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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.                                                  G045200

THE SUPERIOR COURT OF ORANGE                                           (Super. Ct. No. M10805)
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 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.
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(SVPA). 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


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   Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

                                                 2
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
<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



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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

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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

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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

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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.



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