Filed 9/12/14
                          CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H039814
                                                  (Santa Clara County
        Plaintiff and Respondent,                  Super. Ct. No. 201555)

        v.

WILLIAM KARL OLSEN,

        Defendant and Appellant.




                                    I. INTRODUCTION

        Defendant William Karl Olsen was committed for an indeterminate term to the
California Department of Mental Health (now, State Department of State Hospitals;
hereafter the Department) after a jury determined defendant to be a sexually violent
predator within the meaning of the Sexually Violent Predator Act (SVPA). (Welf. &
Inst. Code, § 6600 et seq.)1
        Defendant appealed from the judgment, contending that the indeterminate term of
commitment violated equal protection, due process, and the ex post facto and double
jeopardy clauses. This court reversed the judgment and remanded the matter to the trial
court for the limited purpose of reconsidering defendant’s equal protection argument in
light of People v. McKee (2010) 47 Cal.4th 1172 (McKee I) and the resolution of the


        1
         All further statutory references are to the Welfare and Institutions Code unless
stated otherwise.
proceedings on remand in that case. (People v. Olsen (Sept. 11, 2012, H036654)
[nonpub. opn.] (Olsen).)
          After remand proceedings were concluded in People v. McKee (2012) 207
Cal.App.4th 1325 (McKee II), the trial court again ordered defendant committed to the
Department for an indeterminate term under the SVPA. Defendant appealed and this
court affirmed the judgment. (People v. Olsen (Nov. 26, 2013, H039298) [nonpub.
opn.].)
          In the present appeal, defendant challenges the trial court’s June 21, 2013 order
denying defendant’s petition for conditional release under section 6608 as frivolous
on the grounds that (1) the petition is not frivolous; and (2) summary denial of a
section 6608 petition for conditional release violates the equal protection and due process
clauses. For reasons that we will explain, we will reverse the June 21, 2013 order and
remand the matter to the trial court with directions to reconsider the issue of whether the
petition for conditional release is based upon frivolous grounds within the meaning of
section 6608, subdivision (a).
                  II. FACTUAL AND PROCEDURAL BACKGROUND2
          A. Criminal Offenses
          “In 1972, Olsen used a handgun to abduct a 27-year-old woman in her car. After a
struggle, Olsen got out of the car and left. There was no indication that a sexual offense
had occurred and Olsen was convicted of ‘grand theft of a person.’ He served a jail
sentence and was placed on probation.
          “The next incident took place in July 1973, when Olsen picked up two teenage
girls, M. and T., who were hitchhiking. After taking the girls to an isolated area where
his truck got stuck in the dirt, Olsen had them stand on the truck bed to gain traction. He

          2
        On our own motion, we take judicial notice of our prior opinion in Olsen , supra,
H036654. Some portions of our summary of the factual and procedural background have
been taken from our prior opinion.

                                                2
then pushed T. down a 75-foot ravine and hogtied M. After finding T. and threatening
her with a knife, Olsen saw that T. was bleeding profusely. He untied M. and together
they brought T. back up to the truck. When the girls asked Olsen why he was doing this,
he said he intended to rape them. Olsen did not rape the girls and instead took them
home.
        “In August 1973, Olsen picked up a[] 19-year-old hitchhiker, M.L., and took her
to an isolated area. When Olsen took out a rope, M.L. pleaded with him not to tie her up.
Olsen then ripped off M.L.’s blouse and M.L. said she would do what he wanted her to
do. After placing M.L. on the truck bed and raping her, Olsen apologized. M.L. asked
him to take her to the hospital because she recently had surgery following a miscarriage.
Olsen took M.L. to the hospital and checked himself into the psychiatric unit next door.
        “Olsen was incarcerated in 1974 and paroled in 1978. He was discharged from
parole in 1979 and committed his next sexual offenses in 1980. C., a 16-year-old girl,
was picked up by Olsen in January 1980 while she was hitchhiking and taken to Stevens
Creek Dam. After arriving, Olsen, who had [a] knife, hit C. below the eye and tied her
up with rope. Olsen then took C. to another location in the mountains. There, Olsen put
a rope around C.’s neck and walked her up a trail to a desolate location, where he orally
copulated C., sat on her, untied her, and forced her to orally copulate him. Olsen also
sodomized C. and raped her. He then apologized and took C. home.
        “The next incident occurred in June 1980 and involved S.P., age 19. Olsen picked
S.P. up while she was hitchhiking. He put his knife to her throat and cut her slightly, and
also orally copulated her. Next, Olsen took S.P. to an isolated area in the mountains,
where he tied her hands behind her back with a belt. S.P. screamed in pain when Olsen
put his fingers in her anus and then sodomized her. He also made derogatory sexual
statements during the course of the sodomy.
        “The last incident occurred on July 9, 1980, about one month after the incident
involving S.P. K. was a 17-year-old beauty college student who met Olsen when he used

                                              3
a pay phone after she used it during her lunch hour. Later that day, Olsen called K. over
to his car when she came out of the beauty college. Olsen then pulled K. into his car by
holding a knife to her throat. Olsen had pictures of K. in his car and threatened to kill
her.
       “After getting K. into his car, Olsen tied a rope painfully tight around her neck and
gagged her with a cloth and shoestrings. Olsen then drove K. to an isolated area in the
hills. On the way, Olsen undressed K. and fondled her. After arriving, Olsen tied K. to a
log with ropes attached to her wrists, legs, and neck. He then hit K. in the buttocks with a
stick, causing bruises, and sodomized and raped her. After finishing the assault, Olsen
was pleasant and talkative with K. He also showed her how to shoot his BB gun. But
when K. made the comment, ‘well, everyone needs friends,’ Olsen became very angry
and violent. He pushed K. down, sodomized her again, bit her neck, and hit her on the
buttocks with his BB gun, breaking it.
       “Following the 1980 offenses, Olsen pleaded guilty to the sodomy and oral
copulation of C. and the sodomy and rape of K. He has been in custody since 1980.”
(Olsen, supra, H036654 at pp. 3-5.)
       B. Commitment Proceedings Under the SVPA
       “On September 26, 2008, the People filed an amended petition to extend Olsen’s
commitment as a sexually violent predator under the SVPA. The petition stated that on
October 5, 2000, Olsen was committed as a sexually violent predator to [the Department]
for two years, and since that date he ‘has been consistently committed to a new term as a
[s]exually [v]iolent [p]redator.’ [Fn. omitted.] The People asserted that Olsen ‘continues
to meet the criteria for commitment as a sexually violent predator in that he continues to
have a current diagnosed mental disorder that makes him a danger to the health and
safety of others in that it is likely that he will engage in sexually violent criminal behavior
in the future.’



                                              4
          “After a probable cause hearing was held, the trial court issued its July 2, 2010
order finding that there was probable cause to believe that (1) Olsen had been convicted
of a qualifying sexually violent offense against at least one victim; (2) he has a
diagnosable mental disorder; (3) the disorder makes it likely that he will engage in
sexually violent criminal conduct if released; and (4) the sexually violent criminal
conduct will be predatory in nature. Thereafter, the case proceeded to a jury trial.”
(Olsen, supra, H036654 at pp. 2-3.)
          “On February 18, 2011, the jury rendered its verdict finding the petition alleging
that Olsen was a sexually violent predator within the meaning of section 6600 to be true.
On February 22, 2011, the trial court issued its order committing Olsen to the custody of
[the Department] for an indeterminate term for appropriate treatment and confinement in
a secure facility, pursuant to section 6604. The order further states that it is ‘subject to a
hearing consistent with [McKee, supra, 47 Cal.4th 1172].’ ” (Olsen, supra, H036654 at
p. 12.)
          On appeal from the February 2011 order, defendant argued, among other things,
that the “indeterminate commitment under the SVPA violates his constitutional right to
equal protection” and “the SVPA violates his due process rights and the ex post facto and
double jeopardy clauses and the Eighth and Fourteenth Amendments of the federal
constitution.” (Olsen, supra, H036654 at p. 2.) This court reversed the judgment and
remanded the case to the trial court “for the limited purpose of reconsidering
[defendant’s] equal protection argument in light of [McKee I], and the resolution of the
proceedings on remand in that case (id. at pp. 1208-1211).” (Olsen, supra, H036654 at
pp. 24-25.) This court further ordered the trial court to “suspend further proceedings in
this case pending finality of the proceedings on remand in McKee [I]. ‘Finality of the
proceedings’ shall include the finality of any subsequent appeal and any proceedings in
the California Supreme Court.” (Id. at p. 25.)



                                                5
       On January 25, 2013, after the California Supreme Court denied review of
McKee II, the trial court again ordered defendant committed to the Department for an
indeterminate term under the SVPA. Defendant appealed the order on the ground, among
other things, that commitment for an indeterminate term violated the equal protection
clause. This court affirmed the judgment. (People v. Olsen, supra, H039298 at p. 19.)
       C. Annual Report
       On February 11, 2013, the Department’s medical director filed an annual report
regarding defendant in superior court pursuant to former section 6605, subdivision (a).
The version of section 6605, subdivision (a) in effect at the time of the 2013 annual
report provided in pertinent part: “A person found to be a sexually violent predator and
committed to the custody of the State Department of State Hospitals shall have a current
examination of his or her mental condition made at least once every year. The annual
report shall include consideration of whether the committed person currently meets the
definition of a sexually violent predator and whether conditional release to a less
restrictive alternative or an unconditional release is in the best interest of the person and
conditions can be imposed that would adequately protect the community.”
       The 2013 annual report was prepared by senior psychologist supervisor S.J. Van
de Putte, Ph.D. and dated January 23, 2013. Noting that defendant is a “transgendered
male,” Dr. Van de Putte stated that for purposes of the annual report, defendant would be
“referred to by female pronouns.” Dr. Van de Putte concluded that “Ms. Olsen’s mental
condition HAS NOT changed such that she no longer meets the definition of Sexually
Violent Predator. As a result of a mental disorder, Ms. Olsen remains a danger to the
health and safety of others in that she is likely to engage in sexually violent predatory
criminal behavior in the future. The best interest of Ms. Olsen and adequate protection
for the community cannot be assured in a less restrictive treatment setting at this time.”




                                              6
       D. Section 6608 Petition for Conditional Release
       On May 24, 2013, defendant filed a petition for conditional release pursuant to
section 6608. The version of section 6608, subdivision (a) in effect at that time provided
in part: “Nothing in this article shall prohibit the person who has been committed as a
sexually violent predator from petitioning the court for conditional release or an
unconditional discharge without the recommendation or concurrence of the Director of
State Hospitals. . . . 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.”
       In the petition for conditional release, defendant asserted that defendant’s
“condition has so changed that [defendant] will not be a danger to others due to
[defendant’s] previously diagnosed mental disorder if unconditionally discharged into
the community.” In support of the petition, defendant attached the April 15, 2013
“Recommitment Clinical Evaluation” prepared by psychologist James J. Park, Ph.D.
Dr. Park concluded that defendant “is NOT likely to engage in sexually violent predatory
criminal behavior as a result of a diagnosed mental disorder without appropriate
treatment in custody. Her risk to the community is low at this time. . . . [¶] . . . [I]t is
my professional opinion, based on objective, scientifically reliable data, that [defendant]
does not meet criteria as a sexually violent predator as described in Section 6600 . . . .”
       E. The People’s Response
       On May 29, 2013, the People filed a response to defendant’s petition for
conditional release under section 6608. The People argued that the petition should be
denied as frivolous because Dr. Park’s 2013 evaluation was “nearly identical” to
Dr. Park’s 2010 evaluation, which the People attached to their response and which had
been introduced at defendant’s 2011 jury trial.



                                              7
       In his 2010 evaluation, Dr. Park concluded that defendant “is NOT likely to
engage in sexually violent predatory criminal behavior as a result of a diagnosed mental
disorder without appropriate treatment in custody. Her risk to the community is low at
this time. She knows what she needs to do to maintain her sobriety and her relapse
prevention plan is very realistic, as well as grounded to continue outpatient therapy and
use those around [her] who are aware of her past behaviors to keep her in line by her
sharing what her needs are appropriately. . . . [¶] . . . [I]t is my professional opinion,
based on data, that [defendant] does not meet criteria as a sexually violent predator as
described in Section 6600 . . . .”
       The People further argued that “next to nothing has changed since the 2011 jury
trial that would justify release, conditional or otherwise. Dr. Park’s opinion then, as now,
appears to be that [defendant] suffers from no mental disorder and is not at risk to
reoffend. . . . This petition is nothing more than a request to relitigate the same issues
presented in the 2011 trial. . . . [¶] . . . [¶] . . . It is simply not possible that any court
could find facts in this petition upon which to find that Mr. Olsen’s condition has so
changed as to warrant even a hearing.”
       F. The Trial Court’s Order
       On June 21, 2013, the trial court held a hearing on defendant’s petition for
conditional release at which both defense counsel and the prosecutor appeared and
argued. On the same day, June 21, 2013, the trial court issued its order denying
defendant’s section 6608 petition for conditional release as frivolous.
       Before addressing the merits of the petition, the court stated in its order that the
section 6608 “procedure does . . . create some mischief and leaves many questions
unanswered: What are the boundaries the court can consider in making the ‘frivolous’
assessment? Can the court consider the context of the case? I.e., the law of the case?
The unpublished affirmance of the finding of True by the Jury that [defendant] is an SVP
[sexually violent predator]. The previous report by Dr. Park in 2010? Or, is the court

                                                8
limited to just the Petition and supporting documents thereto? There are no clear
answers. It is the belief of this court that the more information the better in an effort to
make an informed decision.”
       Relying on the decisions in People v. Smith (2013) 216 Cal.App.4th 947 (Smith II)
and People v. Smith (2013) 212 Cal.App.4th 1394 (Smith I), the trial court compared
Dr. Park’s 2010 and 2013 evaluations of defendant. The court found that Dr. Park had
“reveal[ed] his advocacy” and also found there were only minor differences between the
two evaluations. The court also reviewed the January 23, 2013 annual report, noting in
particular Dr. Van de Putte’s statements that defendant had repeatedly refused to
participate in either the sex offender treatment program or substance abuse treatment and
that defendant was “ ‘continuing her work to gain release through legal means.’ ”
       The trial court concluded that the petition was frivolous because, although it was a
“close call,” “the petition falls short in comparison with the supporting information in
Smith II.” (Underscoring omitted.)
       Defendant filed a timely notice of appeal from the June 21, 2013 order.
                                    III. DISCUSSION
       On appeal, defendant contends that the June 21, 2013 order denying the
section 6608 petition for conditional release must be reversed because the petition is not
frivolous. Defendant also contends that summary denial of a section 6608 petition for
conditional release violates the equal protection and due process clauses. We will begin
our evaluation of defendant’s contentions with a brief overview of the SVPA.
       A. The SVPA
       The SVPA provides for the involuntary civil commitment, for treatment and
confinement, of an individual who is found by a unanimous jury verdict (§ 6603,
subds. (e), (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent
predator” (ibid.). The definition of “sexually violent predator” is set forth in
section 6600, subdivision (a)(1) as follows: “ ‘Sexually violent predator’ means a person

                                              9
who has been convicted of a sexually violent offense against one or more victims and
who has a diagnosed mental disorder that makes the person 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.”
       The SVPA was amended twice in 2006. Prior to those amendments, an individual
determined to be a sexually violent predator was committed to the custody of the
Department for a two-year term. The individual’s term of commitment could be
extended for additional two-year periods. (Former § 6604, as amended by Stats. 2000,
ch. 420, § 3; former § 6604.1, as amended by Stats. 2000, ch. 420, § 4.)
       On September 20, 2006, Senate Bill No. 1128 was signed into law and amended
the SVPA effective immediately. (Stats. 2006, ch. 337, § 62.) Among other changes, the
amended SVPA provided for an indeterminate term of commitment, and the references to
two-year commitment terms and extended commitments in sections 6604 and 6604.1
were eliminated. (Stats. 2006, ch. 337, §§ 55, 56.)
       Less than two months later, voters approved Proposition 83, which amended the
SVPA effective November 8, 2006. (See Cal. Const., art. II, § 10, subd. (a).) Like
Senate Bill No. 1128, Proposition 83 amended the SVPA to provide that a sexually
violent predator’s commitment term is “indeterminate.” (§ 6604; see § 6604.1.)
Proposition 83 also eliminated all references to a two-year term of commitment and most
references to an extended commitment in sections 6604 and 6604.1. Thus, a person
found to be a sexually violent predator under the SVPA is now subject to an
indeterminate term of involuntary civil commitment. (People v. Whaley (2008) 160
Cal.App.4th 779, 785-787.) However, as discussed below, the SVPA provides for
unconditional and conditional release under certain circumstances. (See §§ 6605, 6608.)
       B. Conditional Release Under the SVPA
       At the time defendant filed the petition for conditional release in 2013, the SVPA
“specifie[d] two different procedures, in sections 6605 and 6608, for determining whether

                                              10
the mental condition of a person committed as an SVP has improved sufficiently to
entitle the person to either conditional release in a community-based facility or
unconditional release.” (Smith I, supra, 212 Cal.App.4th at p. 1399.)
       Former section 6605 (now section 6604.9) applied when the Department had
determined, in conjunction with its annual report, that the committed person no longer
met the definition of a sexually violent predator or conditional release was in the best
interests of the person. (McKee I, supra, 47 Cal.4th at p. 1187.) When either
determination was made by the Department, former section 6605, subdivision (b)
mandated that “ ‘the director shall authorize the person to petition the court for
conditional release to a less restrictive alternative or for an unconditional discharge.’ ”
(McKee I, supra, 47 Cal.4th at p. 1187.)
       Where the Department does not authorize the committed person to apply for
conditional release, section 6608, subdivision (a) permits the committed person to file a
petition for conditional release without Department authorization. (See Smith I, supra,
212 Cal.App.4th at p. 1400.)3 The statute serves the “primary due process goal of
ensuring that only those individuals who continue to meet [sexually violent predator]
criteria will remain involuntarily committed.” (McKee I, supra, 47 Cal.4th at p. 1192,
fn. omitted.) The person petitioning for conditional release is entitled to the assistance of
counsel (§ 6608, subd. (a)) and is not required by section 6608 to support the petition
with admissible evidence (Smith II, supra, 216 Cal.App.4th at p. 953, fn. 4).




       3
         Effective January 1, 2014, section 6608, subdivision (c) provides that “[i]f the
petition for conditional release is made without the consent of the director of the
treatment facility, no action shall be taken on the petition by the court without first
obtaining the written recommendation of the director of the treatment facility.” (Stats.
2013, ch. 182, §3.)

                                              11
              1. Threshold Determination of Frivolousness
       After the section 6608 petition for conditional release is filed, the trial court is
required to make a threshold determination as follows: “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.” (§ 6608,
subd. (a).) The apparent rationale for the court’s threshold determination of frivolousness
is “to deter multiple unsubstantiated requests and to reduce the administrative burden that
might otherwise occur . . . .” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1148,
fn. 14.)
       The SVPA does not include a statutory definition of “frivolous grounds.”4 The
California Supreme Court, employing the definition for a frivolous appeal established in
In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650 (Flaherty), has instructed that a
petition that is frivolous within the meaning of section 6608, subdivision (a) “is one that
‘indisputably has no merit.’ ” (McKee I, supra, 47 Cal.4th at p. 1192.) In Flaherty, the
court stated that an appeal “indisputably has no merit—when any reasonable attorney
would agree that the appeal is totally and completely without merit. [Citation.]”




       4
         The legislative history for the 2013 revisions to section 6608 includes a bill
analysis for Senate Bill 295 that states: “The SVPA does not define the term ‘frivolous.’
The courts have applied the definition of ‘frivolous’ found in Code of Civil Procedure
Section 128.5(b) (2) : ‘totally and completely without merit’ or ‘for the sole purpose of
harassing an opposing party.’ [People v. Reynolds (2010) 181 Cal.App.4th 1402, 1411;
see also People v. McKee, supra, 47 Cal.4th 1172; People v. Collins (2003) 110
Cal.App.4th 340, 349.] Additionally, in [People v.] Reynolds, supra, 181 Cal.App.4th at
p. 1407, the court interpreted [section] 6608 to require the petitioner to allege facts in the
petition that will show he or she is not likely to engage in sexually violent criminal
behavior due to a diagnosed mental disorder, without supervision and treatment in the
community, since that is the relief requested.” (Assem. Com. on Public Safety, Analysis
of Sen. Bill No. 295 (2013-2014 Reg. Sess.) as amended June 20, 2013, p. F.)

                                              12
(Flaherty, supra, 31 Cal.3d at p. 650; see also Smith II, supra, 216 Cal.App.4th at
pp. 951-953; People v. Collins, supra, 110 Cal.App.4th at pp. 349-350 (Collins).)
       If the trial court summarily denies the petition for conditional release as based
upon frivolous grounds, the committed person may seek appellate review of the denial
order. (See, e.g., Smith II, supra, 216 Cal.App.4th at pp. 949-950; Collins, supra, 110
Cal.App.4th at pp. 345-346; see also McKee I, supra, 47 Cal.4th at p. 1192, fn. 6
[“nothing we say here precludes an individual from challenging an erroneous judicial
determination that a petition is frivolous”].)
       The trial court has abused its discretion if appellate review shows that the petition
is not based upon frivolous grounds. (Collins, supra, 110 Cal.App.4th at p. 349; see also
People v. Reynolds, supra, 181 Cal.App.4th at p. 1408 (Reynolds) [abuse of discretion
standard applies to review of order denying petition for unconditional release as
frivolous]; but see Smith II, supra, 216 Cal.App.4th at p. 953 [applying substantial
evidence standard of review to finding that petition is totally and completely without
merit].)
              2. Evidentiary Hearing
       Where the trial court determines that the petition for conditional release is not
frivolous, section 6608, subdivision (e) requires the court to “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.”
(§ 6608, subd. (e).) However, “[n]o hearing upon the petition shall be held until the
person who is committed has been under commitment for confinement and care in a
facility designated by the Director of State Hospitals for not less than one year from the
date of the order of commitment.” (§ 6608, subd. (d).)
       The current version of section 6608 also specifies the burden of proof at the
hearing: “[T]he committed person shall have the burden of proof by a preponderance of

                                                 13
the evidence, unless the report required by Section 6604.9 [annual report] determines that
conditional release to a less restrictive alternative is in the best interest of the person and
that conditions can be imposed that would adequately protect the community, in which
case the burden of proof shall be on the state to show, by a preponderance of the
evidence, that conditional release is not appropriate.” (§ 6608, subd. (i).)
       C. The Parties’ Contentions
       Defendant argues that the trial court erred in determining that the section 6608
petition for conditional release was frivolous because the court applied the wrong
standard. Defendant explains that the court erroneously relied on the decision in Smith II,
supra, 216 Cal.App.4th 947 as setting a standard for determining whether a petition is
frivolous that requires the defendant to make an evidentiary showing equivalent to the
evidentiary showing made by the defendant in Smith II.
       Defendant also argues that the trial court improperly considered evidence
submitted by the People in their response to defendant’s section 6608 petition. Defendant
asserts that section 6608, subdivision (a) does not require service of the petition for
conditional release on the district attorney, who receives, pursuant to section 6608,
subdivision (b), notice of the hearing on the petition for conditional release after the trial
court has determined that the petition is not frivolous.
       Defendant therefore contends that the trial court determines whether the petition
for conditional release has been presented on nonfrivolous grounds by reviewing only the
face of the petition and its supporting attachments. Since the trial court based its denial
of defendant’s petition for conditional release on the court’s comparison of Dr. Park’s
2013 evaluation, which was attached to the petition, and Dr. Park’s 2010 evaluation,
which was attached to the People’s response, defendant contends that the court failed “to
evaluate [the] issue before the court: the facial adequacy of the petition to state a basis
for relief. [Citation.]” Defendant further contends that the petition is not frivolous
because it alleges facts that would justify conditional release.

                                               14
       According to the People, the trial court did not abuse its discretion in denying
defendant’s petition for conditional release as frivolous. They contend that the trial court
is not limited to reviewing only the petition and its supporting documents in determining
whether a petition for conditional release is frivolous, since that would improperly bar the
court from considering the Department’s annual report. The People assert that “[i]n
instances where a petitioner’s statements could be factually disputed or omissions could
be brought to light, the better approach is to allow the court to consider such information
before going forward with a hearing.”
       The People also argue that the trial court properly determined that defendant’s
petition was frivolous because it was supported only by Dr. Park’s 2013 evaluation,
which did not provide any evidence to show that defendant’s “circumstances had changed
since [the] 2010 jury trial such that [defendant] no longer posed a danger to the
community if conditionally released.”
       D. Analysis
       We agree with defendant that the trial court did not apply the correct standard in
determining whether a petition for conditional release is frivolous under section 6608,
subdivision (a), which provides that “[u]pon 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.”
       As we have discussed, the statutory scheme for conditional release under the
SVPA has two steps where, as here, the committed person has filed a petition for
conditional release without Department authorization. First, the trial court makes a
threshold determination as to whether the petition for conditional release is based upon
frivolous grounds because any reasonable attorney would agree that the petition is totally
and completely without merit. (§ 6608, subd. (a); see McKee I, supra, 47 Cal.4th at
p. 1192; Flaherty, supra, 31 Cal.3d at p. 650.)

                                             15
       To make this threshold determination, the trial court reviews the petition and any
supporting attachments to determine “ ‘if the defendant’s position has some merit on the
issue of whether he or she may qualify for conditional release.’ ” (See McKee I, supra,
47 Cal.4th at p. 1192, fn. 6.) A petition for conditional release is not based on frivolous
grounds if the defendant has made a showing that he or she “would not be a danger to
others due to his or her diagnosed mental disorder while under supervision and treatment
in the community.” (§ 6608, subd. (e); see Smith II, supra, 216 Cal.App.4th at p. 951.)
       We are not convinced by defendant’s argument that the trial court’s threshold
determination of frivolousness is limited to the face of the petition for conditional release
and its supporting attachments, since section 6608, subdivision (a) does not preclude the
trial court from reviewing the Department’s annual report in making its threshold
determination of frivolousness. Where, as here, the annual report indicates that the
defendant does not qualify for conditional release, the court may consider whether the
petition for conditional release makes a contrary showing. That is, the petition must
show, based on the face of the petition and any supporting attachments, that the defendant
“would not be a danger to others due to his or her diagnosed mental disorder while under
supervision and treatment in the community.” (§ 6608, subd. (e); see Smith II, supra, 216
Cal.App.4th at p. 951; see also Reynolds, supra, 181 Cal.App.4th at p. 1408 [petition for
unconditional release was frivolous because two recent evaluations concluded that the
defendant remained a sexually violent predator and the petition did not allege any facts to
the contrary].)
       For example, in Smith II the defendant filed a petition for conditional release under
section 6608 to which he attached several documents, including the Department’s annual
report stating that conditional release would be appropriate after defendant achieved
certain treatment milestones, a journal article by two psychiatrists who opined that the
diagnosis of paraphilia NOS had been widely misapplied, and defendant’s declaration
that he was a candidate for conditional release because he had been informed by hospital

                                             16
personnel that the Department recommended outpatient placement. (Smith II, supra, 216
Cal.App.4th at pp. 952-953.) The appellate court found appropriate the People’s
concession that the trial court had erred in summarily denying the petition for conditional
release as totally and completely without merit. (Id. at pp. 951, 953.)
       In Collins the appellate court also determined that the trial court had erred in
denying a petition for conditional release under section 6608 as frivolous. The petition
was supported by a report from the defendant’s treating psychiatrist, who stated that the
defendant’s risk was greatly reduced and he could be managed in the community.
(Collins, supra, 110 Cal.App.4th at p. 345.) The attachments to the petition also included
the declaration of defense counsel, who stated that the treating psychiatrist would testify
that the defendant had been chemically castrated and that hospital staff would testify that
the defendant was not likely to reoffend if released to proper supervision in the
community. (Ibid.) The appellate court concluded that “[b]ased on this record, we find
no support for the superior court’s conclusion that Collins’s petition was totally or
completely without merit . . . .” (Id. at pp. 351-352.)
       We are also not convinced by defendant’s contention that the People may not
appear or oppose the petition for conditional release prior to the evidentiary hearing
authorized by section 6608, subdivision (e). Although section 6608, subdivision (a) does
not expressly provide that the People are entitled to representation at the time the trial
court makes the threshold determination of whether the petition is based upon frivolous
grounds,5 it does require a person petitioning for conditional release to “serve a copy of
the petition on the State Department of State Hospitals at the time the petition is filed
with the court.” (§ 6608, subd. (a).)



       5
         In contrast, section 6608, subdivision (e) provides that the state is expressly
entitled to legal representation at the hearing that is set after the trial court determines the
petition for conditional release is not frivolous.

                                               17
       Moreover, we believe that the trial court has the inherent authority to allow the
People to appear and to consider the People’s response to the petition. It is “well
established that courts have fundamental inherent equity, supervisory, and administrative
powers, as well as inherent power to control litigation before them. [Citation.]”
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) The People’s initial
response to the petition for conditional release should nevertheless be limited to the issue
of whether the face of the petition and its supporting attachments show that the petition is
frivolous because any reasonable attorney would agree that the petition is completely and
totally without merit. (See McKee I, supra, 47 Cal.4th at p. 1192; Flaherty, supra, 31
Cal.3d at p. 650.)
       If the People respond to the petition for conditional release at the time the trial
court makes its threshold determination of whether the petition is frivolous, the court’s
consideration of the People’s response should not result in an evidentiary hearing on the
issue of frivolousness. The trial court conducts an evidentiary hearing on the petition for
conditional release only if the court has previously determined that the petition for
conditional release is not frivolous. (§ 6608, subds. (b), (e).) During this second step of
the process, the trial court makes a factual determination on the basis of the evidentiary
hearing as to whether the defendant qualifies for conditional release because he or she
“would not be a danger to others due to his or her diagnosed mental disorder while under
supervision and treatment in the community.” (§ 6608, subd. (e); see People v.
Rasmuson (2006) 145 Cal.App.4th 1487, 1504 [construing former § 6608, subd. (d).]
       Thus, section 6608 makes a distinction between the threshold issue of
frivolousness and the factual question of whether the committed person qualifies for
conditional release, and requires a separate determination of each issue. For that reason,
“[a]n approach combining the determination of the petition’s frivolousness and the
question of the committed person’s qualification for conditional release . . . would
expressly contradict the language of the conditional release statute, which . . . requires a

                                              18
noticed hearing in the event the court determines the petition is not frivolous.
[Citations.]” (Collins, supra, 110 Cal.App.4th at p. 351, fn. 6.)
       In the present case, the record reflects that the trial court reviewed defendant’s
petition for conditional release, the Department’s 2013 annual report, the People’s
response to the petition, the psychological evaluations submitted by the parties, and heard
argument from the parties’ attorneys. In its order denying the petition, the trial court
compared Dr. Park’s 2010 and 2013 evaluations, and found that the petition was
frivolous because defendant’s evidentiary showing was inadequate in comparison to the
evidentiary showing made in support of the petition for conditional release at issue in
Smith II, supra, 216 Cal.App.4th 947. The court stated that although it was a “close call,”
“the petition falls short in comparison with the supporting information in Smith II.”
(Underscoring omitted.)
       On this record, we find that the trial court did not apply the correct standard in
making the threshold determination of whether defendant’s petition for conditional
release was based on frivolous grounds within the meaning of section 6608,
subdivision (a). The court did not determine whether the petition was based upon
frivolous grounds because any reasonable attorney would agree that the petition on its
face and any supporting attachments are totally and completely without merit. (§ 6608,
subd. (a); see McKee I, supra, 47 Cal.4th at p. 1192; Flaherty, supra, 31 Cal.3d at
p. 650.) As stated in Collins, “it was not for the trial court to decide the issue [of the
defendant’s qualification for conditional release]; it was only to determine whether [the
defendant] had presented a petition based on nonfrivolous grounds so as to entitle [the
defendant] to a hearing on the matter. [Citations.]” (Collins, supra, 110 Cal.App.4th at
p. 352.)
       We recognize that the trial court indicated in its June 21, 2013 order denying
defendant’s petition for conditional release that the court lacked guidance with respect to
the proper standard for the threshold determination of frivolousness. Among other

                                              19
things, the court stated, “[w]hat are the boundaries the court can consider in making the
‘frivolous’ assessment? Can the court consider the context of the case? I.e., the law of
the case? The unpublished affirmance of the finding of True by the Jury that [defendant]
is an SVP.”
       Since we have outlined the appropriate standard for the trial court’s threshold
determination of whether a petition for conditional release is based upon frivolous
grounds within the meaning of section 6608, subdivision (a) and the material the court
may review in making its threshold determination, we believe that a remand for
reconsideration of defendant’s petition for conditional release is appropriate in this case.
We will therefore reverse the June 21, 2013 order and remand the matter for
reconsideration of the threshold issue of whether defendant’s section 6608 petition for
conditional release should be summarily denied because it is based upon frivolous
grounds.
       If the court determines that the petition is not frivolous, the court shall proceed to
an evidentiary hearing as to whether the defendant qualifies for conditional release
because he or she “would not be a danger to others due to his or her diagnosed mental
disorder while under supervision and treatment in the community.” (§ 6608, subd. (e).)
       Having reached this conclusion, we need not address defendant’s alternate
contention that summary denial of a petition for conditional release is unconstitutional
because it violates the equal protection and due process clauses.
                                    IV. DISPOSITION
       The June 21, 2013 order denying the petition for conditional release is reversed.
The matter is remanded for reconsideration of whether the petition for conditional release
should be summarily denied because it is based upon frivolous grounds within the
meaning of Welfare and Institutions Code section 6608, subdivision (a).




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P. J.




WE CONCUR:




__________________________
MÁRQUEZ, J.




__________________________
GROVER, J.




People v. Olsen
H039814
Trial Court:                             Santa Clara County Superior Court
                                         Superior Court No.: 201555


Trial Judge:                             Hon. Gilbert T. Brown


Attorneys for Defendant and Appellant:   Elisa A. Brandes
William Karl Olsen
                                         Sixth District Appellate Program


Attorney for Plaintiff and Respondent:   Bridget Billeter
The People                               Office of the Attorney General




People v. Olsen
H039814
