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Pity poor John Stephen Graham. Thanks to the California Supreme Court, it’s up to the Marin County Superior Court judge to make the politically charged decision of whether to release serial rapist Patrick Ghilotti. The court ruled Thursday that Graham may review for legal error the psychiatric evaluations submitted by two medical examiners who concluded last year that Ghilotti no longer met the criteria for confinement under the 1996 Sexually Violent Predator Act. In addition to passing the hot potato back to Graham, Thursday’s decision provides commitment guidelines that will make it much easier for the state to keep sexual predators off the streets even if they have completed their prison sentences. The ruling, authored by Justice Marvin Baxter, had been eagerly awaited because it clarifies what’s required to comply with the Sexually Violent Predator Act, which allows for the involuntary hospitalization of sexual offenders still considered dangerous when their prison terms end. If found to be a sexual predator, prisoners can be held in a state mental hospital for two additional years. Justice Kathryn Mickle Werdegar, while concurring with the overall ruling, said the commitment standard set by the majority is far lower than legislators intended in passing the Sexually Violent Predator Act. “Rather than a small group of the most dangerous sex offenders,” she wrote, “the majority’s interpretation permits extended confinement of any prisoner with the requisite prior offenses who has not been cured of his or her paraphilia or pedophilia.” Ghilotti, imprisoned for four separate assaults, had been committed to Atascadero State Hospital when his prison term ended in 1998. He was about to go free late last year after two medical evaluators concluded he didn’t meet the criteria for recommitment. At the direction of California Gov. Gray Davis, Stephen Mayberg, the director of the state Department of Mental Health, overruled the evaluators, saying Ghilotti was likely to rape again and shouldn’t be released. On Thursday, the high court justices sided with Ghilotti in saying that Mayberg had overstepped his authority and was required by law to follow the findings of the mental health professionals. But they handed the state major victories on two larger issues. The justices granted trial court judges the authority to review psychiatric evaluations for material legal error and established a low standard for determining whether sexual predators are likely to engage in acts of sexual violence once they’re set free. “In our view, the state has a compelling protective interest in the confinement and treatment of persons who have already been convicted of violent sex offenses,” the court held, “and who represent a substantial danger of committing similar new crimes.” Much of the court’s analysis hinged on what the Legislature meant when it said that a sexually violent predator is someone who “is likely to engage in acts of sexual violence without appropriate treatment and custody.” Ghilotti’s lawyers had argued that “likely” meant that someone was “more likely than not” to commit another sex crime. They conceded recommitment might occur if evaluators found the likelihood that an offender would commit another crime was 50 percent or more. But the state had argued that a much lower standard should be considered, and the court agreed. “We agree with the [state] that ‘likely to engage in acts of sexual violence’ … does not mean the risk of reoffense must be higher than 50 percent,” Baxter wrote. “Instead, the phrase requires a determination that, as the result of a current mental disorder which predisposes the person to commit violent sex offenses, he or she presents a substantial danger — that is, a serious and well-founded risk — of reoffending in this way if free.” In a footnote, Baxter also gave state health officials approval to have their medical staff provide the required evaluations, saying they don’t have to be independent. Chief Justice Ronald George and Justices Joyce Kennard and Ming Chin concurred. Werdegar argued that the word “likely” should have its common language meaning of “more likely than not,” and that the majority’s interpretation could have a negative impact on jury deliberations. “While it may be theoretically possible to ask a jury whether, beyond a reasonable doubt, there is a ‘substantial danger’ of reoffense, the use of such a low risk threshold threatens to vitiate the effect of the high evidentiary standard and unanimity requirement,” she wrote. “Because the low ‘substantial danger’ standard will virtually always be met, the requirement of proof beyond a reasonable doubt fades radically in significance.” In a concurring and dissenting opinion, Justice Carlos Moreno said that while he agrees that the word “likely” does not mean the risk of a new offense is more than 50 percent, the risk standard should be high enough to distinguish sexually violent predators from the everyday sex offender. “The risk of reoffense,” he wrote, “must be sufficiently high to distinguish the ‘small but extremely dangerous group of sexually violent predators’ at which the act is aimed from the general population of convicted violent sex offenders, all of whom pose an elevated risk of recidivism.” Justice Janice Rogers Brown concurred with Moreno. California Attorney General Bill Lockyer and Gov. Davis applauded the court’s ruling. Davis called it “further proof that our judicial system works for the betterment and safety of our society,” while Lockyer’s staff was pleased at the court’s definition of the word “likely.” “Having this definition is important,” said Hallye Jordan, Lockyer’s Sacramento-based spokeswoman. “The court rejected Mr. Ghilotti’s argument that ‘likely’ means ‘more likely than not,’ ‘probable’ or ’50 percent-plus,’ and just said there must be a serious and well-founded risk if let free in the community.” Marin County Chief Public Defender Frank Cox, who represented Ghilotti’s interests, said he was pleased that the court held that mental health evaluators couldn’t be left out of the picture. But he was disappointed by the low standard set for recommitment. “What they could have and should have said,” he argued, “is that nearly every Department of Mental Health evaluation that has followed the [law] has read the word ‘likely’ to mean ‘more probable than not.’ The Supreme Court has redefined the world ‘likely’ to mean something substantially less than that.” Cox also said the court should have recognized that Ghilotti is not a candidate for imprisonment or hospital confinement. “He is not so mentally disabled that he can’t control himself, and he has committed himself to remaining a law-abiding citizen,” Cox said. “He finished his prison term over four years ago. He’s been punished. He finished his treatment program. It’s time he’s released.” The case is People v. Superior Court (Ghilotti), 02 C.D.O.S. 3585.

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