Reilly 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: G045118

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

KEVIN MICHAEL REILLY, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest. G045118 (Super. Ct. No. M11860) 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 granted. 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 under section 6601 agreed Kevin Michael Reilly, the person named in the SVPA commitment petition, no longer met the criteria for commitment as a sexually violent predator. We are, therefore, compelled by the SVPA to grant Reillys petition for writ of mandamus/prohibition and direct the trial court to dismiss the SVPA commitment petition. In Boysel v. Superior Court (Mar. 28, 2012, G045202) __ 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. 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 the challenge to the SVPA commitment petition. In Wright v. Superior Court (Mar. 28, 2012, G045203) __ Cal.App.4th __, the two initial post-Ronje evaluators likewise disagreed whether the person named in the SVPA commitment petition met the criteria for commitment as a sexually violent predator, but there is no evidence in the record that Further code references are to the Welfare and Institutions Code unless otherwise indicated. 2
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two independent post-Ronje evaluators have been appointed. In those two cases, we deny the petitions for writ of mandamus/prohibition without prejudice to later renewing the challenge to the SVPA commitment petitions.

SUMMARY OF OPINION Reilly was the subject of an SVPA commitment petition filed in July 2000, while he was serving a three-year prison term for engaging in lewd and lascivious conduct. After Reilly completed his prison sentence, and while being held in civil commitment at a state hospital, a recommitment petition against him was filed in July 2008. The 2008 recommitment petition was based on two evaluations that concluded he met the criteria for commitment as a sexually violent predator. Updated evaluations pursuant to section 6603, subdivision (c) were conducted in 2009 and reached the same conclusion. The evaluations supporting the 2008 recommitment petition and the 2009 updated evaluations were conducted according to the invalid assessment protocol. Following our decision in Ronje, the trial court ordered new evaluations of Reilly to be conducted according to a validly approved assessment protocol. Both of those evaluations in 2011 concluded Reilly no longer met the criteria for commitment as a sexually violent predator. Before a post-Ronje probable cause hearing was conducted, Reilly filed a plea in abatement seeking dismissal of the SVPA commitment petition on the ground both post-Ronje evaluators concluded he no longer 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. The court also granted the district attorneys motion to compel Reilly to undergo a mental evaluation by the district

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attorneys retained mental health professional and to grant that mental health professional access to Reillys state hospital records. Reilly 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. Reilly also challenges the trial courts order compelling him to undergo another mental evaluation and releasing his medical records to the district attorneys chosen evaluator. The express language of the SVPA and the California Supreme Courts decision in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 912-913 (Ghilotti) compel us to grant Reillys writ petition. In so doing, we address two 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; and (2) whether the SVPA commitment petition must be dismissed based on the results of the post-Ronje evaluations. On the first issue, in Ghilotti, supra, 27 Cal.4th at pages 912-913, 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 Reillys plea in abatement to have constituted such a nonstatutory pleading. On the second issue, the SVPA permits a commitment petition to be filed only 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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