Filed 2/13/14 Macy v. Super. Ct. CA6
Opinion following transfer from Supreme Court
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


DANIEL JAMES MACY,                                                   H037138
                                                                    (Santa Cruz County
         Petitioner,                                                 Super. Ct. No. ME-43)

         v.

THE SUPERIOR COURT OF
SANTA CRUZ COUNTY

         Respondent,

THE PEOPLE,

         Real Party in Interest.



         The central issue in this original writ proceeding is whether the trial court was
legally obligated to dismiss the civil commitment proceedings brought against petitioner
Daniel James Macy pursuant to the Sexually Violent Predator Act ("SVPA" or "Act")
(Welf. & Inst. Code, § 6600 et seq.)1 because the original, concurring evaluations were
conducted under an invalid standardized assessment protocol and presently there is no
pair of concurring evaluations. In our initial opinion, we denied petitioner Macy's writ



1
      All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
                                                             1
petition without prejudice after concluding that, to obtain pretrial writ relief, an alleged
SVP must make an additional showing beyond the mere fact that evaluators conducted
their evaluations under an invalid assessment protocol. The California Supreme Court
subsequently granted the petition for review in this case (S204255, Sept. 12, 2012) and
held the matter pending resolution of Reilly v. Superior Court (S202280). Reilly v.
Superior Court (2013) 57 Cal.4th 641 (Reilly) determined that "relief arising from use of
an invalid protocol in an SVP evaluation should depend on a showing that the error was
material." (Id. at p. 655.) Following Reilly, the Supreme Court transferred the matter to
us for reconsideration in light of its decision.
       We again deny relief.
                                                   I
                                      Legal Background
       A concurring pair of evaluations is a prerequisite to the filing of a petition to
commit an individual alleged to be an SVP. (§ 6601, subds. (d)-(i); see Reilly v. Superior
Court, supra, 57 Cal.4th at p. 647; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th
888, 909 (Ghilotti).) The purpose of this requirement is to screen out persons unlikely to
qualify as SVP's. (See People v. Medina (2009) 171 Cal.App.4th 805, 814; see also
People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1130 (Preciado).)
Evaluations must be conducted "in accordance with a standardized assessment protocol,
developed and updated by the State Department of State Hospitals [formerly State
Department of Mental Health], to determine whether the person is a sexually violent
predator . . . ."2 (§ 6601, subdivision (c); see Stats. 2012, ch. 24, § 139, p. 1030, eff.


2
       Section 6601, subdivision (c), continues to provide: "The standardized assessment
protocol shall require assessment of diagnosable mental disorders, as well as various
factors known to be associated with the risk of reoffense among sex offenders. Risk
factors to be considered shall include criminal and psychosexual history, type, degree,
and duration of sexual deviance, and severity of mental disorder." (See Stats. 2012, ch.
24, § 139, p. 1030, eff. June 27, 2012; Stats. 2011, ch. 359, § 2, p. 3769; Stats. 2010, ch.
                                               2
June 27, 2012; Stats. 2011, ch. 359, § 2, p. 3769; Stats. 2010, ch. 710, § 3, p. 4032; Stats.
2008, ch. 601, § 2, p. 3432, eff. Sept. 30; 2008, Prop. 83, § 26, approved Nov. 7, 2006;
Stats. 2006, ch. 337, § 54, pp. 2663-2664, eff. Sept. 20, 2006; Stats. 1999, ch. 136, § 1,
p. 1832, eff. July 22, 1999.)
       Once a petition is filed, the court holds a probable cause hearing to determine
whether the matter should be brought to trial. (See § 6602; see also §§ 6601.5, 6604.)
"After the petition is filed, rather than demonstrating the existence of the two evaluations,
the People are required to show the more essential fact that the alleged SVP is a person
likely to engage in sexually violent predatory criminal behavior. [Citation.]" (Preciado,
supra, 87 Cal.App.4th at p. 1130; see Cooley v. Superior Court (2002) 29 Cal.4th 228,
247 ["the only purpose of the probable cause hearing is to test the sufficiency of the
evidence supporting the SVPA petition"], 247-250 [probable cause determination
encompasses four elements], 254-256 [definition of "likely"].) An SVP petition
progresses to trial only if the court finds the requisite probable cause. (§ 6602, subd. (a).)
       In 2008, the Office of Administrative Law (OAL) determined that challenged
provisions in the "Clinical Evaluator Handbook and Standardized Assessment Protocol
(2007)" ("2007 Protocol") issued by the Department of Mental Health ("DMH") met the
definition of a regulation as defined by Government Code section 11342 and should have
been adopted pursuant to the Administrative Procedures Act (APA) (Gov. Code, § 11340
et seq.). (2008 OAL Determination No. 19.)3 Accordingly, the 2007 protocol constituted
an "underground regulation" (Cal. Code Regs, tit. 1, § 250).4


710, § 3, p. 4032; Stats. 2008, ch. 601, § 2, p. 3432, eff. Sept. 30, 2008; Prop. 83, § 26,
approved Nov. 7, 2006; Stats. 2006, ch. 337, § 54, p. 2664, eff. Sept. 20, 2006; Stats.
1999, ch. 136, § 1, p. 1832, eff. July 22, 1999.)
3
       We have taken judicial notice of the 2007 Protocol and the 2008 OAL
Determination No. 19. (Evid. Code, §§ 452, subd. (c), 459, subd. (a).)
4
       Section 250, subdivision (a), of the California Code of Regulations, title 1, states:
" 'Underground regulation' means any guideline, criterion, bulletin, manual, instruction,
order, standard of general application, or other rule, including a rule governing a state
                                              3
       "The OAL Determination clarified that its ruling concerned only whether the 2007
assessment protocol constituted a regulation under Government Code section 11342.600
because '[n]othing in this analysis evaluates the advisability or the wisdom of the
underlying action or enactment.' (OAL Determination, at p. 1.) The Office of
Administrative Law recognized that it 'has neither the legal authority nor the technical
expertise to evaluate the underlying policy issues involved.' (Ibid.) In other words, its
conclusions addressed only the procedural validity of the 2007 assessment protocol; it did
not address the protocol's substantive validity." (Reilly, supra, 57 Cal.4th at p. 649.)
       A new, emergency assessment protocol was "adopted in February 2009 in
response to the OAL Determination that the 2007 assessment protocol was procedurally
invalid." (Id. at p. 650.) "The Office of Administrative Law eventually approved this
emergency assessment protocol in September 2009 . . . ."5 (See Ibid.)
       In In re Ronje (2009) 179 Cal.App.4th 509 ("Ronje"), which was recently
disapproved by the California Supreme Court to the extent that it was inconsistent with
the Reilly decision (Reilly, supra, 57 Cal.4th at p. 655), Ronje sought habeas "relief on
the ground his evaluations under section 6601 leading to the SVPA commitment petition



agency procedure, that is a regulation as defined in Section 11342.600 of the Government
Code, but has not been adopted as a regulation and filed with the Secretary of State
pursuant to the APA and is not subject to an express statutory exemption from adoption
pursuant to the APA."
5
        Section 4005 of the California Code of Regulations, title 9, now provides: "The
evaluator, according to his or her professional judgment, shall apply tests or instruments
along with other static and dynamic risk factors when making the assessment. Such tests,
instruments and risk factors must have gained professional recognition or acceptance in
the field of diagnosing, evaluating or treating sexual offenders and be appropriate to the
particular patient and applied on a case-by-case basis. The term 'professional recognition
or acceptance' as used in this section means that the test, instrument or risk factor has
undergone peer review by a conference, committee or journal of a professional
organization in the fields of psychology or psychiatry, including, but not limited to, the
American Psychological Association, the American Psychiatric Association, and the
Association for the Treatment of Sexual Abusers."
                                              4
were conducted under a standardized assessment protocol later determined by the [OAL]
to constitute an invalid 'underground' regulation under California Code of Regulations,
title 1, section 250." (Id. at p. 513.) The appellate court in Ronje relied in part upon
People v. Pompa–Ortiz (1980) 27 Cal.3d 519 (Pompa–Ortiz), which considered an
appellate challenge to the trial court's denial of a Penal Code section 995 motion based on
the magistrate's improper closing of the preliminary hearing. (See Ronje, supra, 179
Cal.App.4th at p. 513; see also Cooley v. Superior Court, supra, 29 Cal.4th at p. 247
[analogizing a section 6602 probable cause hearing to a preliminary hearing in a criminal
case].) Ronje concluded that the petitioner was "not required to show prejudice from use
of the invalid [SVP] assessment protocol because he is making a pretrial challenge."
(Ronje, supra, 179 Cal.App.4th at p. 513.) Its remedy for the concurring evaluators' use
of an invalid protocol in performing their evaluations under section 6601 was to require
fresh evaluations using a valid assessment protocol and a new probable cause hearing
under section 6602, subdivision (a), based on the new evaluations. (Id. at pp. 514, 521.)
Ronje did not discuss what should happen if the replacement evaluations produced a split
of opinion.
       In Pompa-Ortiz, the Supreme Court stated that it was "settled that denial of a
substantial right at the preliminary examination renders the ensuing commitment illegal
and entitles a defendant to dismissal of the information on timely motion. [Citations.]"
(Pompa-Ortiz, supra, 27 Cal.3d at p. 523.) Pompa–Ortiz also declared: "Henceforth
irregularities in the preliminary examination procedures which are not jurisdictional in
the fundamental sense shall be reviewed under the appropriate standard of prejudicial
error and shall require reversal only if defendant can show that he was deprived of a fair
trial or otherwise suffered prejudice as a result of the error at the preliminary
examination. The right to relief without any showing of prejudice will be limited to
pretrial challenges of irregularities. At that time, by application for extraordinary writ,


                                              5
the matter can be expeditiously returned to the magistrate for proceedings free of the
charged defects." (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.)
       In Reilly, the Supreme Court determined that "the Ronje court erred when it
ordered replacement evaluations . . . without requiring a determination that the
underlying mistake in the assessment protocol amounted to material error." (Reilly,
supra, 57 Cal.4th at p. 652.) It also disagreed with Ronje "[t]o the extent that Ronje
relied on Pompa–Ortiz to hold that materiality is always presumed if an assessment
protocol error is raised before trial . . . ." (Id. at p. 653.) Reilly stated: "The general rule
derived from Pompa–Ortiz is that nonjurisdictional irregularities in preliminary hearing
procedures should be reviewed for prejudice. (Pompa-Ortiz, supra, 27 Cal.3d at p. 529
. . . .) In Pompa–Ortiz, this rule was applied to a postconviction challenge. But it applies
with equal force to a pretrial challenge that addresses an issue that a subsequent fact
finder will reconsider." (Ibid.)
       Reilly also briefly discussed People v. Konow (2004) 32 Cal.4th 995 (Konow) and
People v. Standish (2006) 38 Cal.4th 858 (Standish). (Reilly, supra, 57 Cal.4th at pp.
653-654.) Those cases considered whether a magistrate had denied a defendant a
substantial right affecting the legality of an ensuing commitment. (See Standish, supra,
38 Cal. 4th at pp. 882-884 [magistrate refused to grant OR release pending the
preliminary examination]; Konow, supra, 32 Cal.4th at pp. 1024-1025 [magistrate
incorrectly believed that the complaint could not be dismissed in furtherance of justice
under Penal Code section 1385].) Konow held that "a defendant is denied a substantial
right affecting the legality of the commitment when he or she is subjected to prejudicial
error, that is, error that reasonably might have affected the outcome [citation]." (32
Cal.4th at p. 1024.) Reilly found those decisions "support[ed] the conclusion that Reilly,
as the petitioner for a writ of mandate who bears the burden of pleading and proof, must
demonstrate more than procedural error to obtain dismissal of his SVPA commitment
petition." (Reilly, supra, 57 Cal.4th at p. 653.)
                                                6
       Reilly then considered Ghilotti, supra, 27 Cal.4th 888. (Reilly, supra, 57 Cal.4th
at pp. 654-655.) Ghilotti described the trial court's authority to review the evaluators'
initial SVP reports for material legal error when their reports are challenged. (Ghilotti,
supra, 27 Cal.4th at pp. 912-915.) In light of this precedent, the California Supreme
Court concluded in Reilly that "relief arising from use of an invalid protocol in an SVP
evaluation should depend on a showing that the error was material." (Reilly, supra, 57
Cal.4th at p. 655.)
       The Supreme Court made clear that a trial court is not required to dismiss an SVP
petition based upon the mere showing that the evaluations pursuant to section 6601,
which supported the filing of the petition, were conducted under an invalid assessment
protocol. (See id. at pp. 646, 652-656.) The court observed: "By requiring that
assessment protocol errors must rise to the level of materiality, we ensure that meritorious
petitions can proceed, while mandating reevaluation, and possible dismissal, where their
merit is in doubt." (Id. at p. 655.) It further stated: "Requiring that the error be material
also ensures that the Legislature's purpose in enacting section 6600 et seq. is followed.
The legislative history shows the Legislature did not intend that courts interpret section
6601's procedural requirements with unnecessary strictness to prevent the trier of fact
from ultimately determining each individual's SVP status." (Id. at pp. 655-656.)
                                              II
                                  Procedural Background
       An SVP petition alleging that petitioner Macy qualified for commitment as an
SVP was filed in December 2004. It alleged that two evaluators had determined that
petitioner had "a diagnosed mental disorder such that he is likely to engage in acts of
sexual violence without appropriate treatment and custody within the meaning of Welfare
and Institutions Code Section 6600 et seq." and he "poses a danger to the health and
safety of others, and is predatory within the meaning of [those provisions]."


                                              7
       In June 2005, a probable cause hearing was held. The petition states, and it is not
disputed, that "at the conclusion of that hearing, respondent court found probable cause to
believe that petitioner was likely to engage in sexually violent predatory criminal
behavior upon his release from custody."
       In March 2010, petitioner filed a notice of motion to dismiss the SVP petition or,
alternatively, to grant a new probable cause hearing.6 The motion to dismiss was based
on the ground that, subsequent to the probable cause hearing, two separate pairs of
evaluators had disagreed whether petitioner met the SVP criteria. Petitioner
acknowledged that, in a series of updated evaluations following the 2005 probable cause
hearing, Drs. Jeremy Coles and John Hupka concurred that petitioner met the SVP
criteria. He pointed out, however, that in updated evaluations dated March 2009, the
psychologists had a split of opinion regarding whether he currently qualified as an SVP.
The subsequent updated evaluations conducted by psychologists Dana Putnam and Nancy
Rueschenberg in May 2009 also resulted in a split of opinion. Petitioner maintained that,
due to the lack of concurring updated evaluations, the court was required to dismiss the
petition pursuant to subdivision (b) of section 6604.1 as amended by Proposition 83
(approved Nov. 7, 2006).7 Citing Ronje, supra, 179 Cal.App.4th 509, petitioner


6
        The exhibits submitted in support of the petition do not explain why the matter did
not proceed to trial before March 2010. Petitioner does not raise any issues related to
delay.
7
        Section 6604.1 was amended by Proposition 83 in 2006 to refer to an
indeterminate term of commitment but it still contained the following statutory language:
"The provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to
evaluations performed for purposes of extended commitments." (Former § 6604.1 as
amended by Prop. 83, § 28, approved Nov. 7, 2006, see former § 6604.1 as amended by
Stats. 2000, ch. 420, § 4, p. 3140, eff. Sept. 13, 2000; see also § 6604.1.) Petitioner
argued in support of his motion to dismiss that, where a second set of updated evaluations
do not concur that a person qualifies as an SVP, the petition had to be dismissed under
section 6601, subdivision (f), which precludes the filing of an SVP petition where a
second set of evaluators do not concur that the alleged SVP meets the criteria for
commitment.
                                             8
alternatively contended that he was entitled to a new probable cause hearing because the
2004 assessment protocol used by the evaluators who testified at the probable cause
hearing was an improper "underground" regulation.
       In July 2010, petitioner filed a "supplement" to his motion, requesting "two
additional evaluations by two new and different evaluators" in addition to a new probable
cause hearing if the court did not grant his request to dismiss the SVP petition. Petitioner
attached exhibits showing the following developments. In a letter dated March 31, 2010,
Dr. Hupka had reversed his opinion, finding that petitioner met the SVP criteria. In an
updated evaluation dated May 17, 2010, Dr. Coles had also reversed his opinion, finding
petitioner did not meet the SVP criteria. In a May 2010 updated evaluation, Dr. Putnam
had concluded that petitioner still met the SVP criteria. Petitioner maintained that the
double split of opinion between each set of evaluators required dismissal or at least a new
probable cause hearing.
       In its opposition filed in July 2010, the People argued there was no legal basis for
dismissing the petition but acknowledged that Ronje required a new probable cause
hearing. The People also asserted that updated evaluations had already been prepared by
Drs. Coles and Hupka and, therefore, it was unnecessary for the court to order additional
evaluations.
       In his reply filed July 2010, petitioner pointed out that, although Drs. Coles and
Hupka, the two initial evaluators, had originally agreed that he met the SVP criteria, their
latest opinions created a reverse split of opinion between them. He emphasized that the
two sets of evaluators continued to each have a split of opinion. Petitioner further argued
that section 6603, subdivision (c)(1), required, at a minimum, two additional evaluations
by "two new and different evaluators" because the most recently updated evaluations of
Drs. Coles and Putnam resulted in another split of opinion. Petitioner continued to assert
that the probable cause hearing was invalid and he was entitled to a new probable cause
hearing based upon new evaluations using a valid protocol.
                                             9
       On August 5, 2010, the Santa Cruz County Superior Court granted petitioner's
request for a new probable cause hearing but it did not dismiss the SVP petition or order
new evaluations.
       On March 28, 2011, petitioner filed a second motion to dismiss the SVP petition,
emphasizing that no separate pair of evaluators had agreed that he met the SVP criteria
following the trial court's order for a new probable cause hearing pursuant to Ronje.
Updated evaluation reports of Drs. Putnam, Rueschenberg, and Coles were attached as
exhibits. Dr. Putnam concluded in a November 2010 report that petitioner met the SVP
criteria. Dr. Rueschenberg concluded in a December 2010 report that petitioner did not
meet that criteria. Dr. Coles also concluded in a December 2010 report that petitioner did
not meet that criteria. Dr. Hupka had apparently retired.
       In this second motion to dismiss, petitioner argued that, since no pair of evaluators
agreed that petitioner met the SVP criteria based upon a valid assessment protocol, the
court was required to dismiss the petition. He again contended that section 6604.1,
subdivision (b), as amended by the adoption of Proposition 83, required the court to
dismiss the SVP proceeding because a second set of updated evaluations resulted in split,
rather than concurring, opinions.
       The People filed opposition in which it was conceded that Ronje required a new
probable cause hearing but not dismissal of the SVP petition. Petitioner filed a reply in
which he asserted that Gray v. Superior Court (2002) 95 Cal.App.4th 322 (Gray) was no
longer good authority in light of section 6604.1, subdivision (b).8

8
        Gray, cited with approval in Reilly (Reilly, supra, 57 Cal.4th at p. 648),
determined: "Section 6603, subdivision (c), merely provides that [if a split in opinion
results from an updated or replacement evaluation] the new evaluators shall conduct their
evaluations 'in accordance with' section 6601, subdivision (f). It does not, on its face,
provide any consequences for a split of opinion between the second set of evaluators.
[Fn. omitted.] Accordingly, we are unwilling to imply the drastic requirement of
dismissal." (Gray, supra, 95 Cal.App.4th at p. 328.) The appellate court further stated:
"It may be argued that the purpose of the second set of evaluators required by section
                                             10
       On May 31, 2011, the court denied petitioner's second motion to dismiss. It set
the matter for a new probable cause hearing on September 12, 2011 based on the updated
evaluations.9
       On July 14, 2011, petitioner filed a petition for writ of mandate in this court
seeking to compel the superior court to set aside its May 31, 2011 denial of his motion to
dismiss and to enter a new order granting the motion. The petition also requests "such
other and further relief as may be appropriate and just."
       This court summarily denied the petition. Petitioner filed a petition for review in
the Supreme Court. The Supreme Court granted the petition and transferred the matter to
this court with "directions to vacate our order denying mandate and to issue an order
directing respondent to show cause why the relief sought in the petition should not be
granted based on evaluations conducted under the protocol that was adopted by the
Department of Mental Health following the decision in In re Ronje (2009) 179
Cal.App.4th 509" (S196502). This court complied with the order and issued an order to
show cause but we ultimately denied relief.




6603, subdivision (c), in the event of a postfiling split of opinion, can only be to resolve
the difference of expert opinion, and thereafter to lead to such further action—either
continued prosecution or dismissal—as may be mandated by the new evaluations.
However, the Legislature certainly knows how to provide for dismissal when it wishes to
do so. Section 6602, subdivision (a), which relates to probable cause hearings, clearly
requires that '[i]f the judge determines there is not probable cause [to believe that the
person is a sexually violent predator], he or she shall dismiss the petition . . . .' Thus, we
find it unlikely that the silence in the statutes we are considering reflects a legislative
intent for dismissal. In the circumstances, we think it more likely that the required new
evaluations are intended for informational and evidentiary purposes." (Ibid.)
9
        The record before us does not reflect whether, at this point, a new probable cause
hearing has been held based on updated evaluations conducted under a valid assessment
protocol.
                                              11
       Petitioner again filed a petition for review, which the Supreme Court granted
(S204255). After deciding Reilly, the Supreme Court transferred the matter to this court
for reconsideration in light of Reilly.
                                                   III
                                             Discussion
A. Original Evaluations Pursuant to Section 6601
       The People did not dispute below that the original concurring evaluations that led
to the filing of an SVP petition were conducted using an invalid assessment protocol and
the use of that protocol constituted error.10 Even assuming this to be true, petitioner has
not shown a basis for writ relief. Accordingly, we now find it unnecessary to resolve the
People's assertion, advanced in its opposition to the writ petition, that the 2007 protocol
did not constitute an underground regulation.
       Reilly clarified: "[I]f an alleged SVP can demonstrate that a material error
occurred in the evaluative process, for the purposes of section 6601, both concurring
evaluations are invalid and are rendered a legal nullity. New evaluations must therefore
replace them, ensuring that an alleged SVP who has proved that material error occurred
in the proceedings receives adequate protection under the SVPA. (See Ghilotti, supra, 27
Cal.4th at pp. 913–914 . . . .)" (Reilly, supra, 57 Cal.4th at p. 655, italics added.)
"Absent material error, 'once a petition has been properly filed and the court has obtained




10
       In Ronje, the appellate court stated: "We ordered Ronje to augment the record
with the assessment protocol used for his evaluations so we could compare it with the one
determined by the OAL to constitute an underground regulation. Ronje responded by
augmenting the record with a copy of the 2004 assessment protocol used for his
evaluations. The 2004 assessment protocol is substantially the same as the 2007 version
determined by the OAL to constitute an invalid regulation. The relevant portions of the
2004 version differ only in a few, nonsubstantive respects from the corresponding
portions in the 2007 version that were the basis for 2008 OAL Determination No. 19."
(Ronje, supra, 179 Cal.App.4th at p. 516.)
                                              12
jurisdiction, the question of whether a person is a sexually violent predator should be left
to the trier of fact. . . .' (Gray, supra, 95 Cal.App.4th at p. 329 . . . .)" (Id. at p. 656.)
       As to the standard for assessing material error, the Supreme Court further stated:
"As noted, Ghilotti states that an error is material if 'there appears a reasonable
probability, sufficient to undermine confidence in the outcome, that the error affected the
evaluator's ultimate conclusion.' (Ghilotti, supra, 27 Cal.4th at p. 913 . . . .) Konow
defines material error as 'an error that reasonably might have affected the outcome
[citation].' (Konow, supra, 32 Cal.4th at p. 1024 . . . .) Whether these two formulations
differ is an issue we need not decide here, because under either formulation we find that
Reilly has failed to demonstrate material error." (Id. at p. 656, fn. 4.)
       Petitioner Macy has not demonstrated material error has occurred under either
standard. "An alleged SVP, as the petitioner for a writ of mandate, is the party who bears
the burden of pleading and proving the facts on which he or she bases a claim for relief."
(Id. at p. 656.) The differences between the 2007 (or 2004) protocol and the 2009
protocol do not in and of themselves compel the conclusion that material error occurred
because evaluations pursuant to former section 6601 were conducted under a pre-2009
protocol. As the Supreme Court observed in Reilly: "[T]he February 2009 protocol was
only six pages long, as compared to the 68-page 2007 protocol. The 2007 protocol gave
a step-by-step process for evaluators to follow. The 2009 protocol essentially gives the
evaluator more discretion in how to conduct the evaluation, but the evaluator is informed
about the requirements of the law, the issue that must be opined on, and the risk factors to
consider; these have not changed from the 2007 protocol. (See Cal. Department of
Mental Health, Standardized Assessment Protocol for Sexually Violent Predator
Evaluations (Feb. 2009) p. 1.)" (Id. at p. 655, fn. 3.)
       The Supreme Court has provided the following direction going forward: "[I]n
future cases in which the alleged SVP has only been evaluated under the 2007 assessment
protocol and in which a court finds probable cause that the individual meets the SVP
                                                13
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." (Id. at p. 657, fn. 5.) We assume that this guidance applies equally to
evaluators' reliance on the 2004 assessment protocol.
B. Updated Evaluations Pursuant to Section 6603
       Reilly explained: "The SVPA also provides for evaluations to be updated or
replaced after a commitment petition has been filed. (§ 6603, subd. (c).) Section 6603,
subdivision (c) was enacted to clarify the right of the attorney seeking commitment to
obtain up-to-date evaluations, in light of the fact that commitment under the SVPA is
based on a 'current mental disorder.' (Albertson v. Superior Court (2001) 25 Cal.4th 796,
802 . . . ; see id. at pp. 803-804 . . . .)" (Id. at p. 647.)
       Subdivision (c)(1) provides in pertinent part: "If the attorney petitioning for
commitment under this article determines that updated evaluations are necessary in order
to properly present the case for commitment, the attorney may request the State
Department of State Hospitals [formerly State Department of Mental Health] to perform
updated evaluations. If one or more of the original evaluators is no longer available to
testify for the petitioner in court proceedings, the attorney petitioning for commitment
under this article may request the State Department of State Hospitals [formerly State
Department of Mental Health] to perform replacement evaluations. . . . [U]pdated or
replacement evaluations shall not be performed except as necessary to update one or
more of the original evaluations or to replace the evaluation of an evaluator who is no
longer available to testify for the petitioner in court proceedings. . . . If an updated or
replacement evaluation results in a split opinion as to whether the person subject to this


                                                 14
article meets the criteria for commitment, the State Department of State Hospitals shall
conduct two additional evaluations in accordance with subdivision (f) of Section 6601."
          Reilly stated: "If an updated or replacement evaluation results in a split of opinion
as to whether the individual meets the criteria for commitment, the SDSH must obtain
two additional evaluations in accordance with subdivision (f) of section 6601. (§ 6603,
subd. (c).) However, although initial evaluations conducted under section 6601 must
agree, a lack of concurrence between updated or replacement evaluations does not require
dismissal of the petition. (Gray v. Superior Court (2002) 95 Cal.App.4th 322, 328
. . . (Gray).) Rather, the updated evaluations' primary purpose is evidentiary or
informational. (Ibid.) Mandatory dismissal is not required where one or both of the later
evaluators conclude the individual does not meet the criteria for commitment. (Ibid.)"
(Reilly, supra, 57 Cal.4th at pp. 647-648.) "[T]he People are entitled to have the trier of
fact resolve the conflict in the evidence when there are conflicting professional opinions
(i.e., splits of opinion) on an alleged SVP's status. [Citation.]" (Id. at p. 655, fn. 2.)
          Accordingly, splits of opinion in the updated or replacement evaluations of
petitioner that are produced pursuant to section 6603 do not in themselves compel
dismissal of the SVP petition filed against petitioner Macy. The statute does not impose
any consequence or additional requirement where a second set of updated evaluations
performed under section 6603, subdivision (c), results in a division of opinion.
          In the absence of any showing of material error, petitioner is not entitled to writ
relief.
                                             DISPOSITION
          The petition for writ of mandate is denied.




                                                15
                                   _________________________________
                                   ELIA, J.


WE CONCUR:




_________________________________
PREMO, Acting P. J.




________________________________
MIHARA, J.




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