Conway v. Superior Court ( 2023 )

Filed 12/1/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CEDRICK CONWAY, B325986
Petitioner, (Los Angeles County
Super. Ct. No. ZM022558)
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. William C. Ryan,
Judge. Petition granted.
Ricardo D. Garcia, Public Defender of Los Angeles County,
Albert J. Menaster, Head Deputy Public Defender, Alvin Thomas
and Lara Kislinger, Public Defenders, for Petitioner.
No appearance for Respondent.
George Gascón, District Attorney of Los Angeles County,
Felicia Shu and Cassandra Thorp, Deputy District Attorneys, for
Real Party in Interest.
Petitioner Cedrick Conway (Conway) is awaiting trial on a
petition to commit him as a sexually violent predator (SVP)
pursuant to the Sexually Violent Predator Act (SVPA) (Welf. &
Inst. Code, § 6600 et seq.).1 In preparation for trial, he filed a
motion to obtain a court order directing a Department of State
Hospitals (DSH) evaluator to update his previous evaluation,
which was completed several years earlier and concluded Conway
did not meet the criteria for commitment as an SVP. The trial
court denied the request solely because it believed the pertinent
statute allows only the People (as the party seeking commitment)
to request an updated evaluation—not the defense. In this
proceeding challenging the trial court’s ruling, we consider
whether that is indeed what the Legislature intended in enacting
the statute or if, instead, the defense can obtain an updated DSH
evaluation when a trial court approves.
I. BACKGROUND
A. The SVP Commitment Petition and the Initial
Defense Request for an Updated Evaluation
In February 2014, the People filed a petition to commit
Conway as an SVP. With the petition, the People presented
multiple evaluations written by DSH doctors.2
1
Undesignated statutory references that follow are to the
Welfare and Institutions Code.
2
Section 6601 authorizes the People, when seeking
commitment of a person as an SVP, to obtain two evaluations of
2
The first two evaluations of Conway reached opposing
conclusions. One concluded that Conway met the criteria for
commitment as an SVP, while the second, completed by Dr. J.
Kyle Van Gaasbeek, concluded he did not. The People
accordingly filed two subsequent reports from two other DSH
evaluators, both of whom concluded Conway met the SVP
criteria.
Four years later, in June 2018, the trial court granted an ex
parte application from the defense seeking an order directing Dr.
Van Gaasbeek to update his evaluation. Dr. Van Gaasbeek
completed that updated evaluation of Conway two months later
and concluded he still did not meet the criteria for commitment
as an SVP.
B. The Challenged Ruling: The Trial Court’s Denial of
Conway’s Second Request for an Updated Evaluation
Three years after granting the defense request for an
updated evaluation from Dr. Van Gaasbeek, the trial court
reversed course. In November 2022, Conway filed another
motion for an order authorizing and instructing Dr. Van
Gaasbeek to update his previous SVP evaluation. With the
motion was a declaration from Conway’s attorney that averred
“Dr. Van Gaasbeek, as a full-time employee of [DSH], will not
the person by mental health professionals designated by DSH.
(§ 6601, subd. (d).) If the initial two professionals disagree as to
whether the person meets the SVP criteria, then two additional
“independent professionals” are designated to conduct their own
evaluations of the person. (§ 6601, subd. (e).) If those two
evaluators agree the individual meets the SVP criteria, a petition
to request commitment may be filed. (§ 6601, subd. (f).)
3
prepare an updated report absent a request by his employer.”
Conway’s attorney also declared DSH “has no objection to
requesting that Dr. Van Gaasbeek prepare the report, but merely
requests an order from this court to do so.”
For reasons the record does not reveal, the People opposed
the motion for an updated evaluation. The People argued the
statutory scheme governing SVP evaluations permits only the
People, not the defense, to obtain an updated evaluation from a
DSH professional that previously examined someone who is the
subject of an SVP commitment petition. In the People’s view, this
result was required under the plain meaning of the pertinent
statute, section 6603: “If the attorney petitioning for
commitment under this article determines that updated
evaluations are necessary in order to properly present the case
for commitment, the attorney may request [DSH] to perform
updated evaluations. . . . When a request is made for updated or
replacement evaluations, [DSH] shall perform the requested
evaluations and forward them to the petitioning attorney and to
the counsel for the person subject to this article. However,
updated or replacement evaluations shall not be performed
except as necessary to update one or more of the original
evaluations or to replace the evaluation of an evaluator who is no
longer available to testify for the petitioner in court proceedings.
These updated or replacement evaluations shall include review of
available medical and psychological records, including treatment
records, consultation with current treating clinicians, and
interviews of the person being evaluated, either voluntarily or by
court order.” (§ 6603, subd. (d)(1).) The People also emphasized
the statutory scheme permits the defense to retain their own
experts for trial.
4
Submitted with the People’s opposition to the defense
request for an updated evaluation was a declaration from Dr.
James Rokop, a Chief Psychologist at DSH and supervisor of the
Forensic Services Division’s SVP evaluations. Dr. Rokop stated
DSH has required a court order to complete a defense request for
an updated evaluation because no statutory provision authorizes
an informal request for one. He also stated it would be a conflict
of interest for “a DSH contractor to be employed separately by the
defense or the prosecution if they are also assigned by DSH to the
same case.”
After holding a hearing and considering argument from
both sides, the trial court denied the defense motion for an
updated evaluation. Focusing on the aforementioned language in
section 6603 that expressly mentions only “the attorney
petitioning for commitment” in the context of requesting updated
evaluations “to properly present the case for commitment,” the
trial court accepted the People’s position that under “the plain
language of the statute” it had no discretion to grant a defense
request for an updated evaluation from Dr. Van Gaasbeek.
Conway thereafter petitioned for mandate relief in this
court, and we issued an order to show cause.
II. DISCUSSION
We hold the trial court incorrectly concluded the plain
meaning of the SVPA leaves the court with no discretion to grant
a defense request for an updated evaluation from Dr. Van
Gaasbeek. Section 6603 requires DSH to prepare an updated
evaluation upon mere request by the People (if necessary to
properly present the case for commitment), but nothing in the
statute precludes the defense from obtaining an updated
5
evaluation pursuant to a court order. Particularly when the
People appropriately concede nothing prevents the defense from
subpoenaing Dr. Van Gaasbeek to testify as an expert at trial
(and to ask him to review potentially voluminous records while
testifying to ensure his opinion testimony is based on currently
available information), there is no sensible policy or practical
reason why the Legislature would have meant to preclude the
defense from seeking court authorization for an updated
evaluation. We reject, however, the defense suggestion that the
People were not entitled to oppose the defense motion for an
updated evaluation in the trial court. The trial court has
discretion to decide whether to receive opposition from the
People.3
A. The SVPA and the Standard of Review
The SVPA defines “[s]exually violent predator” as “a person
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.” (§ 6600, subd. (a)(1).) “The SVPA does not
3
Updated DSH evaluations requested by the People are
required to be disclosed to counsel to both sides in an SVP
proceeding. (§ 6603, subd. (d)(1).) At oral argument, counsel for
defendant was unprepared to state whether this same disclosure
rule should apply to a court-authorized updated evaluation
requested by the defense. We need not opine on the question of
disclosure to resolve the matter presently before us; the trial
court can set the terms of disclosure when deciding whether to
grant the defense request for an updated evaluation.
6
establish a deadline by which a trial on an SVP petition must be
held,” so it can be years before trial takes place. (People v.
Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 57,
disapproved on another ground in Camacho v. Superior Court
(2023) 15 Cal.5th 354, 392, fn. 8.)
Because a currently diagnosed mental disorder is required
for commitment, “the People are entitled to obtain updated
evaluations of the alleged SVP when existing evaluations have
become ‘stale.’” (People v. DeCasas (2020) 54 Cal.App.5th 785,
802, disapproved on another ground in Camacho v. Superior
Court, supra, 15 Cal.5th at 392, fn. 8.) In a provision we have
already quoted, the SVPA provides “the attorney petitioning for
commitment under this article . . . may request [DSH] to perform
updated evaluations. . . . However, updated or replacement
evaluations shall not be performed except as necessary to update
one or more of the original evaluations or to replace the
evaluation of an evaluator who is no longer available to testify for
the petitioner in court proceedings.” (§ 6603, subd. (d)(1).) At the
same time, section 6603 also clarifies it “does not prevent the
defense from presenting otherwise relevant and admissible
evidence” (§ 6603, subd. (e)), and a related provision states the
defense is “entitled to a trial by jury, to the assistance of counsel,
to the right to retain experts or professional persons to perform
an examination on the person’s behalf, and to have access to all
relevant medical and psychological records and reports.” (§ 6603,
subd. (a).)
“The standard of review generally applicable to review of
discovery orders is abuse of discretion, as management of
discovery lies within the sound discretion of the trial court.”
(Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1123.)
7
“Statutory interpretation involves purely legal questions to which
we apply the independent standard of review. [Citation.] Thus,
‘where the propriety of a discovery order turns on statutory
interpretation, an appellate court may determine the issue de
novo as a question of law. [Citation.]’ [Citation.]” (Haniff v.
Superior Court (2017) 9 Cal.App.5th 191, 198.)
B. Section 6603 Does Not Prohibit a Court from
Authorizing an Updated Evaluation for the Defense
Section 6603 does not plainly prohibit the defense from
obtaining an updated DSH evaluation. It does authorize only the
People to obtain such an update upon request, but here, the
defense was not seeking an updated evaluation of Conway upon
the defense’s mere request of DSH. Instead, the defense sought a
court order authorizing such an update, and nothing in the
statute prohibits proceeding in that fashion.
The best the People muster to argue the contrary is the
contention that the maxim expressio unius est exclusio alterius
(often translated as the expression of one thing ordinarily implies
the exclusion of other things (In re J.W. (2002) 29 Cal.4th 200,
209)) precludes a court from granting a defense request for an
updated evaluation. There are two problems with this.
First, it is not an apples-to-apples comparison; section 6603
does not give only one side the right to obtain an updated, court-
authorized evaluation because the statute permits the People to
obtain an update simply upon request (if necessary to properly
present the case for commitment) and without court approval.
The Legislature therefore has not expressed any intention about
who may or may not obtain an update if authorized by a court.
Indeed, if anything, the Legislature has preserved the defense’s
8
ability to pursue the procedure Conway pursued here with its
statement in subdivision (e) that the statutory scheme “does not
prevent the defense from presenting otherwise relevant and
admissible evidence.”
Second, expressio unius est exclusio alterius “is not applied
in isolation, without regard to ‘legislative history or other
evidence of legislative intent,’ but rather must be considered with
regard to ‘other indicia of legislative intent.’ [Citation.]” (People
v. Alaybue (2020) 51 Cal.App.5th 207, 218.) The SVPA’s
provision addressing updated evaluations was added pursuant to
Senate Bill No. 2018 (1999-2000 Reg. Sess.). Senate Bill No.
2018 was introduced in response to court decisions holding that
confidentiality concerns prevented the People from accessing
information about an alleged SVP’s current mental health
condition. (Assem. Com. on Public Safety, Analysis of Sen. Bill
No. 2018 (1999-2000 Reg. Sess.) as amended May 1, 2000, pp. 6-7;
Albertson v. Superior Court (2001) 25 Cal.4th 796, 805.) A bill
analysis prepared for the Senate Health and Human Services
Committee stated: “According to the sponsor, S.B. 2018 is
intended to enable the district attorney to obtain current mental
health evaluations in order to facilitate court actions in the
sexually violent predator commitment process. Occasionally,
there is a substantial length of time between an evaluation of the
person and the actual commitment hearing, sometimes resulting
in either defense objections that the evaluations are outdated or
one of the two evaluators becoming unavailable.” (Sen. Com. on
Health and Human Services, Analysis of Sen. Bill No. 2018,
(1999-2000 Reg. Sess.) as introduced Feb. 25, 2000, pp. 4-5.) The
legislative history establishes the creation of the People’s
statutory entitlement to updated evaluations was intended
9
merely to enable the People to access information about a
suspected SVP’s current mental health condition, not to in any
way limit the defense’s access to discovery.
We believe, in other words, that section 6603 does not alter
the ordinary rules giving a trial court discretion to decide what is,
at bottom, a discovery request. A trial court tasked with ruling
on a request from the defense for an updated evaluation should
be guided both by what is appropriate for the case at hand and
the Civil Discovery Act, which applies in SVPA commitment
proceedings.4 (People v. Superior Court (Cheek) (2001) 94
Cal.App.4th 980, 987-988.)
4
Code of Civil Procedure Section 2017.010 provides that
“[u]nless otherwise limited by order of the court . . . any party
may obtain discovery regarding any matter, not privileged, that
is relevant to the subject matter involved in the pending action or
to the determination of any motion made in that action, if the
matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible
evidence.” Generally, civil litigants are entitled, upon good cause
shown, to obtain a mental examination of a party where the
party’s mental condition “is in controversy in the action.” (Code
Civ. Proc., §§ 2032.020, subd. (a), 2032.320, subd. (a).)
“[I]n managing discovery in SVPA proceedings, the trial
court must keep in mind both the narrow scope of permissible
discovery and the need for expeditious adjudication.” (People v.
Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 991.)
Evidence “within the permissible scope of discovery in SVPA
proceedings” includes information relating to the proof of two
issues: “(1) whether the person sought to be committed ‘has been
convicted of a sexually violent offense against two or more
victims’ [citation]; and (2) whether the person ‘has a diagnosed
mental disorder that makes the person a danger to the health
10
The result we reach makes good practical sense and is
consistent with the legislative intention to reduce administrative
costs and burdens in the SVP evaluation process. If the defense
were forced to seek court authorization to retain (and, most often,
pay with public funds) an expert with no prior familiarity with
Conway and his earlier medical records, the cost and burden
would necessarily be greater than a request to have Dr. Van
Gaasbeek update the work he has already done. Similarly, the
People concede that the defense could subpoena Dr. Van
Gaasbeek to testify at trial and render an opinion, and the idea
that the trial proceedings should be prolonged or delayed to
permit the defense to ask Dr. Van Gaasbeek to review what he
could review in advance of trial makes so little sense that it
cannot be what the Legislature intended.
C. The People May Oppose Requests for Third Party
Discovery and the Trial Court May Consider the
People’s Arguments
Conway argues that the People did not have standing to
object to his request for an updated evaluation because the
People are not authorized to represent DSH and have no
“legitimate interest” in a proceeding to obtain third party
discovery.
and safety of others in that it is likely that he or she will engage
in sexually violent criminal behavior.’ [Citation.]” (Id. at 989-
990.) To ensure that the updated evaluation is within the proper
scope of the SVPA commitment proceedings, trial courts can
implement the Civil Discovery Act’s procedures for management
of discovery. (Id. at 991; Code Civ. Proc., § 2019.030.)
11
To the contrary, our Supreme Court has held that “a trial
court may entertain argument from the opposing party on third
party discovery and that a prosecutor’s submission of argument
in such a matter . . . is not improper.” (People v. Nieves (2021) 11
Cal.5th 404, 433.) The People’s submission of argument “does not
amount to the representation of third party interests.” (People v.
Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 752.)
Further, the People do not need to present a “legitimate
interest” in third party discovery proceedings to be able to submit
an opposition. The case Conway cites in support of his argument,
Alford v. Superior Court (2003) 29 Cal.4th 1033, considered the
legitimacy of the People’s interest when deciding whether the
People have a due process right to participate in and receive
information shared during Pitchess v. Superior Court (1974) 11
Cal.3d 531 discovery proceedings. (Alford, supra, at 1045.) The
People’s due process right to participate in third party discovery
proceedings is not at issue in this case. The trial court is
permitted “to entertain argument from the prosecution on third
party discovery issues” without first weighing the People’s
interest in the proceedings. (Humberto S., supra, 43 Cal.4th at
750.)
12
DISPOSITION
Let a peremptory writ of mandate issue directing the
respondent court to vacate its November 28, 2022, order denying
Conway’s motion seeking an updated evaluation from Dr. Van
Gaasbeek and to reconsider the matter in view of its discretion to
permit the defense to obtain an updated evaluation.
CERTIFIED FOR PUBLICATION
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
13