IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
June 15, 2012
DANIEL JAMES MACY, PETITIONER,
THE SUPERIOR COURT OF SANTA CRUZ COUNTY RESPONDENT, THE PEOPLE, REAL PARTY IN INTEREST.
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.
I Procedural Background
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 adopted by the Department of Mental Health following the decision in In re Ronje (2009) 179 Cal.App.4th 509."
This court complied with the transfer order and issued an order to show cause on November 30, 2011.
1. The Ronje decision
The appellate court in Ronje concluded that the "2008 OAL Determination No. 19 was correct under Tidewater" (Ronje, supra, 179 Cal.App.4th at p. 516) and the standardized assessment protocol at issue was an invalid underground regulation.*fn7 (Id. at p. 517.) Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557 is the leading case considering the meaning of the term "regulation" under the APA.
In finding that an individual initially evaluated under an invalid protocol was entitled to relief, the Ronje court was guided by People v. Pompa-Ortiz (1980) 27 Cal.3d 519 (Pompa-Ortiz), which discussed the standard for reviewing challenges to irregularities in preliminary examinations. (Ronje, supra, 179 Cal.App.4th at p. 517 ["The Pompa-Ortiz rule applies to denial of substantive rights and technical irregularities in proceedings and to SVPA proceedings. [Citations.]"].) Before Ronje, the California Supreme Court had stated: "[A] section 6602 hearing is analogous to a preliminary hearing in a criminal case; both serve to ' " 'weed out groundless or unsupported charges . . . and to relieve the accused of the degradation and expense of a . . . trial.' " ' [Citation.] Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition. (Hurtado, supra, 28 Cal.4th at p. 1186 . . . .)" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 247.) The Ronje court, relying on Pompa-Ortiz, concluded that the proposed committee was not required to show actual prejudice because he was "making a pretrial challenge to the evaluations leading to the commitment petition . . . ." (179 Cal.App.4th at p. 518.)
Nevertheless, Ronje concluded that dismissal was not the appropriate remedy because "[u]se of the evaluations based on the invalid assessment protocol, though erroneous, does not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition." (179 Cal.App.4th at p. 518.) Relying on Ghilotti, supra, 27 Cal.4th 888 and Preciado, supra, 87 Cal.App.4th 1122, Ronje reasoned that "the proper remedy is to cure the underlying error." (Ronje, supra, 179 Cal.App.4th at p. 518.) It concluded that "the proper remedy here is to remand the matter to the trial court with directions to (1) order new evaluations of Ronje using a valid assessment protocol, and (2) conduct another probable cause hearing under section 6602, subdivision (a) based on those new evaluations." (Id. at p. 519.)
2. No Forfeiture of Claim that Ronje Wrongly Accepted Protocol was a Regulation
In their opposition, the People assert for the first time that Ronje and OAL incorrectly determined that the 2007 Protocol was a regulation and, therefore, petitioner is not entitled to Ronje relief. Petitioner argues that "[i]n a writ proceeding, . . . the real party cannot raise for the first time in its opposition to the writ petition an issue that was never raised and argued in the trial court." He cites two cases, both involving a warrantless search or seizure presumptively unreasonable under the Fourth Amendment where the burden is on the government to prove an exception to the warrant requirement and the general rule is that the government cannot raise new theories on review. (See Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640-641; see also Reinert v. Superior Court (1969) 2 Cal.App.3d 36, 42.) Those cases are inapt. Moreover, even in search and seizure cases, reviewing courts may rely on a new theory not raised below in sustaining a ruling "[w]hen . . . the record fully establishes another basis for affirming the trial court's ruling and there does not appear to be any further evidence that could have been introduced to defeat the theory . . . ." (Green v. Superior Court (1985) 40 Cal.3d 126, 138-139, fn. omitted.)
This is an original mandamus proceeding, not an appeal. "Mandamus will lie to compel a public official to perform an official act required by law. (Code Civ.Proc., § 1085.) Mandamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. Mandamus may issue, however, to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law. (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 118 . . . ; Anderson v. Phillips (1975) 13 Cal.3d 733, 737 . . . .)" (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.)
We will consider the People's contention that the 2007 Protocol was not subject to the APA because it was not a regulation.
3. Protocol Qualified as Regulation
The People now maintain that the challenged assessment protocol was not a "regulation" within the meaning of the APA because it fails to refer to a "clearly defined class of persons or situations" as required by Tidewater, supra, 14 Cal.4th at p. 571. The People argue: "The protocol left up to the evaluator's independent professional judgment whether or not an individual meets the SVP criteria. The protocol did not declare how all SVP evaluations (or 'class of cases') should be decided." The People point to provisions in the 2007 Protocol that provide for the broad discretion with regard to the interview component of an evaluation*fn8 and state that "the 'Clinical Interview' portion of the DMH protocol did not 'declare how a certain class of cases will be decided.' (Tidewater, supra, 14 Cal.4th at p. 571.)"
Contrary to the People's assertion, Tidewater did not establish that an administrative "regulation" may not confer discretion (cf. e.g. Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 534 [regulation required agency to provide counsel "as needed" conferred discretion on adoption worker to determine what counseling was needed]) or that a regulation necessarily dictates a particular outcome. Tidewater addressed the completely different question whether a written enforcement policy promulgated by the state Division of Labor Standards Enforcement (DLSE) that interpreted wage orders of the Industrial Welfare Commission (IWC) was a "regulation" subject to the APA. (Tidewater, supra, 14 Cal.4th at p. 571.)
In Tidewater, the Supreme Court recognized the broad scope of the APA.*fn9 (14 Cal.4th at pp. 570-571.) It also observed the comprehensive definition of the word "regulation": "The APA . . . defines 'regulation' very broadly to include 'every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure, except one that relates only to the internal management of the state agency.' ([Former] Gov. Code, § 11342, subd. (g) [now § 11342.600].)" (Id. at p. 571; see Law Revision Com. com., 32D Gov. Code Ann. (2005 ed.) foll. § 11342.600, p. 115 ["Section 11342.600 continues part of former Section 11342(g) without substantive change"].)
Tidewater discussed the chief characteristics of a "regulation" within the meaning of the APA. "A regulation subject to the APA . . . has two principal identifying characteristics. [Citation] First, the agency must intend its rule to apply generally, rather than in a specific case. The rule need not, however, apply universally; a rule applies generally so long as it declares how a certain class of cases will be decided. [Citation.] Second, the rule must 'implement, interpret, or make specific the law enforced or administered by [the agency], or . . . govern [the agency's] procedure.' ([Former] Gov.Code, § 11342, subd. (g) [now § 11342.600].)" (Tidewater, supra, 14 Cal.4th at p. 571.) The People do not dispute that the challenged assessment protocol "implements" or "makes specific" the SVPA.
Tidewater offered case examples of policies held to be regulations: "(1) an informational 'bulletin' defining terms of art and establishing a rebuttable presumption (Union of American Physicians & Dentists v. Kizer, supra, 223 Cal.App.3d at p. 501); (2) a 'policy of choosing the most closely related classification' for determining prevailing wages for unclassified workers (Division of Lab. Stds. Enforcement v. Ericsson Information Systems, Inc. (1990) 221 Cal.App.3d 114); and (3) a policy memorandum declaring that work performed outside one's job classification does not count toward qualifying for a promotion (Ligon, supra, 123 Cal.App.3d at p. 588)." (Id. at pp. 571-572.) It also provided "examples of policies that courts have held not to be regulations . . . : (1) a Department of Justice checklist that officers use when administering an intoxilyzer test (People v. French (1978) 77 Cal.App.3d 511, 519); (2) the determination whether in a particular case an employer must pay employees whom it requires to be on its premises and on call, but whom it permits to sleep (Aguilar, supra, 234 Cal.App.3d at pp. 25-28); (3) a contractual pooling procedure whereby construction tax revenues are allocated among a county and its cities in the same ratio as sales tax revenues (City of San Joaquin v. State Bd. of Equalization (1970) 9 Cal.App.3d 365, 375); and (4) resolutions approving construction of the Richmond-San Rafael Bridge and authorizing issuance of bonds (Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 323-324)." (Id. at p. 572, italics added.)
The court explained: "Of course, interpretations that arise in the course of case-specific adjudication are not regulations, though they may be persuasive as precedents in similar subsequent cases. [Citations.] Similarly, agencies may provide private parties with advice letters, which are not subject to the rulemaking provisions of the APA. ([Former] Gov.Code, §§ 11343, subd. (a)(3), 11346.1, subd. (a).) Thus, if an agency prepares a policy manual that is no more than a restatement or summary, without commentary, of the agency's prior decisions in specific cases and its prior advice letters, the agency is not adopting regulations. [Citation.].) A policy manual of this kind would of course be no more binding on the agency in subsequent agency proceedings or on the courts when reviewing agency proceedings than are the decisions and advice letters that it summarizes." (Id. at p. 571.)
The Supreme Court ultimately concluded in Tidewater: "The policy at issue in this case was expressly intended as a rule of general application to guide deputy labor commissioners on the applicability of IWC wage orders to a particular type of employment. In addition, the policy interprets the law that the DLSE enforces by determining the scope of the IWC wage orders. Finally, the record does not establish that the policy was, either in form or substance, merely a restatement or summary of how the DLSE had applied the IWC wage orders in the past. Accordingly, the DLSE's enforcement policy appears to be a regulation within the meaning of [former] Government Code section 11342, subdivision (g), and therefore void because the DLSE failed to follow APA procedures." (Id. at p. 572.)
The OAL had statutory authority to determine whether the DMH's protocol was a regulation subject to the APA. (Gov. Code, § 11340.5, subd. (b).)*fn10 While the OAL's determination that language in the 2007 Protocol constituted a regulation is not binding on the courts, it is entitled to deference. (See Grier v. Kizer (1990) 219 Cal.App.3d 422, 435, disapproved on other grounds in Tidewater, supra, 14 Cal.4th at p. 577; see also Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8.)
The OAL noted in the 2008 Determination that the 2007 Protocol stated that "[e]valuators are required to interview and evaluate persons in accordance with the protocol contained within this handbook . . . ." It concluded: "Evaluators are a clearly defined class of persons. Additionally, the provision applies to all CDCR inmates referred to DMH for evaluation pursuant to the SVP law because it mandates how the evaluation is to be conducted."
The 2007 Protocol specified procedures to be included in any interview, identified the essential questions that evaluators needed to answer and the relevant factors that evaluators should consider, and established an evaluation format. It did not give evaluators the authority to dispense with an interview but rather recognized that not all interviewees would be cooperative.*fn11
The People have not shown that the challenged protocols did not apply generally to SVP evaluations (the general class), did not establish broad guidelines for evaluators, merely restated applicable law or past court decisions, or applied to only particular cases. In light of the broad scope of the APA and its expansive statutory definition of "regulation," the People have failed to persuade us that the 2008 OAL Determination No. 19 and Ronje erred by determining that language in the assessment protocol at issue was a "regulation" within the meaning of the APA.
B. Davenport v. Superior Court
As mentioned, Ronje did not address the problem that arises if remedial evaluations, ordered pursuant to that decision, result in a split of opinion. That problem arose in the recent case of Davenport v. Superior Court (2012) 202 Cal.App.4th 665 (Davenport).
In Davenport, the trial court ordered two new evaluations in light of Ronje. (Davenport, supra, 202 Cal.App.4th at p. 668.) The new evaluations resulted in a split of opinion regarding whether Davenport met the SVP criteria. (Ibid.) "The DMH therefore appointed two new mental health professionals to evaluate Davenport," which resulted in a second split of opinion. (Ibid.) "Davenport moved to dismiss the proceedings 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." (Ibid.) Davenport then filed a writ petition in the Court of Appeal (First District) seeking to compel the trial court to grant his motion to dismiss the SVP proceedings. (Ibid.) After the appellate court summarily denied the petition and Davenport filed a petition for review in the Supreme Court (ibid.), the Supreme Court granted review and transferred the case back to the First District with directions to issue an order to show cause. (Ibid.)
The First District rejected Davenport's argument that, under Ronje, "the government was required 'to go back to the beginning' and assess him in accordance with section 6601 with a legally valid protocol." (Id. at p. 671.) The court reasoned that the Ronje court could have, but did not, direct the superior court to dismiss the commitment petition and the initial evaluations "had served their purpose by the time the Director of the DMH forwarded the request to file a commitment petition." (Ibid.) It found that "[t]he new evaluations prepared in this case pursuant to Ronje are comparable to updated or replacement evaluations authorized by section 6603, subdivision (c)." (Ibid.) Relying upon Gray v. Superior Court (2002) 95 Cal.App.4th 322, which had addressed the effect of a split opinion of updated evaluations under subdivision (c) of section 6603, the First District concluded in Davenport that a split of new Ronje evaluations did not compel dismissal. The court stated: "Given the procedural safeguards in place--a probable cause hearing, a jury trial, a unanimous verdict--there is no need to dismiss the commitment petition and start the SVP evaluation process from the beginning in this case." (Id. at p. 673.)
The Davenport decision overlooks fundamental differences between section 6601 and section 6603. Section 6603 mainly concerns trial. Subdivision (c)(1) of section 6603 provides: "If the attorney petitioning for commitment under this article determines that updated evaluations are necessary in order to properly present the case for commitment, the attorney may request the State Department of Mental Health to perform updated evaluations."*fn12 (Italics added.)
In Gray, the appellate court stated: "As the Supreme Court noted in Albertson v. Superior Court (2001) 25 Cal.4th 796, 805-806, . . . (Albertson ), subdivision (c) of section 6603 was enacted in response to a decision by the Court of Appeal (Sporich v. Superior Court (2000) 77 Cal.App.4th 422 . . .) which held that the People were not entitled to obtain new or updated evaluations, even if trial on a petition was delayed for months or (as in this case) years." (Gray, supra, 95 Cal.App.4th at p. 326.) After observing that section 6603, subdivision (c), "does not, on its face, provide any consequences for a split of opinion between the second set of evaluators" (id at p. 328, fn. omitted) and "the Legislature certainly knows how to provide for dismissal when it wishes to do so" (ibid.), the court found it "more likely that the required new evaluations are intended for informational and evidentiary purposes." (Ibid.)
The Gray court further reasoned: "[O]nce the Act has been satisfied by sufficient expert opinion that the subject person meets the Act's criteria, little in the way of justice would be gained by permitting proceedings to be derailed by the possibly fortuitous timing of conflicting opinions. As the People point out, a purely numerical standard for the continuation of a proceeding would deprive the trier of fact of the opportunity to make a qualitative assessment of the experts' opinions. As the opinions accumulate, such an analysis becomes ever more important and desirable; it is not the number of opinions that matters, but their persuasiveness." (Id. at p. 329.) It added that "if new evaluations were avoided due to the potential for mandatory dismissal, the subject person would lose the possible benefit that such evaluations would persuade the prosecuting attorney to dismiss the proceeding under the Act." (Id. at p. 330.) The court concluded that "once a petition has been properly filed and the court has obtained jurisdiction, the question of whether a person is a sexually violent predator should be left to the trier of fact unless the prosecuting attorney is satisfied that proceedings should be abandoned." (Id. at p. 329, first italics added.)
It is reasonable to conclude, as the court did in Gray, that evaluations produced pursuant to section 6603, subdivision (c), are merely evidentiary and have no procedural consequence. In contrast, section 6601 concerns the initiation of SVP proceedings based on the concurrence of two evaluators. As stated by the Supreme Court in Ghilotti: "When subdivisions (c) through (h) of section 6601 are read together, they ascribe the [Secretary's] authority as follows: Before requesting a petition, the [Secretary] must designate two mental health professionals to evaluate the person. If these two evaluators agree that the person meets the criteria for commitment, the [Secretary] must request a petition. If, however, these first two evaluators do not agree on that issue, the [Secretary] must arrange a further examination by two independent professionals. If these independent professionals also do not concur that the person meets the criteria for commitment, the [Secretary] may not request the filing of a petition." (Ghilotti, supra, 27 Cal.4th at pp. 906-907.) Thus, "a petition for commitment or recommitment may not be filed unless two evaluators, appointed under the procedures specified in section 6601, subdivisions (d) and (e), have concurred that the person currently meets the criteria for commitment under the SVPA." (Id. at p. 909.)
We disagree with Davenport's conclusion that new Ronje evaluations, which are aimed at remedying the error or irregularity of the original concurring evaluators use of an invalid assessment protocol, are necessarily analogous to evaluations prepared pursuant to section 6603, subdivision (c), and, therefore, merely evidentiary in all circumstances. "The purpose of . . . [the initial] evaluation is not to identify SVP's but, rather, to screen out those who are not SVP's. 'The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial.' " (People v. Medina, supra, 171 Cal.App.4th at p. 814.) Thus, where an individual is asserting that a petition was not properly filed because the concurring evaluations were conducted based upon an invalid assessment protocol, it is not at all clear that the new Ronje evaluations serve the same purpose as updated evaluations generated pursuant to section 6603.*fn13
C. Refinement of the Ronje Remedy
1. Pompa-Ortiz's Progeny
In crafting a remedy where an individual challenges an evaluator's use of an invalid assessment protocol after the probable cause hearing, Ronje considered Pompa-Ortiz, supra, 27 Cal.3d 519. We additionally examine its progeny, which are instructive.
In Pompa-Ortiz, the California Supreme Court stated: "It is settled that denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion. [Citations.]" (Pompa-Ortiz, supra, 27 Cal.3d at p. 523, italics added; id. at p. 526 [defendant's right to a public preliminary hearing was a substantial right].) The court went on to establish an additional rule: "[In criminal proceedings,] irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. The right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities. At that time, by application for extraordinary writ, the matter can be expeditiously returned to the magistrate for proceedings free of the charged defects." (Id. at p. 529.)
In People v. Konow (2004) 32 Cal.4th 995, the People appealed from the superior court's order setting aside the information under Penal Code section 995. (Id. at p. 1012.) In that case, the magistrate had "expressed a strong desire to dismiss the complaint in furtherance of justice under section 1385 in light of the particular facts of the case" but incorrectly believed he could not do so. (Id. at p. 1026.) The California Supreme Court applied the part of the Pompa-Ortiz rule stating that " 'denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion' (People v. Pompa-Ortiz, supra, 27 Cal.3d. at p. 523 . . . )." (Id. at p. 1023.) The court held that "a defendant is denied a substantial right affecting the legality of the commitment when he or she is subjected to prejudicial error, that is, error that reasonably might have affected the outcome [citation]." (Id. at p. 1024, italics added.) The court further determined that "a magistrate denies a defendant a substantial right affecting the legality of the commitment by erroneously and prejudicially failing to consider whether to dismiss a complaint in furtherance of justice under section 1385." (Id. at p. 1025.) It directed the Court of Appeal to affirm the order of the superior court setting aside the information under section 995. (Id. at p. 1028.)
In People v. Standish (2006) 38 Cal.4th 858, the People appealed from a judgment of dismissal and challenged the superior court's order setting aside the information under Penal Code section 995 on the ground that the defendant should have been released on his own recognizance (OR). (Id. at p. 866) The Supreme Court declared: "Our decision in People v. Pompa-Ortiz must not be read overbroadly. That case did not establish that any and all irregularities that precede or bear some relationship to the preliminary examination require that the information be set aside pursuant to section 995 . . . ." (Id. at p. 885.) It concluded that the erroneous refusal to grant an "OR release pending the preliminary examination did not amount to denial of a substantial right at the preliminary examination within the meaning of section 995, in the absence of evidence that the error reasonably might have affected the outcome of that hearing." (Id. at p. 863, italics added.) The court concluded that a superior court may not "set aside an information pursuant to section 995 when a magistrate refuses (in violation of section 859b) to grant OR release to an in-custody defendant" "in the absence of a determination that the error reasonably might have affected the outcome of the preliminary examination." (Id. at p. 882.)
The Standish court recognized that "[a]lthough some errors such as denial of the right to counsel by their nature constitute a denial of a substantial right, the present case does not fall into that category." (Id. at p. 882.) The court also distinguished some other cases: "We acknowledge that the Wilson decision cited in People v. Pompa-Ortiz, supra, 27 Cal.3d 519 . . . , and other cases noted by defendant have declared that, prior to trial, an incarcerated defendant may prevail on a motion to dismiss premised upon a violation of his or her speedy trial rights--specifically, a violation of section 1382--without any showing of prejudice. These cases are distinguishable from the present case, however, because they were based in large part on the circumstance that the relevant statute required dismissal as the proper remedy when, without a showing of good cause, the defendant had not been brought to trial within the statutory period. (See Serna v. Superior Court (1985) 40 Cal.3d 239, 263 . . . ; People v. Wilson, supra, 60 Cal.2d at p. 151 . . . .)" (Id. at pp. 885-886.)
The reasoning of these cases leads us to conclude that, where an individual challenges a probable cause hearing on the ground that the section 6601 evaluations leading to the filing of the petition were conducted using an assessment protocol that was invalid under the APA, the person must show that this error or irregularity "reasonably might have affected the outcome" of that probable cause hearing.
2. People v. Superior Court (Ghilotti)
Ghilotti, supra, 27 Cal.4th 888 also provides guidance as to the appropriate remedy. In that case, the Supreme Court determined that "a court entertaining a petition for an involuntary civil commitment has the implicit authority to review for legal error the expert evaluations which are a prerequisite to the filing of such a petition." (Id. at p. 910.) It established for the future the following procedure in the event of a facial defect in evaluators' concurring reports: "[I]f the Director [of the DMH] has obtained reports that do concur the person meets the criteria for commitment or recommitment, and a petition is filed on that basis, the evaluators' reports should also be attached to the petition. The person may then file a pleading challenging the petition's validity on grounds that one or more of the supposedly concurring reports are infected by legal error. [¶] We stress that such judicial review is limited to whether one or more evaluators' reports are infected by material legal error. An evaluator's report is infected with legal error if, on its face, it reflects an inaccurate understanding of the statutory criteria governing the evaluation. [¶] On the other hand, judicial review of an evaluator's report does not extend to matters of debatable professional judgment within an evaluator's expertise. The professional determinations of an evaluator, insofar as based on consideration and application of correct legal standards, is conclusive at the initial screening stage set forth in section 6601." (Id. at p. 913.)
In Ghilotti, the Supreme Court established a materiality standard: "If the court concludes that one or more evaluators has committed legal error in reaching his or her conclusions, the court must further determine whether the error is material." (27 Cal.4th at p. 913.) In the case of concurring evaluations leading to the filing of a petition, an evaluator's legal error cannot be deemed material unless there is "a reasonable probability, sufficient to undermine confidence in the outcome, that the error affected the evaluator's ultimate conclusion" and "a change in the evaluator's conclusion would . . . dissolve . . . the necessary concurrence . . . ." (Ibid.)
Ghilotti strongly suggests that, where an individual is also challenging the filing of the commitment petition on the ground that the section 6601 evaluations were conducted using an invalid assessment protocol, the person must show that this error or irregularity resulted in a material defect in those evaluations.
3. Judicial Relief in Cases Involving Invalid Regulation under the APA
As Ronje recognizes and Supreme Court precedent establishes, an underground regulation is void. (Morning Star Co. v. State Bd. of Equalization (2006) 38 Cal.4th 324, 340 ("Morning Star"); Tidewater, supra, 14 Cal.4th at pp. 561, 572, 576-577.) But an invalid regulation does not necessarily impede proper proceedings going forward.
In Tidewater, the Supreme Court disregarded the DSLE's void policy and independently determined whether the IWC's wage orders applied to certain activities. (Tidewater, supra, 14 Cal.4th at p. 577.) It concluded that "[c]courts must enforce those wage orders just as they would if the DLSE had never adopted its policy." (Ibid.)
In Morning Star, supra, 38 Cal.4th 324, a corporation challenged a regulation promulgated by the Department of Toxic Substances Control (DTSC) that required it to pay an annual hazardous materials fee. (Id. at pp. 327-328.) It had unsuccessfully sought a refund of such fees, paid under protest, from the State Board of Equalization (SBE). (Id. at pp. 328, 331.) The Supreme Court found DTSC's regulation was invalid for failure to comply with the APA's requirements. (Id. at pp. 328, 335, 340.) The court directed the SBE to conduct further administrative proceedings on the corporation's refund request without relying upon the invalid regulation but, at the same time, directed the superior court to issue a stay order allowing a reasonable time for the department "to promulgate valid regulations under the APA" while maintaining the current hazardous materials fee program that was "of critical importance to the State of California" in the interim. (Id. at pp. 340-342.) The court indicated that the administrative refund proceedings should resume once the DTSC had complied with the APA. (Id. at p. 342.)
These cases suggest that a court reviewing a challenge to a regulation that is invalid under the APA has broad discretion to devise a fitting remedy that avoids disruption of important state programs or laws.
4. Revision of the Ronje Remedy
Our conclusion that the Ronje remedy should be fine-tuned in light of the foregoing case authorities is also buttressed by a number of considerations. First, evaluations performed pursuant to section 6601 using an invalid protocol do not deprive the superior court of fundamental jurisdiction over an SVP proceeding. (Ronje, supra, 179 Cal.App.4th at p. 518; see People v. Medina, supra, 171 Cal.App.4th at p. 816.) Second, the People are not required to prove at the probable cause hearing that the filing of the petition was predicated on two concurring evaluations conducted pursuant to section 6601, much less that the evaluators used an assessment protocol properly adopted under the APA. (See § 6602, subd. (a); see also Cooley v. Superior Court, supra, 29 Cal.4th at pp. 248-250.) A probable cause hearing is a screening step superseding the DMH's concurring evaluations pursuant to section 6601. While the evaluators' "[u]se of the invalid assessment protocol constitutes an error or irregularity in the SVPA proceedings" (Ronje, supra, 179 Cal.App.4th at p. 517), that error or irregularity does establish that the concurring evaluators misapplied the law or reached legally invalid conclusions or that the probable cause hearing itself was defective. Third, the SVPA does not provide for an automatic dismissal if the original evaluators relied on an assessment protocol that is later determined to be invalid because it was not promulgated in compliance with the APA. The Legislature certainly knows how to require a court to dismiss an SVP petition. (Cf. § 6602 ["If the judge determines there is not probable cause, he or she shall dismiss the petition . . . ."].) Fourth, it is important that courts avoid creating remedial procedures that unnecessarily disrupt SVP proceedings and delay trial. (Cf. Moore v. Superior Court (2010) 50 Cal.4th 802, 819-820 ["the strong governmental interest in protecting the public through the proper confinement and treatment of SVP's . . . would be substantially impeded by recognizing an SVP's right to delay or avoid targeted confinement and treatment for a sexually violent mental disorder because his mental problems make him incompetent to stand trial"].) Fifth, as this court has previously observed, "the state has no interest in the involuntary civil confinement of persons who have no mental disorder or who are not dangerous to themselves or others. [Citations.]" (People v. Litmon (2008) 162 Cal.App.4th 383, 401.)
Keeping in mind the essential purposes of the SVPA to protect the public and treat qualifying mental disorders (see People v. McKee (2010) 47 Cal.4th 1172, 1203; Ghilotti, supra, 27 Cal.4th at p. 921; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20), we refine the Ronje remedy to better effectuate the purpose of the law. When an individual seeks Ronje relief after a probable cause hearing but before trial, the person must affirmatively show (1) the concurring section 6601 evaluations that were the basis for filing of an SVP petition were conducted using an invalid assessment protocol and (2) this error or irregularity "reasonably might have affected the outcome" of the probable cause hearing. If the person is unable to make such a showing, the court should deny relief. If such a showing is made, the court should allow a reasonable time for the DMH to put in place a valid standardized assessment protocol, if that has not already occurred, and to obtain new evaluations using a valid protocol. If the individual additionally establishes that the use of an invalid assessment protocol resulted in a material defect in either of the concurring evaluations that were the basis for filing the commitment petition, new concurring evaluations must be produced pursuant to section 6601 to cure the defect. In this latter situation, the new evaluations are not merely evidentiary because the person is directly challenging the commencement of the SVP proceedings. As Ghilotti states, however, "[t]he professional determinations of an evaluator, insofar as based on consideration and application of correct legal standards, is conclusive at the initial screening stage set forth in section 6601." (Ghilotti, supra, 27 Cal.4th at p. 913.)
Where refined Ronje relief is ordered and the DMH satisfies the applicable requirements, the court must hold a new probable cause hearing pursuant to section 6602. If the rare situation arises where the DMH cannot meet those requisites, the court must dismiss the commitment petition.
D. Application of Refined Ronje Remedy to this Case
Petitioner has not shown that the several splits of opinion resulted from evaluations ordered by the trial court to effectuate a Ronje remedy. As far as we can tell from the record presented, those new conflicting evaluations were generated pursuant to section 6603, subdivision (c). As Gray v. Superior Court, supra, 95 Cal.App.4th 322 makes clear, such disagreement does not mandate dismissal. Petitioner has not established that any error or irregularity, which was occasioned by the initial concurring evaluators' utilization of an invalid protocol in conducting evaluations pursuant to section 6601, "reasonably might have affected the outcome" of the probable cause hearing. Neither has he shown that such error or irregularity resulted in a material defect in either of the concurring evaluations leading to the filing of the SVP petition.
We deny the petition for writ of mandate without prejudice to petitioner seeking further relief in accordance with this opinion.
WE CONCUR: PREMO, Acting P. J. MIHARA, J.
Macy v. Superior Court; RPI: People