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Kevin Michael Reilly v. the Superior Court of Orange County

March 28, 2012

KEVIN MICHAEL REILLY, PETITIONER,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST.



(Super. Ct. No. M11860) Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Richard M. King, Judge. Petition granted.

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

INTRODUCTION

In In re Ronje (2009) 179 Cal.App.4th 509 (Ronje), we held the use of an invalid assessment protocol in conducting mental evaluations of a person suspected to be a sexually violent predator constituted an error or irregularity in a commitment proceeding under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).*fn1 As a remedy, we directed the trial court to order new evaluations pursuant to section 6601 using a valid assessment protocol.

In three related cases, we address the effect of post-Ronje evaluations in different scenarios. In this case, the two initial post-Ronje evaluators under section 6601 agreed Kevin Michael Reilly, the person named in the SVPA commitment petition, no longer met the criteria for commitment as a sexually violent predator. We are, therefore, compelled by the SVPA to grant Reilly's petition for writ of mandamus/prohibition and direct the trial court to dismiss the SVPA commitment petition.

In Boysel v. Superior Court (Mar. 28, 2012, G045202) __ Cal.App.4th __, the two initial post-Ronje evaluators disagreed whether the person named in the SVPA commitment petition met the criteria for commitment as a sexually violent predator. Although two independent post-Ronje evaluators had been appointed pursuant to section 6601, subdivision (e), their reports were not before the trial court when it denied the challenge to the SVPA commitment petition. In Wright v. Superior Court (Mar. 28, 2012, G045203) __ Cal.App.4th __, the two initial post-Ronje evaluators likewise disagreed whether the person named in the SVPA commitment petition met the criteria for commitment as a sexually violent predator, but there is no evidence in the record that two independent post-Ronje evaluators have been appointed. In those two cases, we deny the petitions for writ of mandamus/prohibition without prejudice to later renewing the challenge to the SVPA commitment petitions.

SUMMARY OF OPINION

Reilly was the subject of an SVPA commitment petition filed in July 2000, while he was serving a three-year prison term for engaging in lewd and lascivious conduct. After Reilly completed his prison sentence, and while being held in civil commitment at a state hospital, a recommitment petition against him was filed in July 2008. The 2008 recommitment petition was based on two evaluations that concluded he met the criteria for commitment as a sexually violent predator. Updated evaluations pursuant to section 6603, subdivision (c) were conducted in 2009 and reached the same conclusion. The evaluations supporting the 2008 recommitment petition and the 2009 updated evaluations were conducted according to the invalid assessment protocol.

Following our decision in Ronje, the trial court ordered new evaluations of Reilly to be conducted according to a validly approved assessment protocol. Both of those evaluations in 2011 concluded Reilly no longer met the criteria for commitment as a sexually violent predator.

Before a post-Ronje probable cause hearing was conducted, Reilly filed a plea in abatement seeking dismissal of the SVPA commitment petition on the ground both post-Ronje evaluators concluded he no longer met the criteria for commitment as a sexually violent predator. The trial court denied the plea in abatement, as well as those brought on the same or similar grounds by nine other persons named in SVPA commitment petitions. A different trial court denied a motion to dismiss brought by an 11th person named in an SVPA commitment petition. The court also granted the district attorney's motion to compel Reilly to undergo a mental evaluation by the district attorney's retained mental health professional and to grant that mental health professional access to Reilly's state hospital records.

Reilly and the 10 others brought petitions for writ of mandate or prohibition to overturn the trial court's orders and have their SVPA commitment petitions dismissed. Reilly also challenges the trial court's order compelling him to undergo another mental evaluation and releasing his medical records to the district attorney's chosen evaluator.

The express language of the SVPA and the California Supreme Court's decision in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 912-913 (Ghilotti) compel us to grant Reilly's writ petition. In so doing, we address two issues: (1) whether, before the probable cause hearing, a person named in an SVPA commitment petition may challenge the petition on the ground of lack of concurring evaluators by means of a plea in abatement, non-statutory motion to dismiss, or non-statutory pleading; and (2) whether the SVPA commitment petition must be dismissed based on the results of the post-Ronje evaluations.

On the first issue, in Ghilotti, supra, 27 Cal.4th at pages 912-913, the California Supreme Court authorized the use of a non-statutory pleading to challenge an SVPA commitment proceeding, before the probable cause hearing, on the ground of lack of the required concurring evaluations. We deem Reilly's plea in abatement to have constituted such a non-statutory pleading.

On the second issue, the SVPA permits a commitment petition to be filed only if both of the initial evaluators or both of the independent evaluators concur the person named in the petition meets the criteria for commitment as a sexually violent predator. (§ 6601, subds. (d), (f), (i).) "Without the concurrence of two evaluators, as set forth in the statute, no such petition may be filed, and the person must be unconditionally released without further proceedings to determine if he or she is an SVP." (Ghilotti, supra, 27 Cal.4th at p. 910.)

In this case, the prefiling requirements had not been met because the evaluations supporting the 2008 recommitment petition and the 2009 updated evaluations were based on invalid assessment protocols. The two post-Ronje evaluators concluded Reilly no longer met the criteria for commitment as a sexually violent predator. Section 6601, subdivision (e) does not authorize independent evaluations in this situation. A commitment petition under the SVPA may not be filed when both initial evaluators conclude the criteria for commitment are not met, and, therefore, the SVPA commitment petition against Reilly now must be dismissed without further evaluations. Reilly long ago completed the prison sentences for the sexually violent crimes he committed and, since the SVPA commitment petition was filed in 2000, has been held in a state hospital.

Accordingly, we grant Reilly's petition for writ of mandate and will direct the trial court to dismiss the SVPA commitment petition, to deny the district attorney's motion to compel Reilly to undergo a mental evaluation by the district attorney's retained mental health professional, and to deny the district attorney's motion to allow access to Reilly's state hospital records.

OVERVIEW OF THE SVPA

The SVPA provides for involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be a sexually violent predator. (People v. Yartz (2005) 37 Cal.4th 529, 534.) The SVPA "was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society." (People v. Allen (2008) 44 Cal.4th 843, 857; see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171 [SVPA proceedings are designed "to provide 'treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior"].) "'[A]n SVPA commitment proceeding is a special proceeding of a civil nature, because it is neither an action at law nor a suit in equity, but instead is a civil commitment proceeding commenced by petition independently of a pending action.'" (People v. Yartz, supra, 37 Cal.4th at p. 536.)

A sexually violent predator is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) A "diagnosed mental disorder" is defined to include "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).)

The procedure for determining whether a convicted sex offender is a sexually violent predator typically begins when an inmate is scheduled to be released from custody. (Turner v. Superior Court (2003) 105 Cal.App.4th 1046, 1054.) "'Under section 6601, whenever the Director of Corrections determines that a defendant serving a prison term may be a sexually violent predator, the Department of Corrections and the Board of Prison Terms undertake an initial screening "based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history." (§ 6601, subd. (b).)'" (People v. Hurtado (2002) 28 Cal.4th 1179, 1182-1183.)

The screening is conducted in accord with an assessment protocol developed by the State Department of Mental Health (DMH). (People v. Hurtado, supra, 28 Cal.4th at p. 1183.) "'If that screening leads to a determination that the defendant is likely to be a sexually violent predator, the defendant is referred to the Department of Mental Health for an evaluation by two psychiatrists or psychologists. (§ 6601, subds. (b) & (c).) If both find that the defendant "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the department forwards a petition for commitment to the county of the defendant's last conviction (ibid.). If the county's designated counsel concurs with the recommendation, he or she files a petition for commitment in the superior court. (§ 6601, subd. (i).)'" (Ibid.)

"[A] petition seeking the commitment or recommitment of a person as a sexually violent predator cannot be filed unless two mental health professionals, specifically designated by the Director under statutory procedures to evaluate the person for this purpose, have agreed, by correct application of the statutory standards, that the person 'has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.'" (Ghilotti, supra, 27 Cal.4th at p. 894.)

If one of the two professionals performing the evaluation does not conclude the person meets the criteria for commitment as a sexually violent predator, and the other concludes the person does meet those criteria, then the DMH "shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g)." (§ 6601, subd. (e).) If an evaluation by two independent professionals is conducted, a petition for commitment may be filed only if both concur the person meets the criteria for commitment as a sexually violent predator. (§ 6601, subd. (f).)

Upon filing of the SVPA commitment petition, the superior court must review the petition and determine "whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6601.5.) If the court determines the petition on its face supports a finding of probable cause, then it orders the person named in the petition to be kept in a secure facility until a probable cause hearing under section 6602 is conducted. (§ 6601.5.) The probable cause hearing must be conducted within 10 calendar days of the issuance of the order finding the petition would support a finding of probable cause. (Ibid.)

The purpose of the probable cause hearing is to determine whether "there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) The probable cause hearing is an adversarial hearing where the person named in the petition has the right to counsel. (Ibid.) If the court finds probable cause, it orders a trial to determine whether the person is a sexually violent predator under section 6600. (§ 6602, subd. (a).) The person named in the petition must remain in a secure facility between the time probable cause is found and the time trial is completed. (Ibid.)

The person named in the petition is entitled to a trial by jury, and the jury's verdict must be unanimous. (§ 6603, subds. (a) & (f).) The person named in the petition also is entitled to retain experts or professional persons to perform an examination on his or her behalf. (§ 6603, subd. (a).) At trial, the trier of fact determines whether, beyond a reasonable doubt, the person named in the petition is a sexually violent predator. (§ 6604.) If the trier of fact determines the person named in the petition is a sexually violent predator, the person is committed for an indefinite term to the custody of the DMH for appropriate treatment and confinement in a secure facility. (Ibid.)

ALLEGATIONS OF THE PETITION AND THE RETURN

In July 2000, the Orange County District Attorney filed a petition for commitment as a sexually violent predator, alleging Reilly was a sexually violent predator under the SVPA. Reilly was committed that year to a state hospital. In July 2008, a recommitment petition (the SVPA Petition) was filed based on an evaluation from Clark Clipson, Ph.D., dated June 20, 2008, and an evaluation from Nancy Webber, Ph.D., dated January 14, 2008.

In July 2008, Judge Stephen Sillman reviewed the SVPA Petition and found it stated sufficient facts which, if true, would constitute probable cause to believe Reilly was likely to engage in sexually violent predatory criminal behavior on his release from commitment. As a consequence, Judge Sillman ordered Reilly to continue to be detained pursuant to section 6601.5 in a secured facility until the probable cause hearing.

The probable cause hearing was conducted by Judge Robert R. Fitzgerald in March 2009. Judge Fitzgerald reviewed Dr. Clipson's evaluation and Dr. Webber's evaluation and found, pursuant to section 6602, probable cause existed to believe Reilly met the criteria for commitment as a sexually violent predator. Judge Fitzgerald set a trial for April 2009. Trial was thereafter continued several times and has not been conducted.

In August 2009, Dr. Webber prepared an updated evaluation of Reilly, conducted pursuant to section 6603, subdivision c)(1), and concluded he continued to meet the criteria for commitment as a sexually violent predator. In September 2009, Dr. Clipson prepared an updated evaluation of Reilly, conducted pursuant to section 6603, subdivision (c)(1), and also concluded he continued to meet those criteria.

In August 2008, the state Office of Administrative Law (OAL) issued 2008 OAL Determination No. 19, in which the OAL determined the 2007 version of the DMH's assessment protocol amounted to an "underground regulation" because portions of the assessment protocol, though regulatory in nature, had not been adopted pursuant to the Administrative Procedure Act, Government Code section 11340.5. (See Ronje, supra, 179 Cal.App.4th at p. 515.) In Ronje, supra, 179 Cal.App.4th at pages 516-517, we agreed with the OAL and likewise concluded the 2007 assessment protocol was invalid as an underground regulation.

In 2009, the DMH drafted a new standardized assessment protocol for SVPA evaluations. Pursuant to Government Code section 11349.6, subdivision (d), the OAL approved the new assessment protocol in September 2009.

In March 2010, Reilly filed a motion requesting, among other things, that, in light of Ronje, the trial court order new evaluations to be conducted to determine whether he is a sexually violent predator. In November 2010, Judge James P. Marion granted the motion and ordered new evaluations of Reilly, pursuant to section 6601, and a new probable cause hearing pursuant to Ronje based on the new evaluations.

In compliance with the court order, the DMH reassigned Dr. Clipson and Dr. Webber to evaluate Reilly. In a report dated February 25, 2011, Dr. Webber concluded Reilly no longer met the criteria for commitment as a sexually violent predator. In a report dated February 26, 2011, Dr. Clipson also concluded Reilly no longer met those criteria.

Just before the pretrial hearing for Reilly in March 2011, the court conducted the pretrial hearing for Richard Anthony Smith, who was represented by the same counsel as Reilly. The court denied Smith's request to set a probable cause hearing within 10 calendar days and ruled that good cause existed to continue the probable cause hearing to provide time for Smith to be evaluated by the district attorney's retained expert. In light of the court's ruling as to Smith, Reilly agreed to have his probable cause hearing conducted on May 6, 2011.

In March 2011, Reilly filed a plea in abatement seeking dismissal of the SVPA Petition based on the post-Ronje evaluation reports of Dr. Webber and Dr. Clipson. The district attorney filed opposition and filed a motion for an order compelling Reilly to undergo a mental examination by the district attorney's retained expert, Dawn Starr, Ph.D., and a motion for an order granting Dr. Starr access to Reilly's state hospital records. In a supplemental memorandum of points and authorities, Reilly requested that his plea in abatement also be considered a demurrer under Code of Civil Procedure section 430.10, subdivision (a) and a non-statutory motion to dismiss.

In April 2011, Judge Richard M. King issued an order denying the pleas in abatement filed by Reilly and nine others. Judge King also granted the district attorney's motion, compelling Reilly to undergo a mental evaluation and granting Dr. Starr access to his state hospital records. Later that month, Reilly filed his petition for writ of ...


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