Filed 1/14/14 Gordon 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


DONALD GORDON,

     Petitioner,

                   v.                                                  G045207

THE SUPERIOR COURT OF ORANGE                                           (Super. Ct. No. M9642)
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
              Donald Gordon 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, Gordon v. Superior Court (Mar. 28, 2012, G045207)
(nonpub. opn.), review granted June 27, 2012, S202322, we denied Gordon’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 Gordon’s petition for writ of mandate/prohibition. Our decision is
without prejudice to Gordon challenging the probable cause determination pursuant to
Reilly, supra, 57 Cal.4th at pages 656-657, footnote 5, and without prejudice to Gordon
and the People obtaining further examinations and evaluations permitted by the SVPA.
                   ALLEGATIONS OF THE PETITION AND THE RETURN
              In July 2002, the Orange County District Attorney filed a petition for
commitment as a sexually violent predator (the SVPA Petition), alleging Gordon was a
sexually violent predator under the SVPA. The SVPA Petition was based on an
evaluation from Mark Schwartz, Ph.D., dated May 22, 2002, and an evaluation conducted
 1
   Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

                                                 2
by Charles Jackson, Ph.D., also dated May 22, 2002. In July 2004, Douglas Korpi,
Ph.D., completed a replacement evaluation and concluded Gordon met the criteria for
commitment as a sexually violent predator.
              In August 2004, Judge Daniel J. Didier conducted a probable cause hearing
in which he received the evaluations prepared by Dr. Schwartz, Dr. Jackson, and
Dr. Korpi. Judge Didier found, pursuant to section 6602, probable cause existed to
believe Gordon met the criteria for commitment as a sexually violent predator.
              Dr. Schwartz and Dr. Korpi completed updated evaluations of Gordon in
2006. Both Dr. Schwartz and Dr. Korpi concluded Gordon continued to meet 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
took emergency regulatory action to adopt part of the 2009 SAP. In September 2009, the
OAL made permanent the emergency regulatory action.

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              In March 2010, Gordon 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 Gordon, 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. Schwartz and
Dr. Korpi to reevaluate Gordon. In a report dated February 25, 2011, Dr. Schwartz
concluded Gordon continued to meet the criteria for commitment as a sexually violent
predator. In a report dated February 22, 2011, Dr. Korpi concluded Gordon no longer
met those criteria.
              In March 2011, Gordon filed a plea in abatement seeking dismissal of the
SVPA Petition based on the post-Ronje evaluation reports of Dr. Schwartz and Dr. Korpi.
The district attorney filed opposition to the plea in abatement. In a supplemental
memorandum of points and authorities, Gordon 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 Gordon. The next month, Gordon filed his petition for writ of
mandate/prohibition. We issued an order to show cause and stayed the trial court
proceedings. In our prior opinion, we denied Gordon’s writ petition. We concluded that
“the trial court did not err by denying Gordon’s plea in abatement because the
[post-Ronje] evaluation process had not been completed.” (Gordon v. Superior Court,
supra, G045207.)
                                        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.

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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.)
              Under the Supreme Court’s opinion in Reilly, Dr. Schwartz’s May 2002
evaluation report and Dr. Jackson’s May 2002 evaluation report were sufficient to
support the filing of the SVPA Petition against Gordon 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.) Gordon has not made such a
showing.

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              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, Gordon has not been evaluated
under the 2009 SAP. In 2004, the trial court found probable cause to believe Gordon 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
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.)

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               Our decision to deny Gordon’s petition for writ of mandate/prohibition is
therefore without prejudice to Gordon 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 Gordon 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/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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