not remain confined any longer than he or she qualifies as a sexually violent predator, it provides means for that individual to obtain review of his or her mental condition to determine if civil confinement is still necessary. [Citation.] One of two ways such review may be had is by petition for conditional release before expiration of the committed person's two-year term of commitment under section 6608. [Citations.]" ( Collins, supra , 110 Cal.App.4th at p. 346, 1 Cal.Rptr.3d 641, fn. omitted.)
"Conditional release proceedings can be initiated by the DMH [California Department of Mental Health] if it ‘determines that the person's diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community.’ (§ 6607, subd. (a).) But absent the DMH's recommendation, the committed person can petition the court for conditional release any time after one year of commitment. (§ 6608, subd. (c).) Section 6608 subdivision (a) provides: ‘Nothing in this article shall prohibit the person who has been committed as a sexually violent predator from petitioning the court for conditional release and subsequent unconditional discharge without the recommendation or concurrence of the Director of Mental Health. If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person's condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, then the court shall deny the subsequent petition unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the concurrence of the director, the court shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing. The person petitioning for conditional release and unconditional discharge under this subdivision shall be entitled to assistance of counsel.’ " ( Collins, supra , 110 Cal.App.4th at pp. 346-347, 1 Cal.Rptr.3d 641.)
"Before acting on a petition for conditional release under section 6608, subdivision (a), the superior court must first obtain the written recommendation of the director of the treatment facility to which the person is committed. (Id. , subd. (j).) The court reviews the petition in order to ‘determine if it is based upon frivolous grounds,’ and if it so finds, it ‘shall deny the petition without a hearing.’ (Id. , subd. (a).) Section 6608, subdivision (b) provides: ‘The court shall give notice of the hearing date to the attorney designated in subdivision (i) of Section 6601, the retained or appointed attorney for the committed person, and the Director of Mental Health at least 15 court days before the hearing date.’ " ( Collins, supra , 110 Cal.App.4th at p. 347, 1 Cal.Rptr.3d 641.) "Section 6608, subdivision (d) provides in part: ‘The court shall 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. If the court ... 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.’ (Italics added.) ‘At the end of one year, the court shall hold a hearing to determine if the person should be unconditionally released from commitment on the basis that, by reason of a diagnosed mental disorder, he or she is not a danger to the health and safety of others in that it is not likely that he or she will engage in sexually violent criminal behavior. The court shall not make this determination until the person has completed at least one year in the state-operated forensic conditional release program.’ ( Ibid. )" ( Collins, supra , 110 Cal.App.4th at p. 347, 1 Cal.Rptr.3d 641.)
In Collins, supra , 110 Cal.App.4th 340, we summarized the SVPA as it existed at that time. The quoted language was from section 6608, subdivision (d). After subsequent amendments to the SVPA, the quoted language currently can be found in subdivision (g) of section 6608. The change in the labeling of the subdivision does not impact our analysis here.
C. Analysis
Here, the Director of State Hospitals did not recommend that Quarles be conditionally released. Thus, Quarles had the burden of proof to show that he would not be a danger to others due to his diagnosed mental disorder while under supervision and treatment in the community. (See § 6608, subds. (a), (g).) During the trial on Quarles's petition, a dispute arose regarding the type of finding required before Quarles could be conditionally released. Quarles's attorney argued, "[T]he thing is ... that the law says that somebody should be released when there is a least restrictive alternative available, not when somebody completes a program in its entirety." The court appeared to agree, noting, "I think the key line is least restrictive."
Later during the hearing, Quarles's attorney reiterated the importance of the court finding the least restrictive setting: "And so if there is a leas[t] restrictive alternative, the Court has to place him there if they believe by a preponderance of the evidence that he has proven his suitability."
The court subsequently asked the People to address the least restrictive language: "What do you make of counsel's language, she quoted that the Court has to decide whether the hospital is the least restrictive setting in which to .... Aren't I bound to decide what's the least restrictive confinement or setting to guarantee the protection or provide some acceptable measure of protection of the public?" The People responded that "the hospital is the least restrictive way to keep the community safe." The People further explained the danger of conditionally releasing Quarles before he was able to complete module three of his treatment at CSH: "Well, once he gets out into the community, we are going to see how he does, but until we give him module three, which gives him the type of practical applications of applying the type of thing that he learned in module two, we are not putting him in the best position."
The court responded to the People's statement, emphasizing the importance of finding the least restrictive setting for Quarles. The court stated:
"CONREP can't provide that [module three training]? I mean, they'd rather not, I do understand, but that's not the design of CONREP and they—rather they very strongly prefer that he finish phase three, but I'm not sure that under the law, again, the notion of least restrictive setting, I'm not sure that—how I should take that into account. I mean, I understand it's not ideal, but CONREP constantly deals with situations that are not ideal, I think, and they are prepared to do so, I think, particularly in this case.
"I mean, he knows he is going into not a welcoming certainly out in the community, probably assuming he did at the hands with his fellow inmates in prison, so he's not—going into a very unwelcoming atmosphere in the community at large, but also CONREP understands that he didn't complete what they wish he had completed, and so it's going to fall on them to hopefully be able to provide the same safeguards that—complete
in phase two, and I think—I mean, at the very least, if he doesn't complete two, then if that's called to the Court's attention, I certainly would take that into account.
"But if he gets into at least kind of phase three, CONREP I think knows that he hasn't gone as far as they would like him to have gone, and they are going to accept the responsibility of making sure whether he does basically complete the equivalent of phase three."
The People then reminded the court that a representative of Liberty testified that CONREP's purpose is not to provide recovering SVP's with module three training, and the court agreed: "I understand that. Like I said, this is not ideal, this is not the design of CONREP." However, the court indicated that "the real crux here is whether the hospital is the least restrictive—preponderance of the evidence shows that the hospital is the least restrictive setting to provide the required public safety .... [¶] ... I think the burden is—the question is, is the hospital the least restrictive setting?" The People later questioned the court's focus on finding the least restrictive setting, observing the "language" "least restrictive placement doesn't appear in the statute." After a recess, the court explained that the least restrictive setting language was neither in the statute nor case law, but was implied in the statute and supported by case law (although not expressly stated). The court therefore found that Quarles should be conditionally released although it concluded he suffered from at least one diagnosed mental disorder and he had a "substantial well-founded risk of reoffending."
In contending the court must find the least restrictive placement for Quarles, Quarles's attorney relied on People v. LaBlanc (2015) 238 Cal.App.4th 1059, 189 Cal.Rptr.3d 886. The court noted that LaBlanc was not "binding precedent" because that case involved whether the trial court abused its discretion in finding a petition for unconditional release was frivolous. (See id. at p. 1062, 189 Cal.Rptr.3d 886.) Nevertheless, the superior court here found the case "include[d] some instructive language, I think."
We agree with the superior court that the instant matter was a "close call," and we acknowledge that the court worked diligently to consider the evidence and render its conclusion. We, however, are concerned that the court applied the incorrect legal standard by looking for the least restrictive setting in which to place Quarles without due consideration for public safety. Such a standard essentially adopted Quarles's argument below wherein his attorney asserted Quarles should be released where there is "a least restrictive alternative available." Here, Quarles has not provided any case law in which a court held that it must find the least restrictive setting in which to release an SVP. Instead, Quarles now argues the phrase "least restrictive setting" is unimportant and "a conditional release is just" the least restrictive setting. However, such an argument is belied by Quarles's attorney's emphasis that the court must find the least restrictive setting below. It begs the question that if the "least restrictive setting" was merely an alternative way to state "conditionally release" why the parties and the court engaged in substantive discussion of the subject phrase and how it factored into the conditional release proceeding. And, again, this argument appeared to be adopted by the superior court as it referenced "least restrictive setting" repeatedly. The parties have not cited to any case that requires a superior court to specifically determine the least restrictive setting in which to place an SVP. Instead, section 6608, subdivision (g) sets forth the appropriate considerations for the superior court: "The court shall 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.... If the court ... 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).) As another appellate court summarized:
The superior court took 50 pages of notes during the trial on this matter.
"Under the provisions of the SVPA, a person committed as an SVP can be conditionally released only upon a determination by a court of law that the person will pose no danger to others if under outpatient supervision and treatment in the community. That means that in every case in which conditional release is permitted, it has been determined that the person released into the community will not be an SVP when provided with proper supervision and treatment." ( People v. Superior Court (Karsai ) (2013) 213 Cal.App.4th 774, 779 ( Karsai ).)
In the instant matter, the superior court found that Quarles suffers from one or more diagnosed mental disorders and there exists a "substantial well-founded risk of reoffending," but opted to conditionally release him into CONREP because the risk of reoffense "can be adequately addressed in the CONREP program." The court also stated that the conditional release would give Quarles an "opportunity." We note that the court reached this opinion over the strenuous opposition of the People as well as evidence that the director of Liberty and the consulting psychologist of CSH opined that Quarles should not be conditionally released. In addition, there was considerable discussion at trial that Quarles had not yet completed module three of his training at CSH and would have to do so once released into CONREP. Although it is the purview of the superior court to assess the evidence before it, make credibility findings, and draw appropriate inferences from the evidence presented, we are concerned that the court evaluated the evidence through an improper lens-one that mandated that the court find the least restrictive setting in which Quarles could receive treatment without sufficient consideration of public safety. Such a consideration is especially important considering Quarles's violent past.
Further, the court admitted this case was a "close call." It also acknowledged "this was a difficult decision.... I think [I] would not have been abusing my discretion if I had not granted [Quarles's] conditional release." Considering the heinous and vicious nature of Quarles's past crimes, we believe it prudent to ensure that the superior court applied the correct standard in analyzing Quarles's petition for conditional release.
Additionally, we are disquieted by some of the court's explanation in support of its findings, indicating that the superior court may have had doubts as well. For example, almost immediately after stating that Quarles should be conditionally released, the court lamented:
"I hope we are not setting him up for failure, but I guess under the law if he satisfies the basic requirements, he has a right to set himself up for failure, if that's the ultimate conclusion, I
don't believe he is setting himself up for failure. I don't know how optimistic I am in that regard, but I think he has earned the right to take the next step, and I'll say in my old experience, I am impressed with the diligent professional manner in which CONREP will manage him in the community, and I have no doubt that if they think he is not honestly truly engaging and/or has directly violated any of the conditions of his release, which are very restrictive, very difficult, they will immediately notify the hospital, they will notify the sheriff and notify the court."
These comments give us pause. The superior court expressed concern that conditionally releasing Quarles might be setting him up for failure. Failure, after being conditionally released, would be devastating not only for Quarles but, more importantly, for the public. Quarles is a serial rapist whose crimes were shockingly brutal and destructive. If he fails after he is conditionally released, considering his past, we shudder to contemplate the consequences of such a failure. This is not a risk the superior court should place on the public. (See Karsai, supra , 213 Cal.App.4th at p. 779, 153 Cal.Rptr.3d 116 ["a person committed as an SVP can be conditionally released only upon a determination by a court of law that the person will pose no danger to others if under outpatient supervision and treatment in the community"].) And although the court later indicated that it did not believe Quarles was setting himself up for failure, the court's follow up comments make it clear it is CONREP in which the court has placed its faith, not Quarles ("I am impressed with the diligent professional manner in which CONREP will manage him in the community"). However, we note that the director of Liberty told the court that she does not believe Quarles should be conditionally released. Moreover, there is evidence in the record that Liberty typically does not provide individuals with the type of module three training Quarles still requires.
We appreciate the difficult task that the superior court faced in this matter. We do not doubt the court's diligence or desire to reach the correct and fair result. However, based on the record before us, we simply have too many concerns that the superior court applied the incorrect legal standard. As such, the sensible course here is to grant the requested relief, remand this matter back to the superior court with instructions to vacate its order granting Quarles's petition for conditional release, and allow Quarles to file a new petition under section 6608 if he chooses to do so.
In response to the original opinion we issued, Quarles filed a petition for rehearing. In it, he argued, among other things, that we are creating a new, unconstitutional standard by which an SVP must prove he is "no danger" to the public if released. Further, Quarles claims that we inappropriately rely on Karsai, supra , 213 Cal.App.4th 774 to create this standard. Not so. We are not creating a new standard of proof for SVP's. Rather, our approach here is much more modest. We simply conclude that the superior court applied the incorrect standard to Quarles's petition for conditional release by focusing too much on the least restrictive setting in which to place Quarles. We are concerned that the superior court, in taking that approach, did not appropriately focus on: (1) Quarles's diagnosed mental disorder, (2) whether he was likely to reoffend, and (3) if the public would be adequately protected upon Quarles's conditional release. Our analysis and conclusion here does not modify whatsoever the criteria to be reviewed under the SVPA.
In his return, Quarles argues that because the People did not assert that his petition for conditional release was frivolous, they "in essence conceded that his treatment was sufficient for consideration of a conditional release and that his petition for conditional release was meritorious." However, Quarles cites no authority to support his position. When a petitioner files a petition for conditional release without the concurrence of the Director of State Hospitals, the court must first determine if the petition is frivolous. If the court finds it frivolous then it shall deny the petition without a hearing. (§ 6608, subd. (a).) Here, before the trial, the People pointed out that the court had to make a determination whether Quarles's petition for conditional release was frivolous. The court engaged in such analysis and found that the petition was not frivolous. The court's finding did not prohibit the People from challenging Quarles's petition.
See footnote *, ante .
DISPOSITION
We grant some of the requested relief. The superior court is to vacate its order granting Quarles a conditional release under section 6608 without prejudice to Quarles filing a new petition. We deny the People's requested relief regarding: (1) their substantial evidence challenge; (2) their claim the court erred in excluding the polygraph evidence; and (3) their claim the court improperly prohibited the public from some of the SVPA proceedings. We offer no opinion as to whether Quarles should be conditionally released should he choose to file a new petition under section 6608.
WE CONCUR:
HALLER, J.
O'ROURKE, J.