Original proceedings; petition for writ of habeas corpus after an order of the Superior Court of Orange County, Kazuharu Makino, Judge. Petition granted and matter remanded with directions. (Super. Ct. No. M10821).
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
Edward C. Ronje is awaiting trial on a commitment petition alleging he is a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).*fn1 Ronje‟s petition for writ of habeas corpus seeks relief on the ground his evaluations under section 6601 leading to the SVPA commitment petition were conducted under a standardized assessment protocol later determined by the Office of Administrative Law (OAL) to constitute an invalid "underground" regulation under California Code of Regulations, title 1, section 250.
We conclude the assessment protocol used to evaluate Ronje is invalid as an underground regulation. Under People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz), Ronje is not required to show prejudice from use of the invalid assessment protocol because he is making a pretrial challenge. He is therefore entitled to a writ of habeas corpus.
As a remedy, Ronje seeks dismissal of the SVPA commitment petition or new evaluations based on a valid assessment protocol. Which remedy is appropriate depends on whether use of the invalid assessment protocol in conducting the evaluations deprived the trial court of fundamental jurisdiction. In People v. Glenn (2009) __ Cal.App.4th __ [2009 Cal.App. Lexis 1714] (Glenn), we held the use of evaluations based on an invalid assessment protocol did not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition. Thus, the appropriate remedy is not to dismiss the SVPA commitment petition, but to order new evaluations of Ronje using a valid assessment protocol and to conduct another probable cause hearing under section 6602, subdivision (a) based on those new evaluations.
ALLEGATIONS AND HABEAS CORPUS PROCEEDINGS
The superior court docket shows the SVPA commitment petition against Ronje was filed in March 2006. The probable cause hearing was held in March and April 2006. Between June 30, 2006 and April 3, 2009, nine pretrial hearings were conducted. Trial on the petition has not been held. The trial court denied Ronje‟s petition for writ of habeas corpus in October 2008.
The habeas corpus petition filed in this court alleged the California Department of Mental Health (DMH) "failed or affirmatively refused, from the inception of the SVPA, to implement, utilize, or enforce (promulgate) a valid "Standardized Assessment Protocol‟ as instructed by the California Legislature at W&I Code § 6601(c), and in substantive compliance and accordance with California‟s Administrative Procedures Act (APA) at Cal. Government Code § 11340 et. seq." As justification for delay in seeking habeas corpus relief, Ronje alleges, "[n]ewly discovered evidence which deals with Clinical Evaluator Handbook and Standardized Assessment Protocol (2007)."
We issued an order to show cause and appointed counsel for Ronje. The People filed a return, but it does not join the issues. The return does not address the allegation the assessment protocol used for Ronje‟s evaluations is invalid as an underground regulation as determined by the OAL. Instead, the return denies "that any psychological evaluations conducted by the California Department of Mental Health are flawed for failure to follow the "Standardized Assessment Protocol‟ set forth in Welfare and Institutions Code section 6601." (Italics added.) Ronje does not allege the DMH evaluators failed to follow a standardized assessment protocol required by section 6601- he alleges the assessment protocol used is invalid as an underground regulation.
Ronje filed a traverse and an appendix of exhibits. The traverse alleges the assessment protocol used by the DMH was "illegally adopted" and therefore "all psychological evaluations conducted pursuant to that protocol failed to qualify as the mandatory "standardized assessment protocol‟ required by Welfare and Institutions Code section 6601." The traverse also alleges: "[T]he [DMH]‟s failure to comply with the [Administrative Procedure Act] resulted in evaluations that did not comply with the statute and which, therefore, failed to grant the district attorney the legal authority to file a petition seeking petitioner‟s commitment. Petitioner further alleges that because the district attorney did not have the authority to file a petition seeking his commitment, the trial court did not have fundamental jurisdiction over his case."
2008 OALDE TERMINATION NO.19
A proceeding under the SVPA begins when prison officials screen an inmate‟s records to determine whether the inmate is likely to be an SVP. If so, the inmate is referred to the DMH for a full evaluation to determine whether he or she meets the SVP criteria under section 6600. (§ 6601, subd. (b).) Two mental health professionals designated by the DMH (§ 6601, subd. (d)) evaluate the person in accordance with a standardized assessment protocol developed by the DMH to determine whether the person is a sexually violent predator (§ 6601, subd. (c).) If the evaluators agree the person meets ...