California Court of Appeal, Fourth District, Third Division
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, W. Michael Hayes, Judge. Petition denied. (Super. Ct. Nos. M10338 & M11029)
[Copyrighted Material Omitted]
Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Sharon Petrosino and Mark S. Brown, Assistant Public Defenders, for Petitioner.
No appearance for Respondent.
Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Real Party in Interest.
Ross Rabuck is the subject of a commitment petition filed pursuant to the Sexually [165 Cal.Rptr.3d 356] Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA). In March 2012, the respondent court, pursuant to section 6602, found probable cause to believe Rabuck met the criteria for commitment as a sexually violent predator.
By this petition for writ of mandate or prohibition, Rabuck challenges the respondent court's decision to receive in evidence at the probable cause
hearing two evaluation reports prepared in 2011 by psychologists appointed to evaluate him pursuant to section 6601. He makes these four contentions: (1) the evaluation reports were not based on new evaluations under section 6601, subdivision (c) (section 6601(c)) as required by In re Ronje (2009) 179 Cal.App.4th 509, 101 Cal.Rptr.3d 689 ( Ronje ), disapproved in Reilly v. Superior Court (2013) 57 Cal.4th 641, 160 Cal.Rptr.3d 410, 304 P.3d 1071 ( Reilly ); (2) in conducting the evaluations and preparing the reports, the evaluators followed the 2007 version of the State Department of State Hospitals (SDSH), Clinical Evaluator Handbook and Standardized Assessment Protocol (Aug. 2007) (2007 SAP) that was held to be invalid in Ronje, instead of the 2009 version of the SDSH's Standardized Assessment Protocol for Sexually Violent Predator Evaluations (Feb. 2009) (2009 SAP); (3) the 2009 SAP is not a legitimate standardized assessment protocol as that term is understood in the scientific and psychological communities; and (4) the 2009 SAP is invalid as an underground regulation.
After we heard oral argument, the California Supreme Court issued its opinion in Reilly, supra, 57 Cal.4th 641, 160 Cal.Rptr.3d 410, 304 P.3d 1071. We vacated submission to permit the parties to file supplemental letter briefs addressing the effect of Reilly on this case. Both the district attorney and Rabuck submitted supplemental letter briefs, which we have considered.
As we shall explain, Rabuck cannot prevail on contentions (1), (2), and (4) because Reilly, supra, 57 Cal.4th at page 646, 160 Cal.Rptr.3d 410, 304 P.3d 1071, requires he show that " any fault that did occur under the assessment protocol created a material error." Rabuck has not made such a showing. In addition, as to the four contentions made by Rabuck, we conclude (1) the evaluation reports received in evidence were based on new evaluations under section 6601(c); (2) in conducting the evaluations and preparing the reports received in evidence, the evaluators properly followed the 2009 SAP; (3) the 2009 SAP is a legitimate standardized assessment protocol as required by section 6601(c); and (4) the 2009 SAP is a valid and properly promulgated regulation. We therefore deny Rabuck's writ petition.
OVERVIEW OF THE SVPA SCREENING AND EVALUATION PROCESS
The SVPA provides for involuntary civil commitment of an offender immediately upon conclusion of his or her prison term if the offender is found to be a sexually violent predator. ( Reilly, supra, 57 Cal.4th at p. 646, 160 Cal.Rptr.3d 410, 304 P.3d 1071; People v. Yartz (2005) 37 Cal.4th 529, 534, 36 Cal.Rptr.3d 328, 123 P.3d 604.) 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 [165 Cal.Rptr.3d 357] 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 commitment under the SVPA begins with an initial screen in which the Secretary of California's Department of Corrections and Rehabilitation (CDCR) determines whether a person in CDCR custody might be a sexually violent predator. (§ 6601, subd. (a)(1).) If the secretary determines the person might be a sexually violent predator, the secretary refers that person to the next level evaluation. ( Ibid. )
After the secretary's referral, the person is screened by the CDCR and the Board of Parole Hearings in accordance with " a structured screening instrument" developed and updated by the SDSH in consultation with the CDCR. (§ 6601, subd. (b).) " If as a result of this screening it is determined that the person is likely to be a sexually violent predator, the [CDCR] shall refer the person to the [SDSH] for a full evaluation of whether the person meets the criteria in Section 6600." ( Ibid. )
The procedures for a full evaluation are set forth in section 6601(c) and section 6601, subdivisions (d) through (i). Under section 6601(c) and section 6601, subdivision (d), the person is evaluated by two practicing psychiatrists or psychologists, or by one of each profession. The evaluations must be conducted " in accordance with a standardized assessment protocol, developed and updated by the [SDSH], to determine whether the person is a sexually violent predator as defined in this article." (§ 6601(c).) If both evaluators find 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," then the SDSH forwards a request to file a petition for commitment to the county of the person's last conviction. (§ 6601, subd. (d).) If the county's designated counsel concurs with the recommendation, then counsel files a petition for commitment in the superior court. (§ 6601, subd. (i).)
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 SDSH " 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 must order 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. )
[165 Cal.Rptr.3d 358] 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).) 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. )
ALLEGATIONS OF THE PETITION AND THE RETURN
In October 2004, the Orange County District Attorney filed a petition for commitment under the SVPA alleging Rabuck was a sexually violent predator as defined in section 6600. Attached to the SVPA commitment petition was an evaluation report of Rabuck, prepared by Shoba Sreenivasan, Ph.D. Also in October 2004, Judge Robert R. Fitzgerald reviewed the petition and found it stated sufficient facts which, if true, would constitute probable cause to believe Rabuck was likely to engage in sexually violent predatory criminal behavior on his release. As a ...