THE PEOPLE v. SAMUEL KUSAR

Reset A A Font size: Print

Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Appellant, v. SAMUEL KUSAR, Defendant and Respondent.

B223930

Decided: March 28, 2011

Steve Cooley, District Attorney, Phyllis Asayama and Roberta Schwartz, Deputy District Attorneys, for Plaintiff and Appellant. Michael P. Judge, Public Defender, Albert J. Menaster, Omar C. Hazel, Jr. and Jack T. Weedin, Deputy Public Defenders, for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

In 2010, the trial court found defendant and respondent Samuel Kusar mentally incompetent to stand trial in a proceeding filed under the Sexually Violent Predator Act (SVPA) (Welf. & Inst.Code, § 6600) 1 and dismissed the petition.   Thereafter, our California Supreme Court held, in Moore v. Superior Court (2010) 50 Cal.4th 802 (Moore ), that due process does not prevent the trial and commitment of a mentally incompetent defendant in a sexually violent predator (SVP) proceeding.   We therefore reverse the trial court's judgment.

BACKGROUND

On October 12, 2001, a petition for commitment as a sexually violent predator was filed under section 6600 against Kusar.2  After a probable cause hearing, the trial court found, on October 10, 2002, that Kusar had been convicted of two predicate offenses;  that he had a diagnosed mental disorder that made him a substantial danger to society;  that he represented a risk beyond that of the general population, thereby endangering the health and safety of others;  and that it was likely he would engage in this violent behavior if released from the Department of Mental Health's jurisdiction.

Thereafter, pursuant to a court order, Dr. Sanjay Sahgal, a forensic psychiatrist, prepared a report dated January 8, 2010, regarding Kusar's competency to participate in legal proceedings.   Dr. Sahgal found, due to Kusar's age-related dementia,3 that Kusar was unable to engage with counsel in a meaningful or rational manner and there was no identifiable treatment to restore him to mental competency.

The People then filed in this court a petition for writ of prohibition/supersedeas and request for temporary stay and the appeal.   We granted, on May 20, 2010, the petition for writ of supersedeas and stayed the trial court's February 23, 2010 order, noting that Moore was under review in the California Supreme Court.   The court issued its decision in Moore in August 2010 (Moore, supra, 50 Cal.4th 802) and we therefore lifted the stay in this case in November 2010.

DISCUSSION

Our California Supreme Court in Moore held that due process does not require a person undergoing SVP commitment or recommitment proceedings to be mentally competent.   In reaching that conclusion, Moore balanced the four factors used to determine “ ‘what process is due’ “:  “(1) the private interest that will be affected by the official action;  (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;  (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail;  and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.”  (Moore, supra, 50 Cal.4th at p. 819;  see also People v. Allen (2008) 44 Cal.4th 843, 862-863.)

In addressing the first and fourth factors, the private and dignitary interests, Moore distinguished Allen, which found that a defendant in a SVP recommitment proceeding has the right to testify in his behalf:  “the strong governmental interest in protecting the public through the proper confinement and treatment of SVP's-an interest not significantly undermined by allowing a competent defendant to testify over his counsel's objection-would be substantially impeded by recognizing an SVP's right to delay or avoid targeted confinement and treatment for a sexually violent mental disorder because his mental problems make him incompetent to stand trial.”  (Moore, supra, 50 Cal.4th at pp. 819-820.)

Second, Moore did not find a significant risk of an erroneous deprivation of a private interest.   The nature of the issues, evidence, and findings in a SVP proceeding prevents any defendant, including a mentally competent one, from “playing much more than a supporting role.”  (Moore, supra, 50 Cal.4th at p. 824.)   Numerous procedural safeguards (e.g., assistance of counsel, the right to retain experts, the reasonable doubt standard of proof, and ongoing monitoring that determines whether continued commitment is warranted) are available to prevent erroneous commitments.  (Id. at pp. 824-825.)

Third, the government has a strong interest in protecting the public from sexually violent predators and in providing treatment to them.  (Moore, supra, 50 Cal.4th at p. 825.)   If competence determinations were required, unknown numbers, possibly scores, of SVP commitment trials would be stayed indefinitely, and perhaps permanently, unless and until competence was restored under circumstances not involving treatment under the SVPA. (Id. at p. 826.)   Moreover, such a requirement would create other problems;  for example, where would incompetent SVP defendants be confined pending their restoration to competency and what treatment, if any, would they be offered during that time?  (Id. at p. 828.)

After balancing these factors, “and placing special weight on the ‘paramount’ interest in public safety, [the court] conclude[d] that due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial under the SVPA.” (Moore, supra, 50 Cal.4th at p. 829.)   Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, Moore is binding on us, and we therefore reject Kusar's invitation to find, as a matter of federal constitutional law, that Moore was wrongly decided.   (See generally, Sandrini Brothers v. Voss (1992) 7 Cal.App.4th 1398, 1405, fn. 2 [noting that the due process clauses under the federal and state Constitutions have been considered to be co-extensive and to have the same scope and purpose].)

DISPOSITION

The judgment is reversed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further undesignated statutory references are to the Welfare and Institutions Code..  FN1. All further undesignated statutory references are to the Welfare and Institutions Code.

FN2. At the time the People filed the underlying petition to commit Kusar as a sexually violent predator, in 2001, the SVPA defined a sexually violent predator as “a person who has been convicted of a sexually violent offense against two 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.”  (Former § 6600, subd. (a)(1), as amended by Stats.2000, ch. 643, § 1.) The 2006 amendments to the SVPA (Proposition 83) amended the definition of a sexually violent predator to include individuals who have been convicted of a sexually violent offense against one or more victims. (§ 6600, subd. (a)(1).).  FN2. At the time the People filed the underlying petition to commit Kusar as a sexually violent predator, in 2001, the SVPA defined a sexually violent predator as “a person who has been convicted of a sexually violent offense against two 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.”  (Former § 6600, subd. (a)(1), as amended by Stats.2000, ch. 643, § 1.) The 2006 amendments to the SVPA (Proposition 83) amended the definition of a sexually violent predator to include individuals who have been convicted of a sexually violent offense against one or more victims. (§ 6600, subd. (a)(1).)

FN3. Kusar was then 80 years old and wheelchair bound..  FN3. Kusar was then 80 years old and wheelchair bound.

KLEIN, P. J. CROSKEY, J.