Court
Filed 12/6/13 Jackson v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
LARRY JACKSON,
Petitioner,
v.
THE SUPERIOR
COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G046650
(Super. Ct.
No. M11361)
O P I N I O N
Original proceedings;
petition for a writ of mandate/prohibition to challenge an order of the Superior
Court of
County, Richard F. Toohey, Judge. Petition denied.
Frank Ospino, Public Defender,
Jean Wilkinson, Chief Deputy Public Defender, Sharon Petrosino and Mark S.
Brown, Assistant Public Defenders, for Petitioner.
No appearance for
Respondent.
Tony Rackauckas,
District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Real
Party in Interest.
* * *
Larry Jackson is the subject of a
commitment petition filed pursuant to the Sexually Violent Predator Act,
Welfare and Institutions Code section 6600 et seq. (SVPA).
section 6602, probable cause existed to believe Jackson
met the criteria for commitment as a sexually
violent predator. By this petition
for writ of mandate or prohibition, Jackson
challenges the respondent court’s decision to receive in evidence at the
probable cause hearing two evaluation reports prepared by
evaluate him pursuant to section 6601.
For reasons we will explain, we deny the petition.
of the SVPA Screening and
Evaluation Process
The
SVPA provides for involuntary civil
commitment of an offender immediately upon conclusion of his or her prison
term if the offender is found to be a sexually violent predator. (Reilly
v. Superior Court (2013) 57 Cal.4th 641, 646 (Reilly); People v. Yartz
(2005) 37 Cal.4th 529, 534.) A sexually
violent predator is defined as “a person who has been convicted of a sexually
violent offense against one or more victims and who has a diagnosed
danger to the health and safety of others in that it is likely that he or she
will engage in sexually violent criminal behavior.†(§ 6600, subd. (a)(1).) A “diagnosed mental disorder†is defined to
include “a congenital or acquired condition affecting the emotional or
volitional capacity that predisposes the person to the commission of criminal
sexual acts in a degree constituting the person a menace to the health and
safety of others.†(§ 6600,
subd. (c).)
The
procedure for commitment under the SVPA begins with an initial screen in which
the Secretary of California’s Department of Corrections and Rehabilitation
(CDCR) determines whether a person in CDCR custody might be a sexually violent
predator. (§ 6601,
subd. (a)(1).) If the secretary
determines the person might be a sexually violent predator, the secretary
refers that person to the next level evaluation. (Ibid.)
After
the secretary’s referral, the person is screened by the CDCR and the Board of
Parole Hearings in accordance with “a structured screening instrumentâ€
developed and updated by the State Department of State Hospitals (SDSH) in
consultation with the CDCR.
(§ 6601, subd. (b).)
“If as a result of this screening it is determined that the person is
likely to be a sexually violent predator, the [CDCR] shall refer the person to
the [SDSH] for a full evaluation of whether the person meets the criteria in
Section 6600.†(
The
procedures for a full evaluation are set forth in section 6601,
subdivision (c) (section 6601(c)) and section 6601,
subdivisions (d) through (i). Under
section 6601(c) and section 6601, subdivision (d), the person is
evaluated by two practicing psychiatrists or psychologists, or by one of each
profession. The evaluations must be
conducted “in accordance with a standardized assessment protocol, developed and
updated by the [SDSH], to determine whether the person is a sexually violent
predator as defined in this article.â€
(§ 6601(c).) If both
evaluators find the person “has a diagnosed mental disorder so that he or she is
likely to engage in acts of sexual violence without appropriate treatment and
custody,†then the SDSH forwards a request to file a petition for commitment to
the county of the person’s last conviction.
(§ 6601, subd. (d).) If
the county’s designated counsel concurs with the recommendation, then counsel
files a petition for commitment in the superior court. (§ 6601, subd. (i).)
If
one of the two professionals performing the evaluation does not conclude the
person meets the criteria for commitment as a sexually violent predator, and
the other concludes the person does meet those criteria, then the SDSH “shall
arrange for further examination of the person by two independent professionals
selected in accordance with subdivision (g).†(§ 6601, subd. (e).) If an evaluation by two independent
professionals is conducted, a petition for commitment may be filed only if both
concur the person meets the criteria for commitment as a sexually violent
predator. (§ 6601, subd. (f).)
Upon
filing of the SVPA commitment petition, the superior court must review the
petition and determine “whether the petition states or contains sufficient
facts that, if true, would constitute probable cause to believe that the
individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release.†(§ 6601.5.) If the court determines the petition on its
face supports a finding of probable cause, then it must order the person named
in the petition to be kept in a secure facility until a probable cause hearing
under section 6602 is conducted.
(§ 6601.5.) The probable
cause hearing must be conducted within 10 calendar days of the issuance of the
order finding the petition would support a finding of probable cause. (Ibid.)
The
purpose of the probable cause hearing is to determine whether “there is
probable cause to believe that the individual named in the petition is likely
to engage in sexually violent predatory criminal behavior upon his or her
release.†(§ 6602,
subd. (a).) If the court finds
probable cause, it orders a trial to determine whether the person is a sexually
violent predator under section 6600.
(§ 6602, subd. (a).)
The person named in the petition must remain in a secure facility
between the time probable cause is found and the time trial is completed. (Ibid.)
Allegations of the Petition and
the Return
In
June 2007, the Orange County District Attorney filed a petition for commitment under
the SVPA alleging Jackson was a sexually violent predator as defined in section 6600. Attached to the SVPA commitment petition were
two evaluation reports of Jackson; one report was prepared by Douglas R. Korpi,
Ph.D., and the other was prepared by Jack Vognsen, Ph.D. Judge Kazuharu Makino reviewed the
petition and found it stated sufficient facts which, if true, would constitute
probable cause to believe Jackson was likely to engage in sexually violent
predatory criminal behavior on his release.
As a consequence, Judge Makino ordered Jackson to be detained, pursuant
to section 6601.5, in a secure facility until the probable cause hearing.
In
August 2008, the Office of Administrative Law (OAL) issued 2008 OAL
Determination No. 19, in which the OAL determined the 2007 version of the
SDSH’s Clinical Evaluator Handbook and Standardized Assessment Protocol
(Aug. 2007) (2007 SAP) used for SVPA evaluations 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, part of the Administrative Procedure Act (APA; Gov. Code,
§ 11340 et seq.). (2008 OAL Determination
No. 19 (Aug. 15, 2008) p. 3, available at
[as of Dec. 6, 2013]; see Reilly,
supra, 57 Cal.4th at
p. 649.) In In re Ronje (2009) 179 Cal.App.4th 509, 516-517 (
concluded the 2007 SAP was invalid as an underground regulation. In 2009, the SDSH issued the 2009 version of its
Standardized Assessment Protocol for Sexually Violent Predator Evaluations
(Feb. 2009) (2009 SAP) as the new standardized assessment protocol for
SVPA evaluations. In February 2009, the
OAL took emergency regulatory action to adopt part of the 2009 SAP. In September 2009, the OAL made permanent the
emergency regulatory action.
In
response to Ronje, in November 2010,
Judge James P. Marion
name="_ftnref2" title="">[2] ordered new evaluations of Jackson, pursuant
to section 6601, using a valid standardized assessment protocol. In compliance with the court’s order, the SDSH
reassigned Dr. Korpi and Dr. Vognsen to evaluate Jackson. In a report dated January 22, 2011,
Dr. Korpi concluded Jackson met the criteria for commitment as a sexually
violent predator. In a report dated February 9,
2011, Dr. Vognsen also concluded Jackson met those criteria.
A
post‑Ronje probable cause
hearing was conducted over two days in January 2012 before the respondent
court. Jackson presented a motion in
limine to exclude the written reports prepared by Dr. Korpi and
Dr. Vognsen on the ground their evaluations of him were invalid because
they were conducted in accordance with the 2009 SAP, which, he argued, is not a
valid standardized assessment protocol under the SVPA and had not been
promulgated as a regulation. In support
of his motion, Jackson submitted declarations from two psychologists (Richard
Wollert, Ph.D., and Robert L. Halon, Ph.D.), both of whom expressed the opinion
that the 2009 SAP is not a “standardized assessment protocol,†as that term is
understood in the “scientific and psychological community.†The district attorney opposed the motion in
limine on the ground Jackson failed to provide the notice required by Code of
Civil Procedure section 1005 and, as a result, the district attorney did
not have an opportunity to prepare written opposition.
On January 19, 2012, the
respondent court denied Jackson’s motion in limine and received in evidence
Dr. Korpi’s January 2011 report and Dr. Vognsen February 2011
report. On the same day, the respondent
court found, pursuant to section 6602, probable cause existed to believe
Jackson met the criteria for commitment as a sexually violent predator.
of Writ Petition Proceedings
In
March 2012, Jackson filed this petition for writ of mandate or prohibition to
challenge the respondent court’s order receiving in evidence the 2011 evaluation
reports of Dr. Korpi and Dr. Vognsen.
We summarily denied Jackson’s writ petition.
Jackson
petitioned the California Supreme Court for review of our order summarily
denying his writ petition. He presented
four issues for Supreme Court review, one of which was whether Dr. Korpi’s
January 2011 evaluation report and Dr. Vognsen’s February 2011 evaluation
report were updated or new evaluations. The
Supreme Court granted the petition for review and transferred the matter back
to us with directions to vacate our order denying mandate and to issue an order
directing the respondent court to show cause why the relief requested in the
petition for writ of mandate or prohibition should not be granted. We complied with the Supreme Court’s
directions. The district attorney filed
a return to Jackson’s petition for writ of mandate or prohibition, to which
Jackson filed a reply.
After oral argument, we vacated
submission to allow the parties to file supplemental letter briefs addressing
the impact of Reilly,
case. After receiving
district attorney and Jackson, we resubmitted the matter.
The
Evaluators Conducted New Evaluations
as Then Required by Ronje.
Jackson argues Dr. Korpi’s
January 2011 evaluation report and Dr. Vognsen’s February 2011 evaluation
report were updated rather than new evaluations and, therefore, should not have
been received in evidence at the probable cause hearing. We disagree. Under Reilly,
supra, 57 Cal.4th 641, Jackson cannot
prevail even if this argument has merit.
In Reilly, the Supreme Court concluded a court is not required to
dismiss SVPA commitment proceedings if the OAL determines the initial
evaluations supporting the SVPA commitment petition were conducted under a
standardized assessment protocol that did not comply with the OAL’s procedural
requirements. (Reilly, supra, 57 Cal.4th
at p. 646.) “Instead, an alleged
sexually violent predator (SVP) must show that any fault that did occur under
the assessment protocol created a material
error.†(Ibid.) “Absent material
error, ‘once a petition has been properly filed and the court has obtained
jurisdiction, the question of whether a person is a sexually violent predator
should be left to the trier of fact . . . .’†(Id.
at p. 656.) Reilly disapproved Ronje,
supra, 179 Cal.App.4th 509, to the
extent it required new evaluations using a valid standardized assessment
protocol without a showing of material error.
(Reilly, supra, at pp. 655, 656.)
In Rabuck v. Superior Court (Dec. 6, 2013, G046936) __
Cal.App.4th __, __ [page 10] (Rabuck),
we concluded that absent a showing of material error in using the 2007 SAP, whether
evaluation reports prepared using the 2009 SAP constituted new or updated ones
would make no difference to their admissibility at the probable cause
hearing. Thus, “[a]bsent a showing of
material error, the [initial] evaluations of [Jackson] would be valid and would
support filing the SVPA commitment petition, and the 2011 evaluations properly
could serve as either new or updated evaluations under section 6603,
subdivision (c)(1).†(
assessment protocol materially affected his initial evaluations. (See Reilly,
supra, 57 Cal.4th at
p. 656.) Since evaluators concluded
Jackson was a sexually violent predator under both the 2009 SAP and the 2007
SAP, “it is clear that the 2007 protocol error did not materially affect the
outcome of his probable cause hearing.â€
(Ibid.)
Jackson’s contention the
evaluations were “updates†rather than “new†has no merit even if it remains
viable after Reilly. Ronje
required new evaluations under section 6601(c); that is, evaluations
conducted as though no prior diagnosis had been reached and no SVPA commitment
petition had yet been filed. In
contrast, updated evaluations are permitted under section 6603, subdivision (c)(1),
“[i]f the attorney petitioning for commitment under this article determines
that updated evaluations are necessary in order to properly present the case
for commitment.â€
The evidence supported a finding
that Dr. Korpi’s January 2011 evaluation report and Dr. Vognsen’s
February 2011 evaluation report were new evaluations of Jackson. At the probable cause hearing, Dr. Vognsen
testified the 2011 evaluation was a new evaluation pursuant to
hearing, Dr. Korpi testified his 2011 evaluation of Jackson was a “
evaluations, he only considers one criterion, does not review the committing
qualifying offenses, and focuses “on changes and risk.â€
In his February 2011 evaluation report,
Dr. Vognsen stated, “[t]he present Evaluation of Mr. Jackson is
undertaken in response to a court order . . . for a new evaluation
with regard to the Ronje decision.†Acknowledging
his prior evaluations of Jackson, Dr. Vognsen stated in his report,
“[n]evertheless, I will treat this as a new evaluation.†Dr. Vognsen’s February 2011 evaluation
report shows that he considered Jackson’s entire psychiatric, family, criminal,
and qualifying offense history, which, Dr. Vognsen testified, he would not
do for an updated evaluation. Dr. Vognsen
conducted a clinical interview of Jackson in January 2011 and reassessed all of
the commitment criteria and risk factors. Dr. Korpi’s January 2011 evaluation
report shows Dr. Korpi too considered Jackson’s entire psychiatric,
family, criminal, and qualifying offense history. His January 2011 evaluation report reassessed
all of the commitment criteria and risk factors.
Jackson argues Dr. Korpi and Dr. Vognsen,
though purporting to use the 2009 SAP, in fact used the 2007 SAP in preparing
their 2011 evaluations of him. According
to Jackson, the 2011 evaluation reports prepared by Dr. Korpi and
Dr. Vognsen demonstrate they used the 2007 SAP because those reports
include the same headings, apply the same criteria, make the same findings, and
use the same diagnostic tools and risk factors, as those required by the 2007
SAP.
Under Reilly, if Dr. Korpi and Dr. Vognsen used the 2007 SAP in
preparing their 2011 evaluation reports of Jackson, any error would be harmless
unless he made a showing that use of the 2007 SAP resulted in material
error. (Reilly, supra, 57 Cal.4th
at p. 656 & fn. 5.)
Neither in his writ petition nor his
showing. Jackson does not contend any of
the reports prepared by Dr. Korpi and Dr. Vognsen, or any of their
diagnoses and conclusions, are inaccurate or otherwise invalid.
Jackson argues provisions included
in the 2011 evaluation reports prepared by Dr. Korpi and Dr. Vognsen indicate
they followed the 2007 SAP. Dr. Korpi’s
and Dr. Vognsen’s 2011 evaluation reports did follow the format, outline,
and structure provided in the 2007 SAP and did include notice, provisions, and
findings required by that protocol. But
the 2009 SAP does not prohibit them from doing so and does not prescribe a
particular format, outline, or structure for an evaluation report. (Rabuck,
supra, __ Cal.App.4th at p. __
[p. 12].) As Jackson argues, Dr. Korpi’s
and Dr. Vognsen’s 2011 evaluation reports used the headings “I. Identifying
Data,†“II. Findings,†and “III. Conclusion†(boldface & some
capitalization omitted), which were provided by the 2007 SAP. In Rabuck,
supra, __ Cal.App.4th at page __
[page 12], we concluded, “those are logical and natural headings for
sections within an SVPA evaluation report.â€
As further proof that Dr. Korpi
and Dr. Vognsen did not follow the 2009 SAP, Jackson asserts they drafted
their conclusions in a specific format required by the 2007 SAP.
question the evaluator must answer as “[d]oes the person being evaluated have a
diagnosed mental disorder so that he or she is likely to engage in acts of
sexual violence without appropriate treatment and custody?†The findings in Dr. Korpi’s 2011
evaluation report and Dr. Vognsen’s 2011 evaluation report track this
question and answer it. “Dr. [Korpi]
and Dr. [Vognsen] drafted their respective conclusions in a format that is
so obvious and logical that it cannot be said to be specific to the 2007 SAP.†(Rabuck,
supra, __ Cal.App.4th at p. __
[p. 13].)
Jackson contends Dr. Korpi
and Dr. Vognsen followed the 2007 SAP because they used procedures,
diagnostic tests, and actuarial risk assessment tools specifically required by
that protocol. In Rabuck, supra, __
Cal.App.4th at page __ [pages 13‑14], we rejected a similar
argument. We explained that “[u]nlike
the 2007 SAP, which provided detailed instructions on how to conduct a sexually
violent predator assessment and prepare an evaluation report, the 2009 SAP
relies on each evaluator’s exercise of ‘independent professional judgment in
the course of performing SVP [(sexually violent predator)] evaluations.’ [Citation.]â€
(Id. at p. __ [p. 13].) We concluded that the evaluators’ decision to
follow procedures and practices and to apply tests, instruments, and actuarial
risk tools that were required by the 2007 SAP did not mean they failed to use
the 2009 SAP. (Id. at p. __ [p. 14].)
Likewise, “the fact Dr. [Korpi]
and Dr. [Vognsen] decided to follow procedures and practices and to apply
tests, instruments, and actuarial risk tools that were required by the 2007 SAP
does not mean they failed to use the 2009 SAP.â€
(Rabuck, supra, __Cal.App.4th at p. __ [p. 14].) In compliance with the 2009 SAP, Dr. Korpi
and Dr. Vognsen explained in their respective 2011 evaluation reports how
the tests, instruments, and risk factors they used had gained professional
recognition or acceptance in the field of diagnosing, evaluating, or treating
sexual offenders, how they were applied, and why they were appropriate to
Jackson.
Jackson argues Dr. Vognsen
used the 2007 SAP because, at the beginning of his 2011 evaluation report, he
stated he provided Jackson with a notice of evaluation as a sexually violent predator,
presumably in the form attached as appendix B to the 2007 SAP. We rejected the identical argument in
Dr. Vognsen followed the 2007 SAP by including in their respective 2011
evaluation reports a statement, required by the 2007 SAP, on the question
whether Jackson’s future sexually violent acts and offenses would, or likely would,
be predatory in nature. “But the fact
Dr. [Korpi] and Dr. [Vognsen] answered a question presented by the 2007
SAP does not lead to the conclusion they did not follow the 2009 SAP and meet
its requirements.†(Id. at p. __ [p. 15].)
III.
Assessment Protocol and Complies with Section 6601(c).
Jackson
argues the 2009 SAP is invalid because it is not a standardized assessment
protocol as that term is understood in the scientific and psychological
communities. In support of this argument,
he relies on the declarations of Dr. Wollert and Dr. Halon, both of
whom presented a definition of a standardized assessment protocol, reviewed the
2009 SAP, and concluded it did not come within that definition. Jackson submitted Dr. Wollert’s declaration
and Dr. Halon’s declaration in support of his motion in limine to exclude
the 2011 evaluation reports prepared by Dr. Korpi and Dr. Vognsen. The motion in limine was filed on the first
day of the probable cause hearing, and, in the return, the district attorney
asserts he did not have an opportunity to prepare written opposition. The respondent court orally denied the motion
in limine without explanation and without issuing a written ruling.
Under
rule 3.1112(f) of the California Rules of Court, the trial court has
discretion to set the timing and place of the filing and service of a motion in
limine. We can infer the respondent
court denied Jackson’s motion in limine on the ground it was untimely, and the
court would have been acting within its discretion by so doing. The respondent court also did not err if it
denied the motion in limine on the merits. Whether the 2009 SAP constitutes a valid standardized
assessment protocol ultimately is a legal issue the resolution of which depends
on interpretation of statute. In
concluded the 2009 SAP is a legitimate standardized assessment protocol as
required by section 6601(c).
IV.
as a Regulation.
Jackson
argues that if the 2009 SAP is a legitimate standardized assessment protocol,
it is invalid nonetheless because it is an underground regulation that was not
promulgated in accordance with the APA. But
if the 2009 SAP was not promulgated in accordance with the APA, then Jackson
would have the burden of showing material error (Reilly, supra, 57 Cal.4th
at pp. 646, 656‑657); that is, “the invalid assessment protocol
materially affected his . . . evaluations†(id. at p. 656). He has
not done so. In addition, in
concluded the 2009 SAP was validly promulgated as a regulation.
Government Code section 11350
identifies the limited grounds on which the validity of a regulation may be
challenged. Jackson does not challenge
the OAL’s approval of section IV.D. of the 2009 SAP on any of the grounds
identified in Government Code section 11350.
The petition for writ of mandate
or prohibition is denied.
FYBEL,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
[1]
Further code references are to the Welfare and Institutions Code unless
otherwise indicated.
the public defender’s respect, expressed in the writ petition, for our friend
and colleague, the late Judge Marion.
