In re Stephenson on Habeas Corpus

Filed 12/23/24; certified for partial pub. 1/14/25 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----

In re WILLIAM STEPHENSON on Habeas Corpus. C099785

(Super. Ct. Nos.
C0SCV0037867,
WHC001813)

In 2007, William Stephenson was civilly committed pursuant to provisions of the
Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)1 In January
2022, the trial court granted his petition for conditional release into the community but he
remains in the custody of the State Department of State Hospitals (DSH). Despite
diligent efforts by multiple actors, including the trial court, an appropriate conditional

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

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release program for his outpatient treatment and supervision has not been finalized, due
largely to the inability to find somewhere he can live. The trial court has denied
Stephenson’s multiple requests for release as a transient to a motel or to an immobilized
recreational vehicle, citing concerns about public safety.
In late 2023, Stephenson filed a habeas corpus petition in the trial court seeking
immediate release. After that petition was denied, Stephenson filed a habeas corpus
petition in this court raising the same four claims he raised below: (1) his original civil
commitment proceeding was constitutionally flawed because he was compelled to testify;
(2) his continued confinement after the trial court granted his petition for conditional
release violates both the SVPA’s scheme and due process principles; (3) his
constitutional right of access to the courts is being violated because had he been
conditionally released in 2022 he would now be eligible to seek a court order for
unconditional discharge under the SVPA; and (4) law enforcement entities exceeded their
authority by notifying the general public of his potential conditional release. We issued
an order to show cause, and now deny the habeas petition.
BACKGROUND2
In 1991, Stephenson was tried for crimes he committed against two women on
separate occasions. He was convicted of penetration by foreign object (Pen. Code, § 289,
subd. (a)), assault with intent to commit rape (Pen. Code, § 220), and oral copulation by
force or threats (Pen. Code, former § 288a, subd. (c)) against one woman; and assault
with intent to commit rape (Pen. Code, § 220) against a second woman. In 2007, a
prosecutor filed a petition for civil commitment, alleging Stephenson was a sexually

2 We grant in part the People’s request for judicial notice and take notice of this court’s
earlier decisions affirming Stephenson’s original commitment under the SVPA (People v.
Stephenson (Aug. 16, 2013, C063676) [nonpub. opn.]) and affirming the revocation of
Stephenson’s conditional release (People v. Stephenson (Aug. 19, 2019, C087205)
[nonpub. opn.]). The request for judicial notice is otherwise denied as unnecessary.

2
violent predator (SVP). A jury found the allegations of the petition true, and the trial
court committed him as an SVP for an indeterminate term. (People v. Stephenson, supra,
C063676 [nonpub. opn.].)
Stephenson was conditionally released from Coalinga State Hospital in 2014;
however, in May 2017, the state’s conditional release program (CONREP) petitioned the
trial court to revoke this release. At the revocation hearing, the trial court heard evidence
that Stephenson violated terms of his release, including that he possessed pictures
depicting sex acts with underage girls, accessed adult pornography, deleted items from
his computer and his phone, possessed an unauthorized electronic device, installed
software designed to mask his online activity, and accessed the Internet without
permission. Given those rule violations, the executive director of CONREP testified that
Stephenson was at risk to reoffend and should be returned for inpatient treatment. The
trial court found Stephenson had a severe mental disorder that was not in remission,
posed a danger to the community, and was at increased risk to reoffend. It revoked his
conditional release and ordered him returned to Coalinga State Hospital. (People v.
Stephenson, supra, C087205 [nonpub. opn].)
In January 2022, the trial court granted Stephenson’s second petition for
conditional release, cautioning that its ruling did “not . . . allow Mr. Stephenson to be
released without a viable safe plan for him to [be] supervised in a way that ensures
community protection.” Almost two years later, in an October 2023 ruling denying
Stephenson’s habeas corpus petition, the habeas court observed that efforts to secure
appropriate placement for Stephenson had been “wrought with challenges.” In 2022
alone, the trial court reviewed Stephenson’s case on 11 separate court dates and
considered five written reports from Liberty Health, DSH’s vendor responsible for
facilitating Stephenson’s placement, treatment, and supervision on conditional release.

3
December 2022 Hearing
At the beginning of a December 2022 hearing, the trial court summarized some of
the efforts made to facilitate Stephenson’s conditional release that year. By June, Liberty
Health had looked at 279 properties in Placer County without success; in September, the
trial court directed Liberty Health to search outside of Placer County and signed a
community safety plan for terms of outpatient treatment; and in November, the trial court
learned of a promising lead on a residence in Amador County and authorized a financial
payment to hold that property. The trial court also said it expected to decide two matters
at the December 2022 hearing: Stephenson’s request to be released on transient status
and the People’s request that it find “extraordinary circumstances” justifying placement
outside of Placer County.3
Liberty Health’s assistant program director testified at the hearing, as did the
regional coordinator. They explained the context within which Liberty Health had
looked at 932 single-family residences for Stephenson up to that point. They explained it
is inappropriate to place an SVP in a multifamily dwelling or a boarding house because
supervision is so difficult in those situations. Finding a place for rent is only the first step
when Liberty Health is attempting to place an SVP in the community. The next step is
determining whether the location is a sufficient distance from schools and parks. Most
properties available for rent are not. When a property is located at a sufficient distance,
Liberty Health contacts the rental agent or homeowner to assess their willingness to

3 An SVP must be conditionally released into the county where he or she lived “prior to
. . . incarceration,” unless the trial court finds “extraordinary circumstances require
placement” in a different county and that county is given notice and an opportunity to
comment. (§ 6608.5, subd. (a)(1), (2).)

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accommodate an SVP on conditional release. However, few are open to the
arrangement.4
Regarding transient release to an impermanent location, the trial court inquired
whether Liberty Health considered a mobile home/recreational vehicle (RV). “[I]t just
seems like we should be able to find some land available . . . to park” an RV, the trial
court said. The regional coordinator disagreed: “[T]here aren’t really properties that are
out there where . . . somebody has a vacant lot that they would be agreeable to allowing
us to park an RV on.” The regional coordinator noted that hotel or motel placements
typically have negative mental health impacts on SVPs, and he could recall only one
individual who had successfully adapted to such a placement.
While acknowledging that transient release to a hotel or motel was a “worst-case
scenario,” and that release to an RV was “less than optimal,” Stephenson maintained that
either option was preferable to remaining “in limbo in the hospital.” Stephenson’s
counsel argued transient release was warranted, asserting that the housing search had
gone on “long enough,” and Stephenson’s due process right to be released outweighed
the state’s interest in securing “the best possible placement for him, which would be in a
house.”
The assistant program director, drawing on her 18 years working as a clinical
psychologist in in-patient psychiatric facilities, testified that, in her professional opinion,
transient releases are the “most unsuccessful.” She explained that the requirement for
transient SVPs to relocate every three days complicates monitoring their interactions and
can sometimes heighten community resistance.

4 Liberty Health was fortunate to secure a residence for Stephenson in a densely
populated neighborhood in Roseville in connection with his 2014 conditional release.
One reason: the landlord lived in another state, distant from the “very extreme response
[of] the local population.”

5
The trial court denied Stephenson’s request to be released on transient status,
explaining: “I have determined that [Stephenson] can be released on conditional release,
and it’s frustrating that we cannot facilitate that in a timely manner. [¶] That being said,
I’m also mindful of the public safety issues that are involved. I’m concerned about the
release at this time. I’m concerned for public safety. I’m concerned also for the stress
and anxiety it could cause Mr. Stephenson. I’m concerned about setting him up for
failure.” “I am balancing his due process rights and his right to be released . . . with the
efforts that have been made to secure appropriate housing for him. And in looking at
what we have in the works now, there is a very possible viable alternative, so we’re not
talking about an indefinite situation here where we have no light at the end of the tunnel.”
Though it denied Stephenson’s request, the trial court granted the People’s request
and found extraordinary circumstances required placement outside Placer County,
ordering Amador County be notified Stephenson might be placed there. But it
emphasized it was not precluding eventual placement in Placer County.
Senate Bill No. 1034
Less than one month later, on January 1, 2023, statewide changes to conditional
release procedures went into effect, pursuant to Senate Bill No. 1034 (2021-2022 Reg.
Sess.) (Senate Bill 1034). Among other things, Senate Bill 1034 requires that a finding of
“extraordinary circumstances” justifying placement in another county can occur only
after, among other things, the county where the SVP lived prior to incarceration has
demonstrated to the trial court that it “engaged in an exhaustive housing search with
meaningful and robust participation from” the sheriff or the chief of police of the relevant
locality, the county counsel, and the district attorney (or their designees). To facilitate
this participation, the new law requires DSH to convene a committee that includes those
local officials. (Stats. 2022, ch. 880, §§ 2, 3.)
Given these changes in the law, the trial court vacated its prior finding of
extraordinary circumstances in an April 2023 ruling and ordered compliance with the

6
new requirements, noting (1) it could not say that local officials had previously engaged
in the robust participation envisioned by the new law, and (2) the Sheriff and District
Attorney of Amador County had submitted written opposition to Stephenson’s placement
in their county.
May 2023 Report
In a May 2023 report to the trial court, Liberty Health explained that since vacatur
of the trial court’s extraordinary circumstances finding, it had limited its ongoing
property search to Placer County and there had been one Senate Bill 1034-compliant
“housing committee” meeting. Liberty Health also detailed its concerns with a potential
transient release for Stephenson, explaining such a placement would warrant the
imposition of additional terms of conditional release to be endorsed by the court,
including specific instructions on movement. A motel-based transiency had “certain
inadequacies” because of shared walls, proximity to others, and interference with GPS
signals. A motel-based transiency also required identification of multiple acceptable
motels so that Stephenson could rotate between them in compliance with transient
registration requirements and many motels in Placer County were noncompliant with
statutory restrictions due to proximity to schools. Larger chain motels were unwilling to
allow a registered sex offender to stay for extended periods of time. RV housing on a
“fixed and legal property” was a “desirable option,” but Liberty Health was unable to
identify a specific area “zoned for this purpose.” On-street housing in an RV required (1)
coordination with county representatives to identify code-compliant parking locations
that would not violate or undermine Stephenson’s terms and conditions of conditional
release, and (2) law enforcement’s help in identifying two or three options for Stephenson
to rotate between in compliance with transient registration requirements.
July 2023 Hearing
At the beginning of a July 2023 hearing, the trial court stated it knew Stephenson
had recently filed a habeas corpus petition, but it had not seen the filing because a

7
different judge was assigned to the matter. Next, the trial court granted Liberty Health’s
request to stop paying rent for the property in Amador County that looked promising as a
potential placement for Stephenson back in December 2022. The trial court then
confirmed with the parties that it had to rule on Stephenson’s new motion for transient
release.
Counsel for Stephenson argued due process principles required release on transient
status given the difficulty in finding a permanent placement, insisting Liberty Health
could “come up with a plan where the community will be safe, Mr. Stephenson will be
safe.”
Liberty Health’s assistant program director provided statistical data on the
conditional release of SVPs, highlighting a higher rate of violations among those released
on transient status. Out of 54 total releases in the program’s history, eight were released
under transient status. Of those, four (50 percent) had their release revoked and were
rehospitalized due to serious violations. In comparison, the revocation rate for SVPs
conditionally released to fixed residences was notably lower, at 30 percent. She also
explained that transient releases come with stricter terms of conditional release, including
prohibitions on traveling on specific roads and additional requirements for SVPs related
to journaling and reporting to staff. She testified on cross-examination that there were no
financial restrictions affecting the housing search.
The trial court confirmed that, with the exception of one, all SVP transients whose
conditional releases had been revoked were residing in motels or hotels. The court then
asked the assistant program director to discuss the possibility of an RV placement. She
replied that Liberty Health would acquire an RV and, in collaboration with law
enforcement, would rotate Stephenson between two or three locations.
When the trial court inquired about the recently mandated housing committee
meetings, Liberty Health employees stated that DSH “has taken charge of that
coordination.” They noted that the prosecutor had not responded to a voicemail

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regarding the feasibility of parking an RV on county land near the jail. The prosecutor
explained that he received the voicemail the afternoon before the previous business day
and had not yet had the opportunity to consult with the sheriff or county counsel. He also
observed that since the county jail was within Roseville city limits, he would need to
check with the Roseville City Attorney as well.
After the trial court expressed its disappointment with this apparent lack of
coordination among members of Stephenson’s housing committee, the prosecutor
explained that, from their perspective, the main issue was DSH “shutting down” the
normal meeting process due to concerns about compliance with notice and open-meeting
rules under the Government Code.5 Regarding efforts to secure Stephenson’s conditional
release, the trial court asked the prosecutor, “How long is too long?” The prosecutor
responded, “[I]t’s never too long if the alternative is an unsafe release,” explaining that
while “Stephenson has a constitutional right to a conditional release, . . . those conditions
must be met, and the primary condition is that it must be safe.”
The trial court inquired whether an RV placement would alleviate concerns
associated with a transient release. Liberty Health’s assistant program director
acknowledged that while an RV placement was not equivalent to a fixed residence, it was
“more in line with a fixed placement” than a transient release to a motel or hotel. The
court further asked, “And then . . . there would be, of course, additional terms and
conditions that the Court would have to approve probably for that kind of release. That
would also secure better supervision -- right? -- than what I have already signed.” The
assistant program director confirmed, “Yes.”

5 Specifically, the Bagley-Keene Open Meeting Act (Gov. Code, § 11120 et seq.)
requires that, with certain exceptions, all meetings of a state body be open and public,
because public agencies “may not decide what the public should know” (Travis v. Board
of Trustees of California State University (2008) 161 Cal.App.4th 335, 341).

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A representative from the Placer County Counsel’s office explained that she had
only recently learned about the proposal to place Stephenson in an RV on county
property just before the hearing. She conveyed her understanding that the sheriff’s office
was unaware of any locations it would deem safe for both the public and Stephenson. In
response, the trial court suggested that private mobile home parks might offer a potential
solution. Liberty Health’s assistant program director explained that mobile home parks
“tend to be rather difficult because of the shared amenities and . . . how densely the RVs
are located together.” She continued: “We have been looking for private owners that
have . . . RV pads. We do have an individual we have been in discussion with, but . . .
there are certain rules that prevent an individual from living in an RV on residential land
unless they’re living on a property that’s being currently rebuilt or being built. So that
avenue, based on my research and research of my team, hasn’t seemed as viable.”
After further discussion, the trial court provisionally granted Stephenson’s motion
for conditional release as a transient, stating a preference for release to an RV rather than
a motel. The court cautioned that the RV must be parked in Placer County locations
approved by law enforcement. Additionally, the court emphasized the need for a future
court date to add more terms and conditions to Stephenson’s release to ensure public
safety.
The parties and the trial court then discussed how to inform the public about
Stephenson’s transient release. In terms of the language of the notice, the prosecutor
argued that an announcement stating Stephenson would be released in an RV within the
community would likely satisfy the statutory requirements, “and then there may be public
comment that would help to refine the locations.” But the prosecutor added that “if we
could narrow down the location before we release the notice, it might help narrow down
the public comment, though, so that not everybody is responding.” He later observed that
“people in North Tahoe . . . as well as South Roseville” would receive notice “and
obviously not both of those people will probably be impacted in any significant degree.”

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But he preferred to “err on the side of over-notifying.” Stephenson’s counsel said: “I
don’t know -- I can’t comment whether notice is required or not. I would just say I don’t
want this issue to hold up Mr. Stephenson’s release, . . . I believe the statute says notice
to sheriff, police, district attorney, county agencies, so I don’t know if it’s necessarily
going out to the entire public. I think all of those agencies are already aware that Mr.
Stephenson is pending release. This will just be the notice that it’s going to be transient
status and they can comment on that.”
The county counsel’s representative inquired about how notice would be
provided—by newspaper announcement or by letter? The trial court deferred to Liberty
Health’s assistant program director, who replied that DSH “follows the statute. So the
district attorney’s office and law enforcement are noticed, and then law enforcement and
the district attorney’s office decide how they choose to notice the community.” After
further discussion, the trial court stated that “for law enforcement purposes” it would
direct notice be provided not only to the county sheriff but also to multiple city police
departments within the county. Before concluding the hearing, the trial court offered
Stephenson another opportunity to speak. “I have nothing more,” Stephenson replied.
September 2023 Report
In a report filed with the trial court on September 1, 2023, Liberty Health indicated
that it had identified two potential leads for a fixed residence for Stephenson following
the July 2023 hearing: one location for parking an RV on private property and one single-
family home. However, neither option appeared promising anymore. Liberty Health
emphasized that, while it did not support transient release, it would continue its search for
locations to park an RV in Placer County. The need for multiple locations arose from
county ordinances that permitted “ ‘incidental camping’ ” for a maximum of 72 hours.
As of the report’s filing, the only plausible option Liberty Health could identify was to
place Stephenson in an RV on the side of the highway in unincorporated areas of the
county, requiring him to move every 72 hours.

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Liberty Health “implore[d]” the trial court to consider the “many obstacles on
many levels and from numerous sources” that transient placement would present. For
example, there would be an increased risk to Stephenson’s safety, as notifications of
transient movements could make the SVP vulnerable to public harassment. Additionally,
transient placements would result in greater contact with strangers compared to fixed
residences.
First September 2023 Hearing
At the beginning of a September 2023 hearing, the trial court noted the courtroom
was full and that the hearing was being live streamed to another courtroom. The court
noted it had reviewed over 270 pages of letters attached to the prosecution’s pleadings for
the hearing, highlighting that these letters conveyed much “anger, fear, and frustration.”
The trial court emphasized to those present that before Stephenson’s actual release, it
would need to know specifics regarding location, supervision, and treatment. “And, of
course, can public safety be maintained? Factoring into any decision will be input from
the parties, from our justice partners, and from the public. So at the outset, it’s
unfortunate that there has been a lot of angst created over a decision when the actual
release determination hasn’t even been made yet.”
Counsel for Stephenson argued that due process “requires us, as a society, to pay a
price to figure out some plan where everything can be safe, but it still requires that
[Stephenson] be released.” “He’s waited more than 18 months to be released.” The
prosecutor argued case law stood for the proposition that an SVP who has been “granted
a conditional release still cannot be released until conditions are met such . . . that the
release is safe.”
The trial court heard from Placer County’s Assistant Sheriff who stated the
office’s opposition to Stephenson’s release in Placer County. Two county supervisors
also addressed the court with their concerns.

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At the end of the hearing, the trial court denied Stephenson’s request for a
“straight transient release.” While acknowledging the importance of Stephenson’s due
process rights, the court emphasized the need to balance those rights against public
safety. Expressing frustration, the trial court wondered aloud: “[H]ow long do you wait?
A year and a half? Two years? Three years? Four years?” The court clarified that the
existing order allowing Liberty Health to seek a location to park an RV, making it akin to
a “fixed residence” would remain in effect. “That was the whole intent of that
order. [¶] So I’m not going to vacate that order, or anything, but again, [Stephenson]
doesn’t get out until we can make sure that’s going to be a safe circumstance, right? And
so we’re going to ensure that.”
Second September 2023 Hearing
In a later September 2023 hearing, the trial court confirmed with the parties that
parking on the side of the highway remained the only concrete option for an RV transient
release. “[T]hat is not an appropriate alternative,” the trial court said. “It’s not a safe
way to live, it would cause unrest, and it would be very difficult to supervise.”
Stating its belief that the prosecution and county counsel were working in good
faith to find a place for Stephenson, the trial court inquired about the other housing
committee participants. “I’m mindful that a lack of diligence [by] the [c]ounty
participants is something that I have to factor in . . . so I want to make sure we’re all on
track and still trying to find appropriate housing.”
The trial court then stated there was “still good cause not to facilitate that transient
release. There’s safety concerns for Mr. Stephenson and the public. There’s challenges
and difficulty with supervision, especially the level of supervision required for his initial
release. There’s a low success rate for straight transient release. There’s elevated risk
factors with straight transient release. And I understand this is also our second time
around for his conditional release. And the nature of the violation requires extra

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caution.” The trial court also emphasized the importance of allowing sufficient time for
housing committee participants to assist in finding a suitable location for Stephenson.
October 2023 Habeas Ruling
In an October 2023 ruling, the judge presiding over Stephenson’s SVP conditional
release proceedings denied the habeas corpus petition for immediate release, which had
originally been assigned to a different judge before that judge disqualified himself. In a
33-page ruling, the habeas court outlined the procedural background of the SVP case,
including multiple hearings during which it presided and heard testimony. The court
determined that an evidentiary hearing in the habeas matter was unnecessary and denied
the petition.
The court found that Stephenson was not entitled to relief on his first claim, that he
was denied equal protection of the law when he was compelled to testify in his original
SVP civil commitment trial, for several reasons: (a) he did not provide the full trial
transcript to the habeas court, making it impossible to fully assess the nature of his
testimony and any potential prejudice; (b) he failed to present any argument regarding
harmless error analysis, instead unpersuasively insisting that his compelled testimony
was per se prejudicial; (c) he raised the claim after substantial delay and without good
cause for the delay; (d) his assertion that counsel provided ineffective assistance by
failing to raise the issue was unavailing; and (e) he failed to demonstrate that his
compelled testimony resulted in a fundamentally unfair trial.
Stephenson’s second claim—that his continued confinement violated due process
principles and California statutes—was also without merit for several reasons: (a) the trial
court had either explicitly or by inference found the statutorily required “good cause” to
delay Stephenson’s release due to the lack of an appropriate placement, (b) the delay in
finding a suitable location was not due to lack of effort and was partly attributable to
Senate Bill 1034’s changes to SVP law and the challenges of convening committee
meetings, (c) the trial court had to balance significant public safety concerns against the

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prospect of an actual release, as Liberty Health and the prosecution presented a
substantial record detailing the issues associated with a transient release, (d) Stephenson’s
prior failure on conditional release was a relevant consideration, and (e) Stephenson’s
contention of a systemic breakdown in the SVP conditional release process was
unpersuasive. Thus, the delay in Stephenson’s immediate release “is not unreasonable
and does not violate due process.”
The third claim, that delayed conditional release denied Stephenson’s access to the
courts to seek unconditional release, lacked merit because while the statutory scheme
requires a minimum of one year on conditional release before an SVP may seek
unconditional release, the notion he would ever qualify for unconditional release was too
speculative.
Last, Stephenson claimed that law enforcement entities exceeded their statutory
authority by posting information about his case on the Internet for the public to comment.
This fourth claim lacked merit, the habeas court ruled, because statutes did not preclude
sharing such information with the public. But the habeas court did caution local law
enforcement entities not to “engage in behaviors . . . that undermine the ability to find a
suitable place to release” Stephenson. If they did so, “such action can be considered in
the due process analysis favoring” Stephenson’s “immediate transient release,” the
habeas court observed.
Habeas Corpus Petition in This Court
In November 2023, Stephenson filed a pro. per. habeas corpus petition in this
court, raising the same claims that the habeas court denied in October 2023. He seeks
reversal of his commitment trial, an order for his immediate conditional release,
immediate unconditional discharge, an evidentiary hearing if necessary, and/or any other
relief we might deem appropriate. After considering the People’s informal response to
the petition and Stephenson’s reply, in April 2024, we ordered the medical director of
Coalinga State Hospital to show cause why the relief sought by Stephenson in his habeas

15
petition should not be granted. The People responded to the order to show cause, and
Stephenson filed his traverse with the assistance of counsel in September 2024.
DISCUSSION
I
Standard of Review
A habeas corpus petitioner must establish by a preponderance of the evidence that
the judgment restraining the petitioner’s liberty is invalid and that there is a legal basis
for relief. (In re Sodersten (2007) 146 Cal.App.4th 1163, 1223.)
Although this is an original habeas proceeding, it is not the first relevant habeas
case. As explained above, the lower court previously considered and rejected the four
claims that Stephenson raises here. While there was no evidentiary hearing in that habeas
matter, the order denying Stephenson’s habeas petition includes both explicit and implicit
factual findings, as well as credibility determinations, based on the habeas judge’s role as
the trial court judge who heard evidence in the conditional release proceedings.
Accordingly, the habeas court’s factual determinations, while not binding, are entitled to
great weight if supported by the record, especially regarding witness credibility. We
independently evaluate the evidence and make our own factual determinations, while also
conducting an independent review of the habeas court’s resolution of legal issues and
mixed questions of law and fact. (See In re Sodersten, supra, 146 Cal.App.4th at p.
1223.)
II
Equal Protection
Stephenson contends that when he was compelled to testify during the People’s
case-in-chief at his original commitment proceeding in 2009, he provided details of
criminal conduct for which he was never charged. He further contends that, starting in
2015, case law evolved to establish that equal protection principles require the statutory
right against compelled testimony in commitment proceedings, granted to criminal

16
defendants found not guilty by reason of insanity in California, to also be afforded to
SVPs in commitment proceedings—absent a compelling state interest that is narrowly
tailored.
The People do not dispute that Stephenson was compelled to testify in his original
commitment proceeding. But they contend his equal protection claim is both
procedurally barred as untimely and unpersuasive because any error was harmless.
Stephenson insists in his traverse that the claim is timely, and the error was prejudicial.
We conclude Stephenson is not entitled to relief on this claim because the
authority he invokes in support of it does not apply retroactively to his original civil
commitment trial.6
A. Legal Background
Our Supreme Court recently discussed retroactivity principles in In re Milton
(2022) 13 Cal.5th 893, wherein it ruled that its 2017 decision in People v. Gallardo
(2017) 4 Cal.5th 120—holding that a trial court violates a defendant’s Sixth Amendment
right to a jury trial if it makes factual findings about the nature of a defendant’s prior
conviction in imposing an enhanced sentence based on that prior conviction—did not
apply retroactively to final judgments. (In re Milton, at p. 897.) Relevant here, our
Supreme Court explained that California courts historically have applied two tests for

6 The parties had the opportunity to brief this issue because whether a new rule of law
applies retroactively is an issue that is always implicated when a party invokes the rule to
attack a final judgment. (See People v. Alice (2007) 41 Cal.4th 668, 679 [“The parties
need only have been given an opportunity to brief the issue decided by the court, and the
fact that a party does not address an issue, mode of analysis, or authority that is raised or
fairly included within the issues raised does not implicate the protections of [Government
Code] section 68081”]; People v. Graham (2024) 102 Cal.App.5th 787, 798, fn. 6.)

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retroactivity, a federal test, and a state test.7 “Under both tests, a judicial decision that
creates a ‘new rule’ is generally not given retroactive effect in cases on collateral review
that were final when the rule was announced. [Citations.] Thus, the threshold question
under both tests is whether a judicial decision constitutes a new rule. [Citation.] A new
rule . . . will nevertheless be given retroactive effect under either test if it is substantive,
as opposed to procedural.” (In re Milton, at p. 904.) And under the state test, even a new
procedural rule may be retroactive under a three-part test that considers the purpose to be
served by the new procedural rule, the extent of law enforcement’s reliance on the old
rule, and how retroactive application might affect the administration of justice. (Id. at pp.
904-905.)
1. Whether a Rule Is New
Under the federal test, a case announces a new rule if the result was not dictated
by precedent existing at the time the defendant’s conviction became final. (In re Milton,
supra, 13 Cal.5th at p. 905.) Under the state test, a rule is new where, among other
things, a decision disapproves a “longstanding and widespread practice expressly
approved by a near-unanimous body of lower-court authorities.” (Id. at p. 906.)
2. Substantive or Procedural
Under both tests, a substantive rule alters the range of conduct or the class of
persons that the law punishes, whereas a procedural rule regulates only the procedures for
determining culpability. A new rule is not substantive just because it raises the
possibility that someone convicted with use of the invalidated procedure might have been
acquitted otherwise. (In re Milton, supra, 13 Cal.5th at pp. 907-909.)

7 The court declined in Milton to decide which test applied to the new procedural rule
pronounced in Gallardo, because it “reach[ed] the same conclusion under both tests.” (In
re Milton, supra, 13 Cal.5th at p. 905.)

18
3. Retroactivity of New Procedural Rules Under the State Test
Under the state test for determining retroactivity of new procedural rules, the “first
factor—the purpose of the new rule—is the critical factor.” The other two factors come
into play “ ‘only when the question of retroactivity is a close one after the purpose of the
new rule is considered.’ ” (In re Milton, supra, 13 Cal.5th at p. 912.) If the first factor is
determinative, the inquiry ends there. (Id. at p. 919.) A new procedural rule whose
primary purpose is to overcome an aspect of the criminal trial that substantially impairs
the truth-finding function and raises serious questions about the accuracy of guilty
verdicts satisfies the first factor of the state test’s retroactivity analysis. But if the legal
regime in existence before the new rule already had multiple safeguards in place to
ensure a “reasonably fair and reliable” decision, the new rule is not retroactive. (Id. at pp.
914-916.)
B. Analysis
Assuming for the sake of argument that Stephenson is entitled to utilize
retroactivity principles developed in the criminal context in his collateral attack of an
underlying civil commitment,8 we conclude the new rule he relies on is not retroactive.
Therefore, his habeas claim that rests on the new rule is unavailing.
We agree with the parties that at the time of Stephenson’s 2009 civil commitment
trial People v. Leonard (2000) 78 Cal.App.4th 776 foreclosed any argument that he could
refuse to testify in the People’s case-in-chief. (See Conservatorship of Eric B. (2022) 12
Cal.5th 1085, 1098-1099 [citing Leonard for the proposition that California courts
extended to the SVP commitment context the United States Supreme Court’s holding that

8 Also compare Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1284 (“reasoned
policy argument can be made” that new case law regarding the admissibility of evidence
in criminal trials should not be retroactive in the civil context; but “absent a different
policy articulation by the Supreme Court,” the court assumed new case law is retroactive
“in any context where liberty interests are at stake”).

19
the constitutional right against compelled testimony does not apply in commitment
proceedings that arise in connection with criminal charges].)
Thus, in relation to the 2009 civil commitment proceeding, today’s rule—that a
person the People seek to commit as an SVP cannot be compelled to testify in the
People’s case-in-chief, absent a compelling state interest that is narrowly tailored—is
“new” under both the federal and state tests. It is new under the federal test because it
was not dictated by precedent existing at the time Stephenson was committed. (In re
Milton, supra, 13 Cal.5th at p. 905.) It is also new under the state test because it
disapproved longstanding intermediate appellate court authority where no split of opinion
existed. (Id. at p. 906.)
Because it does not alter the range of conduct or the class of persons that can be
civilly committed as an SVP, the new rule is not substantive. It is a procedural rule that
regulates what evidence the People may introduce in the effort to prove that someone
should be committed as an SVP. (See In re Milton, supra, 13 Cal.5th at pp. 907-909.)
Thus, under the federal test, the new procedural rule is not retroactive.
But as explained above, a new procedural rule may be retroactive under the state
test if its primary purpose is to overcome an aspect of trial that substantially impairs the
truth-finding function. (In re Milton, supra, 13 Cal.5th at pp. 914-916.) The new
procedural rule at issue here does not have such a primary purpose. The right to remain
silent in one’s own trial does not promote the search for truth but frustrates it.
(See United States v. Nixon (1974) 418 U.S. 683, 709-710 [explaining that the Fifth
Amendment right not to be compelled in a criminal case to be a witness against oneself,
like the attorney-client and priest-penitent evidentiary privileges, is intended to protect
“weighty and legitimate . . . interests,” but remains an exception to the general rule that
the public has a right to every person’s evidence and is therefore “in derogation of the

20
search for truth”].) Thus, under the state test, the new procedural rule is not retroactive.
Accordingly, Stephenson’s equal protection claim is unavailing.9
III
Continued Confinement
Stephenson contends that continued confinement long after the trial court granted
his petition for conditional release violates both the SVPA’s statutory scheme and due
process principles. The People disagree, arguing that under the statutory scheme, it is the
trial court’s approval of a final placement plan that triggers an SVP’s right to a timely
release, not the trial court’s order granting a petition for conditional release. We agree
with the People.
A. Legal Background
1. The Statutory Scheme
The SVPA contemplates involuntary commitment of SVPs, people who have been
convicted of at least one enumerated sexually violent offense and who have a diagnosed
mental disorder that makes it likely they will engage in sexually violent and predatory
criminal behavior if released. The SVPA was not designed to be punitive. A person is
confined only so long as they pose a threat to the public. A person can only be civilly
committed if, after a trial, a judge or a unanimous jury finds beyond a reasonable doubt
that the person is an SVP, and only then does the court order an SVP indefinitely
committed to DSH for appropriate treatment and confinement in a secure facility.
(People v. Ingram (2024) 104 Cal.App.5th 1242, 1247-1248.)
SVPs are evaluated annually for an assessment (1) whether they still meet the SVP
definition, and if they no longer do, whether they should be considered for unconditional

9 Given this conclusion, we deny as moot Stephenson’s November 20, 2024, motion
requesting that we take judicial notice of the entire transcript from his civil commitment
trial in order to demonstrate prejudicial error.

21
discharge, and (2) whether they are suitable for conditional release to a less restrictive
alternative. An SVP “is suitable for conditional release to a less restrictive alternative
(typically, placement in the community rather than the secure facility where he or she has
been housed as an SVP) if he or she is no longer ‘a danger to the health and safety of
others’ because it is not ‘likely that he or she will engage in sexually violent criminal
behavior due to his or her diagnosed mental disorder if under the supervision and
treatment in the community.’ (§ 6608, subd. (g); see also § 6607, subd. (a); People v.
McCloud (2021) 63 Cal.App.5th 1, 9-10.)” (People v. Peyton (2022) 81 Cal.App.5th
784, 796-797 (Peyton).)
By contrast, an SVP is entitled to unconditional discharge if he or she “ ‘no longer
meets the [SVP] definition’ because the SVP’s ‘diagnosed mental disorder has so
changed that he or she is not a danger to the health and safety of others and is not likely
to engage in sexually violent criminal behavior if discharged.’ (§§ 6604.9, subd. (d),
6605, subd. (a)(2).)” (Peyton, supra, 81 Cal.App.5th at p. 798.)
If certain threshold procedural requirements are met (see, e.g., § 6608, subd. (f)),
the trial court must hold a hearing to determine whether an SVP may be conditionally
released. If the trial court determines an SVP is suitable for conditional release, it “shall
order the [SVP] placed with an appropriate forensic conditional release program operated
by the state for one year.” (§ 6608, subd. (g).)
But before the trial court places an SVP “in a state-operated forensic conditional
release program, the community program director designated by [DSH] shall submit a
written recommendation to the court stating which forensic conditional release program
is most appropriate for supervising and treating the committed person. If the court does
not accept the community program director’s recommendation, the court shall specify the
reason or reasons for its order on the record.” (§ 6608, subd. (h).)
Once the trial court “determines that the [SVP] should be transferred to a state-
operated forensic conditional release program, the community program director, or their

22
designee, shall make the necessary placement arrangements and, within 30 days after
receiving notice of the court’s finding, the person shall be placed in the community in
accordance with the treatment and supervision plan unless good cause for not doing so is
presented to the court.” (§ 6608, subd. (i).)
2. Due Process
Once a court determines that a particular SVP is suitable for conditional release,
“that person unquestionably has a significant liberty interest in being released.” (People
v. Superior Court (Karsai) (2013) 213 Cal.App.4th 774, 788-789.) “To avoid . . . a
potential due process problem,” a different panel of this court in Karsai ruled that the
SVPA does not preclude a transient release: “under the statutory scheme the securing of a
specific residence is not a prerequisite to a finding that the person would pose no danger
to others if under outpatient supervision and treatment.” (Id. at p. 789.)
B. Analysis
Stephenson contends section 6608, subdivision (i)’s 30-day language makes his
release mandatory as both a statutory and due process matter, absent a showing of good
cause. We agree with the People that he is incorrect. The overall statutory scheme of the
SVPA makes clear that the “finding” referenced in section 6608, subdivision (i) that
starts a 30-day clock is the trial court’s approval of a final placement plan.10
Section 6608, subdivision (g) provides the trial court must order a suitable SVP
“placed with an appropriate forensic conditional release program.” (Italics added.)
Section 6608, subdivision (h) provides that before the trial court places an SVP in a
conditional release program, it must accept or reject the recommendation of the
community program director designated by DSH regarding “which forensic conditional

10 Because the statutory language construed in light of the overall statutory scheme is
clear, we need not refer to the legislative history. (See Gunther v. Alaska Airlines, Inc.
(2021) 72 Cal.App.5th 334, 353-354; Lopez v. Martinez (2000) 85 Cal.App.4th 279, 285.)

23
release program is most appropriate for supervising and treating” the SVP. (Italics
added.) Given that context, the relevant “finding” contemplated in section 6608,
subdivision (i) (“within 30 days after . . . the court’s finding, the [SVP] shall be placed in
the community in accordance with the treatment and supervision plan,” absent good
cause) is the trial court’s determination of an appropriate conditional release placement
plan, with terms and conditions that satisfy public safety concerns. (See § 6608, subd. (g)
[an SVP is no longer a danger to the health and safety of others when it is not likely that
he or she will engage in sexually violent criminal behavior due to his or her diagnosed
mental disorder if under the supervision and treatment in the community (italics added)].)
This interpretation of the SVPA’s conditional release provisions satisfies due
process principles, because, (1) when Stephenson was originally committed, the state
proved that Stephenson had a diagnosed mental disorder that made it likely he would
engage in sexually violent and predatory criminal behavior if released and (2) the state
continues to conduct annual reviews of his suitability for unconditional release. (Peyton,
supra, 81 Cal.App.5th at pp. 803, 808 [rejecting an SVP’s procedural due process
challenge, in part because DSH is “obligated to file a petition for habeas corpus relief”
seeking unconditional discharge if it “develops ‘reason to believe’ that an SVP at any
time no longer qualifies as an SVP”].) Though the trial court granted his petition for
conditional release, Stephenson remains an SVP.
Karsai concerned a trial court’s discretion to order a transient release. Contrary to
Stephenson’s intimations, the case does not stand for the proposition that an SVP has a
categorical right to transient release once a petition for conditional discharge has been
granted. Rather, transient release is inappropriate if, as here, the trial court is not satisfied
it can be accomplished in a manner consistent with public safety. (See People v.
Superior Court (Karsai), supra, 213 Cal.App.4th at p. 789 & fn. 8 [the question whether
the trial court abused its discretion in making the transient-release order was not before
the court]; People v. Superior Court (Quarles) 2020 45 Cal.App.5th 637, 651-654

24
[vacating the trial court’s order of conditional release under § 6608 because it apparently
“applied the incorrect legal standard by looking for the least restrictive setting in which to
place [the SVP] without due consideration for public safety”]; Peyton, supra, 81
Cal.App.5th at p. 795 [the “ ‘primary’ objective” of the SVPA is to protect the public; a
secondary objective is to treat SVPs’ mental disorders].)
The habeas court ruled that the delay in Stephenson’s release was “not
unreasonable and does not violate due process” after finding the delay was “through no
lack of effort” and there were significant public safety concerns militating against
Stephenson’s transient release in Placer County. We agree.
Stephenson contends our interpretation of the conditional release scheme would
grant the community program director open-ended authority, allowing them to effectively
nullify a conditional release order by refusing to submit a treatment and supervision plan.
This is not the case. SVPs have the right to presume that the community program
director designated by DSH will fulfill their duty under the SVPA by regularly
submitting a written recommendation for the most appropriate forensic conditional
release program. (See T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 184
[every person has a right to presume that every other person will perform his duty and
obey the law]; Evid. Code, § 664 [“It is presumed that official duty has been regularly
performed”].) There is no reason to depart from that presumption here. Accordingly,
Stephenson’s “continued confinement” claim is unavailing.11

11 In connection with this claim, Stephenson appears to request an evidentiary hearing to
develop a record regarding his allegation that there has been a “systemic breakdown” in
the application of section 6608, subdivision (i). Because, as explained above, Stephenson
is entitled to annual reviews to determine whether he remains an SVP, it is unclear what
relief he would be entitled to in the scenario of the breakdown he alleges. Accordingly,
we deny the request for an evidentiary hearing. (Cf. People v. Duvall (1995) 9 Cal.4th
464, 475 [issuance of an order to show cause “indicates the issuing court’s preliminary

25
IV
Access to the Courts
Stephenson contends his constitutional right of access to the courts is being
violated because, had he been released within 30 days of the trial court’s January 2022
order granting his petition for conditional release, he would have been eligible to seek a
court order of unconditional discharge under section 6605 by February 2023.12 He seeks
immediate unconditional discharge as a remedy for the alleged constitutional violation.
First, as explained above, we disagree with the premise that Stephenson had a
categorical right to actual release under section 6608, subdivision (i) when the trial court
had serious and unresolved public safety concerns.
Second, we agree with the habeas court that this claim is too speculative. Because
the constitutional right of access to the courts is ancillary to an underlying colorable
claim, someone alleging a violation of this right must show an arguable underlying claim
was lost by the ostensible restriction on their access to the courts. (See Christopher v.
Harbury (2002) 536 U.S. 403, 414-415.) Stephenson has not made that showing here. It
is uncertain whether, after being unsuccessful in his initial attempt at conditional release,

assessment that the petitioner would be entitled to relief if his factual allegations are
proved”].)
12 If DSH’s annual evaluation “indicates that the SVP is not suitable for unconditional
discharge, then the SVP has a two-step path to unconditional discharge—namely, (1) he
or she must file a petition for conditional release under section 6608 (§ 6608, subd. (a));
and (2) after one year on conditional release, he or she may file a petition for
unconditional discharge under section 6605 (§ 6608, subd. (m)).” (Peyton, supra, 81
Cal.App.5th at p. 799, second italics added.) The “ ‘process of determining whether [an
SVP] is prepared for successful,’ unconditional discharge ‘into the community is
unquestionably fraught with uncertainty.’ [Citation.] The one-year period of conditional
release . . . is valuable because it mitigates that risk—and thereby ‘protects the public’—
‘by requiring SVPs [to] demonstrate the ability to spend a year in the community’
without revocation of that status.” (Id. at p. 806.)

26
Stephenson can demonstrate the ability to spend a full year in the community without
revocation.
V
Conditional Release Notifications
Stephenson’s last claim is that law enforcement agencies “weaponized” SVPA
notification procedures in excess of their authority by “notify[ing] the media, and
consequently the public at large of [his] impending release,” and by soliciting the general
public’s resistance to that release in Facebook postings, effectively engaging in “hate
speech” against him. The People neither admit nor deny this claim, but contend
Stephenson is not entitled to either conditional release or unconditional release on this
basis. In his traverse, Stephenson states only that he is not seeking an injunction to
prevent law enforcement agencies from exceeding the scope of SVPA’s notification
procedures but observes that he “could possibly have grounds to seek an injunction to
prevent future transgressions.”
We reject this claim on two distinct grounds. First, the argument that it was
inappropriate to notify the general public about his possible transient release is forfeited
because Stephenson did not raise this concern when the question arose at the July 2023
hearing in the trial court.13
As described above, when the prosecutor observed that numerous people in
disparate parts of Placer County would receive notice of Stephenson’s possible transient
release and that he preferred to “err on the side of over-notifying,” Stephenson’s counsel

13 The parties had the opportunity to brief forfeiture, an issue always implicated when a
party raises a claim on habeas that could have been raised first in the trial court. (See
People v. Alice, supra, 41 Cal.4th at p. 679; In re Seaton (2004) 34 Cal.4th 193, 200
[“just as a defendant generally may not raise on appeal a claim not raised at trial
[citation], a defendant should not be allowed to raise on habeas corpus an issue that could
have been presented at trial”].)

27
responded that he could not comment “whether notice is required or not,” but did not
want the question of the scope of notice to delay transient release. “I don’t know if it’s
necessarily going out to the entire public,” counsel said. When someone asked how
notice would occur, the trial court deferred to Liberty Health’s assistant program director,
who replied that DSH “follows the statute. So the district attorney’s office and law
enforcement are noticed, and then law enforcement and the district attorney’s office
decide how they choose to notice the community.” (Italics added.) Before ending the
hearing, the trial court gave Stephenson another opportunity to speak. “I have nothing
more,” Stephenson said.
Second, it appears our ruling on this claim would result in an advisory opinion,
something we decline to provide. (See O’Brien v. Superior Court (1976) 61 Cal.App.3d
62, 72 [declining to “give an advisory opinion” on an issue, because disposition of the
matter at bench did not require resolution of the issue].)
DISPOSITION
The habeas petition is denied.

/s/
BOULWARE EURIE, J.

We concur:

/s/
HULL, Acting P. J.

/s/
MAURO, J.

28
Filed 1/14/25
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)
----

In re WILLIAM STEPHENSON on Habeas Corpus. C099785

(Super. Ct. Nos. SCV0037867,
WHC001813)

ORIGINAL PROCEEDING. Petition for writ of habeas corpus. Petition denied.
Garen J. Horst, Judge.

John L. Staley, under appointment by the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Julie A.
Hokans, Deputy Attorneys General, for Respondent the People.

Rob Bonta, Attorney General, Cheryl L. Feiner, Assistant Attorney General,
Gregory D. Brown and Jessica C. Butterick, Deputy Attorneys General, for Respondent
State Department of State Hospitals.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II, IV, and V of the Discussion.

1
The opinion in the above-entitled matter filed on December 23, 2024, was not
certified for publication in the Official Reports. For good cause it now appears the
opinion should be published in the Official Reports, and it is so ordered.

FOR THE COURT:

/s/
HULL, Acting P. J.

/s/
MAURO, J.

/s/
BOULWARE EURIE, J.

In re Stephenson on Habeas Corpus

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