Sisnerozv.Superior Court of Tulare Cnty.

F062298 (Cal. Ct. App. Jan. 3, 2012)

F062298 Super. Ct. No. VCF29525


FRANK SISNEROZ, Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

Michael B. Sheltzer, Public Defender, Lisa J. Bertolino, Assistant Public Defender, and John Shepard, Deputy Public Defender, for Petitioner. No appearance for Respondent. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Real Party in Interest.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


ORIGINAL PROCEEDING; petition for writ of prohibition and/or mandate. Valeriano Saucedo, Judge.

Michael B. Sheltzer, Public Defender, Lisa J. Bertolino, Assistant Public Defender, and John Shepard, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Real Party in Interest.


The Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) mandates that two evaluators must agree that a person meets the statutory criteria delineating a sexually violent predator (SVP) before the district attorney can file a petition for commitment or recommitment of that person to the custody of the State Department of Mental Health (DMH). In 2009, the Fourth District Court of Appeal agreed with the Office of Administrative Law (OAL) that the standardized assessment protocol underlying SVP criteria evaluations constituted an invalid "underground" regulation under the Administrative Procedures Act (APA). The court described the issue, however, as a technical defect remedied by: 1) performing new evaluations using a valid protocol, and 2) holding a new probable cause hearing.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Petitioner Frank Sisneroz now petitions for a writ of mandate directing the trial court to dismiss the petition for his recommitment for failure to be supported properly by two concurring evaluations. For the reasons discussed below, we deny Sisneroz's petition, and remand the matter back to the trial court for a review of the evaluations for material legal error.


General Framework for Evaluating SVP's

"The SVPA ... provides for the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be SVP's because they have previously been convicted of sexually violent crimes and currently suffer diagnosed mental disorders which make them dangerous in that they are likely to engage in sexually violent criminal behavior. [Citation.]" (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902 (Ghilotti).) "'The process for determining whether a convicted sex offender meets the foregoing requirements takes place in several stages, both administrative and judicial ....' [Citation.]" (Id. at p. 903.)

An individual coming under the SVPA must be evaluated "in accordance with a standardized assessment protocol." (§ 6601, subd. (c).) Initially, two qualified evaluators perform the evaluations. (§ 6601, subd. (d).) If the initial two evaluators disagree on whether an individual meets the SVP criteria, a second pair of evaluators must evaluate the individual. (§ 6601, subd. (e).)

"If an examination by independent professionals pursuant to subdivision (e) is conducted, a petition to request commitment under this article shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified ...." (§ 6601, subd. (f), italics added.)

Our Supreme Court has made clear that these provisions cannot be disregarded before filing a petition for recommitment: "Before requesting a petition, the Director [of the DMH] must designate two mental health professionals to evaluate the person. If these two evaluators agree that the person meets the criteria for commitment, the Director must request a petition. If, however, these first two evaluators do not agree on that issue, the Director 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 Director may not request the filing of a petition." (Ghilotti, supra, 27 Cal.4th at p. 907.) Moreover, not only can the Director not request the filing of a petition for recommitment without concurring evaluations, the individual "must [then] be unconditionally released without further proceedings to determine if he or she is an SVP ...." (Id. at p. 910.)

If a petition is properly filed, the trial court holds a probable cause hearing pursuant to section 6602. Upon a finding there exists probable cause that the person is likely to engage in sexually violent predatory criminal behavior upon his or her release, the trial court orders a trial on the petition. (§ 6602, subd. (a).) In anticipation of trial, the prosecuting attorney can order updated evaluations for the person. (§ 6603, subd. (c)(1).) "Such an evaluation may be crucial, because a commitment under the [SVPA] must be based on an inmate's 'currently diagnosed mental disorder.' [Citation.]" (Gray v. Superior Court (2002) 95 Cal.App.4th 322, 326 (Gray).)

If the updated evaluations are split in their opinion of whether the person continues to meet the SVP criteria, this does not require dismissal of the petition: "Section 6603, subdivision (c), merely provides that the new evaluators shall conduct their evaluations 'in accordance with' section 6601, subdivision (f). It does not, on its face, provide any consequences for a split of opinion between the second set of evaluators. [Fn. omitted.]" (Gray, supra, 95 Cal.App.4th at p. 328.) "In the circumstances, we think it more likely that the required new evaluations are intended for informational and evidentiary purposes." (Ibid.)

Before late 2006, "the civil commitment was for a two-year period, after which the People were required to petition to extend the commitment (or to recommit) for an additional two years, if, in the opinion of the [DMH], the individual still met the criteria for a SVP." (People v. Taylor (2009) 174 Cal.App.4th 920, 927 (Taylor).) "On September 20, 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) went into effect, changing the commitment term from two years to an indeterminate term. On November 7, 2006, Proposition 83, also known as Jessica's Law, became law, further amending the provisions of the SVPA." (Ibid.)

"The 2006 amendments eliminated the requirement for a new or subsequent petition every two years. Nonetheless, the amended provisions require procedures to monitor an individual's status as a SVP and provide for conditional release or discharge if the person is no longer [a] SVP. Each year, the DMH must conduct an examination of the individual's mental condition and issue a report. (§ 6605, subd. (a).)" (Taylor, supra, 174 Cal.App.4th at p. 929.)

However, "[a]n individual is not automatically entitled to release upon the expiration of a term of commitment, even if a timely petition to extend the commitment is not filed. [Citations.] In other words, unlawfulness of an individual's custodial status ... does not divest the trial court of jurisdiction to proceed on a petition for commitment or recommitment. [Citation.]" (Taylor, supra, 174 Cal.App.4th at p. 934.)

In 2008, the OAL determined that the standardized assessment protocol mandated in section 6601, subdivision (c) constituted an invalid "underground" regulation under the APA.

In November 2009, in a case similar to here, where the petitioner had had a commitment petition filed and a probable cause hearing and was contesting the validity of the underlying evaluations prior to a trial on the commitment petition, the Fourth District Court of Appeal agreed with the OAL's determination regarding the protocol. (In re Ronje (2009) 179 Cal.App.4th 509, 517 (Ronje).)

The Ronje court concluded that the defect could be cured, and that the trial court still maintained fundamental jurisdiction over the petition while proceeding to cure the defect. (Ronje, supra, 179 Cal.App.4th at p. 519 ["'In general, where a defect impairing a litigant's right to proceed existed at a time a complaint was filed but has been cured by the time the defense is raised, the defect will be ignored.' [Citation.]"].) The court prescribed a two-fold cure: 1) order new evaluations that utilized a valid protocol; and 2) hold a new probable cause hearing. (Ibid.) The court noted the technical, rather than substantive nature of the defect, commenting, "[t]he 2008 OAL Determination No. 19 does not address the assessment protocol's accuracy or reliability in determining whether the person is an SVP as defined in the SVPA." (Id. at p. 520.)

Sisneroz's Case

According to the People's opposition to the motion to dismiss the recommitment petition, in 1984, at the age of 35, Sisneroz committed several sexual assault offenses against a 14-year-old boy. He pled guilty to all charges and was sentenced to eight years, but was paroled in December 1988. In 1990, he committed a lewd act and sexual assault on a nine-year-old boy. He pled guilty to both counts and was sentenced to six years, and was again paroled, in 1994. Sisneroz violated his parole in 1996 when he tested positive for methamphetamines and returned to prison. Scheduled for release in 1997, he was instead committed to the DMH as a SVP.

Multiple recommitment petitions were filed between 2000 and 2005, when the fourth renewal petition was filed on November 29, 2005. This fourth petition was supported by evaluations from Doctors Dawn Starr and Clark Clipson, both concluding Sisneroz met the criteria for a SVP under the SVPA.

The probable cause hearing was held in 2006 and the trial court found probable cause for Sisneroz's continued commitment. A jury trial was set to determine whether Sisneroz was, beyond a reasonable doubt, a SVP, but was then continued several times between 2006 and 2010. During this period, several updated evaluations were conducted in anticipation of successively rescheduled jury trial dates. All except one evaluation in January 2009 found Sisneroz continued to meet the SVP criteria. Dr. Clipson also reevaluated Sisneroz and found he continued to meet the SVP criteria in February 2009.

Dr. Marianne Davis evaluated Sisneroz in 2008 and concluded at that time he met the criteria for a SVP. Approximately eleven months later, she again evaluated Sisneroz and found he no longer met the criteria.

In December 2009, following the Ronje decision, the parties agreed to have Sisneroz undergo new evaluations using the now-valid protocol promulgated by the DMH. Dr. Starr reevaluated Sisneroz shortly thereafter and found he continued to meet the SVP criteria. Dr. Clipson, however, reevaluated Sisneroz in early February 2010 and found he no longer met the SVP criteria.

Because there was a split of opinion, the DMH ordered two more independent evaluations, which were undertaken in February 2010. The two new evaluators also split in their conclusions of whether Sisneroz met the SVP criteria.

Sisneroz subsequently requested a new probable cause hearing pursuant to Ronje's recommended cure, which the trial court granted. Sisneroz then filed a motion to dismiss the petition on the basis of a lack of concurring evaluations to support the original petition, arguing that the new evaluations replaced the 2005 concurring evaluations, and thus the petition was no longer supported. The trial court held a hearing on the motion, and later denied Sisneroz's motion to dismiss by written ruling. The trial court reasoned that it had jurisdiction in the first instance to consider the matter, and that the current, conforming reports were to be considered for the issue of whether probable cause exists to proceed to trial. This petition followed.

Although we glean the majority of the factual and procedural background from the People's opposition to the motion to dismiss, the parties did not dispute the factual basis and procedural status of the petition below, and have not raised any factual issues before us.


Appellant asserts that the trial court acted in excess of its jurisdiction when it failed to grant the motion to dismiss the recommitment petition because it failed to comply with section 6601, subdivision (f). Essentially, he argues that the original 2005 evaluations supporting the recommitment petition were substituted by the 2009-2010 evaluations, which did not meet the statutory requirement of concurrence. He suggests the only remedy is dismissal of the petition.

The Attorney General asserts that Ronje and the OAL determination were wrongly decided. The Attorney General argues that the 2005 evaluations were not based on "underground" regulations and therefore validly supported the 2005 petition. Moreover, the Attorney General argues that the Ronje court went "too far" in its prescribed remedy and that requiring new evaluations was excessive in light of the more proper remedy of merely promulgating a valid protocol.

Sisneroz asserts that the Attorney General is raising this theory for the first time, improperly, and that principles of "judicial estoppel" prohibit the Attorney General from arguing this new theory. Given our conclusion, discussed infra, we need not address this argument.

We conclude that the four 2009-2010 evaluations replace the 2005 evaluations in accordance with Ronje, but that the trial court retains jurisdiction to conduct a review of these new evaluations for a material legal error in accordance with Ghilotti, supra, 27 Cal.4th 888. "[T]he court has authority to provide legal oversight of an administrative determination which involves the exercise of discretion or judgment subject to statutory standards, and which has a legal effect on proceedings properly before the court. [Fn. omitted.]" (Id. at p. 911.) We therefore remand the matter back to the trial court to conduct such a review.


In Ghilotti, the two required evaluators concluded that Ghilotti no longer met the statutory criteria for commitment. The Director, however, requested the district attorney to file a petition for Ghilotti's recommitment, despite the evaluations' conclusions, because he believed Ghilotti was not yet suitable for unsupervised release, an opinion supported by declarations from hospital psychiatrists in more frequent contact with Ghilotti. (Ghilotti, supra, 27 Cal.4th at pp. 893-894.) The court ultimately concluded that compliance with section 6601, subdivision (f) was not within the Director's discretion, but also, as a matter of first impression, determined that the Director and the district attorney were entitled to challenge the legal sufficiency of the evaluations.

In the course of determining the resolution to Ghilotti, the court made a number of comments applicable to the circumstances of this case. "Insofar as the evaluators' recommendations represent the application of their professional expertise and judgment within statutory requirements, those recommendations conclusively determine whether an SVPA petition may be filed." (Ghilotti, supra, 27 Cal.4th at p. 909.) "The evaluators' professional judgment is therefore to be exercised within a specified legal framework, and their legally accurate understanding of the statutory criteria is crucial to the Act's proper operation." (Id. at p. 910.)

"The statutory scheme thus necessarily calls into question whether the evaluators, in reaching their conclusions at this critical gatekeeping stage, have accurately understood the statutory criteria. When such a question arises, the superior court entertaining the petition must address it." (Ghilotti, supra, 27 Cal.4th at p. 910.) "Thus, in future cases like this one, when the Director (1) receives one or more formal evaluations that recommend against commitment or recommitment, (2) disagrees with those recommendations, (3) believes they may be infected with material legal error, and (4) does not choose, or is not permitted within the statutory scheme, to seek additional evaluations, he may nonetheless forward a request that an SVPA commitment or recommitment petition be filed, and the county's attorney may submit such a petition for filing, with copies of the evaluators' reports attached. [Citation.] 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 petitioning authorities may defend the petition by asserting that one or more nonconcurring reports are infected by legal error." (Ghilotti, supra, 27 Cal.4th at pp. 912-913.)

"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. An evaluator's legal error shall be deemed material if, and only if, (1) there appears a reasonable probability, sufficient to undermine confidence in the outcome, that the error affected the evaluator's ultimate conclusion, and (2) a change in the evaluator's conclusion would either supply, or dissolve, the necessary concurrence of two designated evaluators." (Ghilotti, supra, 27 Cal.4th at p. 913.) If the court finds no material legal error, it must accept the recommendations of the evaluations and take the appropriate responsive action, either by dismissing the petition, or by going forward with the SVP determination proceedings. (Ibid.)

Here, the Director forwarded the results of the evaluations performed after the Ronje decision in 2009 and 2010, attached to a cover letter that specifically recommended seeking a review for material legal error. Although defense counsel raised the issue briefly at the hearing on the motion to dismiss the recommitment petition, the Court made no record of a review for material legal error. Dr. Clipson had found on multiple occasions spanning several years that Sisneroz met the criteria of a SVP, including in 2009. The record provides no indication on what basis he changed his opinion a year later. The DMH promulgated an updated protocol in 2009 that adhered to APA requirements. Review for material legal error is reasonable given that the use of the new protocol resulted in a contrary conclusion and the Director suggested such a review. (See also Gray, supra, 95 Cal.App.4th at p. 330 ["The current divergence of expert views ... demonstrates more the imprecision of psychiatric determination than the likelihood that Gray's mental condition has actually altered for the better."].)

The letter from the Director of the DMH sent to the Tulare County District Attorney stated in pertinent part: "Evaluations dated December 14, 2009, February 15, 2010, February 22, 2010 and February 07, 2010 were received with two negative findings. [¶] In accordance with a process outlined in the Ghilotti Supreme Court Decision [sic], your office may wish to consider submission of the attached evaluations to the court with a request that they be scrutinized for material legal error. Taking this action may act to ultimately assure the public that all proper and required standards were followed."

Defense counsel stated, "After these assessments were done, [the DMH] said this was done pursuant to 6601 and there's a problem. [The trial court] better review these new evaluations for legal or material error. [¶] And, again, they're citing Ghilotti because if there's not legal or substantive error with these petitions [sic], and that's what we have to stand on right now -- "
The trial court then interjected with a summary of the arguments, but failed to address defense counsel's contention that a legal review of the evaluations was necessary.


The matter is remanded to trial court with direction to review the post-Ronje evaluations for material legal error in accordance with People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888. If the trial court finds no material legal error, the petition for recommitment must be dismissed. (Id. at p. 93; § 6601, subd. (f).)


Franson, J.


Levy, Acting P.J.


Cornell, J.