Nonstatutory Pleading to Challenge Commitment Proceeding Before Probable Cause Hearing

In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, the district attorney filed a petition under the SVPA seeking the recommitment of Patrick Henry Ghilotti even though both designated evaluators concluded he no longer met the statutory criteria for commitment. (Ghilotti, supra, at pp. 893-894.) The district attorney did not attach the evaluators' reports to the petition and did not ask the trial court to review the reports; instead, the district attorney argued the Director of the DMH may disregard the evaluators' recommendations and request the filing of a commitment petition if the director independently concludes the candidate meets the SVPA commitment criteria. (27 Cal.4th at p. 894.) The trial court expressed concern the designated evaluators had incorrectly applied the statutory criteria, but rejected the district attorney's argument and dismissed the SVPA petition for recommitment. (27 Cal.4th at p. 894.) The Court of Appeal summarily denied the district attorney's request for a writ of mandamus and temporary stay. (Ibid.) The California Supreme Court concluded an SVPA commitment or recommitment petition cannot be filed unless, pursuant to section 6601, two mental health professionals agree the person qualifies as a sexually violent predator. (Ghilotti, supra, 27 Cal.4th at pp. 894, 905.) The trial court may review an evaluator's assessment report for legal error and, if the court finds material legal error on the face of the report, must direct that the "erring evaluator prepare a new or corrected report applying correct legal standards." (Id. at p. 895.) The Supreme Court remanded the matter to the Court of Appeal with directions to issue a writ of mandamus vacating the trial court's order dismissing the recommitment petition and to remand the matter to the trial court. (Ibid.) On remand, the trial court was directed to review the designated evaluators' reports for material legal error and, if necessary, direct the evaluators to prepare new or corrected reports under the correct standard. (Id. at pp. 895, 929.) The Supreme Court set forth the following procedure for challenging commitment petitions on the ground of lack of evaluations recommending commitment: "Thus, in future cases like this one, when the Director of the DMH (1) receives one or more formal evaluations that recommend against commitment or recommitment, (2) disagrees with those recommendations, (3) believes they may be infected with material legal error, and (4) does not choose, or is not permitted within the statutory scheme, to seek additional evaluations, he may nonetheless forward a request that an SVPA commitment or recommitment petition be filed, and the county's attorney may submit such a petition for filing, with copies of the evaluators' reports attached. The person named in the petition may then file a pleading challenging the validity of the petition on grounds that it is not supported by the concurrence of two evaluators under section 6601, subdivisions (d) through (f). In response, the petitioning authorities may defend the petition by asserting that one or more nonconcurring reports are infected by legal error." (Ghilotti, supra, 27 Cal.4th at pp. 912-913.)