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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.                                                  G045119

THE SUPERIOR COURT OF ORANGE                                           (Super. Ct. No. M9531)
COUNTY,
                                                                       OPINION
     Respondent;

THE PEOPLE,

     Real Party in Interest.



                   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, Welfare and Institutions Code
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section 6600 et seq. (SVPA). 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
 1
   Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

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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

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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
<http://www.oal.ca.gov/res/docs/pdf/determinations/2008/2008_OAL_Determination_19
.pdf> [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



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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

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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

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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

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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).)”


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                                 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.




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