Quintero v. Superior Court

 

 

 

Filed 1/14/14  Quintero 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NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

 
>

AGUSTINE QUINTERO,         Petitioner,                            v.   THE SUPERIOR COURT OF ORANGE COUNTY,         Respondent;   THE PEOPLE,         Real Party in Interest.

G045200            (Super. Ct. No. M10805)            O P I N I O N

 

                        Original
proceedings; petition for a writ of
mandate/prohibition to challenge an order of the href="http://www.mcmillanlaw.us/">Superior Court of Orange County, Richard
M. King, Judge.  Petition denied.

                        Deborah
A. Kwast and Frank Ospino, Public Defenders, Jean Wilkinson, Chief Deputy
Public Defender, Denise Gragg 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.

*                *                *

>Introduction

Agustine Quintero is the subject of a commitment petition filed
pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code
section 6600 et seq. (SVPA).href="#_ftn1"
name="_ftnref1" title="">[1]  In our prior opinion, Quintero v. Superior Court
(Mar. 28, 2012, G045200) (nonpub. opn.), review granted June 27,
2012, S202358, we denied Quintero’s petition for writ of mandate/prohibition,
which sought a writ directing the respondent court to grant his plea in
abatement and dismiss the commitment petition.

The California Supreme Court
granted review of our opinion.  After
issuing its decision in Reilly v.
Superior Court (2013) 57 Cal.4th 641 (Reilly),
the Supreme Court transferred this matter to us for reconsideration in light of
that decision.  No party filed a
supplemental brief pursuant to rule 8.200(b)(1) of the California Rules of
Court.

As the Supreme Court directed, we have reconsidered this matter in
light of Reilly and again deny
Quintero’s petition for writ of mandate/prohibition.  Our decision is without prejudice to Quintero
challenging the probable cause determination pursuant to Reilly, supra, 57 Cal.4th
at pages 656‑657, footnote 5, and without prejudice to Quintero and the People obtaining further
examinations and evaluations permitted by the SVPA.

>Allegations of the Petition and the Return

In February 2006, the Orange County District Attorney filed a petition
for commitment as a sexually violent predator (the SVPA Petition), alleging
Quintero was a sexually violent predator under the SVPA.  The SVPA Petition was based on an evaluation
from Harold Goldberg, Ph.D., dated November 22, 2005, and an evaluation conducted by Hy Malinek, Psy.D., dated December 12, 2005. 

In February 2006, Judge Kazuharu Makino reviewed the SVPA Petition
and found it stated sufficient facts which, if true, would constitute probable
cause to believe Quintero was likely to engage in sexually violent predatory
criminal behavior on his release from prison. 
As a consequence, Judge Makino ordered Quintero to remain detained
pursuant to section 6601.5 in a secure facility until the probable cause
hearing. 

The probable cause hearing was conducted by Judge Richard M. King in
May 2006.  Judge King reviewed Dr. Goldberg’s
evaluation and Dr. Malinek’s evaluation and found, pursuant to section 6602,
probable cause existed to believe Quintero met the criteria for commitment as a
sexually violent predator.

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 State Department of State Hospitals (SDSH), 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 Jan. 14,
2014]; see Reilly, supra, 57 Cal.4th
at p. 649.)  In In re Ronje (2009) 179 Cal.App.4th 509, 516‑517 (>Ronje), disapproved in >Reilly, supra, 57 Cal.4th 641, we agreed with the OAL and likewise
concluded the 2007 SAP was invalid as an underground regulation.  In 2009, the SDSH issued the 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 March 2010, Quintero filed a motion requesting, among other
things, that, in light of Ronje, the
trial court order new evaluations to be conducted to determine whether he is a
sexually violent predator.  In November
2010, Judge James P. Marion granted the motion and ordered new evaluations of
Quintero, pursuant to section 6601, and a new probable cause hearing pursuant
to Ronje based on the new evaluations. 

In compliance with the court order, the SDSH reassigned Dr. Goldberg
and Dr. Malinek to evaluate Quintero.  In a report dated February 22, 2011, Dr. Goldberg concluded Quintero continued to meet the
criteria for commitment as a sexually violent predator.  In a report dated February 28, 2011, Dr. Malinek concluded Quintero no longer met those criteria.

Due to the difference of opinions, the SDSH ordered independent
evaluations of Quintero to be conducted by Michael Selby, Ph.D., and Laljit
Sidhu, Psy.D.  Dr. Selby prepared a
report dated March 27,
2011, and Dr. Sidhu prepared a report
dated April 20,
2011.  

In March 2011, Quintero filed a plea in abatement seeking dismissal
of the SVPA Petition based on the post‑Ronje evaluation reports of Dr. Goldberg and Dr. Malinek.
 The reports of Dr. Selby and
Dr. Sidhu were not available when Quintero filed his plea in abatement and
were not presented to the respondent court. 
The district attorney filed opposition to the plea in abatement.  In a supplemental memorandum of points and
authorities, Quintero requested that his plea in abatement also be considered a
demurrer under Code of Civil Procedure section 430.10,
subdivision (a) and a nonstatutory motion to dismiss.

In April 2011, the respondent court issued an order denying the plea
in abatement filed by Quintero.  The next
month, Quintero filed his petition for writ of mandate/prohibition.  We issued an order to show cause and stayed
the trial court proceedings.  In our
prior opinion, we denied Quintero’s writ petition.  We concluded that “[b]ased on those two
evaluation reports, which were the only two reports before it, the trial court
did not err by denying Quintero’s plea in abatement.”  (Quintero
v. Superior Court, supra, G045200.)

Discussion

In Reilly, >supra, 57 Cal.4th at page 646, the
California Supreme Court addressed the issue whether a court must dismiss an
SVPA commitment petition that was supported by evaluations conducted under an
invalid standardized assessment protocol. 
The initial evaluations of the alleged sexually violent predator in >Reilly had been conducted under the
standardized assessment protocol later deemed invalid by the OAL.  (Ibid.)  The trial court found probable cause and set
the matter for trial.  (>Id. at p. 650.)  A year later, new evaluations pursuant to >Ronje were ordered, and the two initial
post‑Ronje evaluators agreed
the alleged sexually violent predator no longer met the criteria for commitment
as a sexually violent predator.  (>Reilly, supra, at pp. 650‑651.) 
The alleged sexually violent predator sought a writ of mandate or
prohibition to compel the trial court to grant his plea in abatement to dismiss
the SVPA commitment petition.  (>Id. at p. 651.)  We granted the petition in an opinion
concluding that dismissal of the SVPA commitment petition was required because
it was not supported by two concurring evaluations, as required by section 6601.  (Reilly,
supra, at p. 651.) 

The California Supreme Court reversed our judgment.  (Reilly,
supra, 57 Cal.4th at
p. 646.)  The Supreme Court
concluded a court is not required to dismiss commitment proceedings under the
SVPA if the OAL determines that the initial evaluations supporting the petition
were conducted under an assessment protocol that did not comply with the OAL’s
procedural requirements.  (>Reilly, supra, at p. 646.)  “Instead,”
the Supreme Court concluded, “an alleged sexually violent predator (SVP) must
show that any fault that did occur under the assessment protocol created a >material error.  [Citation.]” 
(Ibid.)  The Supreme Court disapproved >Ronje because it did not require the
alleged sexually violent predator also to show material error.  (Reilly,
supra, at p. 655.)

Under the Supreme Court’s opinion in Reilly, Dr. Goldberg’s November 2005 evaluation report and Dr.
Malinek’s December 2005 evaluation report were sufficient to support the
filing of the SVPA Petition against Quintero unless he showed that any fault
occurring under the standardized assessment protocol in use at that time
created “a material error.”  (Reilly,
supra, 57 Cal.4th at p. 646.)  Quintero has not made such a showing.

In Reilly, unlike this
case, the alleged sexually violent predator had been the subject of updated
evaluations, pursuant to section 6603, subdivision (c), that were
performed in accordance with the 2009 SAP. 
(Reilly, supra, 57 Cal.4th at p. 650.) 
Those updated evaluations, conducted before the post‑>Ronje evaluations, concluded the alleged
sexually violent predator met the criteria for commitment under the SVPA.  (Reilly,
supra, at p. 650.)  The Supreme Court stated:  “In this case, two evaluators concluded in
2008, under the 2007 protocol, and again in 2009, under the subsequently
adopted 2009 protocol, that Reilly was an SVP [(sexually violent predator)].  Under these circumstances, where Reilly was
found to be an SVP under the new protocol, it is clear that the 2007 protocol
error did not materially affect the outcome of his probable cause hearing.  Reilly has therefore not shown that the invalid
assessment protocol materially affected his initial evaluations.”  (Id.
at p. 656.)

Other than the post‑Ronje
evaluations, Quintero has not been evaluated under the 2009 SAP.  In 2006, the trial court found probable cause
to believe Quintero met the criteria for commitment as a sexually violent
predator.  Footnote 5 of >Reilly, supra, 57 Cal.4th at pages 656‑657, is therefore applicable. 
Footnote 5 reads:  “Although
not applicable here, in future cases in which the alleged SVP [(sexually
violent predator)] has only been evaluated under the 2007 assessment protocol
and in which a court finds probable cause that the individual meets the SVP
criteria, the individual may petition the court to set aside the probable cause
determination on the ground that the use of the invalid 2007 assessment
protocol materially affected the outcome of the hearing.  The court may then order new evaluations
under section 6603 et seq., using the 2009 assessment protocol, and may,
in its discretion, order a new probable cause hearing if the new evaluations
support the petition.  If a 2007
assessment protocol error is identified before a probable cause determination,
the alleged SVP may file a plea in abatement asserting the procedural error and
asking the court to substitute new evaluations that use the 2009 assessment
protocol.”  (Reilly, supra, at pp. 656‑657,
fn. 5.)

Our decision to deny Quintero’s petition for writ of
mandate/prohibition is therefore without prejudice to Quintero challenging the
probable cause determination pursuant to Reilly,
supra, 57 Cal.4th at pages 656‑657,
footnote 5.  In addition, our
decision is without prejudice to Quintero and the People exercising their
statutory rights under the SVPA to obtain new or updated evaluations under
section 6603, subdivisions (a) and (c)(1).  (See Reilly,
supra, at p. 657.)

Disposition

The petition
for writ of mandate and/or prohibition is denied and the stay of the trial
court proceedings is lifted.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM, ACTING P. J.

 

 

 

BEDSWORTH, J.