SVP Petition

In re Ronje (2009) 179 Cal.App.4th 509, created a remedy for the petitioner who was seeking habeas corpus "relief on the ground his evaluations under Welfare and Institutions Code section 6601 leading to the SVPA commitment petition 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 remedy involved new evaluations using a valid assessment protocol and a new probable cause hearing under section 6602, subdivision (a), based on those new evaluations. (179 Cal.App.4th at pp. 514, 521.) The appellate court in Ronje concluded that the "2008 OAL Determination No. 19 was correct under Tidewater" (Ronje, supra, 179 Cal.App.4th at p. 516) and the standardized assessment protocol at issue was an invalid underground regulation. (Ronje, at p. 517.) Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557 is the leading case considering the meaning of the term "regulation" under the APA. In Ronje, the reviewing court ordered the petitioner, whose initial evaluations "likely were conducted in early 2006 or in 2005," "to augment the record with the assessment protocol used for his evaluations so the court could compare it with the one determined by the OAL to constitute an underground regulation." (Ronje, supra, 179 Cal.App.4th at p. 516.) "Ronje responded by augmenting the record with a copy of the 2004 assessment protocol used for his evaluations." (Ibid.) The reviewing court determined: "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." (Ibid.) In finding that an individual initially evaluated under an invalid protocol was entitled to relief, the Ronje court was guided by People v. Pompa-Ortiz (1980) 27 Cal.3d 519, which discussed the standard for reviewing challenges to irregularities in preliminary examinations. (Ronje, supra, 179 Cal.App.4th at p. 517 "The Pompa-Ortiz rule applies to denial of substantive rights and technical irregularities in proceedings and to SVPA proceedings. ".) Before Ronje, the California Supreme Court had stated: "A section 6602 hearing is analogous to a preliminary hearing in a criminal case; both serve to ' " 'weed out groundless or unsupported charges ... and to relieve the accused of the degradation and expense of a ... trial.' " ' Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition. (People v. Hurtado (2002) 28 Cal.4th 1179, 1186.)" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 247.) The Ronje court, relying on Pompa-Ortiz, concluded that the proposed committee was not required to show actual prejudice because he was "making a pretrial challenge to the evaluations leading to the commitment petition ... ." (179 Cal.App.4th at p. 518.) Nevertheless, Ronje concluded that dismissal was not the appropriate remedy because "use of the evaluations based on the invalid assessment protocol, though erroneous, does not deprive the trial court of fundamental jurisdiction over the SVPA commitment petition." (Ronje, supra, 179 Cal.App.4th at p. 518.) Relying on Ghilotti, supra, 27 Cal.4th 888 and Preciado, supra, 87 Cal.App.4th 1122, Ronje reasoned that "the proper remedy is to cure the underlying error." (Ronje, supra, 179 Cal.App.4th at p. 518.) It concluded that "the proper remedy here is to remand the matter to the trial court with directions to (1) order new evaluations of Ronje using a valid assessment protocol, and (2) conduct another probable cause hearing under section 6602, subdivision (a) based on those new evaluations." (Id. at p. 519.) In Davenport v. Superior Court (2012) 202 Cal.App.4th 665, the trial court ordered two new evaluations in light of Ronje. (Davenport, supra, 202 Cal.App.4th at p. 668.) The new evaluations resulted in a split of opinion regarding whether Davenport met the SVP criteria. (Ibid.) "The DMH therefore appointed two new mental health professionals to evaluate Davenport," which resulted in a second split of opinion. (Ibid.) "Davenport moved to dismiss the proceedings on the ground the SVP petition was not supported by two valid concurring mental health evaluations. The trial court denied the motion and ordered a new probable cause hearing." (Ibid.) Davenport then filed a writ petition in the Court of Appeal (First District) seeking to compel the trial court to grant his motion to dismiss the SVP proceedings. (Ibid.) After the appellate court summarily denied the petition and Davenport filed a petition for review in the Supreme Court (ibid.), the Supreme Court granted review and transferred the case back to the First District with directions to issue an order to show cause. (Ibid.) The First District rejected Davenport's argument that, under Ronje, "the government was required 'to go back to the beginning' and assess him in accordance with section 6601 with a legally valid protocol." (Davenport, supra, 202 Cal.App.4th at p. 671.) The court reasoned that the Ronje court could have, but did not, direct the superior court to dismiss the commitment petition and the initial evaluations "had served their purpose by the time the Director of the DMH forwarded the request to file a commitment petition." (Ibid.) It found that "the new evaluations prepared in this case pursuant to Ronje are comparable to updated or replacement evaluations authorized by section 6603, subdivision (c)." (Ibid.) Relying upon Gray v. Superior Court (2002) 95 Cal.App.4th 322 115 Cal. Rptr. 2d 477 (Gray), which had addressed the effect of a split opinion of updated evaluations under subdivision (c) of section 6603, the First District concluded in Davenport that a split of new Ronje evaluations did not compel dismissal. The court stated: "Given the procedural safeguards in place--a probable cause hearing, a jury trial, a unanimous verdict--there is no need to dismiss the commitment petition and start the SVP evaluation process from the beginning in this case." (Davenport, at p. 673.)