Judge Improperly Uses Personal Belief in SVP Trial

Between 1968 and 2011, Sam Consiglio committed, was convicted of, and served sentences for numerous sexual offenses against women, including forcible rape, aggravated assault, sodomy and oral copulation. 

In 2012, at the age of 61, Mr. Consiglio was found to be a Sexually Violent Predator (SVP) and was committed to the Department of State Hospitals (DSH) for an indeterminate term.

In annual DSH evaluations conducted from his commitment up through 2020, psychologists found he still met the criteria for an SVP and he remained involuntarily committed.  As the reader may be aware, if found to no longer present a threat to society, the individual’s commitment may end.  In re Lucas (2012) 53 Cal. 4th 839, 845. 

If the DSH determines that the person no longer qualifies as an SVP, it must authorize him to petition the court for an unconditional release.  Penal Code § 6604.9(d) (part of the Sexually Violent Predator Act (Penal Code § 6600, et seq.)).

The judge must then hold a show cause hearing to determine whether there is probable cause to believe that the committed person no longer qualifies as an SVP, and if so, conduct a full hearing on the issue at which the state bears the burden of proof beyond a reasonable doubt, and the committed person is afforded rights including jury trial, experts, and appointed counsel.

In 2020 and again in 2021, DSH psychologist Michelle Vorwerk was assigned to evaluate Mr. Consiglio’s annual SVP evaluation pursuant to Penal Code § 6604.9. 

In 2021, Dr. Vorwerk performed the annual evaluation and concluded that Mr. Consiglio was no longer likely to commit sexually violent predatory crimes because of his age (then 70) and a severe and progressively worsening heart condition that impaired his ability to breathe and exert himself.  In a 61-page report, she concluded that Mr. Consiglio no longer met the definition of an SVP.

Mr. Consiglio then filed a petition for unconditional release and the trial court in San Diego County held a show cause hearing and found no probable cause to believe Mr. Consiglio was no longer an SVP.  Accordingly, the judge did not set the matter for a full hearing under Penal Code § 6605(a)(2) – (3).

Mr. Consiglio appealed the trial court’s probable cause ruling to the Fourth Appellate District Court in San Diego, arguing that the judge (Theodore M. Weathers) improperly rejected Dr. Vorwerk’s opinion based on his own personal belief that Mr. Consiglio still qualified as an SVP.  In doing do, the judge overstepped his limited authority to make credibility determinations and reject expert opinion.

The Fourth Appellate District Court agreed with Mr. Consiglio, reminding the reader from the outset that the probable cause threshold is low and finding, in its own independent review of Dr. Vorwerk’s opinion and supporting evidence cited in her report, that the judge was required to conduct a further hearing on the issue.

The appellate court reminded the reader further that for probable cause under Penal Code § 6605(a), a judge must determine whether a reasonable person could entertain a strong suspicion that the offender is no longer an SVP.  Cooley v. Superior Court (2002) 29 Cal. 4th 228, 246-250.  If the court finds probable cause, it must then conduct a trial to determine whether the person qualifies for commitment as an SVP.

The key to the Fourth Appellate Court’s ruling seems to be that the judge made no finding that Dr. Vorwerk’s opinion was inherently implausible, untrustworthy or conclusively impeached.  Moreover, there was no explanation why the prosecution argument that Mr. Consiglio remained an SVP was more persuasive.  The appellate court pointed out that Dr. Vorwerk was an experienced SVP evaluator who made extensive findings based on forensic evaluations and interviews with Mr. Consiglio.

The Fourth Appellate District emphasized that it was not expressing any opinion on the ultimate question whether Mr. Consiglio still qualifies as an SVP.  It merely was finding that a reasonable person evaluating the evidence could at least entertain a strong suspicion that Mr. Consiglio no longer qualifies as an SVP.

For more information about SVP civil commitment issues, please click on the following articles: