Pair from Stanislaus County could be set free on a legal technicality
4-14-2008 California:
Jesse Calhoun was the first of 11 Stanislaus County men who have been diagnosed as sexually violent predators.
More than a decade after he was involuntarily committed, psychiatrists still classify Calhoun as a pedophile who is likely to offend if he is released from Coalinga State Hospital. Nevertheless, Calhoun and another man have a chance of winning their freedom on a legal technicality.
An appellate court today will hear arguments about the district attorney's interpretation of a 2006 initiative that stiffened penalties for sex offenders. Prosecutors said they face an uphill battle and acknowledge that there is a chance of Calhoun being returned to the community.
"I suppose that could happen," said Stanislaus County Deputy District Attorney Nate Baker, who will argue Calhoun's case before three judges from the 5th District Court of Appeal in Fresno.
The issue revolves around procedure, not pedophilia.
Jessica's law, which was approved by California voters in November 2006, is best known for provisions that keep registered sex offenders from living within 2,000 feet of a school or park. It also tightened a 1996 law that allowed civil commitments for Calhoun and 586 other men.
Instead of holding trials every two years to determine whether the men should be recommitted, courts may impose "indeterminate" commitments on offenders who have served their time in prison but have a mental disorder that makes them likely to reoffend.
Supporters said the rules are meant to channel sex offenders toward treatment. The vast majority don't participate in a five-step counseling program because they don't believe they ever would qualify for the structured release it promises.
Stanislaus and three other counties, Monterey, Santa Clara and San Diego, looked at the new rules and concluded that the law should apply retroactively. They persuaded judges to convert terms for a handful of men already in the hospital, giving them indeterminate stays.
The majority of counties looked at the new rules and concluded that a trial was needed before a sexually violent predator could be given an indeterminate term.
The second method is the one recommended by California Attorney General Jerry Brown. His office usually handles appeals, but he told local district attorneys that they should be prepared to fight their own battles should they choose to argue for retroactivity under Jessica's law.
In Stanislaus County, Baker argued for retroactivity on two cases.
In March 2007, the prosecutor persuaded Superior Court Judge Loretta Murphy Begen to impose an indeterminate commitment on Calhoun, 47, who was convicted of molesting the 6-year-old son of his girlfriend and an 11-year-old girl who lived in his neighborhood in 1985.
In June, the prosecutor persuaded Judge Marie Silveira to impose an indeterminate commitment on John McKinley Wilson, 53, who was convicted of raping an elderly woman during a home invasion robbery in 1975, then getting out on parole and raping a woman he took hostage during a convenience store robbery in 1980.
Calhoun's case is up first; argument in Wilson's case is not yet scheduled.
The first appellate ruling on such cases, issued March 3 by the 6th District Court of Appeal in San Jose, gives the district attorney's office reason to worry. The court said indeterminate terms do not apply to existing commitments because nothing in the initiative refers to retroactivity.
Santa Clara County had a fail safe, because its court kept a petition seeking recommitment alive pending appeal. The reversal will send a two-time rapist back to court for a trial on his mental status. If he qualifies as a sexually violent predator, he may then be given the indeterminate term.
Reversals in Stanislaus County could give Calhoun and Wilson their freedom, although the reasons differ for each man.
In Calhoun's case, the judge sustained a petition and applied new rules retroactively, so a reversal from the appellate court could cut Calhoun loose or require a trial about Calhoun's mental state.
Defense attorney John Staley of San Diego said the courts eventually will use cases such as Calhoun's to decide whether the rules under Jessica's law are constitutional. In the meantime, he said, Calhoun deserves a trial so he can try to prove that he is not a threat to society.
"Essentially, what the state has done is just throw away the key on these guys," Staley said.
Prosecutors may be on less solid ground in Wilson's case because Wilson's latest two-year commitment expired before the judge imposed an indeterminate commitment.
Deputy Public Defender Peter Stavrianoudakis said a reversal by the appellate court likely would free Wilson because a trial on Wilson's mental state cannot be held unless a petition is pending before the court.
The defense attorney, who represented Wilson at two trials, said Wilson's only chance of release comes from this legal technicality because a jury is not likely to release a man who raped a grandmother, even if jurors don't believe he has a mental disorder.
"Maybe the only chance that he ever had was this horrible mistake," Stavrianoudakis said. ..more.. by Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338
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