Boysel v. Super. Ct. 3/28/12 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G045202

Case Date: 06/13/2012

Preview:Filed 3/28/12

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

RICHARD BOYSEL, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest. G045202 (Super. Ct. No. M11247) OPINION

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, Public Defender, Frank Ospino, Interim Public Defender, 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 In In re Ronje (2009) 179 Cal.App.4th 509 (Ronje), we held the use of an invalid assessment protocol in conducting mental evaluations of a person suspected to be a sexually violent predator constituted an error or irregularity in a commitment proceeding under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).1 As a remedy, we directed the trial court to order new evaluations pursuant to section 6601 using a valid assessment protocol. In three related cases, we address the effect of post-Ronje evaluations in different scenarios. In this case, the two initial post-Ronje evaluators disagreed whether Richard Boysel, the person named in the SVPA commitment petition, met the criteria for commitment as a sexually violent predator. Although two independent post-Ronje evaluators had been appointed pursuant to section 6601, subdivision (e), their reports were not before the trial court when it denied Boysels challenge to the SVPA commitment petition. We deny Boysels petition for writ of mandamus/prohibition without prejudice to renewing the challenge to the SVPA commitment petition based on the reports of all four post-Ronje evaluations. In Wright v. Superior Court (Mar. 28, 2012, G045203) __ Cal.App.4th __, the two initial post-Ronje evaluators disagreed whether the person named in the SVPA commitment petition met the criteria for commitment as a sexually violent predator, but there was no evidence in the record that two independent post-Ronje evaluators had been appointed. In Wright, as here, we deny the petition for writ of mandamus without Further code references are to the Welfare and Institutions Code unless otherwise indicated. 2
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prejudice. In Reilly v. Superior Court (Mar. 28, 2012, G045118) __ Cal.App.4th __, the two initial post-Ronje evaluators agreed the person named in the SVPA commitment petition no longer met the criteria for commitment as a sexually violent predator, and, therefore, we are compelled by the SVPA to grant the writ petition in that case.

SUMMARY OF OPINION Boysel was the subject of an SVPA commitment petition filed in March 2007, after he had completed a five-year prison term. His commitment petition was based on two evaluations that were conducted according to the invalid assessment protocol. Following our decision in Ronje, the trial court in this matter ordered new evaluations of Boysel to be conducted according to a validly approved assessment protocol. One of those evaluations concluded Boysel continued to meet the criteria for commitment as a sexually violent predator, while the other concluded he no longer met those criteria. As required by section 6601, subdivision (e), when there is such a difference of opinion, two independent professionals were appointed to evaluate Boysel. Before the post-Ronje independent evaluators completed their reports, and before a probable cause hearing had been held, Boysel filed a plea in abatement seeking dismissal of the SVPA commitment petition on the ground the two initial post-Ronje evaluators had not concurred he met the criteria for commitment as a sexually violent predator. The trial court denied the plea in abatement, as well as those brought on the same or similar grounds by nine other persons named in SVPA commitment petitions. A different trial court denied a motion to dismiss brought by an 11th person named in an SVPA commitment petition. Boysel and the 10 others brought petitions for writ of mandate or prohibition to overturn the trial courts orders and have their SVPA commitment petitions dismissed. We deny Boysels writ petition without prejudice to renewing his challenge to the SVPA commitment petition when the post-Ronje evaluation process is completed. 3

In so doing, we address three issues: (1) whether, before the probable cause hearing, a person named in an SVPA commitment petition may challenge the petition on the ground of lack of concurring evaluators by means of a plea in abatement, nonstatutory motion to dismiss, or nonstatutory pleading; (2) whether the trial court erred by denying Boysels plea in abatement based on the post-Ronje evaluations presented to the court; and (3) whether an SVPA petition may be dismissed if the post-Ronje evaluations do not produce the required concurrence of either the two initial evaluators or the two independent evaluators. On the first issue, we conclude that in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 912-913 (Ghilotti), the California Supreme Court authorized the use of a nonstatutory pleading to challenge an SVPA commitment proceeding, before the probable cause hearing, on the ground of lack of the required concurring evaluations. We deem Boysels plea in abatement to have constituted such a nonstatutory pleading. On the second issue, we conclude the trial court did not err by denying Boysels plea in abatement based on the evaluation reports before the court. The SVPA permits a commitment petition to be filed if both of the initial evaluators or both of the independent evaluators concur the person named in the petition meets the criteria for commitment as a sexually violent predator. (

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