(Mendocino County Super. Ct. No. SCUK-CRCR-95-19081). Trial Judge: Hon. Ronald W. Brown.
The opinion of the court was delivered by: Margulies, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
In 2005, the County of Mendocino (County) filed a petition to recommit defendant Porfirio Albert Medina, an admitted sexually violent predator (SVP), for a period of two years, which was the maximum period of recommitment permitted at the time under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).*fn2 Prior to any action on the petition, the SVPA was amended to permit SVP's to be committed for an indefinite term. After the County amended the recommitment petition to seek an indefinite term for Medina, he admitted the allegations of the amended petition and consented to imposition of the indefinite term of commitment. Medina now challenges the legality and constitutionality of the recommitment order on several grounds.
In addition, Medina contends that he must be released because a statutory precondition to his original commitment in 2001 was not fulfilled. Before a petition for commitment may be filed, the SVPA requires a suspected SVP to undergo two psychological evaluations conducted pursuant to a protocol established by the Department of Mental Health (Department). Only if these evaluations result in a finding that the person, in effect, qualifies as an SVP does the SVPA authorize the filing of a commitment petition. Recently, the protocol developed by the Department and used for many years was declared to be an unlawful ―underground regulation‖ because it was implemented without compliance with the Administrative Procedures Act (APA) (Gov. Code, § 11340 et seq.). Because his original commitment was based on evaluations under this invalid protocol, Medina contends, the original petition was void. Finding Medina's constitutional challenges to be without merit and his administrative claim to be an unsuccessful collateral attack on the original judgment of commitment, we affirm.
On August 22, 2005, the district attorney filed a petition to extend the commitment of Medina as an SVP (recommitment petition). At the time, the SVPA limited the term of commitment of a person found to be an SVP to two years. (Former § 6604.) The recommitment petition alleged that Medina had been convicted in 1995 of two counts of lewd and lascivious acts upon a child (Pen. Code, § 288, subd. (a)), as well as other earlier sex crimes upon children. It further alleged that Medina originally had been committed as an SVP after admitting the allegations in a petition filed in October 2001, and that he was recommitted in 2004, after again admitting petition allegations.*fn3
In late 2006, section 6604 was amended to provide for an indefinite period of commitment for SVP's. (§ 6604.) In November 2007, prior to trial on the 2005 recommitment petition, the County filed an amended recommitment petition seeking such an indefinite commitment. On January 7, 2008, Medina admitted the allegations of the amended petition and consented to entry of an order imposing an indefinite term of commitment. He then filed a timely notice of appeal from this order extending commitment.
In his initial opening brief, Medina contests, on statutory and constitutional grounds, the legality of the recommitment order. In a supplemental brief, he argues that his original commitment petition was void because it was based on an evaluation conducted pursuant to a protocol adopted by the Department in violation of the APA. We first address the novel APA claim.
A. The Sexually Violent Predators Act
The SVPA ―allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms.‖*fn4 (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235.) When officials believe that a person in custody is an SVP, the person must be ―screened by the Department of Corrections and Rehabilitation and the Board of Parole Hearings . . . . in accordance with a structured screening instrument developed and updated by the [Department] in consultation with the Department of Corrections and Rehabilitation.‖ (§ 6601, subd. (b).) Persons identified as SVP's by this screening instrument are then subjected to a ―full evaluation‖ by the Department, conducted ―in accordance with a standardized assessment protocol, developed and updated by‖ the Department. (§ 6601, subds. (b), (c).) The protocol ―shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders.‖ (§ 6601, subd. (c).) If, as a result of the full evaluation under section 6601, subdivision (c), two mental health professionals conclude that the person qualifies as an SVP, the Department must request the responsible county to file a commitment petition. (§ 6601, subds. (d), (h).) The person is thereafter entitled to a jury trial on the commitment petition. (§ 6603, subd. (a).)
Under the version of the SVPA in effect when Medina's recommitment petition was filed in 2005, if the district attorney proved beyond a reasonable doubt in the initial commitment proceeding that a person was an SVP, the court was required to commit the person to the Department for two years. The person could not be kept in actual custody for longer than two years unless a petition to extend the commitment was filed. (Former § 6604; Albertson v. Superior Court (2001) 25 Cal.4th 796, 802, fn. 6.) The procedures applicable to an initial commitment applied to an extended commitment to the extent possible. (People v. Ward (2002) 97 Cal.App.4th 631, 634.) Thus, to extend a person's commitment as an SVP, the district attorney had to prove beyond a reasonable doubt that the person remained an SVP upon recommitment. The term of any extended commitment was two years from the end of the previous commitment. (Former § 6604.1, subd. (a).)
Those provisions were changed in 2006 by the enactment of the Sex Offender Punishment, Control, and Containment Act of 2006 (Stats. 2006, ch. 337, p. 2126) and voter approval of Proposition 83, an initiative measure. (Deering's Ann. Welf. & Inst. Code (2009 supp.) appen. foll. § 6604, p. 99.) Following the amendments introduced by these measures, the SVPA still provides that in an initial commitment proceeding the district attorney must prove beyond a reasonable doubt that the person whose commitment is sought is an SVP. (See § 6004.) Now, however, if the court or jury makes that finding, the court must commit the person to the Department for an indeterminate term, rather than a two-year term. (Ibid.) Because the term of commitment is indeterminate, the district attorney no longer has to prove at regular intervals, beyond a reasonable doubt, that the person remains an SVP. Instead, the Department must examine the person's mental condition at least once a year and must report annually on whether the person remains an SVP. (§ 6605, subd. (a).) If the Department determines the person is no longer an SVP, the director of the Department must authorize the person to petition the court for unconditional discharge. (§ 6605, subd. (b).) The person is thereafter discharged from his or her indeterminate commitment unless, at a hearing, the district attorney proves beyond a reasonable doubt that the person is still an SVP. (§ 6605, subds. (c)--(e).)
The only other avenue for release from confinement under the amended SVPA is a petition under section 6608. Under this section, a person committed as an SVP, after at least a year of commitment, may petition for conditional release or unconditional discharge without the recommendation or concurrence of the director of the Department. (§ 6608, subds. (a), (c).) If the court determines that the petition is not frivolous, a hearing is held at which the petitioner has the burden of proof by a preponderance of the evidence. (§ 6608, subds. (a), (i).) If the petitioner demonstrates that he or she is no longer an SVP, the petitioner is placed in a conditional release program for one year, after which a new hearing is conducted. (§ 6608, subd. (d).) The petitioner must be unconditionally released if, at the second hearing, the court is persuaded that he or she is not an SVP, using the same standard of proof. (§ 6608, subds. (d), (i).) Following the denial of a section 6608 petition, an SVP may not file another petition for at least one year. (§ 6608, subd. (h).)
B. Failure to Comply with the APA
The APA requires every administrative agency guideline that qualifies as a ―regulation,‖ as defined by the APA, to be adopted according to specific procedures. (Gov. Code, § 11340.5, subds. (a), (b).) The Office of Administrative Law (OAL) is charged with, among other functions, enforcing this requirement. (Gov. Code, §§ 11340.2, 11340.5, subd. (b).) If the OAL is notified or learns that an administrative agency is implementing a regulation that was not properly adopted under the APA, the OAL must investigate, make a determination, and publish its conclusions. (Gov. Code, § 11340.5, subd. (c).)
A regulation found not to have been properly adopted is termed an ―underground regulation.‖ ― ‗An underground regulation is a regulation that a court may determine to be invalid because it was not adopted in substantial compliance with the procedures of the [APA].' ‖ (Patterson Flying Service v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 429; see Cal. Code Regs., tit. 1, § 250.) An OAL determination that a particular guideline constitutes an underground regulation is not binding on the courts, but it is entitled to deference. ...