Last updated 9/7/2021 at 10:37am
On August 23, 2021, Liberty Healthcare/CONREP informed San Diego Superior Court they were requesting Sexually Violent Predator (SVP) Merle Wakefield complete additional treatment at the Department of State Hospitals (DSH) prior to his release into the community.
Superior Court Judge David M. Gill granted Liberty Healthcare/CONREP’s request to release the property located at 1575 Yaqui Road in Borrego Springs that was being held as a potential placement for Wakefield.
The placement hearing previously scheduled for September 13, 2021 has been cancelled. A further hearing to review the status of a potential placement for Wakefield has been scheduled for February 22, 2022 at 9 a.m. in San Diego Superior Court, Department 2204, with Judge Gill.
While it’s not known why Liberty temporarily withdrew the placement, Borrego Springs put up an impressive show of opposition, thanks to the Borrego Springs Chamber of Commerce volunteers, Sarah and Lee Rogers, Borrego and De Anza residents, Board of Supervisors Jim Desmond and Joel Anderson, San Diego County DA, KUSI News, and state legislators Brian Jones and Randy Voepel.
However, it is more likely that the recall has to do with concerns about the evaluations and the probability that Wakefield will commit a crime; publication of Wakefield’s full criminal history and number of repeat offenses or to avoid embarrassment of Wakefield actually recommitting a crime in a high profile case, or that he did not compl ete, or even participate in therapy.
Judge Gill could not be reached for comment. Although any comment would have to be meaningless due to the strict federal and state privacy laws protecting the sharing of mental health information of an SVP.
Françoise Rhodes, executive director the Chamber of Commerce released a statement, reading in part, “The recent decision by Liberty Healthcare to vacate the Public Placement Hearing has me – Francoise Rhodes, Executive Director, along with the Board President Clint Brandin and our entire Chamber Board of Directors, relieved of the current outcome. However, we know the battle is not completely won but we feel that the community has sent a strong message to the San Diego County Judicial System and Liberty Healthcare that Borrego Springs will not stand by and allow Borrego Springs to be used as a dumping ground for criminals.”
Supervisor Jim Desmond was more emphatic. “It’s good news… Good work Borrego Springs.” However, “The unincorporated area is getting stuck with some of the worst people on this planet, many who cannot be cured. The larger problem is the State’s willingness to release them back into society and the landlords’ willingness to rent to these monsters. As your County Supervisor, I will do everything in my power to push back against this lunacy.”
Senator Brian Jones also commented: “I am very pleased that the Judge stepped in and vacated the proposal to place Merle Wakefield in Borrego Springs. This proposed placement was unsafe for the community and was an inappropriate use of tax dollars. I think the judge recognized this and also saw the tremendous community opposition to the placement.”
The Department of State Hospital’s (DSH) spokesperson was unable to chase down answers to the latest Borrego Sun questions prior to printing deadlines. One burning question was about the home in De Anza, and whether Liberty was going to attempt to place another SVP there, or hold onto it, until Wakefield’s new hearing.
Senator Jones added, “As far as whether Liberty will give up on using that house, we all certainly hope so. Generally, in the past, once a judge has ruled a house not suitable for one SVP, there usually are no more attempts to place other SVPs there. However, the community needs to stay alert.”
Regarding the question of why Judge Gill sent Wakefield back for six months, California Assembly Member Randy Voepel noted that question “is for Judge Gill to answer. As to the exact reasoning, I would like to believe that the community opposition played a part.”
Like others who were asked if there was a plan to place other SVPs in the De Anza residence, Voepel added, “I really don’t know but I would like to think that the solid reasons presented NOT to have an SVP at that location would be sufficient moving forward.”
It appears that even the persons elected to have oversight of state institutions and laws are also unable to get answers to questions about Wakefield and are hamstrung by the state’s Sexually Violent Predators Act.
In the process of educating the community about SVPs, research and investigations by private citizens and the Borrego Sun, brought to light many surprising, and in some cases, shocking facts about Wakefield, the laws governing SVP’s, Department of State Hospitals, his lack of diagnosis, treatment requirements, and regulation and realities of conditional releases for SVP offenders.
So, here’s to being better prepared to protect Borrego Springs and other rural, unincorporated communities from a disproportionate allocation of SVPs, and some of the critical facts concerned people need to know.
The California Department of State Hospitals has the responsibility for diagnosing an SVP. By definition the “SVP” designation differs from a “sexual offender”, by risk factors to re-offend. According to state law, “The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of re-offense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.”
Multiple psychiatric evaluations diagnosed him with “personality disorder, and uncontrollable impulses”. Yet, in some of the reports regarding his mental health assessment, it seems unclear as to whether he ever had a diagnosis of his “paraphilia” (deviant sexual behavior). Without this diagnostic, how can therapists create a rehabilitation regime, or recommend release? Equally important, how can the neighbors in De Anza evaluate the danger and relevant therapies, and protections?
However, the community had no access to Wakefield’s particular “risk factors,” until the Borrego Sun published Merle Wakefield’s criminal record as part of a courtroom transcript supporting the 1997-District Attorney Paul Pfingst’s petition to have him declared an SVP. If ever there was a criminal record that cried out, “I will repeat; I will rob you; rape you; and mess up your life,” it’s Wakefield’s record.
Why does a community concerned about having a violent sexual predator as a neighbor bear the burden of proving that their neighborhood is the wrong location for a repeat offender without access to all the facts? And, to prove the point, are forced to mount a massive community campaign; hire an attorney, and overcome strict privacy protections for the offender, legal and fact-finding obstacles.
Ken August, Department of State Hospital’s (DSH) spokesperson, explained, federal and state law prohibit the hospital or its representatives from answering questions about an individual patient, or even admitting to an SVP residency. When the Sun asked, “When local residents are notified of a proposal to conditionally release an SVP in their neighborhood, why aren’t they provided with all of the information about the number of crimes that he committed, his sentences, and repeat offenses?”
August replied, “The SVP law limits what information DSH can even provide to county agencies responsible for notifying the public.” Everything, according to August, from the SVP’s mental status, and public notification, to discussions about a specific housing location is regulated and confined to law enforcement, attorneys and the courts.”
The only exception is the written comment period for the public, and potential to speak at a judicial hearing against the choice of housing. But, and, only, if the Judge allows.
Then there was this. On March 2, 2021, San Diego County Supervisors voted 3 – 2 to not support Senator Patricia Bates’ Senate bill that would require court proceedings to remain public for the civil commitments of Sexually Violent Predators. In other words, three county supervisors voted to keep the public excluded from the SVP civil proceedings. Anderson and Desmond, who represent the two districts (2 & 5, respectively) containing the majority of the unincorporated rural communities currently targeted for SVP placement, voted to support it.
Victimology is also a clue to where housing for SVPs would be best for the Wakefield experiment by offering less temptations. Bits and pieces of Wakefield’s victim profiles can be found in the criminal record, like he prefers women of all ages, and he will abuse and use intimate and family members, and likes it when women resist. However, so much is missing and protected that would be useful to know, like ethnic preferences, language spoken, and social economic status of his victims.
In California, the Sexually Violent Predators Act provides for the involuntary indeterminate civil commitment of certain sex offenders who are found to be sexually violent predators. Certain sex crimes constitute sexually violent offenses within the meaning of the statute, including rape, sodomy, oral copulation, sexual penetration, or lewd or lascivious acts, when committed by force, violence, duress, menace, or fear of immediate unlawful bodily injury of the victim or another person.
An indeterminate civil commitment is not considered a punishment. Rather, its purpose is to provide treatment to those offenders who suffer from a mental illness that increases the risk of harm to the public. Nonetheless, since a civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections. This protection provides certain procedural rights, entitling the person to a trial by jury, the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports.
The main purpose of SVP proceedings is to determine whether persons pose a danger to others, and that they are likely to engage in sexually violent offenses in the future. Considering it’s the community at risk, shouldn’t the public be allowed to participate in the hearings? Unfortunately, any revelations or victim profiles that might lead in any way to identifying an SVP are in violation of the Health Insurance Portability and Accountability Act (HIPAA) and the California Confidentiality of Medical Information Act (CMIA) and are considered off limits for public consumption.
A convicted SVP has all the strict confidentiality protections of a law-abiding private citizen. State and federal law protect the mental health records of SVP’s from public disclosure through HIPPA, a piece of federal legislation that provides national standards for protecting the privacy of personal health data. It prevents health care providers, insurers, and other official entities from disclosing sensitive information about a patient’s health without the patient’s knowledge and consent.
In California, the California Confidentiality of Medical Information Act (CMIA) defines who may release confidential medical information, and under what circumstances.
The CMIA also prohibits the sharing, selling, or otherwise unlawful use of medical information. The full text of the CMIA can be found at California Civil Code §§56 et seq. In general, the CMIA prohibits health care providers, health care service plans, contractors, and pharmaceutical companies from disclosing patient medical information without first receiving a valid written authorization signed by the patient or the patient’s legal representative.