P. v. Smith CA1/5

Filed 5/7/13 P. v. Smith CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A135760 v. FRAISURE SMITH, (Solano County Super. Ct. No. FCR208822) Defendant and Appellant.

Fraisure Smith (appellant) appeals from an order denying his petition for conditional release or unconditional discharge under Welfare and Institutions Code section 6608 of the Sexually Violent Predator Act (SVPA).1 He contends the trial court erred in denying his petition without a hearing, concluding it was frivolous. We agree. The trial court‟s order is reversed and the matter is remanded for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Appellant was sentenced to a prison term after he entered a no contest plea to a charge of assault with intent to commit rape and admitted prior conviction and prior prison term allegations. (Pen. Code, §§ 220, 667.5, subd. (b), 1170.12.) Before his initial parole date, the Board of Parole Hearings imposed a 45-day no bail hold in order to conduct a sexually violent predator (SVP) evaluation, and the district attorney filed a petition alleging appellant was an SVP. In July 2010, a jury found the petition true, and the court committed appellant to the State Department of Mental Health for an

1 Undesignated section references are to the Welfare and Institutions Code. 1

indeterminate period for appropriate treatment and confinement in a secure facility. He was admitted to Coalinga State Hospital on August 24, 2010. On or about April 12, 2012, appellant filed a petition for conditional release and unconditional discharge (§ 6608). He also requested that the court appoint an independent mental health expert (§ 6605, subd. (a)) and counsel to assist him, stating, “I am not employed and I am indigent and do not have the resources to hire and obtain my own attorney, my own mental health expert, or to pay any filing fees and costs.” 2 On April 30, 2012, the trial court denied the petition without a hearing, stating in its denial order: “The requested relief is premature. No hearing is compelled here as „. . . there is only slight evidence to support‟ . . . the petition. (People v. [Reynolds] (2010) 181 Cal.App.4th 1402.)” Appellant filed a timely notice of appeal from the trial court‟s order. DISCUSSION “Because the SVPA is designed to ensure a committed person does not remain confined any longer than he or she qualifies as [an SVP], it provides means for that individual to obtain review of his or her mental condition to determine if civil confinement is still necessary. [Citation.]” (People v. Collins (2003) 110 Cal.App.4th 340, 346 (Collins).) A person committed as a sexually violent predator may petition for conditional release or an unconditional discharge any time after one year of commitment, notwithstanding the lack of recommendation or concurrence by the Director of Mental Health. (§ 6608, subds. (a) & (c); Collins, at p. 346; People v. Reynolds (2010) 181 Cal.App.4th 1402, 1406-1407 (Reynolds).) “Upon receipt of such a petition 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).) If the petition is not found to be frivolous, the court shall 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