REILLY v. S.C. (PEOPLE)Petitioner’s Answer Brief on the MeritsCal.October 15, 2012COPY IN THE SUPREME COURTOF THE STATE OF CALIFORNIA KEVIN MICHAEL REILLY, Supreme Court Case No. $202280 Petitioner, Vv. (Court of Appeal Case No. G046850; Orange County Superior Court Case ORANGE COUNTY SUPERIOR No. M-10821) COURT, Respondent; SUPREME COURT L. a. PEOPLE OF THE STATE OF m D ARC CALIFORNIA, 0cT 15 URY | 2012 \8 25(b} Real Party in Interest. Frank A. McGuire Clerk | Deputy RESPONSIVE BRIEF ON THE MERITS OFFICE OF THE ORANGE COUNTY PUBLIC DEFENDER FRANK OSPINO Public Defender | JEAN WILKINSON | Chief Deputy Public Defender SHARON PETROSINO Senior Assistant Public Defender MARK S. BROWN Assistant Public Defender State Bar No. 156849 14 Civic Center Plaza Santa Ana, California 92701-4029 (714) 834-2144 Attorneysfor Petitioner IN THE SUPREME COURTOF THE STATE OF CALIFORNIA KEVIN MICHAEL REILLY, Petitioner, Vv. ORANGE COUNTY SUPERIOR COURT, Respondent; Supreme Court Case No. $202280 (Court of Appeal Case No. G046850; Orange County Superior Court Case No. M-10821) PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest. RESPONSIVE BRIEF ON THE MERITS OFFICE OF THE ORANGE COUNTY PUBLIC DEFENDER FRANK OSPINO Public Defender JEAN WILKINSON ChiefDeputy Public Defender SHARON PETROSINO Senior Assistant Public Defender MARK S. BROWN Assistant Public Defender State Bar No. 156849 14 Civic Center Plaza Santa Ana, California 92701-4029 (714) 834-2144 Attorneysfor Petitioner TABLE OF CONTENTS Page Table of Authorities oo... ieccccccssessssssssssusessssuesssssssssssessstitesseeeseeseeceeeccce li Question Granted Review o....eecccssccscesssssssssststsssssssssssssasessteeecsieeseeeecceeeccc. 1 Argument SUMMALY 0... ceccsssssssesssssssssssssesssssssesstsssssssstiesseseeessecceecccseccc. ] Procedural History o....cccssssssssssssssssseusessesssssssessssssessssssssieeesteeeeeeceeccc.2 ALQUMENE oe eecsecssesescosusssssnsesssnissssvcssssvisssnussssssttesssssisssavsssssivesstecceseeceeec.4 I. II. Hf. IV. VI. VIL. THE SVPA INCLUDES A “TWO-VALID-EVALUATIONS” PROCEDURAL SAFEGUARD. THE 2007 SAP HAS NOT BEEN PROPERLY PROMULGATED AND 1S THEREFORE AN “UNDERGROUND REGULATION.” SINCE THE 2007 SAP IS INVALID, THE PRE-RONJE EVALUATIONSARE INVALID. NEW EVALUATIONS DONE UNDER SECTION 6601 USING A VALID ASSESSMENT PROTOCOL ARE THE APPROPRIATE REMEDY. PETITIONER MAY TIMELY CHALLENGE THE VALIDITY OF THE SVP PETITION GIVEN THAT THE TWO POST-RONJE EVALUATORS HAVE OPINED THAT PETITIONER DOES NOT MEET THE CRITERIA FOR AN SVP. PETITIONER USED THE CORRECT PROCEDURE(S) TO CHALLENGE THE VALIDITY OF THE SVP PETITION. THE “TWO-VALID-EVALUATIONS” PROCEDURAL SAFEGUARD DOES NOT APPLY AT THE PROBABLE CAUSE HEARING OR THETRIAL. VII. BECAUSE THE POST-RONJE EVALUATIONS DO NOT SATISFY THE “TWO-VALID-EVALUATIONS” PROCEDURAL SAFEGUARD, THE APPELLATE COURT CORRECTLY RULED THAT THE SVP PETITION MUST BE DISMISSED. COMCIUSION ........ssecsssssssssessssssstntssisunnssssssssssssessestusussuuuestseeeccc.30 Word Count Certification..........cccscsssssssssssssssssssessesssssuusussstsseeeeeeeeeeeecccc. 31 Declaration Of Service...ccsssecscssesssssssssssuuusssssssessssssssssiasisistteeeeeeeecccc32 TABLE OF AUTHORITIES Cases Abelleira v. District Court ofAppeal (1941) 17 Cal.2d 280 vecscccssssssssssssescssssssssssssssssssssstssssstsessstisteseeseseesccc 14 Addington v. Texas (1979) 441 US. 418 ise ccccsssssssseccsssssussssssssssesessuasiuetesssseteeeeeeeececcc 4 Butler v. Superior Court (2000) 78 Cal-App.4th L171 .cccccscsessscssscssssssesssscssseeeeccesesesscc. 17, 20, 24 Davenport v. Superior Court (2012) 202 CalApp.4th 665 o.....cccccccsscsssscsssssesssssessseeecceeesecccc. 7-8, 10, 16 In re Lucas (2012) 53 Call. 4th 839 ooo... cccssssssenesesssssssssnsssesssssessssessssuueeceeeccc 5 In re Ronje (2009) 179 CalApp.4th 509 oon... 1-4, 9-13, 15-16, 25, 28-29 In re Wright (2005) 128 Cal.App.4th 663 woccccccccccsssscessssseecceseeecesseccc 6, 17, 22-23, 26 ii TABLE OF AUTHORITIES (continued) Mathews v. Eldridge (1976) 424 U.S. 319occ cccccsscseccessnssssnssssssssnantasisissstessesseeseeeecc 4 Morning Star Co. v. State Bd. ofEqualization (2006) 38 Cal.4th 324 oo... ccscssssssssssssssssunssessssssssssssassesssesseeeeeeeec 9 Morrissey v. Brewer (1972) 408 U.S. 47D oc ccecssssssssssssssesssssisssssssssnsmussssssssssstststtesesseescccc. 4 People v. McKee (2010) 47 Cal.4th 1172 ooo cccccsssssesssssesuesserterssesseseseseeeeeeeeeeeeecccc 14 People v. Pompa-Ortiz (1980) 27 Cal.3d 519 woos ccccsccscccssseccsssssiuusmusssssesesessuneeseeseeseeeeeeeeeecccc 13 People v. Superior Court (Gary) (2000) 85 CalApp.4th 207 .....ccccccccssssssssssssesssessssssteseecesseeccccccc 17-19, 24 People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 ooo. cccccccsscssscssseeseeeescccec 6, 14-15, 17, 21-23, 25 People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122 occcccccccccccccccc... 6, 14-15, 17, 19-20, 23-26 Peters v. Superior Court (2000) 79 Cal.App.4th 845 wocccccccccscecccssssssssssssssseeeeeeeceeecccce 17-18, 20, 24 Speiser v. Randall (1958) 357 U.S. 513 caecccsssssssssessssssssssssevastsssassssesssisessuussasesseeeeeeeecccc 4 Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal4th $57 ooo. cecccssssssssssssussstssniivsvessisveteeeeeeeeeeecc 10-11 Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713 oo. cccccssessssssssssssssviseeeeeeeec 10, 16 lil TABLE OF AUTHORITIES (continued) Statutes Welfare & Institutions Code section 6600 ...ccccssssssccssssssseseccosseeeeecescecccccc, 1-2 Welfare & Institutions Code section 6601 veecceccccccccsc--....... 1, 3, 5-6, 9, 11-14 Welfare & Institutions Code section 6601(a) oo eeccesessessessescsseseessecstesseces 5 Welfare & Institutions Codesection 6601(a)(2)..ee eeesessscssssessssesscessecees 5 Welfare & Institutions Codesection 6601(D) ooeceesesseceececscescsssssevereeses 5 Welfare & Institutions Code section GO01(C) oo eccesesssssscstecscescsescseaseeses 6 Welfare & Institutions Code section 660 1(d) wove 5, 6, 20, 22, 24-25 Welfare & Institutions Code section 6601 (Ee) wove ecceeececeesees 5, 6, 19, 22, 25 Welfare & Institutions Code section G60 1(f) oo. ee ecececsesseescscestecesens 5, 22, 25 Welfare & Institutions Code section 6601.3 .....cccsscsscssssssseeeeeeeeeeeeeccccccc 5 Welfare & Institutions Code section 6602(a) oo eeccccssseecsscstscsecstessees 3,15 Welfare & Institutions Code section 6603 ......ccccssssssssssssssessssessteeseeeeccecccccen. 2 Court Rules Cal. Rules of Court, rule 8.5 V2(G)(2) eee eecsesseseesessssssssecsesssesressecstsesececees 16 Cal. Rules of Court, rule B.520(D)(3) oo ecsesccscsssssesesersesesesescessesserecesess 10, 16 Cal. Rules of Court, rule B.S28(d) oeeecccscssssescscstessseessessatsessssecssesesesssesesces 14 Other Authorities 2008 OAL Determination No. 19 (Aug. 15, 2008) oo.cceeeseseeeeees 9-10 iv QUESTION GRANTED REVIEW Waspetitioner entitled to dismissal of a petition for commitment under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) when the evaluations originally supporting the filing of the petition were conducted under an assessment protocol that was later found to constitute an invalid regulation and the results of reevaluation under a properly-adopted assessment protocol would have precluded the initial filing of the petition under Welfare andInstitutions Code section 6601? ARGUMENT SUMMARY In Jn re Ronje (2009) 179 Cal.App.4th 509, 516-517 (Ronje), the court determined that the evaluations done before the SVP Petition was filed were not valid because the evaluations were conducted pursuant to an invalid standardized assessment protocol. To correct this procedural error, the Ronje court remanded with directions to order new evaluations under section 6601 of the Welfare and Institutions Code using a valid assessment protocol. (Ronje at p. 521.)! Through its rulings, Ronje anticipated that (1) the post-Ronje evaluations would be valid because the doctors would use a valid assessment protocol, (2) the statutory requirementfor two valid evaluations would besatisfied by the post-Ronje evaluations (notthe invalid pre-Ronje evaluations), and (3) the SVP Petition would therefore be lawful because the SVP Petition would be supported by twovalid post-Ronje evaluations. On the other hand, the SVP Petition would be unlawful (and should be dismissed) if not supported by two valid post-Ronje evaluations. In Petitioner's matter, Dr. Clipson’s 2008 evaluation and Dr. Webber’s 2008 evaluation were not valid because the evaluations were ' The People did not seek review ofthis case. l conducted pursuantto an invalid standardized assessment protocol and may not be used to support the lawfulness of the SVP Petition. Furthermore, Dr. Clipson’s 2011 evaluation is valid, but may not be used to support the lawfulness of the SVP Petition because Dr. Clipson determined that Petitioner is not an SVP. Finally, Dr. Webber’s 2011 evaluation is valid, but also may not be used to support the lawfulness of the SVP Petition because Dr. Webber determined that Petitioner is not an SVP. Thus, the SVP petition should be dismissed. PROCEDURAL HISTORY On July 1, 2008, the Orange County District Attorney (OCDA)filed a “Petition for Recommitment as a Sexually Violent Predator”(hereinafter referred to as the “SVP Petition”) under the Sexually Violent Predator Act (Welfare & Institutions Code section 6600et seq; “SVPA”or “SVP Act”).? This SVP Petition was assigned case # M-11860. The OCDAattached to the SVP Petition an evaluation by Dr. Clipson dated June 20, 2008, and an evaluation by Dr. Weber dated January 14, 2008.° For ease ofreference these evaluationsarereferred to as “pre-Ronje evaluations.” On November 19, 2009, in In re Ronje (2009) 179 Cal.App.4th 509 (Ronje), the court ruled that Ronje had been evaluated under an invalid DMHprotocol, and therefore, was entitled to new evaluations pursuant to 2 All future references to a section are references to the Welfare and Institutions Code unless otherwise noted. > Dr. Clipson and Dr. Weber both performed updated evaluations of Petitioner, pursuant to Section 6603, on August 25, 2009, and August5, 2009, respectively. The People assert, without any basis in fact, that the 2009 evaluations were done by the doctors using the 2009 standardized assessment protocol. (Opening at pp. 14, 39-40.) In fact, the Office of Administrative Law did not approve the 2009 standardized assessment protocol until September 14, 2009. 2 section 6601, using a valid assessment protocol. Accordingly, the Ronje court “remanded with directions to (1) order new evaluations undersection 6601 using a valid assessment protocol, and (2) conduct another probable cause hearing under section 6602, subdivision (a) based on those new evaluations.” (Ronje at p. 521.) In response to the Ronje ruling, on November 19, 2010, Judge Marion ordered that new evaluations be conducted pursuant to section 6601 and expressly rejected the “People’s request to use updated evaluations instead of new evaluations...” Furthermore, Judge Marion ordered that the doctors conduct the new evaluations by using a valid standardized assessment protocol. Finally, Judge Marion ordered that the probable cause hearing be conducted based on these new evaluations.’ After Judge Marion’s order, the State Department of Mental Health (DMH)re-appointed Dr. Clipson and Dr. Weber to evaluate Petitioner as an SVP. In a report dated February 26,2011, Dr. Clipson opined that Petitioner does not meet the criteria for an SVP. In a report dated February 25, 2011, Dr. Weber opined that Petitioner does not meet the criteria for an SVP. For ease of reference these evaluations are referred to as “post-Ronje evaluations.” On March 17, 2011, Petitioner filed a Plea in Abatement.” On April 15, 2011, Judge King denied Petitioner’s motions. On April 20, 2011, Petitioner filed a Petition for a Writ of Mandate / Prohibition in the Court of Appeal, Fourth Appellate District, Division Three, case number G045118. The petition was granted on March 28, 2012. * The People did not seek review of Judge Marion’sorders. ° In the Supplemental Points and Authorities, Petitioner requested that the Plea in Abatement also be considered a demurrer pursuant to section 430.10(a) of the Code of Civil Procedure and a non-statutory motion to dismiss. 3 On May 7, 2012, the People filed a Petition for Review in this Honorable Court. On June 13, 2012, this Honorable Court granted the petition. On June 20, 2012, this Honorable Court designated this case the lead case and deferred further action on ten other pending matters. ARGUMENT I. THE SVPA INCLUDESA “TWO-VALID-EVALUATIONS” PROCEDURAL SAFEGUARD. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” (Morrissey v. Brewer (1972) 408 U.S, 471, 481.) To evaluate due process claims, the United States Supreme Court in Mathews v. Eldridge ( 1976) 424 U.S. 319, 335 (Mathews), articulated a three-factor test that considers (1) the private interest that is affected by the state action; (2) the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value, if any, of additional or other procedural safeguards; and (3) the state's interest, including the function involved, and the fiscal and administrative burdens that the additional or other procedural requirement would raise. The Mathews test applies to involuntary civil commitments. (Addington v. Texas (1979) 441 U.S. 418, 425; In re Ronje (2009) 179 Cal.App.4th 509, 519.) “It is of course within the powerof the State to regulate procedures under whichits laws are carried out...” (Speiser v. Randall (1958) 357 U.S. 513, 523.) To conform with the requirements of Due Process, the legislature has included many procedural safeguards in the SVPA. For example, the SVP Actstates that a petition to commit a person as an SVP maybefiled only “if the individual was in custody pursuant to his or her determinate 4 prison term, parole revocation term, or a hold placed pursuant to Section 6601.3, at the time the petition is filed.” (Welf. & Inst. Code, § 6601, subd. (a)(2); see also In re Lucas (2012) 53 Cal. 4th 839, 843.) If the individual is lawfully in custody and the Secretary of the Department of Corrections and Rehabilitation (CDCR) determines that a prisoner may be a sexually violent predator (SVP), the Secretary refers the prisoner for an initial screening before the prisoner’s scheduled release date. (Welf. & Inst. Code, § 6601(a) & (b).) If, as a result of this initial screening, it is determined that the prisoneris likely to be an SVP, the Secretary refers the prisoner to the State Department of Mental Health (DMH)for a full evaluation as an SVP. (Welf. & Inst. Code, § 6601(b).) If a prisoner is referred to DMH, DMH must appoint two psychiatrists or psychologists to evaluate the prisoner. (Welf. & Inst. Code, § 6601(d).) If the two initial evaluators agree that the prisoner is an SVP, DMH must request a commitment petition from the District Attorney. (Welf. & Inst. Code, § 6601(d).) If the two initial evaluators do not agree that the prisoner is an SVP, DMH is required to appoint two independent professionals to evaluate the prisoner as an SVP. (Welf. & Inst. Code, § 6601(e).) If the two independent professionals agree that the prisoneris an SVP, DMH must request a commitment petition from the district attomey. (Welf. & Inst. Code, § 6601(f).) Whether appointed by DMH as initial evaluators or independentprofessionals, the doctors are required to evaluate the prisoner “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 as defined in this article. 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. 5 Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (Welf. & Inst. Code, § 6601(c), emphasis added.) Thus, the procedural safeguard describedin this paragraph has the following two components: (1) the doctors must evaluate the prisoner in accordance with a standardized assessment protocol, and (2) the two doctors must agreethat the prisoner is an SVP. Forease ofreference, this procedural safeguard is referred to as “Two-Valid-Evaluations”procedural safeguard. “The evaluations are a prerequisite to the filing of the petition and the evaluations serve as a procedural safeguard to prevent meritless petitions from reaching trial [citations].” (In re Wright (2005) 128 Cal. App. 4th 663, 672, emphasis added; see also People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 894 [“[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 [DMH]understatutory procedures to evaluate the person for this purpose, have agreed, by correct application ofthe statutory standards, that the person [is an SVP].”] and at p. 909 [“[W]e, like the courts below, conclude thata petition for commitment or recommitment may notbe 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.”]; see also People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130 [“The discrete and preliminary role the evaluations play in the statutory scheme does not in any sense underminetheir importance or suggest the People may ignore the protection they provide. (citations omitted.) When the required evaluations have not been performed, an alleged SVP may bring that fact to the trial court's attention and obtain appropriate relief.”].) 6 People’s Arguments Despite the statutory mandate and case precedent, the People ask this Honorable Court to ignore and bypass the “Two-Valid-Evaluations” procedural safeguard. According to the People, “the only prerequisite to the filing a [sic] petition and then proceeding to judicial review is that two experts agree at the pre-filing stage that the person meets the commitment criteria.” (Opening at p. 6, 23.) The People further assert: “After the screening function of the pre-filing evaluationsis fulfilled and a petition is filed, evaluators play a relevant but less integral role in the judicial proceedings that follow. Indeed the People need not even allege the evaluations or attach them to the petition.” (Opening at pp. 6, 30.) The People’s arguments suffer from a fatal flaw; they ignore and bypass the “Two-Valid-Evaluations” procedural safeguard written into the SVP Act. Likewise, in Davenport v. Superior Court (2012) 202 Cal.App.4th 665, 670 (Davenport), the First Appellate District ignored and bypassed the “Two-Valid-Evaluations” procedural safeguard. According to the court in Davenport, “[a]fter the petition has been filed, the People’s burdenis not to prove two evaluations exist, but to prove the alleged SVP is a personlikely to engage in sexually violent predatory criminal behavior.” (Davenport at p. 670.) The Davenport court further explains that once the petition has beenfiled, “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.” (Davenport at p. 672.) Like the People’s arguments above, the Davenport ruling is wrong because it ignores and bypasses the “Two-Valid-Evaluations” procedural safeguard. To furtherillustrate the importance of the “Two-Valid-Evaluations” procedural safeguard, and the problems that arise if it is ignored or bypassed,consider the following hypothetical: 7 The DMH appointed two doctors to evaluate John Smith. The two doctors concurred that John Smith was not an SVP. The DAfiled the SVP petition anyway. At the probable cause hearing, the DA called a hired expert, Dr. Jekyll, to opine that John Smith is an SVP. Based solely on the testimony of Dr. Jekyll, the trial court found probable cause to believe that John Smith was an SVP. The hypothetical demonstrates the importance of the “Two-Valid- Evaluations” procedural safeguard. Withoutit, John Smith did not have an opportunity to point out that the SVP Petition was never supported by two concurring evaluations done in accordance with a standardized assessment protocol. This result is contrary to the express language of the SVP Act and the holdingsin the cases cited in this section I. The hypothetical also demonstrates that the People’s argument and the Davenport ruling effectively eliminate the “Two-Valid-Evaluations” procedural safeguard. According to the People’s argument and the Davenport ruling, the first procedural safeguard available to John Smith is the probable cause hearing. (Openingat pp. 6, 23, 30, 43-44; Davenportat pp. 672, 674 and 676.) And, according to the People’s argument and the Davenport ruling, the DA need not prove that two concurring evaluations exist at that probable cause hearing. (Opening at pp. 6, 23, 30, 43-44; Davenport at p. 671.) Thus, John Smith did not have an opportunity to point out that the SVP Petition was never supported by two concurring evaluations done in accordance with a standardized assessment protocol. Again, this result is contrary to the express language of the SVP Act and the holdings in the casescited in this section L Ml MI //f Il. THE 2007 SAP HAS NEVER BEEN PROMULGATED AND IS THEREFORE AN “UNDERGROUND REGULATION.” In Ronje, the Fourth Appellate District correctly determined that the 2007 version of the Clinical Evaluator Handbook and Standardized Assessment Protocol (2007 SAP)° was a regulation and had not been properly promulgated: To implement section 6601, the DMH has over the years published a clinical evaluator handbook and standardized assessment protocol for its SVP evaluators. In. August 2008, the [Office of Administrative Law (OAL)] issued a determination that various challenged portions of the 2007 version of the Clinical Evaluator Handbook and Standardized Assessment Protocol met the statutory definition of a regulation and, therefore, should have been adopted pursuantto the Administrative Procedure Act (APA), Government Code section 11340.5. (2008 OAL Determination No. 19 (Aug. 15, 2008) p. 1 [as of Nov. 19, 2009].) The OAL determined that, as such, the protocol constituted an underground regulation as defined in California Code of Regulations, title 1, section 250. (2008 OAL Determination No. 19, supra, at p. 13.) A regulation enacted in violation of the APA is invalid. (Morning Star Co. v. State Bd. ofEqualization (2006) 38 Cal.4th 324, 340.) (Ronje at p. 515.) The Ronje court went on to correctly hold that the “OAL's determination the 2007 assessment protocol is an underground regulation, though not binding on us,is ‘entitled to due deference.’ (citation omitted.) ° The SVPA commitment petition against Ronje was filed in March 2006, so his evaluations likely were conducted in accordance with the 2004 assessment protocol. The Ronje court found that “the 2004 assessment protocol is substantially the same as the 2007 version determined by the OALto constitute an invalid regulation. The relevant portions of the 2004 version differ only in a few, nonsubstantive respects from the corresponding portions in the 2007 version that were the basis for 2008 OAL Determination No. 19.” (Ronje at p. 516.) 9 ..- [J] We conclude 2008 OAL Determination No. 19 was correct under Tidewater... [{] As an underground regulation, the 2007 standardized assessment protocolis invalid. (citation omitted.)” (Ronje at pp. 516-517.) In Davenport, the First Appellate District held: “Given that the 2007 protocol has been superseded and that we would reach the same result regardless ofits administrative validity or invalidity, we shall also proceed on the assumption the protocol wasinvalid.” (Davenportat p. 670.) People’s Arguments In its Opening Brief, the People appear to concede that the 2007 SAP was a regulation that had not been properly promulgated. (Opening at pp. 9-12.) In its Opening Brief, the People also note: “The People did not challenge the OAL determination.” (Opening at p. 10, footnote 8.) In addition, the People did not seek review of any portion of the Ronje decision, including the holding that the 2007 SAP was a regulation that had not been properly promulgated. Furthermore, the People appear to concedethat, as an underground regulation, the 2007 SAPis invalid. (Opening at pp. 24, 30.) The People correctly acknowledge that “the remedy to cure a protocol not ratified by the APA is an APA-compliant protocol.” (Opening at pp. 24, 30.) In addition, the People did not seek review of any portion of the Ronje decision, including the holding that the 2007 SAP wasinvalid. Finally, the People assert, without any basis in fact, that there are no substantive defects in the 2007 SAP.’ (Opening at p. 42.) First, the 2007 SAP was an underground regulation. Thus, the SVP community was never given an opportunity to identify the substantive defects in the ’ This issue was not presented by the petition for review and should not be considered. (Cal. Rules of Court, rule 8.520(b)(3); Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713, 726.) 10 2007 SAP. (See, for example, Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 569 [“The Legislature wisely perceived that the party subject to regulation is often in the best position, and has the greatest incentive, to inform the agency about possible unintended consequences of a proposed regulation. Moreover, public participation in the regulatory process directs the attention of agency policymakers to the public they serve, thus providing some security against bureaucratic tyranny.”].) Second, DMHnever promulgated the 2007 SAP. Instead DMH replaced the 2007 SAP, which was 68 pages in length and contained detailed instructions for the evaluators, with the 2009 version of the Clinical Evaluator Handbook and Standardized Assessment Protocol (2009 SAP). The 2009 SAPis 6 pages in length and merely consists of a restatement of the statutory and case law on the issue of SVP evaluations. Il. SINCE THE 2007 SAP IS INVALID, THE PRE-RONJE EVALUATIONS ARE INVALID. Because the pre-Ronje evaluations were not done in accordance with a valid standardized assessment protocol, the Ronje court determined that the pre-Ronje evaluations are invalid. (Ronje at p. 521.) “Use of the invalid assessment protocol therefore constitutes an error or irregularity in the SVPA proceedings.” (Ronje at pp. 516-517.) Thus, the Ronje court remanded with directions to order new evaluations of Ronje under section 6601 using a valid assessment protocol...” (Ronje at p. 521.) The People did not seek review of the Ronje decision. In response to the Ronje ruling, on November 19, 2010, Judge Marion determined that, because the pre-Ronje evaluations were not done in accordance with a valid standardized assessment protocol, the pre-Ronje evaluations are invalid for 21 pending SVP matters, including 11 Petitioner’s pending SVP matter.® The People did not seek review of Judge Marion’s determination in any ofthese 21 pending SVP matters.” People’s Arguments Jn its Opening Brief, the People appear to concede that, because the pre-Ronje evaluations were not done in accordance with a valid standardized assessment protocol, the pre-Ronje evaluations are invalid. (Opening at p. 14.) However, the People assert: “Regardless, agreement the person meets commitment criteria is not required because the evaluations and conclusions within are merely collateral to the continued judicial proceedings.” (Opening at p. 15.) Once again, the People improperly ask this Honorable Court to ignore and bypass the “Two-Valid-Evaluations” procedural safeguard. IV. NEW EVALUATIONS DONE UNDER SECTION6601 USING A VALID ASSESSMENT PROTOCOL ARE THE APPROPRIATE REMEDY. As discussed in Section III above, the Ronje court found that the pre-Ronje evaluations were invalid because the evaluators used an invalid assessment protocol. The Ronje court then determined that the appropriate remedy was to order new evaluations under section 6601 using a valid ® On November 23, 2010, Judge Donahue made the exact same determination for 17 other pending SVP matters. ” The People also did not seek review of Judge Donahue’s determination in any of the 17 pending SVP matters for which he madea determination. 12 assessment protocol. (Ronje at p. 521.) The People did not seek review of Ronje."° In response to the Ronje ruling, on November 19, 2010, Judge Marion ordered that new evaluations be conducted pursuant to section 6601 of the Welfare and Institutions Code for 21 pending SVP matters, including Petitioner’s pending SVP matter.'' The People did not seek review of Judge Marion’s orders in any of these 21 pending SVP matters. 2 New evaluations are the appropriate remedy. Since the pre-Ronje evaluations were invalid because the evaluators used an invalid assessmentprotocol, Mr. Ronje requested a dismissal of the SVP Petition or new evaluations conducted under a valid assessment protocol. (Ronje at p. 518.) The Ronje court correctly determined that “t]he decision which remedy to offer depends on whether use of evaluations based on an invalid assessment protocol deprived the trial court of fundamentaljurisdiction.” (Ronje at p. 518.) The Ronje court went on to correctly hold: The term “jurisdictional in the fundamental sense” means the “legal power to hear and determine a cause.” (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) “Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an '0 Ronje not only required the expenditure of time and money to perform new evaluations for Mr. Ronje, but also for nearly every pending SVP matter in thestate. '' On November 23, 2010, Judge Donahue issued the exact same orders for 17 other pending SVP matters. ? The People also did not seek review of Judge Donahue’s orders in any of the 17 pending SVP matters for which heissuedorders. 13 absence of authority over the subject matter or the parties.” (Abelleira v. District Court ofAppeal ( 1941) 17 Cal.2d 280, 288.) In Glenn, we concluded that use of the evaluations conducted pursuantto the invalid assessment protocol did not deprive the trial court of the legal power to hear and determine the subsequently filed SVPA commitment petition, and therefore was not jurisdictional in a fundamental sense. (People v. Glenn (2009) 178 Cal.App.4th 778, 786, 807.)3 Use of the evaluations based on the invalid assessment protocol, though erroneous, does not deprivethe trial court of fundamental jurisdiction over the SVPA commitment petition. The trial court has the power to hear the petition notwithstanding the error in using the invalid assessment protocol. Dismissalthereforeis not the appropriate remedy. Instead, the proper remedy is to cure the underlying error. In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894, 905 (Ghilotti), the California Supreme Court concluded an SVPA commitment or recommitment petition cannotbe filed unless, pursuantto section 6601, two mental health professionals agree the person qualifies as an SVP. The trial court may review an evaluator's assessment report for legal error and, if the court finds material legal error on the face of the report, must direct that the “erring evaluator prepare a new or corrected report applying correct legal standards.” (Ghilotti, supra, 27 Cal.4th at p. 895.) The Supreme Court remanded the matter to the Court of Appeal with directions to issue a writ of mandamus vacating the trial court's order dismissing the recommitment petition and to remand the matter to the trial court. ({bid.) On remand, the trial court was directed to review the designated evaluators’ reports for material legal error and, if necessary, direct the evaluators to prepare new or corrected reports under the correct standard. (/d. at pp. 895, 929.) In People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1127-1128, the Court of Appeal rejected the argumentthat the failure to obtain two evaluations before '3 On May 20, 2010, this Honorable Court transferred this case to the Court of Appeal, Fourth Appellate District, Division Three with directions to vacate its decision and to reconsider the cause in light of People v. McKee (2010) 47 Cal.4th 1172. (Cal. Rules of Court, rule 8.528(d).) Therefore, this case is no longercitable. 14 the initial petition was filed deprived the trial court of jurisdiction to proceed on an SVPA commitmentpetition. The requirement of evaluations, the court reasoned, is not one affecting disposition on the merits but is a collateral procedural condition “designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.” (87 Cal.App.4th at p. 1130.) “In general, where a defect impairinga litigant's right to proceed existed at the time a complaint wasfiled but has been cured by the time the defense is raised, the defect will be ignored.” (dd. at p. 1128, citing 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1058, p. 508.) As People v. Superior Court (Preciado) and Ghilotti suggest, the proper remedy hereis 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. (Ronje at pp. 518-519.) People’s Arguments In its Opening Brief, the People state: “Although Ronje correctly determined use of an invalid assessment standardized protocol during the pre-filing SVPA evaluation did notdivest the trial court ofjurisdiction over the petition, Ronje also concluded that evaluations conducted under the invalid protocol constituted an error or irregularity in the SVPA commitment proceeding itself. (citation omitted) Ronje then held the remedy was to cure the defective evaluation...” (Opening at p. 12.) The People then leap to the erroneous conclusionthat: “Relying on the remedy it had crafted in Ronje, the appellate court essentially ruled that because the agency blundered, the sexual predator must necessarily go free.” (Opening at pp. 15, 28-30.) In point of fact, Ronje and the appellate court held exactly the opposite. Rather than order a dismissal because the agency (DMH) 15 blundered, Ronje ordered DMH to correct its blunder and submit new evaluations after the blunder is corrected. Next, the People improperly ask this Honorable Court to completely ignore DMH’s blunder, waive compliance with the “Two-Valid- Evaluations” procedural safeguard, determine that new valid evaluations were improperly ordered by Ronje,'* and ignore the determination by Dr. Clipson and Dr. Webberthat Petitioner is not an SVP. Why? Because Petitioner did not first prove that the use of an invalid assessment protocol was “a material error that undermined the conclusion that the person met commitment criteria.” (Opening at pp. 14, 32-40; see also Davenport at p. 673.)'° The People’s position is untenable. This Honorable Court should not ignore DMH’s blunder unless the People first prove that the blunder was immaterial, which may be difficult given that Dr. Clipson and Dr. Webber now opinethatPetitioner is not an SVP. This Honorable Court should not waive compliance with the “Two-Valid-Evaluations” procedural safeguard under any circumstance. This Honorable Court should, in accordance with the Ronje ruling, hold that valid evaluations are always required by the SVP Act. Finally, this Honorable Court should not ignore the determination by Dr. Clipson and Dr. Webber that Petitioner is not an SVP. '* This issue was not presented by the petition for review and should not be considered. (Cal. Rules of Court, rule 8.520(b)(3); Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713, 726.) ' In support ofits arguments in the Opening Brief, the People alsocite Macy v. Superior Court (2012) 206 Cal.App.4" 1393. However, on September 12, 2012, this Honorable Court granted a petition for review and deferred further action pending consideration and disposition of a related issue in Reilly v. Superior Court, 202280 (see Cal. Rules of Court, rule 8.512(d)(2)). Therefore, Macy is no longercitable. 16 Vv. PETITIONER MAY TIMELY CHALLENGE THE VALIDITY OF THE SVP PETITION GIVEN THAT THE TWO POST-RONJE EVALUATORS HAVE OPINED THAT PETITIONER DOES NOT MEET THE CRITERIA FOR ANSVP. The courts have made it clear that Petitioner may challenge the validity of the SVP Petition when the two evaluators appointed by DMH do not agree that Petitioner is an SVP at any time during the time period beginning on the first hearing date for the SVP Petition and ending on the date of the probable cause hearing. (In re Wright (2005) 128 Cal. App. 4th 663; People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888; People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122; People vy. Superior Court (Gary) (2000) 85 Cal. App. 4th 207; Peters v. Superior Court (2000) 79 Cal. App. 4th 845; Butler v. Superior Court (2000) 78 Cal. App. 4th 1171.) People’s Arguments In its Opening Brief, the People mistakenly assert that Petitioner may only challenge the validity of an SVP Petition at the probable cause hearing (Openingat p. 6.) andatthetrial (Openingat p. 6.). The People are simply wrong. The courts have madeit clear that Petitioner may challenge the validity of the SVP Petition when the two evaluators appointed by DMHdonot agree that Petitioner is an SVP at any time during the time period beginning onthefirst hearing date for the SVP Petition and ending on the date ofthe probable cause hearing. In Butler, a jury found that Petitioners Butler and Cheek were an SVP. (Butler v. Superior Court (2000) 78 Cal. App. 4th 1171, 1174.) Both were committed to the Department of Mental Health for treatment for a period of two years. Before the expiration of those two-year commitments 17 ended, the People filed a petition to continue the commitments under the SVPA. Each petition was supported by one evaluation. At the probable cause hearing, each ofthe petitioners moved to dismiss the petition on the groundsthat the petition was not supported by two evaluations concurring that petitioner is an SVP. Thetrial court denied the motions to dismiss. The appellate court reversed and orderedthe dismissalofthe petitions. In Pefers, the court found that Peters was an SVP. (Peters y. Superior Court (2000) 79 Cal. App. 4th 845, 847-851.) Peters was committed to the Department of Mental Health for treatmentfor a period of two years. Before the expiration of the two-year commitment ended, the People filed a petition to continue the commitment under the SVPA. Attached to the petition was a single evaluation by Dale Arnold, Ph.D." Peters moved to dismiss the petition on the grounds that the petition was not supported by two evaluations concurring that petitioner is an SVP. The trial court denied the motion to dismiss. The appellate court reversed and ordered the dismissalofthepetition. In Gary, a jury found that Gary was an SVP. (People v. Superior Court (Gary) (2000) 85 Cal. App. 4th 207, 211-212.) Gary was committed to the Department of Mental Health for treatmentfor a period of two years. Gary's original commitment under the SVPA was scheduled to expire on December 12, 1999. On December 9, 1999, the People filed a petition to continue his commitment under the SVPA. The petition was supported by two evaluations. Dawn Starr, Ph.D, concluded that Gary was no longer an '® DMH had appointed a second psychologist, Dr. Charles Jackson, Ph.D. He concluded that Peters did not meet the SVP criteria, and submitted his tentative report to DMH.Before Dr. Jackson could complete his report, the DMH informed him that it no longer wished to use his services. Nonetheless, Dr. Jackson completed his report. DMH discarded Dr. Jackson's report without informing Peters. (Peters v. Superior Court (2000) 79 Cal. App. 4th 845, 848.) 18 SVP. Robert M. Owen, Ph.D, concluded that Gary wasstill an SVP. On December 10, 1999, Gary argued that the petition should not have been filed because it was not supported by two evaluations concurring that Gary is an SVP. Thetrial court agreed'’ and dismissed the petition on the motion of Gary’s counsel. The appellate court upheld the dismissal of the petition and found that “the [trial] court correctly ruled the petition failed to comply with the statute.” (/d. at p. 219.) In Preciado, a jury found that Preciado was an SVP. (People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1125.) Preciado was committed to the Department of Mental Health for treatment for a period of two years. Preciado's original commitment under the SVPA was scheduled to expire on January 12, 2000. On November 16, 1999, the People filed a petition to continue his commitment under the SVPA. Attached as an exhibit to the petition was an evaluation of Preciado prepared by DawnStarr, Ph.D. Dr. Starr concluded Preciado continued to suffer from a diagnosable mental disorder that made him likely to engage in sexually violent criminal behavior. On January 5, 2000, a second evaluation was conducted by Jill Nelson, Ph.D. Dr. Nelson also concluded Preciado continued to meet the criteria of an SVP. On April 20, 2000, the People filed an amended petition. Attached to the amended petition was the original evaluation conducted by Dr. Starr and the later evaluation conducted by Dr. Nelson. Preciado was arraigned on the amended petition on April 28, 2000. Drs. Nelson and Starr testified at the probable cause hearing. On May 23, 2000,at the conclusion ofthe probable cause hearing, Preciado moved to dismiss the initial petition on the grounds that the ’ Thetrial court also noted that DMH failed to appoint the two independent evaluators required by section 6601(e). (People v. Superior Court (Gary) (2000) 85 Cal. App. 4th 207, 211.) 19 People’s failure to obtain two evaluations prior to filing the initial petition deprivedthetrial court ofjurisdiction to proceed ontheinitial petition.'® The Preciado court first noted that the SVPA does not require the People to attach the evaluations to the petition. (People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1128.) The court went on to note, however, that the SVP Petition was, at the time it was filed, “subject to attack because the DMHhadnot yet obtained the two evaluations required by section 6601, subdivision (d) (citations omitted.) Plainly, under Butler and Peters the People did not yet have the right to bring an SVPA petition against Preciado. However, this defect was not one going to the substantive validity of the complaint, but rather was merely in the nature of a plea in abatement, by which a defendant may argue that for collateral reasons a complaint should not proceed. (citations omitted.) In general, where a defect impairing a litigant's right to proceed existed at the time a complaint wasfiled but has been cured by the time the defense is raised, the defect will be ignored. (citations omitted.)” (People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1125, emphasis added.) The Preciado court further noted that “[w]hen the required evaluations have not been performed, an alleged SVP maybring that fact to the trial court's attention and obtain appropriate relief.” (Jd. at p. 1130, emphasis added.) The Preciado court ultimately held that, since the defect had been cured by the time that Preciadofiled his motion to dismiss, his motion must be denied. (/d. at p. 1130.) Thus, the Preciado court not only acknowledged that Petitioner has the right to challenge the validity of the SVP Petition, but also madeit clear that time is of the essencein making that challenge. '§ Preciado also moved to dismiss the amendedpetition on the groundsthat the two evaluations were not completed prior to the expiration of his commitment under the SVPA.(People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1125.) 20 In Ghilotti, a jury found that Ghilotti was an SVP. (People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 896-900.) Ghilotti's commitment under the SVPA_ was scheduled to expire on December 1, 2001. Psychologists designated by DMH conducted formal evaluations of Ghilotti's current condition to determine whether he should be recommitted for an additional SVPA term, or should instead be released without conditions. These evaluators ultimately concluded that Ghilotti no longer meets the statutory criteria for commitment. DMH disagreed with the designated evaluators’ recommendations. On November9, 2001, DMH wrote to the District Attorney, asking her to file a superior court petition seeking Ghilotti’s recommitment. Thedistrict attorney did so. Attached to the petition wasa letter from DMH,which expressed disagreement with the evaluators' conclusions and indicated further concern. that, by correct statutory criteria, the evaluators’ reports actually supported Ghilotti's recommitment. Also attached to the petition were declarations from hospital psychiatrists urging that Ghilotti is not yet suitable for unsupervised release. On November 29, 2001, Ghilotti filed a written response, which challenged the legal validity of the 2001 recommitment petition and asked that the recommitmentpetition be dismissed. On that same day, the trial court conducted a hearing on the matter and provided the district attorney with an additional day to determine if DMH wanted to modify its position. On November 30, 2001, the trial court rejected the district attorney's sole argument that DMH may request a petition without regard to the contrary recommendations of the designated evaluators. Accordingly, the trial court dismissed the petition and ordered Ghilotti's release. The Court of Appeal summarily denied relief, making clear it agreed with the trial court that DMH cannot simply overrule or disregard the designated evaluators’ recommendations against commitment. 2] The Ghilotti court first noted that “fi]n the case before us, questions have arisen whether one or more of the designated evaluators, lacking guidance as to the meaning of the statutory criteria, may have understood them inaccurately, and thus committed legal error, when reaching conclusions that Ghilotti does not qualify for recommitment under the SVPA. We must therefore determine the means of resolving that issue. § The SVPA contains no express provision for judicial review of the reports of designated evaluators to determine whether they are infected with legal error. It appears to be an issue of first impression whether a court entertaining a petition for an involuntary civil commitmenthas authority to review for legal error the expert evaluations which are a prerequisite to the filing of such a petition. Under the SVPA, however, an affirmative conclusion is inherent in the statutory scheme, and in the nature of the Judicial power.” (People y. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 910.) Thus, the Ghilotti court fashioned a remedy. More specifically, the court held the district attorney mayfile the petition despite the lack of concurrenceof the two evaluators.(Jd. at p. 912.) “The person namedin the petition may thenfile a pleading challenging the validity of the petition on groundsthat it is not supported by the concurrence of two evaluators under section 6601, subdivisions (d) through (f). In response, the petitioning authorities may defend the petition by asserting that one or more nonconcurring reports are infected by legal error.”(Id. at pp. 912-913.) In Wright, DMHappointed two doctors who disagreed on whether Wright was an SVP. (/n re Wright (2005) 128 Cal. App. 4th 663, 668-669.) DMHappointed two more doctors, including Dr. Jackson, who agreedthat Wright was an SVP. The trial court found probable cause at the conclusion of the probable cause hearing. A jury subsequently concluded that Wright was an SVP. After the jury verdict, it was determined that Dr. Jackson 22 lacked the qualifications required by the SVP Act. Wright filed a petition for habeas corpus. The Wright court first noted that “the evaluations play an important role in the statutory scheme and appropriate relief may be obtained after bringing any defect in the evaluations to the trial court's attention. (Preciado, supra, 87 Cal.App.4th at p. 1130.) For example, an individual could challenge the petition via a motion to dismiss at the time of the probable cause hearing and, assuming this motion is denied, seek review via a writ of habeas corpus.”(/d. at pp. 672-673.) The Wright court further noted that, since respondent had not raised the defect earlier, “reversal is not necessary unless the individual can show that he or she was denied a fair trial or had otherwise suffered prejudice.” (Id. at p. 673.) The Wright court ultimately held that, since respondent failed to make that showing, he wasnot entitled to a reversal. (/d. at pp. 673-674.) Thus,like the Preciado court, the Wright court not only acknowledged that Petitioner has the right to challenge the validity of the SVP Petition, but also madeit clear that time is of the essence in making that challenge. VI. PETITIONER USED THE CORRECT PROCEDURE(S) TO CHALLENGE THE VALIDITY OF THE SVP PETITION. The courts have made it clear that (1) two doctor’s evaluations are a prerequisite to the filing of an SVP Petition, and (2) Petitioner may challenge the validity of an SVP Petition when the two evaluators appointed by DMH donotagree that Petitioner is an SVP. The courts have referred to the motions as a “plea in abatement,” a “motion to dismiss”or a “pleading challenging the validity of the petition,” but have not otherwise provided any procedural framework. (Jn re Wright (2005) 128 Cal. App. 4th 663; People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888; People 23 v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122; People v. Superior Court (Gary) (2000) 85 Cal. App. 4th 207; Peters v. Superior Court (2000) 79 Cal. App. 4th 845; Butler v. Superior Court (2000) 78 Cal. App.4th 1171.) People’s Arguments In its Opening Brief, the People mistakenly assert that Petitioner may only challenge the validity of an SVP Petition at the probable cause hearing (Openingat p. 6.) andat thetrial (Opening at p 6.). The People are simply wrong. Although the courts have not been clear about the specific procedures to use, the courts have made it clear that Petitioner may challenge the validity of an SVP Petition before the probable cause hearing. In Butler, at the conclusion of the probable cause hearing, Butler’s counsel “moved to dismiss the petition for recommitment. (Butler v. Superior Court (2000) 78 Cal. App. 4th 1171, 1178.) Likewise, at the conclusion of the probable cause hearing, Cheek’s counsel “argued that the trial court should dismiss the petition...” (/bid.) In Peters, it appears that sometime before the probable cause hearing, “Peters moved respondent court to dismiss the petition. He asserted that the new petition was defective in that the evaluation was made by only a single health evaluator.” (Peters v. Superior Court (2000) 79 Cal. App. 4th 845, 848-51.) In Gary, at the arraignment,the trial court “noted that pursuant to section 6601, subdivision (d), the petition should not have been filed because it was not supported by two evaluations concurring that Gary is an SVP... The court then dismissed the petition on the motion of Gary's counsel.” (People v. Superior Court (Gary) (2000) 85 Cal. App. 4th 207, 212.) 24 In Preciado, the court held “[t]he discrete and preliminary role the evaluations play in the statutory scheme does not in any sense undermine their importance or suggest the People may ignore the protection they provide. (citations omitted.) When the required evaluations have not been performed, an alleged SVP maybring that fact to the trial court's attention and obtain appropriate relief.” (People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1130.) Such a “defect [is] not one going to the substantive validity of the complaint, but rather [is] merely in the nature of a plea in abatement, by which a defendant may argue that for collateral reasons a complaint should not proceed. (citations omitted.) (/d. at p. 1128, emphasis added.) “In short, like many other matters subject to the principles governing pleas in abatement, the requirement for evaluationsis not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.” (/d. at p. 1130, emphasis added.) In Ronje, the court held “[t]he requirement of evaluations ...is not one affecting disposition on the merits but is a collateral procedural condition ‘designed to ensure that SVP proceedingsare initiated only when there is a substantial factual basis for doing so.’ ” (In re Ronje (2009) 179 Cal. App. 4th 509, 519, citing People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1130.) In Ghilotti, the court held that the district attorney may file the petition despite the lack of concurrence of the two evaluators. (People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 912.) “The person named in the petition may then file a pleading challenging the validity of the petition on grounds that it is not supported by the concurrence of two evaluators under section 6601, subdivisions (d) through (f). In response, the 25 petitioning authorities may defend the petition by asserting that one or more nonconcurring reports are infected by legal error.” (/d. at pp. 912-913.) In Wright, the court held “the evaluations play an importantrole in the statutory scheme and appropriate relief may be obtained after bringing any defect in the evaluations to thetrial court's attention. (Preciado, supra, 87 Cal.App.4th at p. 1130.) For example, an individual could challenge the petition via a motion to dismiss at the time of the probable cause hearing and, assuming this motion is denied, seek review via a writ of habeas corpus.” Un re Wright (2005) 128 Cal. App. 4th 663, 672-673.) VIL. THE “TWO-VALID-EVALUATIONS” PROCEDURAL SAFEGUARD DOES NOT APPLY AT THE PROBABLE CAUSE HEARING OR THETRIAL. In its Opening Brief, the People correctly point out that the People need not proffer two valid evaluations at the probable cause hearing. (Openingat p. 6.) Stated differently, the People correctly point out that the “Two-Valid-Evaluations” procedural safeguard does not apply at the probable cause hearing. Of course, this conclusion necessarily means that Petitioner may challenge the validity of the SVP Petition before the probable cause hearing. To further elucidate this issue, Petitioner again refers to the hypothetical from section 1: At the probable cause hearing, the prosecution submitted only the written evaluation of Dr. Jekyll (because, as noted above, the People need not proffer two valid evaluations at the probable cause hearing). Based on Dr. Jekyll’s evaluation alone, the trial court found probable cause to believe that John Smith is an SVP. As the hypothetical demonstrates, John Smith never had an opportunity to point out that the SVP Petition was not supported by two valid evaluations because the “Two-Valid-Evaluations” procedural safeguard does not apply 26 at the probable cause hearing. Similarly, in Petitioner’s matter, the People wanted to hire its own doctor, Dr. Starr, and submit the evaluation of only Dr. Starr at Petitioner’s probable cause hearing. Petitioner may submit Dr. Clipson’s 2011 evaluation and Dr. Webber’s 2011 evaluation. However, the trial court need rely only on Dr. Starr’s evaluation to find probable cause because the “Two-Valid-Evaluations” procedural safeguard does not apply at the probable cause hearing. In its Opening Brief, the People also correctly point out that the People need not proffer twovalid evaluationsat the trial. (Openingat p.6.) Stated differently, the People correctly point out that the “Two-Valid- Evaluations” procedural safeguard does not apply at the trial. Of course, this conclusion necessarily meansthat Petitioner may challenge the validity of the SVP Petition before the trial. To further elucidate this issue, Petitioner again refers to the hypothetical from sectionI: At the jury trial, the prosecution submitted only the testimony of Dr. Jekyll (because, as noted above, the People need not proffer the testimony of two valid evaluators at the jury trial). Based on Dr. Jekyll’s testimony alone, the jury found beyonda reasonable doubt that John Smith is an SVP. As the hypothetical demonstrates, John Smith never had an opportunity to point out that the SVP Petition was not supported by two valid evaluations because the ““T'wo-Valid-Evaluations” procedural safeguard does not apply at the jury trial. Similarly, in Petitioner’s matter, the People wanted to hire its own doctor, Dr. Starr, and submit the testimony of only Dr. Starr at Petitioner’s trial. Petitioner may submit the testimony of Dr. Clipson and Dr. Webber. However, the jury need rely only on Dr. Starr’s testimony to find beyond a reasonable doubtthatPetitioner is an SVP. 27 VIL BECAUSE THE POST-RONJE EVALUATIONS DO NOT SATISFY THE “TWO-VALID-EVALUATIONS” PROCEDURAL SAFEGUARD, THE APPELLATE COURT CORRECTLY RULED THAT THE SVP PETITION MUST BE DISMISSED. Through its rulings, Ronje anticipated that (1) the post-Ronje evaluations would be valid because the doctors would use a valid assessmentprotocol, (2) the “Two-Valid-Evaluations” procedural safeguard wouldbe satisfied by the post-Ronje evaluations (not the invalid pre-Ronje evaluations), and (3) the SVP Petition would therefore be lawful because the SVP Petition would be supported by two valid post-Ronje evaluations. On the other hand, the SVP Petition would be unlawful (and should be dismissed) if not supported by two valid post-Ronje evaluations. In Petitioner’s matter, Dr. Clipson’s 2008 evaluation and Dr. Webber’s 2008 evaluation were not valid because the evaluations were conducted pursuant to an invalid standardized assessment protocol and may not be used to support the lawfulness of the SVP Petition. Furthermore, Dr. Clipson’s 2011 evaluation is valid, but may not be used to support the lawfulness of the SVP Petition because Dr. Clipson determined that Petitioner is not an SVP. Finally, Dr. Webber’s 2011 evaluation is valid, but also may not be used to support the lawfulness of the SVP Petition because Dr. Webber determined that Petitioner is not an SVP. Since the “Two-Valid-Evaluations” procedural safeguard is not satisfied, the SVP petition should be dismissed. People’s Arguments In its Opening Brief, the People state: “Although Ronje correctly determined use of an invalid assessment standardized protocol during the pre-filing SVPA evaluation did not divestthe trial court ofjurisdiction over 28 the petition, Ronje also concluded that evaluations conducted under the invalid protocol constituted an error or irregularity in the SVPA commitment proceeding itself. (citation omitted) Ronje then held the remedy was to cure the defective evaluation...” (Opening at p. 12.) The People then leap to the erroneous conclusionthat: “Relying on the remedy it had crafted in Ronje, the appellate court essentially ruled that because the agency blundered, the sexual predator must necessarily go free.” (Opening at pp. 15, 28-30.) In point of fact, Ronje and the appellate court held exactly the opposite. Rather than order a dismissal because the agency (DMH) blundered, Ronje ordered DMHto correct its blunder and submit new evaluations after the blunder is corrected. Relying on the remedy it had crafted in Ronje, the appellate court determined that, since DMH had corrected its blunder, the evaluations were now valid. Because the now valid post-Ronje evaluations do not satisfy the “Two-Valid-Evaluations” procedural safeguard, the appellate court correctly ruled that the SVP Petition must be dismissed. Mf Hf HI 29 CONCLUSION In its Opening Brief, the People adopt the position that “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.” (Openingat p. 41.) Petitioner concurs. Since the two post-Ronje evaluators agree that Petitioner does not meetthe criteria for an SVP, the SVP Petition must be dismissed. Dated: October 12, 2012 Respectfully submitted, FRANK OSPINO Public Defender JEAN WILKINSON Chief Deputy Public Defender SHARON PETROSINO Senior Assistant Public Defender MARK S. BROWN Assistant Public Defender Writ and Appeals 30 WORD COUNTCERTIFICATION (California Rules of Court, Rules 8.204(c) and 8.486) I, Mark S. Brown,declare as follows: I represent Petitioner in this matter pending before this court. This RESPONSIVE BRIEF ON THE MERITS was prepared in Microsoft Word, and according to that program’s word count, it contains 8,835 words. I declare under penalty of perjury the above is true and correct. Executed on October 12, 2012, in Santa Ana, California. ae RK S. BRO — Assistant Public Defender 31 DECLARATION OF SERVICE Kevin Reilly v. Orange County Superior Court - Case No. $202280 (Court ofAppeal Case No. G045118; O.C. Sup. Ct. No. M-11860) STATE OF CALIFORNIA) )ss COUNTY OF ORANGE ) 1 am a citizen of the United States; I am over the age of 18 years; I am not a party to the above-entitled action; and I have a business address at 14 Civic Center Plaza, Santa Ana, California 92701. Onthe 12" day of October 2012, I served a copy of PETITIONER’S RESPONSIVE BRIEF ON THE MERITSin the above-entitled action by depositing a copy thereof in a sealed envelope, postage thereon fully prepaid, in the United States Mail at Santa Ana, California. Said envelopes were addressed (withoutthe telephone numbers)as follows: Office of the Attorney General Clerk of the Court Attn: Bradley A. Weinreb California Court ofAppeal P.O. Box 85266 4" Appellate District, Division 3 San Diego, CA 92186-5266 601 West Santa Ana Blvd. (619-645-2290) Santa Ana, CA 92701 Orange County District Attorney Deputy County Clerk Attn: Elizabeth Molfetta Attn: Hon. Richard M.King (657-622-5242) 401 Civic Center Drive Orange County Sup. Ct., Dept. C-42 Santa Ana, CA 92701 700 Civic Center Drive West (714)347-8781 Santa Ana, CA 92702 I declare under penalty ofperjury that the foregoing is true and correct. Executed on this 12" day of October 2012, at Santa Ana, California. eo . rN (_- JY iy Noyie Martha Nguirre\. a Secretary, Orange County PublieDefender's Office 31
