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 denied. (Super. Ct. No. M11247)
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
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 disagreed whether Richard Boysel, 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 Boysel's challenge to the SVPA commitment petition. We deny Boysel's petition for writ of mandamus/prohibition without prejudice to renewing the challenge to the SVPA commitment petition based on the reports of all four post-Ronje evaluations.
In Wright v. Superior Court (Mar. 28, 2012, G045203) __ 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, but there was no evidence in the record that two independent post-Ronje evaluators had been appointed. In Wright, as here, we deny the petition for writ of mandamus without prejudice. In Reilly v. Superior Court (Mar. 28, 2012, G045118) __ Cal.App.4th __, the two initial post-Ronje evaluators agreed the person named in the SVPA commitment petition no longer met the criteria for commitment as a sexually violent predator, and, therefore, we are compelled by the SVPA to grant the writ petition in that case.
Boysel was the subject of an SVPA commitment petition filed in March 2007, after he had completed a five-year prison term. His commitment petition was based on two evaluations that were conducted according to the invalid assessment protocol. Following our decision in Ronje, the trial court in this matter ordered new evaluations of Boysel to be conducted according to a validly approved assessment protocol. One of those evaluations concluded Boysel continued to meet the criteria for commitment as a sexually violent predator, while the other concluded he no longer met those criteria. As required by section 6601, subdivision (e), when there is such a difference of opinion, two independent professionals were appointed to evaluate Boysel.
Before the post-Ronje independent evaluators completed their reports, and before a probable cause hearing had been held, Boysel filed a plea in abatement seeking dismissal of the SVPA commitment petition on the ground the two initial post-Ronje evaluators had not concurred he 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. Boysel 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.
We deny Boysel's writ petition without prejudice to renewing his challenge to the SVPA commitment petition when the post-Ronje evaluation process is completed. In so doing, we address three 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; (2) whether the trial court erred by denying Boysel's plea in abatement based on the post-Ronje evaluations presented to the court; and (3) whether an SVPA petition may be dismissed if the post-Ronje evaluations do not produce the required concurrence of either the two initial evaluators or the two independent evaluators.
On the first issue, we conclude that in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 912-913 (Ghilotti), 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 Boysel's plea in abatement to have constituted such a non-statutory pleading.
On the second issue, we conclude the trial court did not err by denying Boysel's plea in abatement based on the evaluation reports before the court. The SVPA permits a commitment petition to be filed 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).) In this case, the prefiling requirements had not been met when the petition was filed in March 2007 because the evaluations supporting the petition were based on invalid assessment protocols. The two initial post-Ronje evaluators did not concur Boysel continued to meet the criteria for commitment. But when Boysel filed his plea in abatement, and when the court denied it, the post-Ronje evaluation process had not concluded because the two post-Ronje independent evaluations either were not completed or had not been made available to the trial court.
On the third issue, we conclude an SVPA commitment petition may be dismissed if the post-Ronje evaluations do not produce the concurrence of evaluators necessary under section 6601 to support the filing of a commitment petition in the first instance. We discuss the procedures for such dismissal as set forth in Ghilotti in part I. of the Discussion section.
We therefore deny Boysel's petition for writ of mandate/prohibition, but without prejudice to Boysel challenging the SVPA commitment petition based on a consideration of the full reports of all post-Ronje evaluators.
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 March 2007, the Orange County District Attorney filed a petition for commitment as a sexually violent predator (the SVPA Petition), alleging Boysel was a sexually violent predator under the SVPA. The SVPA Petition was based on an evaluation from Craig Updegrove, Ph.D., dated February 1, 2007, and an evaluation conducted by Dawn Starr, Ph.D., dated December 19, 2006.
In March 2007, Judge M. Marc Kelly reviewed the SVPA Petition and found it stated sufficient facts which, if true, would constitute probable cause to believe Boysel was likely to engage in sexually violent predatory criminal behavior on his release from prison. As a consequence, Judge Kelly ordered Boysel to be detained pursuant to section 6601.5 in a secured facility until the probable cause hearing. The probable cause hearing was conducted nine days later before Judge Robert R. Fitzgerald who found, pursuant to section 6602, probable cause to believe Boysel met the criteria for commitment as a sexually violent predator.
In preparation for trial, Dr. Starr prepared an updated evaluation of Boysel in August 2008 and Robert Owen, Ph.D., prepared an evaluation of Boysel in September 2008. Both Dr. Starr and Dr. Owen concluded Boysel met the criteria for commitment as a sexually violent predator.
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, Boysel 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 Boysel, 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. Starr and Dr. Updegrove to evaluate Boysel. In a report dated January 13, 2011, Dr. Starr concluded Boysel continued to meet the criteria for commitment as a sexually violent predator. In a report dated February 28, 2011, Dr. Updegrove concluded Boysel no longer met those criteria.
Due to the difference of opinions, the DMH ordered evaluations of Boysel to be conducted by independent evaluators, Dr. Owen and Jesus Padilla, Ph.D. Dr. Owen prepared a report dated March 27, 2011. Dr. Padilla prepared a report dated April 20, 2011.
In March 2011, Boysel filed a plea in abatement seeking dismissal of the SVPA Petition on the ground two evaluators had not concurred he met the criteria for commitment. The plea in abatement was based on the post-Ronje reports of Dr. Starr and Dr. Updegrove. The post-Ronje reports of Dr. Owen and Dr. Padilla were not available at that time. The district attorney filed opposition to the plea in abatement. In a supplemental memorandum of points and authorities, Boysel 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 Boysel and nine others. Judge King could not consider the reports of Dr. Owen and Dr. Padilla because they had not been presented to him. As these reports were not presented to the trial court, we decline to consider their contents and conclusions.
The next month, Boysel filed his petition for writ of mandate/prohibition. We issued an order to show cause and stayed the trial court proceedings.