California: Sexually Violent Predator Entitled to Jury Trial on Petition Seeking Conditional Release
As an SVP committed for indeterminate treatment, Michael James Smith was examined annually pursuant to section 6605 of the Sexually Violent Predator Act (SVPA), Welf. & Inst. Code § 6600 et seq., to determine whether he should remain classified as an SVP. In July 2009, Smith received an evaluation recommending his conditional release. The following year he received an evaluation opining that he was “no longer an SVP and was entitled to unconditional release.”
After receiving the initial favorable evaluation in 2009, Smith filed a petition for conditional release which he later supplemented with a copy of his even more favorable 2010 evaluation. The trial court denied the petition, finding that Smith failed to carry his burden of proof.
On appeal, Smith argued that the trial court had erroneously placed the burden of proof on him. The Court of Appeal agreed, holding that under the SVPA, as amended by Proposition 83 in 2006, if the mental condition of a committed person is found to have improved to the point that he or she can either be unconditionally discharged or conditionally released to a community-based program without endangering the public, and the person petitions for the recommended relief, the state bears the burden of proof in a trial at which the person has the right to demand a jury. Prior to the 2006 amendments, by contrast, the allocation of the burden of proof differed depending on whether conditional or unconditional release was sought.
The appellate court also found that Smith’s counsel provided ineffective assistance by failing to request a hearing under section 6605 rather than section 6608, as only the former statute provides for a jury trial. “[T]here could be no acceptable tactical reason for failing to seek relief under section 6605 in preference to section 6608,” the Court of Appeal wrote.
The trial court’s order was therefore reversed and the case remanded for further proceedings. See: People v. Smith, 212 Cal. App. 4th 1394 (Cal. App. 1st Dist. 2013).
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