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In re Snyder

California Court of Appeals, Third District, Sacramento

June 9, 2017

In re DOUGLAS SNYDER, On Habeas Corpus.

         ORIGINAL PROCEEDINGS: Super. Ct. Nos. 96F07656, 15SVP002 Writ of habeas corpus granted.

          Jay Dyer for Petitioner.

          Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Respondent.

          Robie, Acting P. J.

         Pursuant to subdivisions (c) and (d) of section 6601 of the Welfare and Institutions Code, [1] the California Department of State Hospitals (the department) designated two psychologists (Dr. Robert Karlsson and Dr. Marcia Asgarian) to evaluate petitioner Douglas Snyder to determine whether he was a sexually violent predator (SVP) as defined in the Sexually Violent Predator Act (SVPA) (§ 6600 et seq.).[2] Dr. Karlsson determined Snyder was an SVP; Dr. Asgarian determined he was not. Before the department deemed Dr. Asgarian's report final, however, the department determined that her report did not meet minimum quality standards pursuant to the department's quality assurance processes and could not be revised to meet those standards with the time available. Accordingly, the department “undesignated” her, revoked her report, and designated a third psychologist (Dr. Douglas Korpi) to take her place as the second evaluator. After Dr. Korpi determined Snyder was an SVP, the director of the department requested that the Sacramento County District Attorney file a petition for Snyder's commitment under the SVPA, which the district attorney did.

         When Snyder's attorney learned about Dr. Asgarian's report during the course of the probable cause hearing on the SVPA petition, he moved to dismiss the petition based on the department's failure to arrange for two independent professionals to evaluate Snyder under subdivision (e) of section 6601 when it received Dr. Asgarian's determination that Snyder was not an SVP. The trial court denied the motion to dismiss, and Snyder sought review of that ruling in this court by means of the present petition for writ of habeas corpus, requesting that this court vacate the denial of his motion to dismiss and release him to parole.

         In support of his petition, Snyder contends that by “undesignating” an evaluator who determined he was not an SVP, rather than appointing two independent professionals to make their own determinations pursuant to subdivision (e) of section 6601, the department failed to comply with section 6601. We agree. We conclude the department's quality assurance processes were not consistent with section 6601 because they were not part of the standardized assessment protocol mandated by the statute, and, in any event, nothing in section 6601, or any other part of the SVPA, allows an evaluator's supervisor to undesignate an evaluator because the supervisor believes the evaluator's report is of insufficient quality. We further conclude, however, that the department's failure to comply with the statute does not warrant dismissal of the SVPA petition and release of Snyder from custody. Rather, the proper relief here is to direct the department to follow the commands of section 6601 and appoint two independent professionals to evaluate Snyder.


         To assist in a better understanding of the factual and procedural background of this case and the discussion that follows, we begin with a general background in three areas: (1) basic procedure under the SVPA; (2) the standardized assessment protocol developed and maintained by the department under the mandate of section 6601; and (3) the department's quality assurance processes.

         Basic SVPA Procedure

         “The SVPA authorizes the involuntary civil commitment of a person who has completed a prison term but is found to be [an SVP]. [Citations.] The SVPA's purposes are ‘ “to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment for their disorders.” ' [Citation.] The Welfare and Institutions Code sets forth the relevant procedures. [Citation.]

         “ ‘[W]henever the Director of Corrections determines that an individual who is in custody... may be [an SVP], the director shall... refer the person for evaluation....' [Citation.] The statutory scheme establishes a multiple-level review for inmates who may be SVPs. An inmate who is referred by the Director of Corrections is then ‘screened by the Department of Corrections... 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. This screening shall be conducted in accordance with a structured screening instrument developed and updated by [the department] in consultation with the Department of Corrections. If as a result of this screening it is determined that the person is likely to be [an SVP], the Department of Corrections shall refer the person to [the department] for a full evaluation of whether the person [is an SVP].' [Citation.]

         “If an inmate is referred for full evaluation, ‘[the department] shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by [the department], to determine whether the person is [an SVP]....' (§ 6601, subd. (c).) The scope of the evaluation is codified in some detail. ‘The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.' [Citation.] Moreover, ‘the person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director of [the department]. If both evaluators concur 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, the Director of [State Hospitals] shall forward a request for a petition for commitment...' to the designated counsel of the county in which the inmate was convicted. (... § 6601, subd. (d).)

         “If the evaluators disagree about whether the person meets the criteria, ‘the Director of [State Hospitals] shall arrange for further examination of the person by two independent professionals....' (... § 6601, subd. (e).) ‘[A] petition to request commitment... shall only be filed if both independent professionals... concur that the person meets the criteria for commitment....' (§ 6601, subd. (f).) When that requirement is met, ‘the Director of [State Hospitals] shall forward a request for a petition to be filed for commitment...' to the designated counsel of the county. (Former § 6601, subd. (h).)[3] If counsel concurs with the recommendation, ‘a petition for commitment shall be filed in... superior court....' (§ 6601, subd. (i).) The court thereafter ‘shall review the petition and shall determine whether there is probable cause to believe that the individual... is likely to engage in sexually violent predatory criminal behavior upon his or her release.' (§ 6602, subd. (a).) The court must order a trial if there is probable cause, and it must dismiss the petition if there is not. [Citation.]

         “The inmate is ‘entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports.' (§ 6603, subd. (a).) There can be no civil commitment under the SVPA unless the trier of fact determines beyond a reasonable doubt that the person is an SVP. (§ 6604.) A person found to be an SVP ‘shall be committed for an indeterminate term to the custody of [the department] for appropriate treatment and confinement in a secure facility....' [Citation.] Annual examinations are conducted to assess whether the person is still likely to engage in sexually violent criminal behavior if discharged. (§ 6605, subd. (a).)” (State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344-346, fns. omitted.)

         The Standardized Assessment Protocol

         The department “has over the years published a clinical evaluator handbook and standardized assessment protocol for its SVP evaluators.” (In re Ronje (2009) 179 Cal.App.4th 509, 515, disapproved on other grounds by Reilly v. Superior Court (2013) 57 Cal.4th 641, 655.) Ronje specifically noted the existence of a “2004 assessment protocol” used to evaluate the inmate in that case. (Ronje, at p. 516.)

         In August 2007, the department published a 68-page version of the handbook and protocol (hereafter, the 2007 handbook and assessment protocol), which, according to our Supreme Court, “gave a step-by-step process for evaluators to follow.” (Reilly v. Superior Court, supra, 57 Cal.4th at pp. 648, 655, fn. 3; Rabuck v. Superior Court (2013) 221 Cal.App.4th 1334, 1338 (Rabuck).) Another appellate court later explained that the 2007 handbook and assessment protocol “provided detailed instructions on how to conduct a sexually violent predator assessment and prepare an evaluation report.” (Rabuck, at p. 1346.)

         “In 2008, the Office of Administrative Law [(OAL)] received a petition alleging that 10 provisions in the [2007 handbook and assessment protocol ] had not been adopted according to California's Administrative Procedure Act (APA; Gov. Code, § 11340 et seq.).” (Reilly v. Superior Court, supra, 57 Cal.4th at p. 648.) “In August 2008, [OAL]... determined the [2007 handbook and assessment protocol ]... amounted to an ‘underground regulation' because portions of the assessment protocol, though regulatory in nature, had not been adopted pursuant to Government Code section 11340.5....” (Rabuck, supra, 221 Cal.App.4th at p. 1341.)

         In Ronje, the Court of Appeal upheld OAL's determination that the 2007 handbook and assessment protocol was “invalid as an underground regulation.” (In re Ronje, supra, 179 Cal.App.4th at p. 513.) The appellate court explained that the 2007 handbook and assessment protocol had “the hallmarks of regulations subject to the APA” because “the challenged portions of the assessment protocol applied generally either to all evaluators or to all inmates referred by the [department] for treatment, or to both” and because “the challenged portions of the assessment protocol were implementing or making specific the SVP law and the procedures the [department] would use to implement the law.” (Ronje, at pp. 516-517.) The court determined that because the 2007 handbook and assessment protocol was invalid as an underground regulation, “[u]se of the invalid assessment protocol... constitute[d] an error or irregularity in... SVPA proceedings.” (Id. at p. 517.)

         In February 2009 -- after the OAL's determination but before Ronje's affirmance of that determination -- the department replaced the 2007 handbook and assessment protocol with a six-page “Standardized Assessment Protocol for Sexually Violent Predator Evaluations” (hereafter, the 2009 assessment protocol), which was to serve “as the new standardized assessment protocol for SVPA evaluations.” (Rabuck, supra, 221 Cal.App.4th at pp. 1338, 1341; Reilly v. Superior Court, supra, 57 Cal.4th at p. 655, fn. 3.) In the words of our Supreme Court, “[t]he 2009 [assessment] protocol essentially gives the evaluator more discretion in how to conduct the evaluation [than the 2007 handbook and assessment protocol], but the evaluator is informed about the requirements of the law, the issue that must be opined on, and the risk factors to consider; these [did not] change[] from the 2007 [handbook and assessment] protocol.” (Reilly, at p. 655, fn. 3.)

         At the same time the department issued the 2009 assessment protocol, “the OAL took emergency regulatory action to adopt part of [that protocol]. In September 2009, the OAL made permanent the emergency regulatory action.” (Rabuck, supra, 221 Cal.App.4th at p. 1341.) Two regulations were adopted as part of that regulatory action: sections 4000 and 4005 of title 9 of the California Code of Regulations (hereafter, sections 4000 and 4005). Section 4000 provides that “[t]his chapter applies to evaluators performing an assessment to determine whether a person is a sexually violent predator pursuant to Welfare and Institutions Code § 6600 et seq.” The only other regulation in the chapter is section 4005, which provides as follows: “The evaluator, according to his or her professional judgment, shall apply tests or instruments along with other static and dynamic risk factors when making the assessment. Such tests, instruments and risk factors must have gained professional recognition or acceptance in the field of diagnosing, evaluating or treating sexual offenders and be appropriate to the particular patient and applied on a case-by-case basis. The term ‘professional recognition or acceptance' as used in this section means that the test, instrument or risk factor has undergone peer review by a conference, committee or journal of a professional organization in the fields of psychology or psychiatry, including, but not limited to, the American Psychological Association, the American Psychiatric Association, and the Association for the Treatment of Sexual Abusers.”

         In Rabuck, the Court of Appeal considered whether the 2009 assessment protocol was “invalid because it is not a standardized assessment protocol as that term is understood in the scientific and psychological communities.” (Rabuck, supra, 221 Cal.App.4th at p. 1347.) In concluding the protocol was not invalid on that ground, the appellate court described the protocol (at length) as follows:

         “In developing and issuing the 2009 [assessment protocol], the [department] was implementing the ...

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