Metropolitan News-Enterprise


Thursday, July 10, 2003


Page 1


C.A. Limits Ability to Dismiss ‘Frivolous’ Sex Offender Petitions


By DAVID WATSON, Staff Writer


A sexually violent predator’s petition for conditional release can be dismissed as frivolous only if it is prosecuted for an improper motive or indisputably without merit, the Fourth District Court of Appeal ruled yesterday.

San Diego Superior Court Judge Peter C. Deddeh erred in summarily denying Roger Thomas Collins’ petition, Justice Terry B. O’Rourke wrote for Div. One, since it was supported by a report from his treating psychiatrist and evidence he had undergone chemical castration.

O’Rourke, noting that no previous appellate decisions had construed “frivolous” under Welfare and Institutions Code Sec. 6608, a provision of the Sexually Violent Predator Act, said the definition of that term found in Code of Civil Procedure Sec. 128.5(b)(3) and In re Marriage of Flaherty (1982) 31 Cal.3d 637 should be applied.

The Civil Code section defines “frivolous” to mean “totally and completely without merit or...for the sole purpose of harassing an opposing party.” In Flaherty, the state Supreme Court declared an appeal is frivolous and subject to sanction “only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.”

Looser Standard Rejected

O’Rourke rejected a government contention that a looser standard for determining frivolousness is appropriate under the SVPA. State lawyers had argued for the use of the standard applicable to dependency cases under Welfare and Institutions Code Sec. 388, where competent, admissible evidence is required before a hearing must be held.

“The two sections differ,” O’Rourke explained. “Section 388 expressly requires petitions to be verified...; section 6608 contains no equivalent language. Thus, a section 388 petition unaccompanied by any sworn declaration or evidentiary showing is insufficient under that statute’s plain language.”

The Legislature, he added, “could have expressly set forth a requirement for admissible evidence as it does in other parts of the SVPA.”

The justice said fears expressed by government lawyers that the standard adopted by the Court of Appeal would require hearings even where an offender submitted nothing more than a handwritten letter were unfounded.

“We reject the contention a court would be compelled to grant a hearing in every case where there is only slight evidence to support the defendant’s position; if the defendant’s position is completely without merit, a hearing should be denied regardless whether admissible evidence supports the position,” O’Rourke declared.

The justice noted that under the statutory scheme Collins was entitled to petition for conditional release at any time after a year of commitment. Conditional release is permitted by the statue if a court determines it is “not likely” the offender “will engage in sexually violent criminal behavior if placed under supervision and treatment in the community.”

O’Rourke explained:

“[I]f the defendant’s position has some merit on the issue of whether he or she may qualify for conditional release, the statute requires that the court provide the defendant a hearing on the matter.”

Justices Patricia Benke and Presiding Justice Daniel Kremer concurred in the court’s opinion.

‘Slam Dunk’

San Diego Deputy Public Defender Gary R. Nichols, who represented Collins on appeal, said he was not surprised by the court’s ruling.

“I knew it was slam dunk,” Nichols told the MetNews yesterday, adding that the petition rejected by Deddeh “didn’t meet anybody’s real idea of what frivolous is.”

The offender’s treating physician and psychiatrist, Nichols said, had offered testimony that Collins’ problems “can be adequately dealt with” in a community setting.

Nichols asserted that the State Department of Mental Health has been reluctant “for political reasons” to support conditional releases into community settings for sexually violent predators, even where treatment staff at Atascadero State Hospital, where Collins was committed, support it.

“Nobody wants to be the guy who made the decision to turn one of these guys loose if he winds up reoffending,” the lawyer observed.

Deputy Attorney General Lynne G. McGinnis declined to comment beyond saying her office was reviewing the decision to “see whether further action is appropriate.”

The case is People v. Collins, D040624.


Copyright 2003, Metropolitan News Company