Reilly v. Superior Court of Orange Cnty.

• Citation: 160 Cal.Rptr.3d 410,304 P.3d 1071,57 Cal.4th 641
• Decision Date: 19 August 2013
• Docket Number: No. S202280.,S202280.
• Parties: Kevin Michael REILLY, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The People, Real Party in Interest.
• Court: United States State Supreme Court (California)

57 Cal.4th 641

304 P.3d 1071

160 Cal.Rptr.3d 410

Kevin Michael REILLY, Petitioner,

v. The SUPERIOR COURT of Orange County, Respondent;The People, Real Party in Interest.

No. S202280.

Supreme Court of California

Aug. 19, 2013.

See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 156 et seq.

Deborah A. Kwast and Frank Ospino, Public Defenders, Jean Wilkinson, Chief Deputy Public Defender, Denise Gragg, Sharon Petrosino and Mark S. Brown, Assistant Public Defenders, for Petitioner.

Michael Leon Seaton as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Bradley A. Weinreb, Deputy Attorneys General, for Real Party in Interest.

Tony Rackauckas, District Attorney (Orange) and Elizabeth Molfetta, Deputy District Attorney, for the Orange County District Attorney as Amicus Curiae on behalf of Real Party in Interest.

CHIN, J.

We granted review in this case to determine whether a court must dismiss a Sexually Violent Predator Act (SVPA) civil commitment petition filed under Welfare and Institutions Code section 6600 et seq.¹IF THE OFFICE OF ADMINIStrative law determines that the initial evaluations supporting the petition were conducted under an assessment protocol that did not comply with its procedural requirements. We conclude the court was not required to dismiss the commitment proceedings under these circumstances. Instead, an alleged sexually violent predator (SVP) must show that any fault that did occur under the assessment protocol created a material error. (See People v. Superior Court ( Ghilotti ) (2002) 27 Cal.4th 888, 913, 119 Cal.Rptr.2d 1, 44 P.3d 949( Ghilotti ).) Because the Court of Appeal erroneously dismissed the SVPA commitment petition against Kevin Michael Reilly without requiring a finding of material error, we reverse the Court of Appeal's judgment.

BACKGROUND

A. SVPA Statutory Framework

Under the SVPA, the state can civilly commit individuals found to be SVPs after they conclude their prison terms. (See People v. McKee (2010) 47 Cal.4th 1172, 1186–1187, 104 Cal.Rptr.3d 427, 223 P.3d 566.)Section 6600, subdivision (a)(1) defines the SVP as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.”

The Welfare and Institutions Code outlines the procedure for determining whether a person is an SVP. (§ 6600 et seq.) Under section 6601, whenever the Secretary of the Department of Corrections and Rehabilitation (Department) determines that a person may be an SVP, the secretary refers that person to the Department and the Board of Parole Hearings for an initial screening. (§ 6601, subds. (a)(1), (b).) In screening, the Department considers “whether the person has committed a sexually violent predatory offense” and reviews “the person's social, criminal, and institutional history.” ( Id., subd.(b).) If the Department determines that the individual is likely to be an SVP, it refers him or her to the State Department of State Hospitals (SDSH; formerly the Department of Mental Health (former DMH)) for a “full evaluation.” ( Ibid.)

Two mental health experts conduct the full evaluation. ( Ibid.) The director of the SDSH (Director) appoints these experts, who must be either psychologists or psychiatrists. (§ 6601, subd. (d).) Each expert “shall evaluate the person in accordance with a standardized assessment protocol ... to determine whether the person is a sexually violent predator as defined in [section 6600]. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders,” including “criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (§ 6601, subd. (c).)

If both evaluators agree that the person has a diagnosed mental disorder, so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director forwards a request that a petition for commitment be filed as specified under section 6601, subdivision (i). However, if the evaluators disagree on the individual's SVP status, the Director “shall arrange for further examination of the person by two independent professionals ....” (§ 6601, subd. (e).) At this stage, the petition “shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d).” (§ 6601, subD. (F).) read together, subdivisions (d), (e), and (f) of section 6601 amount to an unambiguous statutory prefiling requirement “that a petition for commitment or recommitment may not be filed unless two evaluators, appointed under the procedures specified in section 6601, subdivisions (d) and (e), have concurred that the person currently meets the criteria for commitment under the SVPA.” ( Ghilotti, supra, 27 Cal.4th at p. 909, 119 Cal.Rptr.2d 1, 44 P.3d 949.) Where this initial requirement is not met, the commitment may not proceed. ( Id. at p. 910, 119 Cal.Rptr.2d 1, 44 P.3d 949.)

The SVPA also provides for evaluations to be updated or replaced after a commitment petition has been filed. (§ 6603, subd. (c).) Section 6603, subdivision (c) was enacted to clarify the right of the attorney seeking commitment to obtain up-to-date evaluations, in light of the fact that commitment under the SVPA is based on a “current mental disorder.” ( Albertson v. Superior Court (2001) 25 Cal.4th 796, 802, 107 Cal.Rptr.2d 381, 23 P.3d 611; see id. at pp. 803–804, 107 Cal.Rptr.2d 381, 23 P.3d 611.) If an updated or replacement evaluation results in a split of opinion as to whether the individual meets the criteria for commitment, the SDSH must obtain two additional evaluations in accordance with subdivision (f) of section 6601. (§ 6603, subd. (c).) However, although initial evaluations conducted under section 6601 must agree, a lack of concurrence between updated or replacement evaluations does not require dismissal of the petition. ( Gray v. Superior Court (2002) 95 Cal.App.4th 322, 328, 115 Cal.Rptr.2d 477( Gray ).) Rather, the updated evaluations' primary purpose is evidentiary or informational. ( Ibid.) Mandatory dismissal is not required where one or both of the later evaluators conclude the individual does not meet the criteria for commitment. ( Ibid.)

After a petition for commitment has been filed in the superior court, and once replacement evaluations have been completed, a new round of proceedings ensues. “The superior court first holds a hearing to determine whether there is ‘probable cause’ to believe that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. [Citations.] The alleged predator is entitled to the assistance of counsel at this hearing. If no probable cause is found, the petition is dismissed. However, if the court finds probable cause within the meaning of this section, the court orders a trial to determine whether the person is an SVP under section 6600.” ( Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584, fn. omitted.) Though civil in nature, this trial contains a number of procedural safeguards commonly associated with criminal trials, including the alleged SVP's right to a jury trial (§ 6603, subd. (a)), to assistance of counsel ( ibid.), and to a unanimous jury finding that he or she is an SVP beyond a reasonable doubt before he or she may be committed. (§ 6604.)

B. The Office of Administrative Law Determination

In order to ensure alleged SVPs are evaluated properly under section 6601, the SDSH publishes a handbook and standardized assessment protocol for evaluators to use. In 2008, the Office of Administrative Law received a petition alleging that 10 provisions in the SDSH's Clinical Evaluator Handbook and Standardized Assessment Protocol (Aug. 2007) (Handbook and Assessment Protocol) had not been adopted according to California's Administrative Procedures Act (APA).

The APA, beginning at Government Code section 11340, requires that administrative agency guidelines be adopted according to specific procedures in order to qualify as “regulation[s].” (Gov.Code, § 11340.5, subds. (a) & (b).) The APA definesregulations as “every rule, regulation, order, or standard of general application ... adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.” (Gov.Code, § 11342.600.) As we have explained, “One purpose of the APA is to ensure that those persons or entities whom a regulation will affect have a voice in its creation [citation], as well as notice of the law's requirements so that they can conform their conduct accordingly [citation]. The Legislature wisely perceived that the party subject to regulation is often in the best position, and has the greatest incentive, to inform the agency about possible unintended consequences of a proposed regulation. Moreover, public participation in the regulatory process directs the attention of agency policymakers to the public they serve, thus providing some security against bureaucratic tyranny [citation].” ( Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 568–569, 59 Cal.Rptr.2d 186, 927 P.2d 296; see also Voss v. Superior Court (1996) 46 Cal.App.4th 900, 908–909, 54 Cal.Rptr.2d 225.) The APA procedure is designed to ensure reliability in the regulatory process. Therefore, if a government agency acts in reliance on an invalid regulation under the APA, its action is also generally...