Filed 4/30/15 P. v. Wollschlager CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication o r ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
ROSS LEO WOLLSCHLAGER,
Defendant and Appellant. 2d Crim. No. B255268 (Super. Ct. No . 2013032632) (Ventura County)

Ross Leo Wollschlager appeals from the denial of his petition for conditional release as a sexually violent predator (SVP) with out an evidentiary hear ing. (Welf. & Inst. Code, § 6605, subd. (b).) 1 He contends the trial court ab used its discretion when it did not set the petition for evidentiary hearing, because the medical director at Coalinga State Hospital and a staff psychologist recommende d conditional release. (§ 6605, subd. (b)(2).) 2 The appeal is untimely. It also lack s merit. Substantial evidence supports the

1 All statutory references are to the Welfare and Institutions Code unless otherwise stated. The Sexually Violent Predators Act (SVPA) (§ 6600 et seq.) was substantially revised in 2014. (Stats. 2013, ch. 182, § 2 (Sen. Bill No. 295).) Those revisions do not apply to Wollschlager's petition. We limit our discussion to the provisi ons of the SVPA that were in effect in 2013.

2 At the time Wollschlager filed his petition, section 6605, subdiv isions (b) and (c) provided in relevant part:2 trial court's finding that the recommendations were contradi cted by the evaluation upon which they were based. We affirm.
FACTUAL AND PROCEDUR AL BACKGROUND Wollschlager suffers from voyeur ism, paraphilia, poly-substance dependence, and antisocia l personality disorder. In 1983, a jury convicted Wollschlager of raping two women. In 1989, a jury convicted him of forcib ly molesting a child while he was on probation for the rapes. In 1996, upon release from prison, Wollschlager was involuntarily committed to the cu stody of the State Department of State Hospitals as an
SVP. In 2007, the trial cour t conditionally released Wo llschlager on outpatient status under the supervision and treatment of a forensic treatment program (CONREP) pursuant to section 6608. In 2009, Wollschlage r violated the conditions of his release and
the trial court revoked it. In 2010, the trial court granted Wolls chlager a second conditional release. At the same time, Wollschlager admitted th e allegations of a petition to convert his
commitment to an indeterminate term pursuant to Proposition 83. 3 Wollschlager again
violated the conditions of his releas e and the trial court revoked it.

"(b) If the State Department of State Hospitals determines that . . . conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protec t the community, the director shall authorize the person to petition the court for conditional release to a less restrictive alternative . . . . The court, upon receipt of the petition . . . , shall order a show cause hearing at which the court can consider the petition and a ny accompanying docum entation provided by the medical director, the prosecuting attorney, or the committed person. "(c) If the court at the show cause hearing dete rmines that probable ca use exists to believe that the committed person's diagnosed mental diso rder has so changed that he or she is not a danger to the health and safety of others and is not likely to enga ge in sexually violent criminal behavior if discharged, then the court shall set a hear ing on the issue."

3 In 2006, California voters approved Propositi on 83. It amended the SVPA to change the term of commitment from a two-year renewable term to an indefinite term from which the committed person can be re leased if he proves by a preponde rance of the evidence that he is no longer an SVP. (See People v. McKee (2010) 47 Cal.4th 1172, 1183-1184.)3 On appeal, we affirmed the order re voking conditional release and affirmed the underlying indeterminate commitment. ( People v. Wollschlager (June 26, 2012, B224508) [nonpub. opn .].) It is undisputed that Wo llschlager continues to meet the
criteria for commitment under the SVPA. In July 2013, Coalinga State Hospital Psychologist Dennis Gardner examined Wollschlager's mental condition as required by s ection 6605, subdivision (a).
He concluded that Wollsc hlager's "mental condition HAS NOT changed such that he no longer meets the definition of Sexually Violent Predator. However, it is this evaluator's opinion that Mr. Wollschlager could be safe ly treated in a community setting as a
conditional release under the su pervision of Liberty CONREP. " The medical director
concurred. Garner reported that Wollschlager' s diagnosis was unchanged; Wollschlager remains sexually attracted to no n-consenting females. His me ntal disorder "makes him a danger to the health and safety of others in that it is likely he will engage in sexually
violent criminal behavior." On the STATIC-9 9R assessment of risk of being charged or convicted of another criminal offense, Wollsch lager scored a six, "which falls within the High Risk Category." He "has not comp leted sexual offense treatment, the DSH Sex Offender Treatment Program, and he has not had sufficient treatment for his diagnosed mental condition and other dynamic risk fact ors." Nevertheless, Gardner offered the opinion that Wollschlager can be "safely tr eated in a community setting as a conditional release under the supervision of Liberty CONREP." He did not explain how or why this is possible. Based on the report, Wollschlager file d a petition for conditional release as authorized by section 6605. The trial c ourt conducted a show cause hearing and determined that no probable cause exists to set the petiti on for evidentiary hearing. Although Gardner recommended conditional releas e, and the medical director concurred,
the trial court found the recommendations were not supported by facts: "It is undisputed . . . that petitioner's condition has not substantia lly or materially changed , . . . he has not4 completed sex offender treatment, and . . . he remains at high risk for re-offending. The
recommendation for conditional release is not su pported and is entirel y contradicted by the evaluation upon which it is ostensibly based. Moreover, the evaluation and
recommendation contain no information whatso ever about any plan for safeguarding the community in the event that petitione r is conditionally released."
The clerk of the court served Wollsch lager by mail with notice of entry of the order denying his pe tition on December 31, 2013. Wollsch lager did not file a notice of appeal within 60 days. On February 21, 2014, Wollschlager f iled a "Motion to Reconsider" pursuant
to Code of Civil Procedure se ction 1008, "subdivision (b)" ba sed on "different facts that were not considered at the previous heari ng." In support, he offered an unsigned memorandum from Gardner entitled, "Clari fication of Evaluation Report for Mr. Wollschlager." The memorandum characterized Wollschlager's violations of the terms of
his 2010 conditional release as "technical." E ssentially the same description appeared in Gardner's initial 2013 report, and in a 2012 an nual report, all of which the trial court previously reviewed. The memorandum also emphasized that Wollschla ger participated in some treatment during his conditional release a nd at Coalinga State Hospital. It also reported that he participated in grief counsel ing following the loss of his parents. This treatment was previously described in Gardne r's initial 2013 report , which characterized Wollschlager's attendance and pa rticipation as "fluctuat[ing] " and "diminishing . . .when he was working on legal matters."
The trial court assumed the authentic ity of the memorandum, but denied the
motion for reconsideration. It found the motion was untim ely because it was not filed within 10 days of service of the underlying order (Code Civ. Proc., § 1008, subd. (a)), and
without merit because Gardner's supplemental letter did not set forth any materially new or different facts. As the trial court put it, it wa s "just . . . different frosting on the same cake of his opinion."5 DISCUSSION Wollschlager's appeal is untimely becaus e he did not file a notice of appeal within 60 days of service by ma il of the order denying his pe tition on December 19, 2013. (Cal. Rules of Court, rule 8.104(a)(1)(B).) Th e clerk of the court se rved him with notice on December 19, 2013, and he filed his notice of appeal on April 3, 2014. Wollschlager's motion to reconsider di d not extend his time to appeal. A
motion to reconsider extends the time to appeal if it is valid and made under Code of Civil Procedure section 1008, subdivision (a). (Cal. Rules of Court, rule 8.108(e).) Wollschlager's motion was invalid because he ma de it on February 21, more than 10 days after service of entry of the underling order on March 21. (Code Ci v. Proc., § 1008, subd. (a); Branner v. Regents of University of California (2009) 175 Cal.App. 4th 1043, 1047.) Wollschlager's motion was not made under sec tion 1008, subdivision (a). His motion was "based on section 1008, subdivision (b)." Subdivision (b) authorizes renewal of a previously filed motion based on new or different facts, but a motion made under its provisions does not extend the time to appeal . (Cal. Rules of Court, rule 8.108(e) Advisory Com. Comment.) 4 The order denying Wollschlager's motion for reconsideration is not separately appealable. Code of Civil Proc edure section 1008, subdivision (g) provides, "An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable." Wollschlager argue s that his motion was made pursuant to subdivision (b), and therefore subdivision (g ) does not preclude his appeal. Prior to enactment of subdivision (g), there was a sp lit of authority whether orders denying reconsideration were separately appealable. (Compare Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 710 [appealable] with Tate v. Wilburn

4 The Advisory Committee Comm ent to rule 8.108(e) provides, "Subdivision (e) applies only when a 'party' makes a valid motion to 'reconsider' an appealable order under subdivision (a) of Code of Civil Procedure s ection 1008; it therefore does not apply when a court reconsiders an order on its own motion . . . or when a party makes 'a subsequent application for the same order'. . . . (See also Eisenberg, Horvitz & Wiener, Cal. Practice Guide, Civil Appeals and Writs (The Rutter Group 2014) 3:93:5, p. 3-43.)6 (2010) 184 Cal.App.4th 150, 1 60 [nonappealable].) Subdiv ision (g) does not expressly address motions made under subdivision (b). Bu t it would be absurd to allow appeal from motions made under subdivision (b) and not mo tions made under subdivision (a). "[T]he reasons . . . supporting the conclusion that an order denying a motion for reconsideration under section 1008, su bdivision (a) is not appealable—i .e., to eliminate the possibilities that (1) a nonappealable order or judgment would be made appealable, (2) a party would have two appeals from the same decision, a nd (3) a party would obtain an unwarranted extension of time to appeal—apply with equa l force to an order denying a renewed motion pursuant to section 1008 , subdivision (b). Indeed , the possibility that a party may obtain an unwarranted extension of time to appeal is ac tually more of a concern with respect to a
renewed motion under sec tion 1008, subdivision (b), in light of the fact that such a motion may be brought at any time, while a motion for reconsideration must be brought 'within 10 days after service upon the party of written no tice of entry of the [underlying] order.'" ( Tate , at p. 160, quoting secti on 1008, subdivision (a).) Even if Wollschlager had timel y appealed, or the order denying reconsideration was separately appealable, we would affirm. Wollschlager did not meet his burden of demonstrating pr obable cause to believe that his condition has so changed that he is not a danger to others and will not engage in sexually violent behavior if conditionally released. (§ 6605, subd. (c).) As a safe guard for the indeterminate commitment of sexually violent predators, the SVPA requires the State Department of State Hospitals to examine co mmitted persons each year and consider whether they are
still an SVP and whether conditional release to a less restrictive alternative or an unconditional release is approp riate. (§ 6605, subd. (a).) 5 If the state hospital determines, as it did here, that "conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protec t the community," the

5 The 2014 amendments change both the procedure and burden of proof for petitions for conditional release. The amendm ents do not apply here, as the parties agreed in the trial court. (2013 Sen. Bill No. 295.)7 director must authorize the person to petition for conditional release to a less restrictive alternative. ( Id., subd. (b)(2).) 6 Upon receipt of the petition for conditiona l release, the trial court must set a show cause hearing to determ ine whether there is probabl e cause for an evidentiary hearing. (§ 6605, subd. (b)(2).) At the show cause hearing, the co urt "can consider the petition and any accompa nying documentati on provided by the me dical director, the prosecuting attorney, or the committed person." ( Ibid. ) An evidentiary hearing is required only if "probable cause exists to believe th at the committed person'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 crimin al behavior if discharged." (§ 6605, subd. (c).) It is the petitioner's bur den to establish probable ca use by a preponderance of the
evidence.
Gardner's evaluation established th at Wollschlager's condition has not changed, and Wollschlager is hi ghly likely to engage in sexually violent criminal behavior if discharged, even conditionally. While Gard ner offers the opinion that "[Wollschlager] could be safely treated in a community setting as a conditional release under the supervision of Liberty CONREP," no fact ual basis supports this conclusion. On review of an order denying an SV P's hearing on a petition for release, we
consider whether the evidentia ry record of the show cause hearing disclosed a rational basis for believing that Wollschlager meets the criteria for release. ( People v. Hardacre (2001) 90 Cal.App.4th 1392, 1402.) The trial court's findings of fact are conclusive if supported by substantial evidence. ( Ibid. ) We do not agree with the parties that our
review is for abuse of discretion. The cases upon which they rely do not involve probable

6 Neither Wollschlager nor Gardner suggests th at Wollschlager's condition has so changed that he is not an SVP or that he may be unconditionally released. We, therefore, do not discuss the procedures for unconditional rele ase authorized by section 6605, subdivision (b)(1).)8 cause determinations. 7 As we explained in Hardacre
, a trial court's decision that there is no probable cause to set an SVP's petition fo r release for evidentiary hearing is like a magistrate's decision that there is no probable cause to set a criminal charge for trial. ( Ibid .) The standard of review is the same. ( Ibid. ) We independently review the record for probable cause and determine that Wollschlager did not meet his burden. The re cord does not disclose a rational basis for believing that conditions can be imposed th at adequately protect the community if Wollschlager is conditionally released. The director's conclusion was not supported by any factual basis. Substantial evidence suppor ts the trial court's fa ctual finding that the "recommendation is entirely contradicted by th e evaluation upon whic h it is ostensibly
based."
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.

GILBERT, P.J. We concur:
YEGAN, J.

BIGELOW, J. *

7 ( People v. Collins (2003) 110 Cal.App.4t h 340, 347, 349-351; id. at p. 351, fn. 6 [determination that petition for conditional re lease was "based upon frivolous grounds" under section 6608, subdivision (a) is reviewed for abuse of discretion]; People v. Olsen (2014) 229 Cal.App.4th 981, 994 [same]; People v. Cross (2005) 127 Cal.App.4th 63, 65 [denial of outpatient status under Penal Code sections 1603, subdiv ision (a)(1) and 1026.2, subdivision (e) after eviden tiary hearing is reviewed for abuse of discretion]; Packer v. Superior Court (2014) 60 Cal.4th 695, 710 [deter mination whether to conduct an evidentiary hearing on a motion to disqualif y the prosecutor under Penal Code section 1424 is reviewed for abuse of discretion].)

* (Presiding Justice of the Court of Appeal, Seco nd Appellate District, Div. 8, assigned by the Chief Justice pursuant to art. VI, § 6 of the Calif. Const.)9 Matthew Guasco, Judge
Superior Court County of Ventura

________________ ______________

Michael C. McMahon, Chief Depu ty Public Defender, William Quest, Senior Deputy Public Defende r, Stephen P. Lipson, Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Ge neral, Margaret E. Maxwell, Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plain tiff and Respondent.