Smith v. Superior Court

 

 

 

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NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

 
>

RICHARD ANTHONY SMITH,         Petitioner,                            v.   THE SUPERIOR COURT OF ORANGE COUNTY,         Respondent;   THE PEOPLE,         Real Party in Interest.

G045119            (Super. Ct. No. M9531)            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 Orange County,
Richard M. King, Judge.  Petition granted
in part and denied in part.

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

*                *                *

> 

>Introduction

Richard Anthony Smith is the subject of a commitment petition filed
pursuant to the Sexually Violent Predator Act, href="http://www.fearnotlaw.com/">Welfare and Institutions Code
section 6600 et seq. (SVPA).href="#_ftn1"
name="_ftnref1" title="">[1]  In our prior opinion, Smith v. Superior Court (Mar. 28, 2012, G045119) (nonpub. opn.),
review granted June 27, 2012, S202338, we granted Smith’s petition for
writ of mandate/prohibition and directed the respondent court to grant his plea
in abatement, in effect dismissing the SVPA 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.  Following transfer, Smith
submitted a supplemental opening brief
pursuant to rule 8.200(b)(1) of the California Rules of Court.  The district attorney did not file a
supplemental responding brief.

As the Supreme Court directed, we have reconsidered this matter in
light of Reilly and now conclude
Smith’s petition for writ of mandate/prohibition must be denied in part and
granted in part.  We deny Smith’s request
for a writ directing the respondent court to grant his plea in abatement.  We grant Smith’s request for a writ directing
the respondent court to vacate its order granting the district attorney’s
motion to compel him to undergo a mental examination by the district attorney’s
retained mental health professional and granting that mental health
professional access to Smith’s state hospital records.  Our decision is without prejudice to Smith
challenging the probable cause determination pursuant to Reilly, supra, 57 Cal.4th
at pages 656‑657, footnote 5, and without prejudice to Smith and the People obtaining further
examinations and evaluations permitted by the SVPA. 

 

Allegations of the
Petition and the Return

In March 2002, the Orange County District Attorney filed a petition
for commitment as a sexually violent predator (the SVPA Petition), alleging
Smith was a sexually violent predator under the SVPA.  Attached to the SVPA Petition were an
evaluation of Smith, conducted by Dana Putnam, Ph.D., in January 2002, and an
evaluation conducted by Charles Jackson, Ph.D., in February 2002.

In March 2002, Judge Ronald Kreber reviewed the SVPA Petition and
found it stated sufficient facts which, if true, would constitute probable
cause to believe Smith was likely to engage in sexually violent predatory
criminal behavior on his release from prison.  As a consequence, Judge Kreber ordered Smith to
be detained pursuant to section 6601.5 in a secure facility until the
probable cause hearing.

In 2006, one updated evaluation and one replacement evaluation of
Smith were conducted pursuant to section 6603, subdivision (c)(1).  Nancy Rueschenberg, Ph.D., conducted the
replacement evaluation and concluded Smith continued to meet the criteria for
commitment as a sexually violent predator. 
Dr. Putnam conducted the updated evaluation.  The record does not reveal Dr. Putnam’s
conclusion in the updated evaluation.  In
February 2007, Smith waived his right to a probable cause hearing after it had
been continued several times.  Trial on
the SVPA Petition has not been held.

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, Smith 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 Patrick Donahue granted the motion and ordered new evaluations of Smith,
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 appointed Dr. Putnam
and Dr. Rueschenberg to conduct the new evaluations.  In a report dated February 2, 2011, Dr. Rueschenberg concluded Smith no longer met the criteria
for commitment as a sexually violent predator. 
In a report dated February 7, 2011, Dr. Putnam
also concluded Smith no longer met those criteria.

At the pretrial hearing in March 2011, Smith requested a probable
cause hearing be set within 10 calendar days.  The respondent court denied the request.  Later that month, the district attorney filed
a motion for an order compelling Smith to undergo a mental examination by the district
attorney’s retained expert, Harry Goldberg, Ph.D., and granting Dr. Goldberg
access to Smith’s state hospital records.

In March 2011, Smith filed a plea in abatement seeking dismissal of
the SVPA Petition, based on Dr. Rueschenberg’s and Dr. Putnam’s post‑>Ronje evaluation reports.  The district attorney filed opposition.  The respondent court set a probable cause
hearing for May 6,
2011.

In April 2011, the respondent court issued an order denying the plea
in abatement filed by Smith.  The
respondent court also granted the district attorney’s motion to compel Smith to
undergo a mental evaluation and to grant access to his state hospital records.

Five days later, Smith filed his petition for writ of
mandate/prohibition challenging the denial of his plea in abatement and
challenging the respondent court’s order granting the district attorney’s
motion to compel him to undergo a mental evaluation by the district attorney’s
retained mental health professional and to grant that mental health
professional access to his state hospital records.  In Smith
v. Superior Court, supra, G045119,
we granted Smith’s writ petition and directed the respondent court to (1) grant
Smith’s plea in abatement and (2) deny the district attorney’s motion to
compel Smith to undergo a mental examination and to grant access to Smith’s
state hospital records.

 

Discussion

>I.

>Writ Petition Denied as to
Plea in Abatement

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 such material error.  (Reilly,
supra, at p. 655.)

This case is similar to Reilly
because the two initial post‑Ronje evaluators
concluded Smith did not meet the criteria for commitment as a sexually violent
predator.  Under the Supreme Court’s
opinion in Reilly, we must deny
Smith’s writ petition requesting that we direct the respondent court to grant
his plea in abatement.

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, Smith has not been evaluated under the 2009 SAP.  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.)

In February 2007, Smith waived his right to a probable cause
hearing.  Although we are denying his
writ petition as to the plea in abatement, in light of footnote 5 of >Reilly, supra, 57 Cal.4th at pages 656‑657, Smith should have
the opportunity to petition the respondent court to set aside that waiver and
to hold a probable cause hearing on the ground that the use of the invalid 2007
SAP materially affected his waiver.

II.

>Writ Petition Granted as
to Mental Examination and Access to Hospital Records

In our prior
opinion, we stated:  “[W]e also conclude
Smith cannot be compelled to undergo another mental evaluation because the SVPA
Petition must be dismissed.  Evaluations
by independent mental health professionals under section 6601,
subdivision (e) are not authorized because the initial two post‑>Ronje evaluators concluded Smith no
longer met the criteria for commitment as a sexually violent predator.”  (Smith
v. Superior Court, supra, G045119.)  We directed the respondent court to enter an
order denying the district attorney’s motion to compel Smith to undergo a
mental examination and to allow access to Smith’s state hospital records.  (Ibid.) 

In his
supplemental opening brief, Smith urges us to confirm our prior decision to
deny those motions.  We will grant the
requested relief.  The district
attorney’s motion to compel Smith to undergo a mental examination and to give
the district attorney’s retained expert access to Smith’s state hospital
records was prompted by the post‑Ronje
evaluations and was not authorized under the SVPA.  Smith and the People retain their rights to
obtaining further examinations and evaluations permitted by the SVPA.  In Reilly,
supra, 57 Cal.4th at pages 656‑657,
the Supreme Court stated:  “The trial
court should consider any updated evaluations submitted to it together with the
initial evaluations that supported the original SVPA commitment petition,
giving each evaluation whatever weight it deems appropriate.  (§ 6603, subd. (c).)  Reilly retains his statutory rights to obtain
new psychological examinations on his behalf before trial and to introduce
other evidence that he believes will assist the court in determining his status
as an SVP [(sexually violent predator)]. 
(§ 6603, subd. (a).) 
The People have the corresponding right to order updated evaluations
before trial.  (§ 6603,
subd. (c)(1).)” 

Disposition and Order

The petition for writ of mandate/prohibition is denied with respect
to the respondent court’s order denying Smith’s plea in abatement.  The petition for writ of mandate/prohibition
is granted with respect to the respondent court’s order granting the district
attorney’s motion to compel Smith to undergo a mental examination and to allow
access to Smith’s state hospital records.

Let a writ of mandate issue directing the respondent court to vacate
its order granting the district attorney’s motion to compel Smith to undergo a
mental examination by the district attorney’s retained mental health
professional and to allow that mental health professional access to Smith’s
state hospital records, and directing the respondent court to enter a new order
denying that motion.

Our decision is without prejudice to Smith and the People exercising
their statutory rights.

 

 

                                                                                   

                                                                                    FYBEL,
J.

 

WE CONCUR:

 

 

RYLAARSDAM, ACTING P. J.

 

 

 

BEDSWORTH, J.