1 Filed 2/25/15 P. v. McRoberts CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

## COPY

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

----

THE PEOPLE, Plaintiff and Respondent,

v. DANIEL MCROBERTS, Defendant and Appellant. C071087 (Super. Ct. No. CI59446)

Appellant Daniel McRoberts, a sexually violent predator (SVP) within the meaning of Welfare and Institutio ns Code section 6600 et seq. (statutory references that follow are to this code), appeals from the trial court’s order dismissing his petition for conditional release or unconditional discharge under section 6608. McRoberts contends he was entitled to a full evidentiary h earing. We affirm the dismissal.

S TATUTORY F RAMEWORK The SVP statutes provide for indeterm inate commitment in a state hospital for violent sex offenders who have “a diagnosed mental disorder that makes the person a2 danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§§ 66 00, 6604.) We refer to the version of the statutes in effect throughout the proceedings in the trial court. (Stats. 2006, ch. 337; Initiative Measure (Prop. 83), ap proved Nov. 7, 2006.) The State Department of State Hospitals (SDSH), formerly the Department of Mental Health (DMH), performs an
annual evaluation of the SVP. (§§ 6600.05, 6605, subd. (a).) An SVP may petition the court for conditiona l release from the state hospital, with
or without the concurrence of SDSH. (§§ 6605, 6608.) Where, as here, the SVP files a petition without concurrence of the SDSH, “the court shall endeavor whenever possible to re view the petition and dete rmine if it is based upon frivolous grounds and, if so, shall de ny the petition without a hearing.” (§ 6608, subd. (a).) If the c ourt deems the petition not frivolous, the court holds a hearing “to determine whether the person committed would be a danger to the health and safety of others in that it is likely that he or she will engage in sexually viol ent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (§ 6608, subd. (d ).) At that hearing, the SV P has the burden of proof by a preponderance of the evid ence. (§ 6608, subd. ( i ).) In contrast, if SDSH in its annual repor t determines the person no longer meets the
SVP definition or can be cond itionally released under conditio ns that adequately protect the community, SDSH can au thorize the committed person to petition the court for release. (§ 6605, subd . (b).) In that case, the court “s hall order a show cause hearing at which the court can consider the petition a nd any accompanying do cumentation provided by the medical director, the prosecuting atto rney, or the committed person.” (§ 6605, subd. (b).) “If the court at the show cause he aring determines that probable cause exists to believe that 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 criminal behavior if discharg ed, then the court sha ll set a hearing on the3 issue.” (§ 6605, su bd. (c).) Each side has the right to a jury trial and to have an expert evaluate the person. (§ 6605, subd. (d).) Th e burden of proof is on the state to prove beyond a reasonable doubt that the person’s diag nosed mental disorder remains such that he is a danger to the health and safety of othe rs and is likely to engage in sexually violent
criminal behavior if discha rged. (§ 6605, subd. (d).)

F ACTS AND P ROCEEDINGS In November 2008, McRoberts, then ag e 25, was adjudicated an SVP based on various sex offenses -- including sexual batte ry, lewd and lascivi ous act with a child under age 14, attempted lewd act on a chil d under age 14, and indecent exposure --
committed between 1998 and 2004 . He was committed to Coal inga State Hospital. On September 2, 2011, McRoberts in propria persona filed a petition for
conditional release or uncond itional discharge under sec tion 6608, subdivision (a),
without the recommendation or concurrence of the Director of Mental Health.
McRoberts submitted an “OFFER OF PR OOF” listing 31 pers ons currently or formerly connected with Coalinga State Hospital -- from clinical psychologists to social workers to rehabilitation therapists to nurses to psychiatric techni cians to an art therapist. He asserted two clinical psychologists were responsible for interv iewing and evaluating “Phase Program” participants and were partof his “Phase Staffing” in 2011. Other clinical psychologists and one social worker were “gr oup treatment facilitators” who facilitated group therapy and pr ovided individual therapy sessi ons as needed and were or had been his primary treatment providers over a three-year peri od. Others were auxiliary group facilitators. Seventeen others, includi ng two clinical psychologists, were staff responsible for McRoberts’s daily care, we lfare, and well-being, and had frequent
interactions with him. The offer of proof asserted , “These witnesses will provi de testimony relevant to
Petitioner’s advancement in in tensive in-patient treatment , amenability to outpatient4 treatment, progress in overcoming barriers to di scharge, and overall lack of impulsivity, dangerousness, or inappropriate behaviors, as well as his development of empathy and
emotional awareness. These w itnesses will also testify th at Petitioner’s condition has so changed as to render him no longe r a significant risk to the co mmunity in that he is not likely to engage in sexually violent crimin al behavior if conditio nally released under supervision and treatment in the community, or unconditionally discharged.” McRoberts also claimed documentary evid ence -- Interdisciplinary No tes, Wellness and Recovery Plan Reports, Quarterly Progress Notes, a nd Staffing Summary -- would show he has done well at Coalinga, “has overcome all barr iers to discharge,” has made “significant progress” in treatment, has advanced to Phas e III of the program [which has four phases], has matured and taken responsibility for his crimes, and has made “enormous changes to
such an extent that he no lo nger poses any danger of reo ffending.” McRoberts verified the offer of proof was true to the best of hi s knowledge, but no declarations or documents were attached to the petition. The trial court appointed counsel to represent McRoberts. On October 17, 2011, McRoberts’s new counsel appeared and asked for time to review the petition. The court noted th e matter was already on the calendar for October 31, 2011, but neither Judge Scheuler nor the attorneys knew why. McRoberts’s attorney said the court could make a ruling on the petition. The court said, “Well, what ruling might I make? That he’s frivolous just because he made the . . . petition? I believe that I am entitled to dismiss a frivolous pe tition. However, frivolous doesn’t just mean that the defendant is exercising his rights to as k for a hearing under the code section. [¶] I recognize that the very most recent repor t which was less than a year ago is not favorable to him, but I frankly cannot put all of that together in my head quickly enough to tell you that I am an expert and I am not going to dismiss. I would like the district attorney to look in to it. I will certainly consider whatev er input either side has as to what step we should take next, but there are steps allowed if I do not dismiss the petition in the5 code sections.” The court added, “I believe that, to be frank, the defendant appears to have listed as his witnesses just about every single person with whom he has come into contact at the state hospital. On its surf ace, given the report that was filed back on December 8, 2010, that is a suspicious looking petition. However, right now it’s just a petition and I will leave it up to the district a ttorney to persuade the Court that it is frivolous or not, but I will contin ue this matter . . . .” The deputy district attorney said a new annual report would likely be filed soon. The court reiterated, “this petiti on looks highly suspic ious. I’m just not prepared off the top of my head, shooting from the hip on the bench to say that it’s frivolous and dismiss it. Even though it looks frivolous to me, I would like somebody to take a look at the underlying file, specifically the di strict attorney, and argue that to me.” The court said it would see counsel on the 31st and “[t]here is every possibility given the timing this is a
frivolous motion.” On October 31, 2011, counsel advised the court that the hospital intended to release a new annual report in a couple of weeks. McRoberts’s counsel offered declarations from appellant’s ca re providers, the contents of which do not appear in the record. The deputy district attorney said, “I did brie f research on the matter and I couldn’t find anything exactly on point, but there was on e case that indicated a petition accompanied by an offer of proof was enough to get it out of the frivolous petition nature.” The court said, “Yes, but there has to be an offer of proof more than just if I call everyone who works at the ins titution they will support my petitio n. . . .” This exchange
followed: “THE COURT: Subsection (j) of [section 6608] requires that if the petition is not made by the director that no ac tion be taken until it’s referred to the director. There is also the question of whether this is a frivol ous petition. I’m not sure, counsel, how you would like to proceed. Do you want me to rule on them one at a time or put this over6 until when the new report comes in, because even if I ru led in your favor on frivolousness we’d still be referring it to the department for a report. “[McRoberts’s counsel]: I’d ask it be continued two weeks and hopefully we’ll have that report and recommendation. “THE COURT: I reserve jurisdiction over the issues of whether the petition itself
is frivolous and note on the record that -- if I se t a hearing, I’d first have to refer it to the director, it’s already referred to the director in two weeks; therefore, it seems like a reasonable compromise right no w to simply set it out.”
The court asked counsel what she wanted do ne with the declara tions. She said she had no preference. The court sa id, “you’d be handin g them to me if I was going to rule on whether it’s frivolous or not, since I’m not going to rule on that right now I’ll hand it back to you.” This court granted McRoberts’s motion to augment the reco rd to include
witness statements and declarations assert edly submitted in the trial court, but the superior court clerk advised no such documents existed. The annual report issued in November 2011, conclude d McRoberts continued to
have mental disorders that made him likel y to engage in sexually violent predatory
criminal behavior in the fu ture. The evaluator, a SDSH clinical psychologist was not among the persons named in McRoberts’s offe r of proof but the evaluator mentioned consultation with persons named in the offe r of proof. The report noted McRoberts was currently enrolled in Phase III of a four-phase sex offender program, had not yet completed the treatment program, and therefor e had not yet had adequate treatment. He had generally done well in th e controlled environment but c ontinued to have behavior problems as seen from the inte rdisciplinary notes, with ab out 35 negative comments over the past year. A social wo rker saw progress over the previous few months and thought McRoberts could be conditionally released to outpatient trea tment. Testing indicated McRoberts continued to try to deceive himsel f, evaluators and staff regarding the extent of his pathology. The Director concurred with the report.7 The parties reconvened on No vember 21, 2011, with a different judge, Judge Abel.
McRoberts’s counsel said she had received th e new report from the state hospital “but we are still nevertheless requesting a hearing on [the] petition.” The court asked how long a hearing; she said half a day, and she had “ numerous witnesses to subpoena.” The court set it for January 17, 2012 . The deputy district attorney said nothing. On January 17, 2012, McRoberts’s attorn ey asked for a continuance because she thought the petition may have been brought prematurely. The de puty district attorney did not object, and Judge Scheuler granted the continuance. On February 27, 2012, Judge Scheuler ha d not reviewed the file because the court calendar said the matter was on only for resetti ng. The deputy district attorney stated McRoberts had nothing supporting his petition, other than a statement from someone on the nursing staff, who might not be qualified to offer an opinion on future dangerousness. McRoberts’s lawyer said, “it is my understanding that the Court at some point has to, if it hasn’t already, make a finding that probable cause exists based on the factors outlined in my client’s petition. I believe perhaps in the past the Court may have done that. When it was previously set for hearing, my clie nt had approximately 13 witnesses from the hospital that we intended on calling. However, I don’t believe we could make a sufficient showing that they we re material witnesses as to the ultimate opinion and I don’t believe the Court would have approved the witn ess fees and/or seve ral nights lodging that is needed and transportation costs to and from the airport. I believe at this point there currently are approximately 13 w itnesses that my client antic ipates [will be] call[ed] and be beneficial in regards to his petition.” The trial court said it had not reviewed the petition and asked, “Are you both in agreement that this matte r simply needs to be set for a time when I can determine probable cause?” Both attorneys said yes. The trial court set a date for “probable cause” and asked if a nything else had been filed. McRoberts’s counsel said she believed he may have file d a declaration at some point, and “I am assuming that the public defender criminal investigator is ava ilable in these cases to take8 witness statements?” The cour t did not have an answer but said, “Make your request, if you have one, and we’ll deal with it.” The court reviewed the file and noted “There was probable cause date set for October 31st which was continued. It was then continued to January 17th. I assume it was getting contin ued because of the arrival of the annual report but it just kept getting continued. [¶] With both parties co ncurring until it got to today and somewhere along the line it lost the title of probable cause, therefore I did not check out that angle, therefore, once ag ain, it is being continued by everyone’s agreement . . . .” At the hearing on March 12, 2012, the de puty district attorn ey began by conceding he had agreed to put it on for a probable ca use hearing, but in reviewing the petition and attachments, “it is the People’s position th at he does not present or have or list any witnesses that would be competent to testify in this matter as to the dispositive issue,
which is whether or not he still constitutes a th reat to the community and is ready to be released. And it is the People’ s position, given that he just doesn’t have any witnesses currently, I believe counsel has indicated that she doesn’t anticipate any qualified witnesses, I don’t see how that there can be a finding that this Petition has any current validity.” The court agreed, “I have serious problems with the Petition also. But having
seen that it was on for a Probable Cause Heari ng, and a Probable Cause Hearing is pretty much like a Preliminary Hearin g, evidentiary in nature, I thought perhaps it was on for a setting. . . .” McRoberts’s lawyer said, “I believe it was on for a hearing for the Court to find that the Petition standing alone supports [McRoberts’s] right to have a hearing. And in reviewing the Petition that my client filed in pro per, he indicates on the first page that he has lay witnesses’ declara tions and depositions that would show he no longer poses a threat to the health and safety of society, and that it is unlikely that he will engage in sexually violent criminal behavior if conditionally released . And that’s on page. 1. [¶] Additionally, on page 4 he goes into what had previously been provided as an offer of proof. And that was in another case a treati ng psychiatrist, who would indicate that the9 Petitioner was not likely to engage in sexua lly violent conduct. And in my client’s Petition again on page 4, he indicates that his condition ha s changed, and he’s unlikely to engage in sexually violent criminal behavior. [¶] In looking at the offer of proof, I believe when this was previously set for hearing I had numerous witnesses subpoenaed, and we had difficulty in getting their fees ap proved since we had to make a showing that they were necessary witnesses a nd that they could testify as to the ultimate question. And when my client listed the witnesses on page 1 of 9, the witnesses that he lists, Dr. Greer and Dr. Fleischman, those witnesses evaluate d him for placement at a higher treatment level. He had completed Phase 1 and Phas e 2. However, I didn’t have anything from
those witnesses to indicate that he was no l onger a danger, and that he should be on outpatient. [¶] There are also three witnesse s listed on page 2 of 8 that were his Phase 2 treatment group facilitators. And I believe in reading the report from the hospital, that those treatment facilitators facilitated him pr ogressing to the next . . . [¶] . . . [¶] treatment level, not indicating that he should be released. [¶] A nd then on page 3 of 8 my client lists lots of psychiatric technici ans and some clinical psychologists. I don’t have anything from those individuals. In talk ing with some of the psychiatric technicians I believe they could say that he did partic ipate, and he was pr ogressing, and he did recognize his behavior and knew what he had to do. But I believe their statements and
their notes are also covered in the doctor’s re port [¶] . . . [¶] that was filed after my
client filed this Petition. On page 4 of 8 my client also alleges that the witnesses will testify that he’s no longer a ri sk to the community if conditionally released. I just don’t believe these licensed rehabilitation therapists would be qualified to offer that final
conclusion as to whether or not he’s a danger. So as to an offer of proof that they could testify to that, I don’t believe that I have anything to support that.” McRoberts’s attorney
said a licensed clinical social worker coul d testify McRoberts would benefit from more treatment but has made progress, but “I ju st don’t think she d eals with the ultimate issue . . . .” Finally, counsel said a “psy ch tech” would testify she believes McRoberts10 has learned what not to do and would do ever ything in his power “to remain legit,” and “based on that, the psych tech doesn’ t believe that he would re-offend.”
The trial court stated: “First of all, an offer of proof is simply a way to get to a Probable Cause Hearing, not a Probable Cause Hearing. A Probable Ca use Hearing is evidentia ry in nature. The Probable Cause Hearing by statute may allo w any reports as hearsay, but I find no general rule like would apply to a Prelimin ary Hearing to specify people who can come in and recite testimony of others. Since we would possibly be dealing with experts, it’s always possible that an expert can repeat the input of others in his or her testimony, but
we have no witnesses here. We do have documentary evidence whic h is the last report
filed. The November 3rd letter from the medi cal director concurs with the report. The report says it is the opinion of this evaluato r that as a result of his diagnosed mental disorder, Mr. McRoberts remains likely to enga ge in sexually violent predatory criminal behavior in the future. That is definitely nothing that supports what the defendant has said in his Petition. What the defendant says in his Petition, first of all is, he lists like a laundry list of every -- possibly every person th at’s ever talked to him at Coalinga, from the top down, including a lot of people who pr obably didn’t talk to him directly. His Petition is in conclusory language: These people will say someth ing eventually that would give him what he prays fo r. There is no factual allegation. And even if there were a factual allegation, Doctor X will say that I should be released, fo r example, even if there were that allegation, this is a Probab le Cause Hearing, and I have nothing in the
Petition or in the file that woul d show any probable cause to allow a hearing. Therefore, my tentative ruling would simply be to find that this is a Probable Cause Hearing, there is no evidence offered, and to dismiss the Petition. Excuse me. There is evidence offered to support the Moving Party. There is doc umentary evidence that would definitely contradict the conclusions of the Moving Part y, and my tentative ruling is to dismiss the
Petition.”11 With no further argument fro m the attorneys, the trial co urt dismissed the petition.

D ISCUSSION
McRoberts contends the trial court erre d in dismissing his petition without a full evidentiary hearing. We disagree. SVP proceedings are special proceedings of a civil natu re, and the trial court has inherent authority to dismiss an SVP’s petition seeking release. ( People v. Reynolds (2010) 181 Cal.App. 4th 1402, 1408 ( Reynolds ).) On appeal, we apply the abuse of discretion standard. ( Ibid .) The apparent rationale for the trial cour t’s threshold determination of frivolousness is “to deter multiple unsubstan tiated requests and to reduce the administrative burden that might otherwise occur. . . .” ( Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1148, fn. 14.) Frivolous in this context means th at the petition “indisputab ly has no merit,” and any reasonable attorney would agree the pe tition was totally and completely without merit. ( People v. McKee (2010) 47 Cal.4th 1172, 1192 ( McKee I ); People v. Olsen (2014) 229 Cal.App.4th 981, 993 ( Olsen ); People v. Collins (2003) 110 Cal.App.4th 340, 349-350 ( Collins ).) To make this threshold determin ation, the trial court reviews the petition and any supporting attachments to dete rmine if the defendan t’s position has some merit on the issue of whether he may qualify for conditional release. ( McKee I , supra , 47 Cal.4th at p. 1192.) Howeve r, it is not necessary for the petition to append competent, admissible evidence. ( Collins, supra , 110 Cal.App.4th at p. 350.) A petition is nonfrivolous if the defendant has made a showing th at he would not be a danger to others due to his diagnosed mental disorder while under supervision and treatment in the community. ( Olsen, supra , 229 Cal.App.4th at p. 996.) However, the trial court’s threshold dete rmination of frivolousness is not limited to the face of the petition and supporting documents because, if the petition for release is made by the SVP rather than the treatment fa cility, the trial court may consider the state12 hospital’s annual report in determ ining whether a petition is frivolous ( Olsen, supra , 229 Cal.App.4th at p. 996). McRoberts argues the trial court abused its discretion by applyi ng the wrong legal standard and dismissing the petition after a “p robable cause hearing” without allowing a full evidentiary hearing, since the statutes call for a probable cause hearing only when the SVP files a petition with concurrence by SDSH, which wa s not the case here. McRoberts
claims the sole issue before the court wa s whether the petition was frivolous on its face, and since it was not, he was entitled to a full evidentiary hearing. In response, the People claim the trial court had already deem ed the petition to be nonfrivolous, because otherwise the court woul d not have set the matter for a hearing. The People do not claim the petition was frivolou s. Instead, the People argue the lack of a full-fledged evidentiary hearing was “of no consequence” because McRoberts’s counsel admitted they had no evidence , and the trial court deemed the proceeding was the full evidentiary hearing at which McRoberts had no evidence. We reject the positions of both sides. The record clearly shows the trial court did

not deem the petition non frivolous before the “p robable cause hearing.” At the “probable cause hearing” the court in effect determin ed the petition was frivolous -- based on the petition, the annual report, and the arguments of counsel, including the candid admission of McRoberts’s counsel that none of the peop le listed in the offer of proof were both qualified and willing to testify that McRoberts was not likely to engage in sexually
violent criminal behavior due to his mental disorder if released. The trial court, by considering the annual report endorsed by th e Director, did not turn the frivolousness determination into an imprope r evidentiary hearing, because where the petition is made by the SVP without SDSH support, section 66 08 subdivision (a) does not preclude the trial court from reviewing the Department’s annual report in making its threshold determination of frivolousness. ( Olsen, supra , 229 Cal.App.4th at p. 996.)13 Clearly, the court and both attorneys were all confused about the proper procedure. But McRoberts through counsel expressly agreed (1) to have the court set the matter for a “probable cause hearing” and (2) to have the c ourt consider the SDSH report. In essence, the trial court and the parties treated the h earing as a hearing on a motion to dismiss the petition. ( Reynolds, supra , 181 Cal.App.4th at p. 1408 [t rial court has authority to dismiss petition].) Having agreed to these procedures, McRo berts cannot challenge them on appeal. “A party forfeits his or her right to attack error by implicitly agreeing or acquiescing at trial to the procedure objected to on appeal. [Citation.] A pa rty who requests the court to act as it did has invited error. [Citation.] Thus, unless the failure to object constitutes ineffective assistance of counsel, . . . any error was forfeited.” ( Reynolds, supra , 181 Cal.App.4th at p. 1408.)
In Reynolds , the SVP’s petition merely alleged (1 ) four years had passed since his initial commitment, making it less likely he would reoffend, and (2 ) before his recent recommitment proceeding he was ready to go to trial with an expertwho would testify on his behalf. ( Reynolds , supra , 181 Cal.App.4th at p. 1405.) At a hearing on the People’s motion to dismiss, the trial court admitted it had only glanced at the pleadings. ( Id . at p. 1408.) No one complained . Defense counsel agreed the defendant’s circumstances had not changed in a way that would ju stify going forward on the petition. ( Ibid .) The record supported this conclusion, in that state hospital evaluations conducted the same month the petition was filed, concluded defe ndant was still an SV P who presented a danger to others. The petition did not allege facts to the contrary. ( Ibid .) Reynolds held the trial court did not abuse its discretion in dismissing the petition after merely glancing at it, because no one asked the court to read it carefully, and defense counsel conceded there was no change in defendant’s circumstances from which
to conclude defendant was no lo nger a danger to others. ( Reynolds , supra , 181 Cal.App.4th at pp. 1406-1408.)14 Reynolds further held trial counsel was not ineffective for agreeing to dismissal where there were no changed circumstan ces that would allow release. ( Reynolds , supra , 181 Cal.App.4th at p. 1409.) The state hos pital reports were “fatal to any chance defendant might have had of being released.” ( Ibid .) Reynolds rejected the defendant’s argument that the trial court should have disr egarded the state hospital reports and looked only at his petition. ( Ibid .) The defendant argued he should not have to provide evidence beyond the “bare assertions” of the petition. ( Id . at pp. 1409-1410.) Reynolds said that was “technically” correct, but a petition is subjec t to dismissal if it lacks factual or legal basis. ( Id . at p. 1410.) The petition did not assert any expert opinion that the passage of four years reduced his risk of reoffe nding so as to justify release. ( Ibid .) It merely referred to transcripts of unrelat ed SVP proceedings. It did not offer any authority for its
claim that a certain test oversta tes the risk of reoffending. ( Ibid .) Here, trial counsel did not render ineff ective assistance by agreeing to a “probable cause” hearing ( Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694] ( Strickland ); People v. Ledesma (1987) 43 Cal.3d 171), because the trial court was leaning toward a determination th at the petition was frivolous, and counsel’s agreement to a probable cause hearing avoided that immediate adverse result. Even assuming for the sake of argument that McRoberts has not forfeited the matter or invited the procedural error, he still fails to show grounds for reversal. The petition was frivolous be cause it relied on conclusions rather than facts. Instead of explaining what testimony the indi viduals would offer to justify a conclusion that McRoberts was no longer an SVP, the offer of proof simply asserted these
individuals had some direct or indirectconnection with his treatment and would supposedly testify -- in the exact language of th e statute -- to a conclusion that his mental disorder no longer presented a danger to others. And, as indicated, the court may properly consider the state hospital report; Olsen, supra , 229 Cal.App.4th at p. 996), even if the SVP objects. We disagree with McRo berts’s argument that the record thereby15 shows a conflict necessitating a full evidentiary hearing. To the contrary, the state hospital report highlights the inadequacy and conclusory nature of the offer of proof, because it shows (1) the people who interact ed with him thought he had made progress but still presented a danger, and (2) the hosp ital’s progress notes contained numerous negative comments contrary to the offer of proof. Olsen, supra , 229 Cal.App.4th 981, reversed a determination of frivolousness and
remanded for reconsideration because th e SVP’s petition attached a clinical psychologist’s evaluation that the SVP no longer met the SVP criteria. ( Id . at p. 989.) The trial court erred in evaluating that evidence against the fact that a jury had rejected
that same doctor’s similar evaluation three years earlier in a prior SVP proceeding. ( Id

. at pp. 998-999.) Here, McRoberts’s pe tition presented no ev idence but only his conclusory offer of proof, facially defectiv e for claiming nonqualified persons would say he no longer met SVP criteria. Althou gh a petition need notappend competent, admissible evidence ( Collins, supra , 110 Cal.App.4th at p. 350), McRoberts’s failure to do so left his petition vulnerable to dismissa l in the face of the st ate hospital’s annual report refuting his offer of proof as to what the hospital staff would say.
This case is not like Mc Roberts’s cited authority, Collins, supra , 110 Cal.App.4th 340, which held the trial court improperly determined the SVP’s petition was frivolous. There, the SVP’s petition asserted his chemical castration, completion of the sex offender treatment program, and his health problems constituted a change of condition justifying conditional release. ( Id . at p. 345.) The petition also appended letters from his doctors supporting release, and a doctor’s report stat ing the SVP’s risk was greatly reduced due to an antiandrogen treatment, and his dete rmination to continue the medication was strong. ( Id . at p. 351.) And the conflicting forens ic reports supporting a cross-petition to extend the commitment focused on the danger if the SVP were unconditionally discharged, where the SVP sought only conditional release. ( Ibid .)16 On appeal, McRoberts makes claims unsu pported by and/or contradicted by the record. He claims -- with no supporting citati on to the record -- that his lawyer did not produce witnesses on March 12, 2012, because she believed the “probable cause” hearing was to be only a facial review of the petition. He cites Strickland, supra , 466 U.S. at p. 685 [80 L.Ed.2d at pp. 691-692], for the proposition that a fair trial is one in which evidence subject to adversarial testing is pres ented for resolution of issues “defined in advance of the proceeding.” McRoberts claims that, as a matter of due process, he was not put on notice that there woul d be an evidentiary hearing on March 12, 2012. But trial counsel agreed to put off th e matter until the report came in, obviously acknowledging the report could be considered. McRoberts cl aims that when his lawyer said she had nothing from specified witnesses to indicate McRoberts should be released, she meant she had not yet communicated with them. No thing in the record supports his claim. We conclude McRoberts fails to show gr ounds to reverse the order dismissing his petition.

D ISPOSITION The judgment (dismissal order) is affirmed.

HULL , J.

We concur:

RAYE , P. J.

HOCH , J.