People v. Morrison

STATUTORY FRAMEWORK.

The SVPA took effect on January 1, 1996 and provides for the involuntary civil commitment of SVPs upon completion of their prison terms. ( § 6600, et seq. ; Ghilotti, supra, 27 Cal.4th at p. 902, 119 Cal.Rptr.2d 1 , 44 P.3d 949 .) The process of determining whether a convicted sex offender meets the requirements of the SVPA takes place in several stages, both administrative and judicial.

The SVPA targets individuals presently in prison for any offense, or after a parole revocation, who have been convicted of a sexually violent offense-as defined by statute-against one or more victims, and who currently have "a

Due to the split in opinions, DSH submitted all four evaluations for peer review before certification of the reports. Certification is the process by which DSH indicates the reports are ready either to be sent to the appropriate county to petition for commitment, or used to authorize closure of the case if there is no referral to a county District Attorney or County Counsel. DSH permits evaluators to alter their reports prior to certification.

Pursuant to the peer review process, the peer reviewer contacted Drs. Jeko and Alumbaugh to address DSH's comments regarding their reports. Dr. Alumbaugh responded and confirmed her opinion remained the same. But Dr. Jeko requested additional information regarding Morrison's history in response to the peer reviewer's observation that there were more CDCR 115 Rule reports (which document rule violations by prisoners) than Dr. Jeko noted in her report.

After reviewing the additional information, Dr. Jeko revised her evaluation to conclude Morrison is an SVP. The complete record revealed Morrison had close to 30 separate 115 Rule violations dating from 2002 to September 2016. These included repeated episodes of indecent exposure and/or masturbation in front of female nurses, physicians, and psychologists. For example, Morrison confronted a female psychologist in her office and exposed himself, masturbated during a session with a female physician, and masturbated and exposed himself through his cell door to another female psychologist. At least one female psychologist felt "very uncomfortable and quite threatened" by Morrison's misconduct. Morrison told a psychologist he had uncontrollable urges and, if released, he would rape again. Dr. Jeko diagnosed Morrison with Unspecified Paraphilia Disorder, Exhibitionist Disorder, and Antisocial Personality Disorder. Dr. Jeko's initial report was based on a significantly smaller and less detailed list of 115 Rule violations and did not reflect the extent and depth of Morrison's misconduct in prison.

The court later heard additional argument. The District Attorney argued the court should not disregard the state's compelling interest in protecting the public from SVPs, and Morrison could not show his rights under the SVPA were in any way impaired. Morrison argued the statute unambiguously precludes filing of the petition in this case, and it was silent on quality assurance protocols.

The court observed, "the People ... are asking this court to not only ignore the plain statutory language [of section] 6601(d), but to rewrite it to permit an original evaluator's report that changes from a negative to a positive to be substituted in when nothing in the construction of the statute in its language [ sic ] provides for this." The court granted the motion to dismiss and this appeal followed. On August 29, 2018, we granted the People's petition for writ of supersedeas and stayed the matter pending appeal.

and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt,

So understood, the filing of the petition here was in full compliance with the procedures of section 6601 because it was supported by the concurrence of two subdivision (d) evaluators. "Read together, subdivisions (d), (e) and (f) of Section 6601 amount to an unambiguous statutory prefiling requirement that a petition for commitment or recommitment may not be filed unless two evaluators, appointed under the procedures specified in Section 6601, subdivisions (d) and (e), have concurred that the person currently meets the criteria for commitment under the SVPA [Citations.] Where this initial requirement is not met, the commitment may not proceed." ( Reilly v. Superior Court (2013) 57 Cal.4th 641 , 647, 160 Cal.Rptr.3d 410 , 304 P.3d 1071 , internal quotation marks omitted.)

Morrison assails DSH's use of a peer review process in connection with its screening of possible SVPs, but we conclude the use of that process is consistent with the statute's preference for accurate evaluations and its explicit directive to "conduct a full evaluation." (§ 6601, subd. (b).) "If as a result of ... screening it is determined that the person is likely to be a sexually violent predator, the [CDCR] shall refer the person to the [DSH] for a full evaluation of whether the person meets the criteria in section 6600." (§ 6601, subd. (b), italics added.) In this case, one of the two original evaluators did not do a "full evaluation" because she mistakenly did not review the entirety of the relevant record. The error was called to her attention. Dr. Jeko then reviewed the additional material and revised her opinion, finding Morrison posed a danger to the public.

Obviously, the protocol of section 6601 contemplates that in doing a "full evaluation," the original evaluators will do a complete assessment based on all relevant information. Without a complete review, an evaluator cannot comply (and in fact, violates) the statutory mandate of considering all the risk factors: "Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c).) All of these factors require consideration of the entire relevant record. For instance, an evaluator cannot possibly determine the duration of sexual deviance and the severity of the mental disorder without reviewing incidents like those initially neglected by Dr. Jeko.

CONCLUSION

We discern no error in the pre-petition process and reverse the order dismissing the petition.

We Concur:

WILLHITE, Acting P.J.

COLLINS, J.

At trial, the alleged SVP is entitled to the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).) The trier of fact is charged with determining whether the requirements for classification as an SVP have been established beyond a reasonable doubt. (§ 6604.) Any jury verdict on the issue must be unanimous. (§ 6603, subd. (f).)

Pursuant to Proposition 83, passed by the voters in 2006, a person committed under the SVPA is committed for an indefinite term until he or she can establish by a preponderance of the evidence that he or she is no longer an SVP. ( People v. McKee (2010) 47 Cal.4th 1172 , 1186-1188, 104 Cal.Rptr.3d 427 , 223 P.3d 566 .)

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In December 1998, Morrison was convicted of violating Penal Code section 288a, subdivision (c) (oral copulation with a minor 14 years of age or older) and section 261, subdivision (a)(2) (rape by force or fear), with an enhancement under section 667.8, subdivision (a) (kidnapping to commit a specified sex offense). Morrison met the victim at a bar, and-against her will-took her to a residence where he sexually assaulted her. He received a term of 20 years in prison.

Morrison was due to be released from prison on September 23, 2017. CDCR conducted an initial evaluation in December 2016 and concluded Morrison met initial screening criteria to be evaluated as an SVP. In April 2017, DSH conducted a clinical review and recommended further evaluation of Morrison.

Pursuant to section 6601, subdivision (d), in June 2017, Dr. David Parecki and Dr. Lisa A. Jeko, both psychologists, were assigned Morrison's initial psychological and risk assessment. Both doctors' reports were due July 31,

The two psychologists initially disagreed whether Morrison met the SVP criteria: Dr. Jeko believed he did not, while Dr. Parecki believed he did.

Subsequently, as a result of this split of opinion, the matter was referred for additional evaluation by two independent psychologists under section 6601, subdivision (e). Dr. Robert M. Brook interviewed and

On September 19, 2017, the District Attorney filed a petition to commit Morrison as an SVP pursuant to section 6602. Morrison was arraigned on the petition on September 22, 2017.

Morrison then filed a motion to dismiss the petition, contending it did not comply with section 6601, subdivision (e) because the second set of evaluators did not concur that Morrison was an SVP, and unless they concurred, no petition could be filed even if the initial evaluators had later concurred. The District Attorney opposed, arguing evaluators may alter their reports prior to certification, and once a petition has been filed, dismissal is not the appropriate remedy.

At the hearing on the motion to dismiss, Morrison argued the plain language of section 6601, subdivision (f) did not permit the filing of the petition, and DSH's peer review quality assurance process by which it certified the opinions of the first evaluators was not set forth in the statutory language. The District Attorney argued nothing in the statute precluded a doctor from reevaluating his or her opinion, and prohibiting reevaluation would not serve

I. STANDARD OF REVIEW AND PRINCIPLES OF STATUTORY INTERPRETATION.

"We review de novo questions of statutory construction. In doing so, ' "our fundamental task is to 'ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' " ' [Citation.]" ( Apple Inc. v. Superior Court (2013) 56 Cal.4th 128 , 135, 151 Cal.Rptr.3d 841 , 292 P.3d 883 .) "We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend." ( City of San Jose v. Superior Court (2017) 2 Cal.5th 608 , 616, 214 Cal.Rptr.3d 274 , 389 P.3d 848 ( City of San Jose ).) We give words their usual, ordinary meanings. ( Curle v. Superior Court (2001) 24 Cal.4th 1057 , 1063, 103 Cal.Rptr.2d 751 , 16 P.3d 166 .) "Furthermore, we consider portions of a statute in the context of the entire statute and the statutory scheme of which it is a part, giving significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose." ( City of San Jose, supra, 2 Cal.5th at pp. 616-617, 214 Cal.Rptr.3d 274 , 389 P.3d 848 .)

If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy. ( City of San Jose, supra, 2 Cal.5th at pp. 616-617, 214 Cal.Rptr.3d 274 , 389 P.3d 848 .) "We must ... give [an ambiguous provision] a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers ... which upon application will result in wise policy rather than mischief or absurdity." ( Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554 , 567, 67 Cal.Rptr.3d 468 , 169 P.3d 889 , internal quotation marks omitted.)

Here, the Legislature included an express statement of its purpose and intent in an uncodified section of the statute, emphasizing a desire to protect the public from sexually violent predators, and to secure treatment for SVP's:

"The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large

be confined and treated until such time that it can be determined that they no longer present a threat to society." (Stats.1995, ch. 763, § 1.)

II. THE SVPA REQUIRES THE FILING OF A COMMITMENT PETITION WHEN BOTH INITIAL EVALUATORS CONCUR, EVEN IF THEY DO SO AFTER INITIAL DISAGREEMENT.

Morrison asserts the statutory language of subdivisions (d), (e) and (f) creates a decision tree providing for evaluations to take place in a specific order such that once a set of "independent" evaluations under subdivision (f) is conducted, those evaluations take precedence over earlier evaluations under subdivision (d). Under Morrison's view, the statute prohibits any reliance on the original evaluators once the independent set of evaluations is completed. Morrison bases his interpretation upon the language of subdivision (f) stating "[i]f an examination by independent professionals ... is conducted, a petition to request commitment under this article shall only be filed if both independent professionals ... concur" the person is an SVP.

Morrison misreads the statute. Subdivision (d) states, in relevant part, "If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of State Hospitals shall forward a request for a petition for commitment under Section 6602 to the county...." (Emphasis added.) By using the word "shall" in subdivision (d), the Legislature required the Director of State Hospitals to forward a request for filing a petition if-as was the case here-both initial evaluators agree the subject meets the SVP criteria. The statute does not make an exception for the situation in this case: a concurrence among the original evaluators, coming after the peer review process, and after independent evaluators had completed their evaluations. Once Dr. Jeko revised her evaluation, the Director had a mandatory obligation to forward the request for filing, and the Director complied.

Subdivision (f) can be reconciled easily with the clear mandatory duty created in subdivision (d). If the two initial evaluators under subdivision (d) ultimately agree the person meets the SVP criteria, the request for filing must ("shall") be forwarded to the relevant county. If, as happened here, the initial evaluators do not immediately agree, evaluations may also be conducted under subdivision (f). If the independent evaluators both agree, the Director may forward a request for filing based on the independent evaluations. He or she may not do so under subdivision (f) if the independent evaluators do not concur. ( See Section 6601, subdivision (f), ["[P]etition ... shall only be filed if both independent professionals ... concur ..."] ) But

Where, as here, the evaluators under section 6601, subdivision (d) initially disagree, but as a result of a peer review process and review of a more complete record they eventually agree the person being evaluated is an SVP, the Director of the DSH must request the filing of a commitment petition. This is so even if, as was the case here, independent professionals performed an evaluation pursuant to section 6601, subdivision (f), but did not both concur the person meets the SVP criteria. This reading of section 6601 implements the Legislature's purpose and avoids an absurd result. " 'Once the intention of the Legislature is ascertained, it will be given effect even though it may not be consistent with the strict letter of the statute.' " (