Opinion
G045614
03-28-2012
ALAN RIGBY, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Frank Ospino, Interim Public Defender, Jean Wilkinson, Chief Deputy Public Defender, Denise Gragg, Sharon Petrosino and Mark S. Brown, Assistant Public Defenders, for Petitioner. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. M10354 & M11042)
OPINION
Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, James Patrick Marion, Judge. Petition denied.
Frank Ospino, Interim Public Defender, 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
Alan Rigby is the subject of a commitment petition filed pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA). He filed a motion in the trial court, seeking dismissal of the SVPA commitment petition on the ground it was not supported by the concurrence of the two evaluators appointed pursuant to section 6601 after our decision in In re Ronje (2009) 179 Cal.App.4th 509 (Ronje).
Further code references are to the Welfare and Institutions Code unless otherwise indicated.
Following our decision in Boysel v. Superior Court (Mar. 28, 2012, G045202) _ Cal.App.4th _ (Boysel), we deny the writ petition without prejudice to renewing the challenge to the SVPA commitment petition based on a consideration of the full reports of the post-Ronje evaluators.
ALLEGATIONS OF THE PETITION AND THE RETURN
In December 2003, Rigby was adjudicated to be a sexually violent predator under the SVPA and was committed to the State Department of Mental Health (DMH) for treatment for two years. In October 2004, the Orange County District Attorney filed a petition for recommitment as a sexually violent predator, alleging Rigby continued to be a sexually violent predator under the SVPA. The SVPA recommitment petition was based on evaluations prepared by Elaine Finnberg, Ph.D., and Christopher North, Ph.D., which concluded Rigby continued to meet the criteria for commitment as a sexually violent predator.
In November 2004, Judge Daniel J. Didier reviewed the SVPA recommitment petition and found it stated sufficient facts which, if true, would constitute probable cause to believe Rigby was likely to engage in sexually violent predatory criminal behavior on his release from commitment. As a consequence, Judge Didier ordered Rigby to be detained pursuant to section 6601.5 in a secured facility until the probable cause hearing.
In October 2006, the district attorney filed another SVPA recommitment petition (the SVPA Petition) against Rigby, seeking his commitment to the DMH for an indeterminate period. The SVPA Petition was based on evaluations conducted by Dr. Finnberg and Dr. North, both of whom concluded Rigby continued to meet the criteria for commitment as a sexually violent predator. Judge David A. Hoffer reviewed the SVPA Petition and found it stated sufficient facts which, if true, would constitute probable cause to believe Rigby was likely to engage in sexually violent predatory criminal behavior on his release from commitment. As a consequence, Judge Hoffer ordered Rigby to be detained pursuant to section 6601.5 in a secured facility until the probable cause hearing.
In 2008, Dr. Finnberg prepared an updated evaluation concluding Rigby continued to meet the criteria for commitment as a sexually violent predator. An updated evaluation was also prepared by Robert Owen, Ph.D., who likewise concluded Rigby continued to meet those criteria.
In August 2008, the state Office of Administrative Law (OAL) issued 2008 OAL Determination No. 19, in which the OAL determined the 2007 version of the DMH's assessment protocol amounted to an "underground regulation" because portions of the assessment protocol, though regulatory in nature, had not been adopted pursuant to the Administrative Procedure Act, Government Code section 11340.5. (See Ronje, supra, 179 Cal.App.4th at p. 515.) In Ronje, supra, 179 Cal.App.4th at pages 516-517, we agreed with the OAL and likewise concluded the 2007 assessment protocol was invalid as an underground regulation.
In 2009, the DMH drafted a new standardized assessment protocol for SVPA evaluations. Pursuant to Government Code section 11349.6, subdivision (d), the OAL approved the new assessment protocol in September 2009.
In the reply, Rigby alleges that Dr. North prepared a report dated June 30, 2008, concluding Rigby no longer met the criteria for commitment as a sexually violent predator and that Nancy Rueschenberg, Ph.D., prepared a report dated March 24, 2009, reaching the same conclusion.
In December 2010, Rigby 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. Judge James Patrick Marion granted the motion and ordered new evaluations of Rigby pursuant to section 6601.
In compliance with the court order, the DMH reassigned Dr. Finnberg and Dr. Owen to evaluate Rigby. In a report dated April 22, 2011, Dr. Owen concluded Rigby no longer met the criteria for commitment as a sexually violent predator. In a one-page checklist dated April 26, 2011, Dr. Finnberg also concluded Rigby no longer met those criteria. Dr. Finnberg prepared a full report dated June 20, 2011.
In May 2011, Rigby filed a motion to dismiss the SVPA Petition based on Dr. Owen's and Dr. Finnberg's post-Ronje evaluations. Dr. Finnberg's report was not available when Rigby filed the motion to dismiss. The district attorney filed opposition to Rigby's motion to dismiss.
After hearing argument on June 13, 2011, Judge Marion continued the matter to June 17. On that day, Judge Marion denied the motion to dismiss and, over Rigby's objection, set the probable cause hearing for October 31, 2011.
Rigby filed his petition for writ of mandate/prohibition in August 2011. We issued an order to show cause and issued a stay of trial court proceedings.
DISCUSSION
In Ronje, supra, 179 Cal.App.4th 509, we held the use of an invalid assessment protocol in conducting mental evaluations of a person suspected to be a sexually violent predator constituted an error or irregularity in a commitment proceeding under the SVPA. As a remedy, we directed the trial court to order new evaluations pursuant to section 6601 using a valid assessment protocol.
In Boysel, supra, _ Cal.App.4th _, Wright v. Superior Court (Mar. 28, 2012, G045203) _ Cal.App.4th _ (Wright), and Reilly v. Superior Court (Mar. 28, 2012, G045118) _ Cal.App.4th _ (Reilly), we addressed whether, before the probable cause hearing, a person named in an SVPA commitment petition may challenge the petition on the ground of lack of concurring evaluators, by means of a plea in abatement, nonstatutory motion to dismiss, or nonstatutory pleading. We concluded that People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 912-913 (Ghilotti) authorizes the use of a nonstatutory pleading to challenge an SVPA commitment proceeding, before the probable cause hearing, on the ground of lack of the required concurring evaluations. We deem Rigby's motion to dismiss to have constituted such a nonstatutory pleading.
In Boysel, Wright, and Reilly, we addressed the effect of post-Ronje evaluations in different scenarios. In Boysel, supra, _ Cal.App.4th _, the two initial post-Ronje evaluators disagreed whether the person named in the SVPA commitment petition met the criteria for commitment as a sexually violent predator. Although two independent post-Ronje evaluators had been appointed pursuant to section 6601, subdivision (e), their reports were not before the trial court when it denied the challenge to the SVPA commitment petition. In Wright, supra, _ Cal.App.4th _, the two initial post-Ronje evaluators likewise disagreed whether the person named in the SVPA commitment petition met the criteria for commitment as a sexually violent predator, but there was no evidence in the record that two independent post-Ronje evaluators have been appointed. In Wright and Boysel, we denied the petitions for writ of mandamus/prohibition without prejudice to later renewing the challenge to the SVPA commitment petitions. In Reilly, supra, _ Cal.App.4th _, the two initial post-Ronje evaluators agreed the person named in the SVPA petition no longer met the criteria for commitment as a sexually violent predator, and, therefore, we were compelled by the SVPA to grant the writ petition in that case.
This case is similar to Boysel, supra, _ Cal.App.4th _, in that the full report of one the two initial post-Ronje evaluators was not before the court when it denied Rigby's motion to dismiss. Only Dr. Owen's report was presented to the trial court. Although Dr. Finnberg had prepared a checklist of her evaluation, her June 20, 2011 report was not available to the trial court until after the court denied Rigby's motion to dismiss. Based on the single report before it, the trial court did not err by denying the motion. As in Boysel, our decision to deny Rigby's writ petition is without prejudice to renewing the challenge to the SVPA Petition in the trial court by motion or pleading pursuant to Ghilotti, based on all the full reports of the post-Ronje evaluators.
DISPOSITION
The petition for writ of mandate/prohibition is denied and the stay of the trial court proceedings is lifted.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.