Filed 5/26/20
                      CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        FIRST APPELLATE DISTRICT

                                DIVISION FIVE


 THE PEOPLE,
         Plaintiff and Respondent,
                                            A155689
 v.
 FRAISURE SMITH,                            (Solano County
                                            Super. Ct. No. FCR208822)
         Defendant and Appellant.


       Fraisure Smith, a committed sexually violent predator (SVP), was on
conditional release when he filed a petition for unconditional discharge.
During the unconditional discharge proceedings, his conditional release was
revoked. We conclude that a statutory requirement that an SVP must have
spent at least a year on conditional release requires a committed person to
have been on conditional release for at least one year when the unconditional
discharge petition is filed and to remain on that status throughout the
duration of the unconditional discharge proceedings. Thus, the revocation of
appellant’s conditional release rendered him statutorily ineligible for
unconditional discharge.
                                BACKGROUND
       “Appellant pled no contest to assault with intent to commit rape and
admitted prior conviction and prison term allegations. (Pen. Code, §§ 220,
667.5, subd.(b), 1170.12.) He was sentenced to prison. Before his release on
parole in 2010, he was declared an SVP under Welfare and Institutions Code



                                       1
section 6600 et seq. and was committed to Coalinga State Hospital.” (People
v. Smith (Dec. 17, 2019, A153254) [nonpub. opn.].)1 “On December 2, 2013,
the superior court granted appellant’s petition for conditional release under
Welfare and Institutions Code section 6608. He was released from Coalinga
State Hospital on November 15, 2015, and placed in the California
Conditional Release Program . . . .” (Ibid.)
      In March 2016, appellant filed a petition for unconditional discharge.
In February 2017, following an evidentiary hearing, the trial court found
appellant had established probable cause that he was no longer a public
safety risk. The matter was continued to allow the state to prepare an expert
evaluation before a jury trial.
      In May 2017, the People filed a petition to revoke appellant’s
conditional release status (Pen. Code, § 1609). (People v. Smith, supra,
A153254.) In October, following a contested hearing, the trial court granted
the petition and recommitted appellant as an inpatient to Coalinga State
Hospital.2 (Ibid.) At the October hearing, after the trial court ordered
revocation, it determined appellant’s unconditional discharge petition “was
superseded by this hearing that resulted in [appellant’s] return to Coalinga.
So there’s no basis for a trial [on unconditional discharge] at this point.”
      In April 2018, appellant filed a Marsden3 motion based on his counsel’s
failure to pursue appellant’s petition for unconditional discharge. In May,



      1 We grant appellant’s May 30, 2019 request for judicial notice of the
record in his prior appeal (No. A153254), a request the People join.
      2The facts underlying the revocation are not relevant to this appeal.
This court recently affirmed the order revoking conditional release. (People v.
Smith, supra, A153254.)
      3   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


                                        2
following a Marsden hearing at which appellant withdrew his request, the
trial court determined its previous ruling that appellant was no longer
entitled to a trial on his unconditional discharge petition was erroneous, and
appellant was in fact entitled to a jury trial. Trial was set for October.
      In July 2018, the People filed a motion seeking (1) reconsideration of
the finding that appellant demonstrated probable cause he was no longer a
public safety risk, and (2) dismissal of appellant’s unconditional discharge
petition due to changed circumstances.4 The motion argued the trial court
had the inherent authority to reconsider its prior probable cause finding, and
it should do so based on the trial court’s finding at the revocation hearing
that appellant is a danger to the health and safety of others. The motion also
argued that, by statute, an SVP must be on conditional release for at least
one year before petitioning for unconditional discharge and, because
appellant was not currently on conditional release, he was not statutorily
eligible for unconditional discharge. Appellant filed an opposition, arguing
solely that the People’s motion for reconsideration was untimely (citing Code
Civ. Proc., § 1008) and not based on an intervening change in law.
      The trial court granted the People’s motion and issued the following
written order: “[Appellant’s] petition requesting unconditional release which
was filed on March 3, 2016 is denied. The court’s prior finding of probable
cause on February 27, 2017 is revoked based on the court’s finding
[appellant] in [violation] of his conditional release on October 30, 2017.
Because [appellant] no longer meets the statutory requirement under
Welfare and Institutions Code 6608(m) he is not eligible to petition for
unconditional release.”


      4 The motion also addressed a separate petition by appellant for
conditional release, not at issue on this appeal.


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                                 DISCUSSION
I. Statutory Scheme
      “Under the [SVP Act (Welf. & Inst. Code § 6600 et seq.5)], an offender
who is determined to be an SVP is subject to involuntary civil commitment
for an indeterminate term ‘ “immediately upon release from prison.” ’
[Citations.] To establish that an offender is an SVP, the People must prove
beyond a reasonable doubt that the offender (1) has been convicted of a
sexually violent offense against at least one victim and (2) ‘has a diagnosed
mental disorder that makes [him or her] 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.’ (§§ 6600, subd. (a)(1), 6604.) The SVPA is designed ‘ “to
provide ‘treatment’ to mentally disordered individuals who cannot control
sexually violent criminal behavior” ’ and to keep them confined until they no
longer pose a threat to the public. [Citation.] Thus, ‘[t]he SVPA is not
punitive in purpose or effect,’ and proceedings under it are ‘ “special
proceedings of a civil nature.” ’ ” (People v. Putney (2016) 1 Cal.App.5th 1058,
1065 (Putney).)
      “ ‘[O]nce a person is committed as an SVP, he [or she] remains in
custody until he [or she] successfully bears the burden of proving he [or she]
is no longer an SVP’—through a petition for unconditional discharge under
section 6605 or conditional release under section 6608—‘or the [Department
of State Hospitals] determines he [or she] no longer meets the definition of an
SVP.’ ” (Putney, supra, 1 Cal.App.5th at p. 1066.) The procedure to petition
for conditional release is not relevant to this appeal.



      5 All undesignated section references are to the Welfare and
Institutions Code.


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      With respect to unconditional discharge, section 6608, subdivision (m)
(hereafter, section 6608(m)) provides: “After a minimum of one year on
conditional release, the committed person, with or without the
recommendation or concurrence of the Director of State Hospitals, may
petition the court for unconditional discharge. The court shall use the
procedures described in subdivisions (a) and (b) of Section 6605 to determine
if the person should be unconditionally discharged from commitment on the
basis that, by reason of a diagnosed mental disorder, he or she is no longer a
danger to the health and safety of others in that it is not likely that he or she
will engage in sexually violent criminal behavior.”
      Section 6605, subdivision (a), provides that, when a court receives a
petition for unconditional discharge, it holds a hearing to determine whether
“probable cause exists to believe that the committed person’s diagnosed
mental disorder has so changed that he or she is not a danger to the health
and safety of others and is not likely to engage in sexually violent criminal
behavior if discharged . . . .” (§ 6605, subd. (a)(1)–(2); see also Cooley v.
Superior Court (2002) 29 Cal.4th 228, 252 [“a determination of probable
cause by a superior court judge under the SVPA entails a decision whether a
reasonable person could entertain a strong suspicion” of the relevant finding
(italics omitted)].) If the court finds such probable cause exists, the matter
proceeds to a court or jury trial. (§ 6605, subd. (a)(2)–(3).) “If the court or
jury rules for the committed person, he or she shall be unconditionally
released and unconditionally discharged.” (§ 6605, subd. (b).)
II. The Denial of Appellant’s Unconditional Discharge Petition
      Appellant contends (1) the trial court improperly granted
reconsideration of its prior probable cause finding, and (2) the revocation of
appellant’s conditional release did not impact his right to a jury trial on his



                                         5
unconditional release petition. We disagree with the second contention and
find it unnecessary to decide the first.
      A. Effect of the Order Revoking Appellant’s Conditional Release
      The parties dispute whether the revocation of appellant’s conditional
release—resulting in his recommitment to a state hospital—rendered him
statutorily ineligible for unconditional discharge. Appellant argues that
section 6608(m) only requires that he have spent at least a year on
conditional release at the time his unconditional discharge petition was filed,
and it is therefore immaterial that his conditional release was subsequently
revoked. The People contend section 6608(m)’s requirement applies
throughout the unconditional discharge proceedings, such that if conditional
release is revoked during this time, the unconditional discharge petition must
be dismissed or denied.
      “ ‘As in any case involving statutory interpretation, our fundamental
task here is to determine the Legislature’s intent so as to effectuate the law’s
purpose.’ [Citation.] The well-established rules for performing this task
require us to begin by examining the statutory language, giving it a plain and
commonsense meaning. [Citation.] We do not, however, consider the
statutory language in isolation; rather, we look to the statute’s entire
substance in order to determine its scope and purposes. [Citation.] That is,
we construe the words in question in context, keeping in mind the statute’s
nature and obvious purposes. [Citation.] We must harmonize the statute’s
various parts by considering it in the context of the statutory framework as a
whole.” (Los Angeles County Metropolitan Transportation Authority v.
Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106–1107.)
      Section 6608(m) provides, “After a minimum of one year on conditional
release, the committed person . . . may petition the court for unconditional



                                           6
discharge.” Appellant’s construction—that the one-year waiting period only
applies at the time the petition is filed—is inconsistent with the established
purpose of the SVP Act as a whole and the obvious purpose of section
6608(m). The “primary purpose [of the SVP Act] is to protect the public from
‘a small but extremely dangerous group of sexually violent predators that
have diagnosable mental disorders [that] can be identified while they are
incarcerated.’ ” (People v. Hurtado (2002) 28 Cal.4th 1179, 1192.) A
requirement that a committed person wait one year following commitment
before petitioning for conditional release (§ 6608, subd. (f)) has been held to
“further the compelling state interest in providing treatment to SVP’s and
protecting the public . . . .” (People v. Bocklett (2018) 22 Cal.App.5th 879,
899.)
        The obvious purpose of section 6608(m) is similar. The Legislature
determined that, before SVPs are unconditionally discharged on their own
petitions, they must spend at least a year on conditional release, with “the
consequent supervision and compulsory treatment [they] will receive through
the conditional release program.” (People v. Superior Court (George) (2008)
164 Cal.App.4th 183, 198.) This protects the public by requiring SVPs
demonstrate the ability to spend a year in the community before being
discharged, and by ensuring that the transition to the community is
facilitated by a period of supervision. Revocation of conditional release—even
after a year has passed—is indicative of a public safety risk because the
person was unable to maintain conditional release status.6 Further, to allow



       As appellant notes, the state’s burden is lower in revocation
        6

proceedings than it is in unconditional discharge trials. In the former, the
state must prove by a preponderance of the evidence that “the person is a
danger to the health and safety of others” (Pen. Code, § 1609) or “requires


                                        7
an SVP to petition for unconditional discharge following revocation could
result in the person being directly released from the hospital to the
community without an interim period of supervision immediately prior to the
release. Thus, to find section 6608(m) satisfied if the committed person spent
a year on conditional release before filing an unconditional discharge petition,
despite a subsequent revocation of conditional release, would be contrary to
the legislative intent of the SVP Act and section 6608(m).
      Appellant relies on Gray v. Superior Court (2002) 95 Cal.App.4th 322
(Gray), which addressed whether the state’s petition to commit Gray as an
SVP should be dismissed. The relevant statute provided that, before such a
petition could be filed, two experts must concur that the person meets the
criteria for SVP commitment; if the first pair of experts do not so concur, a
petition may be filed only if a second pair of experts does. (Id. at pp. 325,
327.) A separate statute provided that the state may request updated
evaluations if “ ‘necessary in order to properly present the case for
commitment,’ ” and if the updated evaluations result in a split opinion, two



extended inpatient treatment or refuses to accept further outpatient
treatment and supervision” (Pen. Code, § 1608). (See § 6608, subd. (h) [“The
procedures described in Sections 1605 to 1610, inclusive, of the Penal Code
shall apply to the person placed in the forensic conditional release program.”];
People v. DeGuzman (1995) 33 Cal.App.4th 414, 419 [preponderance of the
evidence standard applies in Pen. Code, §§ 1608 & 1609 revocation
proceedings].) In contrast, in an unconditional discharge trial, “[t]he burden
of proof . . . shall be on the state to prove beyond a reasonable doubt that the
committed person’s diagnosed mental disorder remains such that he or she is
a danger to the health and safety of others and is likely to engage in sexually
violent criminal behavior if discharged.” (§ 6605, subd. (a)(3).) Appellant
suggests our construction of section 6608(m) would enable the state to “duck
its burden under section 6605 and avoid trial simply by pursuing a motion to
revoke outpatient status.” We decline to assume the state will abuse the
statutory scheme in this manner.


                                        8
additional evaluations shall be performed. (Id. at pp. 325–326 & fn. 9.) In
Gray, the initial evaluators concurred and the petition was filed. (Id. at
p. 324.) After a years-long delay in the proceedings, the People sought
updated evaluations; successive pairs of evaluations were all split. (Ibid.)
Gray argued the petition should be dismissed because the updated
evaluations failed to produce a pair of concurring evaluations. (Id. at
pp. 324–325.) The Court of Appeal disagreed, reasoning that the petition
“was properly supported by two concurring initial evaluations” when filed,
and declining to construe the relevant statutes to require dismissal if
updated evaluations did not result in a pair of concurrences. (Id. at pp. 325–
329.) The court relied in part on statutory language providing: “ ‘[A] petition
to request commitment under this article shall only be filed if both
independent professionals who evaluate the person . . . concur that the person
meets the criteria for commitment . . . .’ ” (Id. at p. 327 [quoting § 6601,
subd. (f)].) As the court held, “[t]o say that a petition may not be filed unless
certain conditions are met is not the same as to say that proceedings ‘may not
go forward’ if those conditions cease to exist.” (Id. at p. 328.)
      Gray is distinguishable. Most significantly, the statutory language at
issue here is materially different from that in Gray. The statute in Gray
provided that “ ‘[a] petition to request commitment under this article shall
only be filed if’ ” the pertinent requirement was met. (Gray, supra, 95
Cal.App.4th at p. 327, italics added.) This statute uses “petition” as a noun,
referring to a pleading, and provides the requirement must be satisfied before
the petition can “be filed,” suggesting that once the petition is filed, any




                                         9
changed circumstances regarding the requirement are immaterial.7 Section
6608(m), in contrast, provides that “the committed person . . . may petition
the court for unconditional discharge” after the pertinent requirement—at
least one year on conditional release—is met. (§ 6608(m), italics added.)
Section 6608(m) thus uses “petition” as a verb and does not mention filing,
indicating “petition” refers not to a pleading that is filed with the court, but
instead to the entire process of seeking relief from the court. (See San Diego
County Water Authority v. Metropolitan Water Dist. of Southern California
(2017) 12 Cal.App.5th 1124, 1160 [“The right to petition includes the right to
seek judicial relief.”].) Moreover, as discussed above and in contrast to Gray,
the statutory purpose of the SVP Act and section 6608(m) would not be
served by adopting appellant’s construction of section 6608(m).
      Accordingly, we conclude that section 6608(m) requires a committed
person to have been on conditional release for at least one year when the
unconditional discharge petition is filed and to remain on that status
throughout the duration of the unconditional discharge proceedings.8
Therefore, the revocation of appellant’s conditional release, resulting in his


      7 Ironically, if we were to construe section 6608(m) as appellant urges,
his petition should have been dismissed: appellant had not spent a year on
conditional release at the time his unconditional discharge petition was filed.
However, the trial court continued proceedings on the petition and, at the
time of the probable cause hearing, the one-year threshold was met.
      8 The year on conditional release must be a continuous period. In other
words, if a committed person spends six months on conditional release before
having conditional release revoked, and then subsequently regains
conditional release status, he or she would not be eligible to petition for
unconditional discharge after a second nonconsecutive six month period;
instead, he or she would have to wait until spending one continuous year on
conditional release.



                                        10
commitment to a state hospital, rendered him statutorily ineligible to pursue
unconditional discharge.
      B. Reconsideration of the Probable Cause Finding
      The parties dispute whether the trial court improperly granted
reconsideration of its prior probable cause finding, either pursuant to Code of
Civil Procedure section 1008 or the court’s inherent authority. We need not
decide the issue.9
      Both parties suggest that the revocation of appellant’s conditional
release could impact the court’s probable cause finding. Under the SVP Act,
the requirement that the SVP establish probable cause that they are no
longer a danger to others (§ 6605, subd. (a)(2)) is separate and distinct from
the requirement that the person have been on conditional release for at least
a year (§ 6608(m)). Both are necessary when a committed person petitions
for unconditional discharge.10 In other words, a committed person could
establish probable cause that he or she is not a danger to others, but still be
ineligible to petition for unconditional discharge because he or she had not
been on conditional release for one year.



      9 We note that appellant provides no analysis supporting his assertion
that Code of Civil Procedure section 1008 applies in SVP proceedings. (See
People v. Evans (2005) 132 Cal.App.4th 950, 956 [“Part 2 of the Code of Civil
Procedure generally does not extend to special proceedings unless the
statutes establishing such proceedings expressly incorporate the provisions of
Part 2. [Citations.] SVP civil commitment proceedings are special
proceedings, not actions. [Citations.] The SVPA does not incorporate
provisions of Part 2 of the Code of Civil Procedure and therefore they do not
apply.”].)
      10 Different requirements and procedures apply when the unconditional
discharge is sought by the State Department of State Hospitals. (See § 6605,
subd. (c).)


                                       11
        To the extent appellant argues that, once a trial court finds probable
cause for purposes of an unconditional discharge petition, it lacks the
authority to deny or dismiss the petition without holding a trial, we disagree.
A trial court presiding over an SVP proceeding “has inherent authority under
section 187 of the Code of Civil Procedure to ensure the orderly
administration of justice, including the authority to dismiss an SVP petition
for unreasonable prosecutorial delay. [Citation.] We interpret this to mean
that a trial court may exercise its inherent authority to dismiss a defendant’s
petition for unconditional release.” (People v. Reynolds (2010) 181
Cal.App.4th 1402, 1408.)
        Accordingly, even assuming the trial court’s reconsideration of its
probable cause finding was improper, the court’s order denying appellant’s
petition can be affirmed on the alternative ground that appellant failed to
satisfy the statutory requirement of being on conditional release for one year.
We need not, and do not, decide whether the reconsideration was in fact
improper.
III. Ineffective Assistance of Counsel
        Appellant contends his trial counsel rendered ineffective assistance by
failing to press for a jury trial on appellant’s unconditional release petition
before the revocation hearing. “ ‘ “In assessing claims of ineffective assistance
of trial counsel, we consider whether counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms and
whether the defendant suffered prejudice to a reasonable probability, that is,
a probability sufficient to undermine confidence in the outcome. [Citations.]
. . . Defendant thus bears the burden of establishing constitutionally
inadequate assistance of counsel.” ’ ” (People v. Brown (2014) 59 Cal.4th 86,
109.)



                                         12
      We need not decide whether counsel’s representation was deficient
because appellant has failed to demonstrate prejudice from any deficient
performance. As appellant notes, he personally asked the trial court about
the unconditional discharge trial at an August 2017 Marsden hearing. The
trial court responded that it was “usurped by their taking you back into
custody. . . . [O]nce they’ve taken you back into custody, then that has
priority . . . .” Appellant faults his counsel for not “challeng[ing] the court’s
assertion,” but suggests no argument that trial counsel might have used to
change the court’s mind. Absent any indication that a challenge by trial
counsel to the trial court’s decision to hold the revocation hearing before the
unconditional discharge trial would have had a reasonable probability of
success, appellant has failed to demonstrate prejudice from counsel’s conduct.
                                 DISPOSITION
      The order denying appellant’s petition for unconditional discharge is
affirmed.




                                        13
                                 SIMONS, Acting P.J.




We concur.




NEEDHAM, J.




BURNS, J.




People v. Smith / A155689


                            14
A155689 / People v. Smith

Trial Court: Superior Court of Solano County

Trial Judge: Honorable Arvid Johnson

Counsel: Jean F. Matulis, By Appointment of the First District Court of
Appeal under the First District Appellate Project, for Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Bruce M. Slavin, Deputy Attorney General, and Karen Z. Bovarnick, Deputy
Attorney General.




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