Trial Court: Superior Court of San Francisco County Trial Judge: Honorable Garrett Wong (City & County of San Francisco Super. Ct. Nos. 93206, 100581, 121635)
The opinion of the court was delivered by: Rivera, J.
CERTIFIED FOR PUBLICATION
This writ proceeding presents the question of whether a trial court must dismiss a petition to commit a person as a sexually violent predator (SVP) when the original SVP evaluations were prepared using an invalid protocol and replacement evaluations result in a split of opinion. We conclude the answer is no.
While petitioner Roger Davenport was serving a term in a California state prison, prison officials referred him to the state Department of Mental Health (DMH) to determine if he met the criteria for commitment under the SVP Act (Welf. & Inst. Code, § 6600 et seq).*fn2  Two mental health professionals, Dr. Jeremy Coles and Dr. Thomas MacSpeiden, evaluated Davenport in accordance with a standardized assessment protocol developed by the DMH.*fn3  Coles and MacSpeiden both concluded Davenport met the criteria for SVP commitment.
Based on the concurring evaluations, the San Francisco County District Attorney filed a petition to commit Davenport as an SVP. (§ 6601, subd. (d).) After a hearing, the trial court found probable cause to believe Davenport was an SVP.
While the matter awaited trial, the Fourth District Court of Appeal decided In re Ronje (2009) 179 Cal.App.4th 509 (Ronje). Ronje held that portions of the standardized assessment protocol constituted an underground regulation--a regulation not adopted pursuant to the Administrative Procedure Act (Gov. Code, § 11340 et seq. (APA)). (Ronje, supra, 179 Cal.App.4th at pp. 516-517.) Consequently, the standardized assessment protocol was invalid. (Ibid.) The Ronje court concluded the proper remedy to cure the use of the invalid protocol in pending cases was to (1) order new evaluations based on a valid assessment protocol, and (2) conduct another probable cause hearing. (Id. at p. 519.)
In light of Ronje, the trial court ordered two new evaluations of Davenport. Coles and MacSpeiden reevaluated Davenport, presumably using a new assessment protocol adopted in compliance with the APA.*fn4  Coles and MacSpeiden now disagreed as to whether Davenport met the SVP criteria. The DMH therefore appointed two new mental health professionals to evaluate Davenport. The result was another split of opinion.
Davenport moved to dismiss the proceeding on the ground the SVP petition was not supported by two valid concurring mental health evaluations. The trial court denied the motion and ordered a new probable cause hearing.
Davenport filed a petition in this court seeking a writ of mandate or prohibition compelling the trial court to grant his motion to dismiss the SVP proceedings. We summarily denied the petition and Davenport petitioned the Supreme Court for review. The Supreme Court granted review and transferred the case back to this court with directions to issue an order to show cause.
The SVP commitment process begins when prison officials review the social, criminal, and institutional history of inmates convicted of certain sexual offenses. (§ 6601, subd. (b).) Inmates determined to be likely SVP's are referred to the DMH for a "full evaluation." (Ibid.) The evaluation is done in accordance with a standardized assessment protocol. (Id., subd. (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." (Ibid.)
Evaluations are conducted by two mental health professionals designated by the Director of the DMH. (§ 6601, subd. (d).) If the evaluators agree the person meets the SVP criteria, the director forwards a request for a commitment petition to the appropriate county. (Ibid.) In the event the mental health professionals disagree, the director must arrange for further examination by two "independent professionals." (Id., subd. (e).) These professionals cannot be state employees. (Id., subd. (g).) A ...