Trial Court: Santa Cruz County Superior Court Trial Judge: Hon. Ariadne J. Symons (Santa Cruz County Super. Ct. No. ME-43)
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
The central issue in this original writ proceeding is whether the trial court was legally obligated to dismiss commitment proceedings brought against petitioner Daniel James Macy pursuant to the Sexually Violent Predator Act ("SVPA" or "Act") (Welf. & Inst. Code, § 6600 et seq.)*fn1 because the original concurring evaluations were conducted using an invalid standardized assessment protocol and presently there is no pair of concurring evaluations.
A concurring pair of evaluations is a prerequisite to the filing of a petition to commit an individual as a sexually violent predator ("SVP"). (§ 6601, subds. (d)-(g); see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 909 ("Ghilotti").) The purpose of this requirement is to screen out persons unlikely to qualify as SVP's. (See People v. Medina (2009) 171 Cal.App.4th 805, 814; see also People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130 ("Preciado").) The evaluations mandated by section 6601 must be conducted "in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health, to determine whether the person is a sexually violent predator . . . ."*fn2 (§ 6601, subdivision (c).)
In 2008, the Office of Administrative Law (OAL) determined that challenged provisions in the "Clinical Evaluator Handbook and Standardized Assessment Protocol (2007)" ("2007 Protocol") issued by the Department of Mental Health ("DMH") met the definition of a regulation as defined by Government Code section 11342 and should have been adopted pursuant to the Administrative Procedures Act (APA) (Gov. Code, § 11340 et seq.) (2008 OAL Determination No. 19.)*fn3 Under the OAL's determination, the 2007 protocol constituted an "underground regulation" (Cal. Code of Regs, tit. 1, § 250).*fn4
In re Ronje (2009) 179 Cal.App.4th 509 ("Ronje") created a remedy for the petitioner who was seeking habeas "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 [OAL] to constitute an invalid 'underground' regulation under California Code of Regulations, title 1, section 250." (Id. at p. 513.) The remedy involved new evaluations using a valid assessment protocol and a new probable cause hearing under section 6602, subdivision (a), based on those new evaluations. (Id. at pp. 514, 521.) Ronje did not discuss what should happen if the new evaluations produced a split of opinion.
In the present case, updated evaluations conducted pursuant to section 6603 produced conflicting opinions regarding whether petitioner presently met the criteria for commitment as an SVP. Upon petitioner's motion pursuant to Ronje, the court ordered a new probable cause hearing but no further evaluations. Since each pair of evaluators continued to divide over whether petitioner met the SVP criteria, petitioner brought a motion for dismissal of the SVP petition, which the trial court denied. While we agree that automatic dismissal is not the appropriate remedy in this case, we conclude that the Ronje remedy must be fine-tuned.
We will deny the petition without prejudice to petitioner seeking further relief in the trial court in accordance with this opinion.
A petition to commit petitioner Macy as an SVP was filed in December 2004. It alleged that two evaluators had determined that petitioner had "a diagnosed mental disorder such that he is likely to engage in acts of sexual violence without appropriate treatment and custody within the meaning of Welfare and Institutions Code Section 6600 et seq." and he "poses a danger to the health and safety of others, and is predatory within the meaning of [those provisions.]"
In June 2005, a probable cause hearing was held. The petition states, and the People do not dispute, that "at the conclusion of that hearing, respondent court found probable cause to believe that petitioner was likely to engage in sexually violent predatory criminal behavior upon his release from custody."
In March 2010, petitioner filed a notice of motion to dismiss the commitment petition or, alternatively, to grant a new probable cause hearing.*fn5 The motion to dismiss was based on the ground that two separate pairs of evaluators had been unable to agree that petitioner met the SVP criteria. The alternative motion for a new probable cause hearing was based on the ground that the assessment protocol relied upon by the evaluators who testified at the probable cause hearing was an improper "underground" regulation as found by Ronje, supra, 179 Cal.App.4th 509. Numerous exhibits were attached to the motion.
In June 2010, petitioner filed a "supplement" to his motion, requesting in the further alternative "two additional evaluations by two new and different evaluators." He set forth additional facts that had occurred subsequent to the filing of the motion. He submitted three new exhibits. Petitioner continued to maintain that the double split of opinion between evaluators required dismissal.
In its opposition filed in July 2010, the People acknowledged that Ronje required a new probable cause hearing but asserted that updated evaluations had already been prepared by Drs. Jeremy Cole and John Hupka and, therefore, it was unnecessary for the court to order additional evaluations or to dismiss. The People recommended that the court conduct a new probable cause hearing based on those evaluations.
In his reply filed July 2010, petitioner pointed out that, although Drs. Cole and Hupka, the two initial evaluators, had originally agreed that he met the SVP criteria, as a result of a March 2009 update evaluation, a split of opinion occurred when Dr. Hupka concluded that he did not meet the criteria. The reply explained that, as required by section 6603, subdivision (c)(1), two additional evaluations had been conducted.
The reply reported that the new evaluators, Drs. Dana Putnam and Nancy Rueschenberg, also produced a split of opinion with Dr. Putnam concluding in her initial report that petitioner met the SVP criteria and Dr. Rueschenberg concluding in her initial report and addendum that he did not. In an updated evaluation report dated May 10, 2010, Dr. Putnam continued to conclude that petitioner met the SVP criteria.
Petitioner's reply indicated that, meanwhile, in a letter dated March 31, 2010 to Assistant Deputy District Attorney Celia Rowland, Dr. Hupka changed his conclusion in light of additional information and determined petitioner did meet the SVP criteria. Then, in an update evaluation report dated May 17, 2010, Dr. Coles changed his opinion and determined petitioner did not meet the SVP criteria, thereby creating a reverse split of opinion between himself and Dr. Hupka.
In his reply, petitioner further argued that section 6603, subdivision (c)(1), required, at a minimum, two additional evaluations by "two new and different evaluators." Petitioner continued to assert that the probable cause hearing was invalid and he was entitled to a new probable cause hearing based upon new evaluations using a valid protocol.
On August 5, 2010, the Santa Cruz Superior Court granted petitioner's motion for a new probable cause hearing but denied his requests for a dismissal or new evaluations.
On March 28, 2011, petitioner filed a second motion to dismiss the commitment petition, emphasizing that no separate pair of evaluators had agreed that he met the SVP criteria since the trial court had issued its order for a new probable cause hearing pursuant to Ronje. Updated evaluation reports of Drs. Putnam, Rueschenberg, and Coles were attached as exhibits. Dr. Putnam concluded in a November 2010 report that petitioner met the SVP criteria. Dr. Rueschenberg concluded in a December 2010 report that petitioner did not meet that criteria. Dr. Coles also concluded in a December 2010 report that petitioner did not meet that criteria. Dr. Hupka had apparently retired. Petitioner argued that, since no pair of evaluators had been able to agree that petitioner met the SVP criteria based upon a valid assessment protocol, the court was required to dismiss the petition. He further contended that section 6604.1, subdivision (b),*fn6 as amended by the adoption of Proposition 83, means that an SVP proceeding does not go forward, and must be dismissed, where a second set of evaluators do not concur.
The People filed opposition, conceding Ronje required a new probable cause hearing but not dismissal. Petitioner filed a reply.
On May 31, 2011, the court denied petitioner's second motion to dismiss. It set the matter for a new probable cause hearing based on the updated evaluations.
On July 14, 2011, petitioner filed a petition for writ of mandate in this court seeking to compel the superior court to set aside its May 31, 2011 order denying his motion to dismiss and to enter a new order granting the motion. The petition also requests "such other and further relief as may be appropriate and just."
This court summarily denied the petition. Petitioner filed a petition for review in the Supreme Court. The Supreme Court granted the petition for review and transferred the matter to this court with "directions to vacate our order denying mandate and to issue an order directing respondent to show cause why the relief sought in the petition should not be granted based on evaluations conducted under the protocol that was ...