How Does the CDCR Screen for SVP Determination?

Sexually Violent Predator (SVP) commitment proceedings can be started only by the California Department of Corrections and Rehabilitation (CDCR) against people who are in CDCR custody serving a criminal sentence or parole revocation term. Welfare & Institutions Code § 6601(a)(1).  Courts do not have authority to hold SVP commitment proceedings if a person has a criminal term with years left to serve. People v. Putney (2016) 1 Cal. App. 5th 1058, 205 Cal. Rptr. 3d 600. The reader should further note that there is no requirement that the SVP proceedings be fully completed before the person’s release date. People v. Talhelm (2000) 85 Cal. App. 4th 400, 406, 102 Cal. Rptr. 2d 150.

If a person’s current conviction is reversed or reduced to a misdemeanor before an SVP petition is filed, the state cannot go ahead with SVP proceedings. In re Franklin (2008) 169 Cal. App. 4th 386, 392, 86 Cal. Rptr. 3d 702.  If the current conviction is reversed while an SVP petition is already pending, the petition must be stayed pending an opportunity for the state to re-try the case. If the state does not timely re-try the case and obtain a new conviction, then the SVP proceedings must be dismissed. In re Smith (2008) 42 Cal. 4th 1251, 1269-1271, 73 Cal. Rptr. 3d 469. 

If CDCR staff believes that a person may qualify for an SVP commitment, they should refer the person for an evaluation no less than 180 days prior to their release date. Welfare & Institutions Code § 6601(a)(1).  A referral for an SVP evaluation can be made less than 180-days before the release date if the person arrives in the CDCR with less than nine months to serve or if the release date is modified so that the person has less than 180 days left to serve.

The CDCR and BPH then will evaluate the person’s social and criminal history and behavior in prison.  If the CDCR and BPH staff decides that the person is likely to qualify as an SVP, they will refer the person to the DSH for further evaluation. Welfare & Institutions Code § 6601(a)(1).

If a person is scheduled to be released prior to completion of a full evaluation, the BPH may order that they be held up to 45 days past the scheduled release date. Welfare & Institutions Code § 6601.3; 15 CCR § 2600.1(e); see In re Hovanski (2009) 174 Cal. App. 4th 1517, 95 Cal. Rptr. 3d 370 (person can be subject to 45-day hold for an SVP evaluation even though he had been scheduled to be fully discharged from his sentence prior to end of the 45-day period).  The BPH regulations do not provide for a hearing before a hold is placed. 15 CCR § 2600.1.

However, there is “good cause” for a hold only in exigent circumstances which result in there being less than 45 days prior to the scheduled release date or the evaluation.  Exigent circumstances include a last-minute recalculation or restoration of credits, a re-sentencing, or arrival of the person into custody with a short amount of time to serve that leaves less than 45 days for the evaluation. 

Welfare & Institutions Code § 6601.3(b); People v. Hydrick (2016) 1 Cal. App. 5th 837, 841, 205 Cal. Rptr. 3d 154 (delaying for full evaluation includes time for District Attorney to decide whether to file petition); In re Lucas (2012) 53 Cal. 4th 839, 137 Cal. Rptr. 3d 595 (invalidating BPH regulations to the extent they allowed a hold based only on “some evidence” that the person met the SVP criteria, rather than good cause for delay in evaluation); Orey v. Superior Court (2013) 213 Cal. App. 4th 1241, 152 Cal. Rptr. 3d 878; see also Brown v. Superior Court (2013) 213 Cal. App. 4th 61, 151 Cal. Rptr. 3d 818.

If the CDCR and BPH refer a person for an SVP evaluation by the DSH, then the DSH must appoint two mental health professionals (either two psychiatrists or a psychologist and a psychiatrist) to evaluate the person. The DSH does not have to provide a person with notice prior to the required mental health evaluations, and the person does not have a right to consult with an attorney during the evaluation process. Welfare & Institutions Code § 6601(c).

The mental health evaluators must determine whether the person has a serious mental disorder that creates a substantial danger, meaning “a serious and well-founded risk,” that the person will commit future crimes if released. People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 119 Cal. Rptr. 2d 1; see also Reilly v. Superior Court (1013) 57 Cal. 4th 641, 160 Cal. Rptr. 410 (if evaluator uses invalid assessment protocol, person entitled to dismissal of SVP action only if the error was material); Rabuck v. Superior Court (2013) 221 Cal. App. 4th 1334, 165 Cal. Rptr. 3d 354, 360 (SVP commitment upheld against claim that evaluation was based on invalid assessment protocol); People v. Superior Court (Troyer) (2015) 240 Cal. App. 4th 654, 192 Cal. Rptr. 3d 820 (not legal error for evaluator to copy substantial portions prior evaluations). 

A person has no right to prevent disclosure of their medical records for the DSH evaluation.  Any interest that the person has in privacy is outweighed by the government’s interest in protecting the public. Seaton v. Mayberg (9th Cir. 2010) 610 F. 3d 530; see also Hubbs v. Alamao (C.D. Cal. 2005) 360 F. Supp. 2d 1073.

If both mental health evaluators agree that the person has a qualifying mental disorder, the DSH will refer the case to the district attorney in the county where the current prison conviction occurred. Welfare & Institutions Code § 6601(d).  Each county designates either the district attorney or the county counsel to be responsible for prosecuting SVP petitions. Welfare & Institutions Code § 6601(i).

If only one of the evaluators believes that the person qualifies as an SVP, the DSH will arrange for evaluation by two more mental health professionals; the DSH cannot refer the case to the district attorney unless both of these additional evaluators agree that the person has a qualifying disorder. Welfare & Institutions Code § 6601(e)-(f).  The DSH cannot avoid the requirement to get two additional evaluations by “undesignating” the original evaluator who found the person not to be an SVP and appointing a substitute evaluator. In re Snyder (2017) 12 Cal. App. 5th 744,  219 Cal. Rptr. 3d 171.

If the two additional evaluators do not find that the person has a qualifying mental disorder, the SVP proceedings will be over and the person will be released.  There is an exception to this requirement.  If the Director of the DSH believes that one of the evaluators has misunderstood the legal criteria for SVP commitment, the Director may still ask the district attorney to file a petition.  The person can then challenge the validity of the petition. Ghilotti, supra, at 912. 

This article would not be possible without reference to the California Prison and Parole Law Handbook, written by the Prison Law Office, to which we owe a debt of gratitude for their excellent work.