Reilly v. Superior Court

Filed 8/19/13

IN THE SUPREME COURT OF CALIFORNIA

KEVIN MICHAEL REILLY, )
)
Petitioner, )
) S202280
v. )
) Ct.App. 4/3 G045118
THE SUPERIOR COURT OF ORANGE )
COUNTY, )
) Orange County
Respondent; ) Super. Ct. No. M11860
)
THE PEOPLE, )
)
Real Party in Interest. )
____________________________________)

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.1 if 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 (Ghilotti).) Because the Court of Appeal erroneously

1 All statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

1
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.) 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

2
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.) Where this initial requirement
is not met, the commitment may not proceed. (Id. at p. 910.)
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; see id. at pp. 803-804.) If an updated or

3
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 (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, 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

4
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
defines regulations 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; see also Voss v. Superior Court (1996) 46
Cal.App.4th 900, 908–909.) 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 considered invalid if
objection to the regulation has been timely raised. (See Savient Pharmaceuticals, Inc.
v. Department of Health Services (2007) 146 Cal.App.4th 1457, 1468-1471 [agency
action to delist an AIDS drug rescinded where agency based action on ―underground

5
regulation‖].) Indeed, any regulation not properly adopted under the APA is
considered invalid. (Patterson Flying Service v. Department of Pesticide Regulation
(2008) 161 Cal.App.4th 411, 429; see Cal. Code Regs., tit. 1, § 250.)
In 2008, when the Office of Administrative Law determined that provisions
of the 2007 Handbook and Assessment Protocol met the definition of a regulation
and should have been adopted in accordance with the APA, several SVPA petitions
were still either awaiting a probable cause hearing, or pending trial following the
probable cause hearing, as in Reilly‘s case. (Off. of Administrative Law, 2008
OAL Determination No. 19 (Aug. 15, 2008) p. 3 (OAL Determination).) Many of
those individuals, including Reilly, had received some evaluations under the 2007
assessment protocol. The OAL Determination clarified that its ruling concerned
only whether the 2007 assessment protocol constituted a regulation under
Government Code section 11342.600 because ―[n]othing in this analysis evaluates
the advisability or the wisdom of the underlying action or enactment.‖ (OAL
Determination, at p. 1.) The Office of Administrative Law recognized that it ―has
neither the legal authority nor the technical expertise to evaluate the underlying
policy issues involved.‖ (Ibid.) In other words, its conclusions addressed only the
procedural validity of the 2007 assessment protocol; it did not address the
protocol‘s substantive validity. We now discuss how the invalid 2007 assessment
protocol affected Reilly‘s pending SVPA trial.
FACTS

Reilly was originally committed as an SVP in 2000, after he completed a
three-year prison term for engaging in lewd and lascivious conduct. In 2008, the
Department sought a petition for recommitment. It referred Reilly to the former
DMH to determine whether he was still an SVP as defined in the statutory scheme
under section 6601 et seq. Dr. Clark Clipson and Dr. Nancy Webber evaluated
Reilly under the SVPA. Both evaluators agreed that he was still an SVP, and in

6
July 2008, the recommitment petition was filed in the superior court. In March
2009, the court found probable cause to believe that Reilly was an SVP and set the
matter for trial.
In August and September 2009, while Reilly was awaiting trial, both
evaluators conducted updated evaluations of Reilly under section 6603,
subdivision (c). Both evaluators again concluded that Reilly was an SVP. They
conducted these updated evaluations in accordance with a new, emergency
assessment protocol that the SDSH had adopted in February 2009 in response to
the OAL Determination that the 2007 assessment protocol was procedurally
invalid. The Office of Administrative Law eventually approved this emergency
assessment protocol in September 2009, and it has since continued to be used for
evaluations.
In November 2009, In re Ronje (2009) 179 Cal.App.4th 509 (Ronje),
concluded that alleged SVPs who had been evaluated under the invalid 2007
assessment protocol were entitled to entirely new evaluations and a new probable
cause hearing ―based on those new evaluations.‖ (Ronje, at p. 521.) Ronje was
awaiting trial on his SVP commitment proceeding when the Office of
Administrative Law determined that his section 6601 evaluations had been
conducted under the invalid assessment protocol. (Ronje, at p. 513.) Ronje filed a
petition for writ of habeas corpus, seeking dismissal of his commitment petition or
new evaluations conducted under a valid assessment protocol. (Id. at p. 518.) The
Ronje court held that the invalid protocol used in conducting the evaluations did
not ―deprive the court of fundamental jurisdiction over the SVPA commitment
petition.‖ (Ibid.) The court also held that Ronje was not required to show legal
error or materiality (the court specifically used the term ―prejudice‖) in
successfully challenging the use of the invalid assessment protocol because he was
making a pretrial challenge to ―technical irregularities‖ in his SVP commitment

7
proceeding. (Id. at p. 517.) Instead, Ronje held that the court was required to
order new evaluations ―using a valid assessment protocol‖ and ―another probable
cause hearing under section 6602, subdivision (a) based on those new
evaluations.‖ (Id. at p. 521.)
In March 2010, Reilly asked the trial court to cancel his scheduled trial,
conduct new evaluations, and, if necessary, hold a new probable cause hearing in
light of Ronje. The trial court granted Reilly‘s motion, and in early 2011, the
SDSH assigned Drs. Clipson and Webber to evaluate Reilly for the third time in
less than three years. In February 2011 — 18 months after the updated 2009
evaluations concluded that Reilly met the SVPA statutory requirements — both
evaluators concluded that he no longer met the criteria for commitment as an SVP.
In March 2011, before his second probable cause hearing could be held,
Reilly filed a plea in abatement. He sought dismissal of the commitment petition
on the ground that the SVPA expressly requires the state to obtain two concurring
evaluations before filing it. In April 2011, the court denied Reilly‘s plea, as well
as those brought by nine other individuals on the same or similar grounds. A
different trial court denied a motion to dismiss that a 10th person named in an
SVPA petition had filed. As for Reilly, the court granted the district attorney‘s
motion to compel him to undergo a mental evaluation by its retained mental health
professional and to grant that expert access to his state hospital records.
Before the district attorney could act on the granted motion, Reilly filed a
petition for writ of mandate or prohibition with the Court of Appeal, seeking
dismissal of the SVPA commitment petition against him. The court issued an
order to show cause and stayed the trial court proceedings. In March 2012, the
Court of Appeal granted Reilly‘s request and ordered the petition dismissed. The
court held that dismissal was required because the third (and post-Ronje)
evaluations of Reilly did not meet the requirements of section 6601, subdivision

8
(e) or subdivision (f). The court held that no petition could be filed without two
concurring evaluations. The Court of Appeal concluded that the trial court lacked
jurisdiction to conduct any further proceedings. We granted the district attorney‘s
petition for review to determine whether Reilly was entitled to dismissal of the
SVPA commitment petition under these circumstances.
DISCUSSION

When evaluations initially supporting the filing of a commitment petition
were conducted under an assessment protocol later determined to be an invalid
regulation, must new evaluations be ordered and a new probable cause hearing be
held? The Courts of Appeal, including the court below, have consistently relied on
Ronje to answer this question. These courts hold that when section 6601
evaluations were conducted using a subsequently invalidated assessment protocol,
the proper remedy is to order new evaluations using a valid assessment protocol
and only to proceed to a new probable cause hearing if the new evaluations
support the commitment proceedings. (See, e.g., Davenport v. Superior Court
(2012) 202 Cal.App.4th 665, 671-672 (Davenport); Ronje, supra, 179 Cal.App.4th
at p. 521.) Although the People did not seek review of Ronje, we cannot separate
its analysis from our determination of the case before us. As noted, the effect of
an improper assessment protocol on the SVPA evaluative process is a recurring
issue that has been raised in many cases awaiting this decision. We therefore
exercise our discretion to decide the issue.
The People do not contest the finding that the original assessment protocol
used here amounted to an invalid regulation and that its use constituted error.
Instead, they challenge the Court of Appeal‘s conclusion that an alleged SVP need
not demonstrate the materiality of such error in order to obtain dismissal of his
SVPA petition. We agree with the People, and conclude that the Ronje court erred
when it ordered replacement evaluations in these circumstances without requiring

9
a determination that the underlying mistake in the assessment protocol amounted
to material error. We also find that the Court of Appeal here erred when it relied
on Ronje to order dismissal of the SVPA petition, which was filed to determine
whether ―it is likely‖ that Reilly ―will engage in sexually violent criminal
behavior.‖ (§ 6601, subd. (a)(1).)
The People contend that Ronje incorrectly interpreted our holding in People
v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz), which addressed
postconviction challenges to irregularities affecting a criminal defendant‘s
preliminary hearing rights. Pompa-Ortiz held that ―irregularities in the
preliminary examination procedures which are not jurisdictional in the
fundamental sense shall be reviewed under the appropriate standard of prejudicial
error and shall require reversal only if defendant can show that he was deprived of
a fair trial or otherwise suffered prejudice as a result of the error at the preliminary
examination.‖ (Ibid.) This rule rests on the belief that a fair trial generally renders
harmless any preliminary hearing errors. (People v. Hurtado (2002) 28 Cal.4th
1179, 1190.) Courts of Appeal have applied this standard of review without
difficulty to cases where SVPs have challenged an SVPA assessment protocol
following a full probable cause hearing and trial. (See People v. Hayes (2006) 137
Cal.App.4th 34, 51; People v. Talhelm (2000) 85 Cal.App.4th 400, 405; People v.
Butler (1998) 68 Cal.App.4th 421, 435.)
The proper resolution of pretrial challenges to irregularities in SVPA
commitment proceedings is far less settled. Our court has yet to speak on the
issue. Pompa-Ortiz did observe in passing that ―[t]he right to relief without any
showing of prejudice will be limited to pretrial challenges of irregularities.‖
(Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) Ronje, in turn, relied on this dictum in
concluding that a court need not find prejudice before crafting a remedy when
improper assessment protocols were used in SVPA commitment proceedings.

10
(Ronje, supra, 179 Cal.App.4th at p. 517.) However, Pompa-Ortiz does not state a
general proposition. Instead, the dictum in question merely notes that pretrial
challenges to criminal preliminary examination procedures may, in some
circumstances involving jurisdictional error that are not applicable here, warrant
relief without a showing of prejudice. (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.)
To the extent that Ronje relied on Pompa-Ortiz to hold that materiality is
always presumed if an assessment protocol error is raised before trial, we disagree.
The general rule derived from Pompa-Ortiz is that nonjurisdictional irregularities
in preliminary hearing procedures should be reviewed for prejudice. (Pompa-
Ortiz, supra, 27 Cal.3d at p. 529.) In Pompa-Ortiz, this rule was applied to a
postconviction challenge. But it applies with equal force to a pretrial challenge
that addresses an issue that a subsequent fact finder will reconsider.
People v. Konow (2004) 32 Cal.4th 995 (Konow) and People v. Standish
(2006) 38 Cal.4th 858 (Standish) outline the significance of Pompa-Ortiz in other
contexts. These cases support the conclusion that Reilly, as the petitioner for a
writ of mandate who bears the burden of pleading and proof, must demonstrate
more than procedural error to obtain dismissal of his SVPA commitment petition.
In Konow, the magistrate judge incorrectly believed he was precluded from
dismissing a complaint in the furtherance of justice under Penal Code section
1385. (Konow, supra, 32 Cal.4th at p. 1026.) We acknowledged that Pompa-Ortiz
held that ― ‗denial of a substantial right at the preliminary examination renders the
ensuing commitment illegal and entitles a defendant to dismissal of the
information on timely motion.‘ ‖ (Konow, supra, at p. 1023, quoting Pompa-Ortiz,
supra, 27 Cal.3d at p. 537.) We explained that Jennings v. Superior Court (1967)
66 Cal.2d 867 provided guidance on whether the magistrate‘s failure to dismiss the
complaint deprived the defendant of a ―substantial right.‖ (Konow, supra, at p.
1023.) We concluded that ―a defendant is denied a substantial right affecting the

11
legality of the commitment when he or she is subjected to prejudicial error, that is,
error that reasonably might have affected the outcome [citation].‖ (Id. at p. 1024.)
In Standish, the People appealed the superior court‘s order setting aside the
defendant‘s information on the ground that he should have been released on his
own recognizance. In deciding whether the erroneous failure to grant release
mandated dismissal, we emphasized that ―[o]ur decision in People v. Pompa-Ortiz
must not be read overbroadly. That case did not establish that any and all
irregularities that precede or bear some relationship to the preliminary examination
require that the information be set aside . . . .‖ (Standish, supra, 38 Cal.4th at p.
885.) Instead, following Konow, we explained that although a defendant need not
―demonstrate that it is reasonably probable he or she would not have been held to
answer in the absence of the error,‖ relief from preliminary hearing error may be
afforded only in the presence of an error that ― ‗reasonably might have affected the
outcome‘ in the particular case.‖ (Standish, supra, at pp. 882-883.) Standish
concluded that failure to release the defendant on his own recognizance did not
constitute a denial of a substantial right. (Id. at p. 882.)
Ghilotti also defines what our cases require in order to set aside an
evaluator‘s error in employing an incorrect legal standard to determine whether an
alleged SVP poses a risk of reoffending. (Ghilotti, supra, 27 Cal.4th at p. 915.)
There, both evaluators concluded that the alleged SVP (Ghilotti) no longer met the
statutory requirements for commitment. (Ibid.) The director of the former DMH
disagreed with these conclusions and wrote a letter asking the district attorney to
file the petition for recommitment in spite of the evaluators‘ conclusions. (Id. at p.
896.) In his letter, the director explained his view that the evaluators had
incorrectly determined that Ghilotti was not an SVP under the statutory criteria.
The director asserted, ― ‗each evaluator makes a threshold case in the body of each
report that . . . Ghilotti is ―likely‖ to reoffend.‘ ‖ (Id. at p. 898, italics omitted.)

12
The petition for recommitment was ultimately submitted based on the director‘s
independent opinion that Ghilotti met the criteria for recommitment. (Id. at p.
897.)
Ghilotti challenged the validity of the recommitment petition. The trial
court dismissed the petition, concluding that the director may not overrule or
disregard the evaluators‘ recommendation against commitment. (Ghilotti, supra,
27 Cal.4th at pp. 898-900.) We observed that section 6601 expressly requires that
two evaluators must agree that a 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‘ ‖ before the SVPA petition may be filed. (Ghilotti, at p.
894; see § 6601, subd. (d).) We further noted that the evaluators‘
recommendations are subject to judicial review at the request of either party. We
concluded that only if, after such review, it appears that the evaluators were
influenced by a ―material legal error,‖ their recommendations are invalid.
(Ghilotti, supra, 27 Cal.4th at p. 895.) Such error is material if ―there appears a
reasonable probability, sufficient to undermine confidence in the outcome, that the
error affected the evaluator‘s ultimate conclusion.‖ (Ghilotti, at p. 913.)
―If the court‘s review of the reports indicates that the conclusions drawn by
the evaluators are not infected by legal error . . . or that any error was immaterial,
it must accept the recommendations set forth in the reports and take the
appropriate responsive action, either by dismissing the petition, or by going
forward with proceedings to determine whether the person is an SVP. If the court
finds material legal error in an evaluator‘s report, the court shall provide the
evaluator opportunity promptly either to correct the report or to prepare a new
report . . . .‖ (Ghilotti, supra, 27 Cal.4th at pp. 913-914.)
Ghilotti discussed evaluators who have incorrectly applied a valid
assessment protocol. Here, we consider evaluators who have correctly applied an

13
invalid assessment protocol. In light of the foregoing precedent, we conclude that
relief arising from use of an invalid protocol in an SVP evaluation should depend
on a showing that the error was material. We therefore reject Reilly‘s contention
that this ―[c]ourt should, in accordance with the Ronje ruling, hold that valid
evaluations that are conducted under procedural irregularities always require
starting the proceedings over under the SVPA.‖ In re Ronje, supra, 179
Cal.App.4th 509, and its progeny omitted the materiality requirement, and we
disapprove them to the extent they are inconsistent with our ruling today.2
By requiring that assessment protocol errors must rise to the level of
materiality, we ensure that meritorious petitions can proceed, while mandating
reevaluation, and possible dismissal, where their merit is in doubt. To be sure, the
2007 and 2009 SVPA assessment protocols differ, and courts should decide how
they might affect a particular evaluation on the merits of each case.3 Indeed, if an

2 We note that although Davenport omitted the materiality requirement, it did
attempt to craft a remedy for post-Ronje evaluations in which experts hold
different opinions, an issue Ronje did not address. (Davenport, supra, 202
Cal.App.4th at p. 673.) Indeed, Davenport addressed a situation that is different
from the one we resolve here. But Davenport did note that the petitioner in that
case did ―not point to any substantive defect in the 2007 protocol, or any prior
protocol, and there is no evidence . . . that the use of a procedurally invalid
protocol had a material effect on the conclusions in the original evaluations.‖
(Ibid.) Obviously, we agree with Davenport‘s observation on the importance of a
materiality finding and only disapprove the opinion to the extent it did not require
one. We also agree with that court‘s reliance on Gray, supra, 95 Cal.App.4th at
page 329, and People v. Superior Court (Salter) (2011) 192 Cal.App.4th 1352,
1357-1358, in finding that the People are entitled to have the trier of fact resolve
the conflict in the evidence when there are conflicting professional opinions (i.e.,
splits of opinion) on an alleged SVP‘s status. (Davenport, supra, 202 Cal.App.4th
at p. 673.)
3 For example, the February 2009 protocol was only six pages long, as
compared to the 68-page 2007 protocol. The 2007 protocol gave a step-by-step
process for evaluators to follow. The 2009 protocol essentially gives the evaluator
more discretion in how to conduct the evaluation, but the evaluator is informed
about the requirements of the law, the issue that must be opined on, and the risk

14
alleged SVP can demonstrate that a material error occurred in the evaluative
process, for the purposes of section 6601, both concurring evaluations are invalid
and are rendered a legal nullity. New evaluations must therefore replace them,
ensuring that an alleged SVP who has proved that material error occurred in the
proceedings receives adequate protection under the SVPA. (See Ghilotti, supra,
27 Cal.4th at pp. 913-914.)
Requiring that the error be material also ensures that the Legislature‘s
purpose in enacting section 6600 et seq. is followed. The legislative history shows
the Legislature did not intend that courts interpret section 6601‘s procedural
requirements with unnecessary strictness to prevent the trier of fact from
ultimately determining each individual‘s SVP status. In 1999, section 6601 was
amended to add the following language: ―A petition shall not be dismissed on the
basis of a later judicial or administrative determination that the individual‘s
custody was unlawful, if the unlawful custody was the result of a good faith
mistake of fact or law.‖ (§ 6601, subd. (a)(2), as amended by Stats. 1999, ch. 136,
§ 1, p. 1831.) The purpose of the amendment was ―to clarify the application of the
SVP law to prevent the unintended and dangerous release of an offender pending
determination of an SVP petition.‖ (Sen. Com. on Public Safety, Analysis of Sen.
Bill No. 11 (1999-2000 Reg. Sess.) as introduced Dec. 7, 1998.) Read together,
the amendment and the legislative statement of the bill‘s purpose indicate the
Legislature‘s clearly expressed preference that SVPA commitment petitions be
adjudicated on their merits.

factors to consider; these have not changed from the 2007 protocol. (See Cal.
Department of Mental Health, Standardized Assessment Protocol for Sexually
Violent Predator Evaluations (Feb. 2009) p. 1.)

15
 CONCLUSION

An alleged SVP, as the petitioner for a writ of mandate, is the party who
bears the burden of pleading and proving the facts on which he or she bases a
claim for relief. In this case, two evaluators concluded in 2008, under the 2007
protocol, and again in 2009, under the subsequently adopted 2009 protocol, that
Reilly was an SVP. Under these circumstances, where Reilly was found to be an
SVP under the new protocol, it is clear that the 2007 protocol error did not
materially affect the outcome of his probable cause hearing. Reilly has therefore
not shown that the invalid assessment protocol materially affected his initial
evaluations. Absent material error, ―once a petition has been properly filed and the
court has obtained jurisdiction, the question of whether a person is a sexually
violent predator should be left to the trier of fact . . . .‖ 4 (Gray, supra, 95
Cal.App.4th at p. 329.)
Because a probable cause determination had been made, but Reilly‘s trial
date was dismissed following Ronje, we conclude that he must proceed to a new
trial.5 The trial court should consider any updated evaluations submitted to it

4 As noted, Ghilotti states that an error is material if ―there appears a
reasonable probability, sufficient to undermine confidence in the outcome, that the
error affected the evaluator‘s ultimate conclusion.‖ (Ghilotti, supra, 27 Cal.4th at
p. 913.) Konow defines material error as ―an error that reasonably might have
affected the outcome [citation].‖ (Konow, supra, 32 Cal.4th at p. 1024.) Whether
these two formulations differ is an issue we need not decide here, because under
either formulation we find that Reilly has failed to demonstrate material error.
5 Although not applicable here, in future cases in which the alleged SVP has
only been evaluated under the 2007 assessment protocol and in which a court finds
probable cause that the individual meets the SVP criteria, the individual may
petition the court to set aside the probable cause determination on the ground that
the use of the invalid 2007 assessment protocol materially affected the outcome of
the hearing. The court may then order new evaluations under section 6603 et seq.,
using the 2009 assessment protocol, and may, in its discretion, order a new
probable cause hearing if the new evaluations support the petition. If a 2007
assessment protocol error is identified before a probable cause determination, the

16
together with the initial evaluations that supported the original SVPA commitment
petition, giving each evaluation whatever weight it deems appropriate. (§ 6603,
subd. (c).) Reilly retains his statutory rights to obtain new psychological
examinations on his behalf before trial and to introduce other evidence that he
believes will assist the court in determining his status as an SVP. (§ 6603, subd.
(a).) The People have the corresponding right to order updated evaluations before
trial. (§ 6603, subd. (c)(1).) In addition, on remand the trial court may reconsider
any interim orders it made before Reilly filed his plea in abatement. (See Le
Francois v. Goel (2005) 35 Cal.4th 1094, 1100.)
DISPOSITION

Based on the foregoing analysis, we reverse the Court of Appeal‘s judgment
and remand the matter to that court for proceedings consistent with our opinion.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.

alleged SVP may file a plea in abatement asserting the procedural error and asking
the court to substitute new evaluations that use the 2009 assessment protocol.

17
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Reilly v. Superior Court
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 204 Cal.App.4th 829
Rehearing Granted

__________________________________________________________________________________

Opinion No. S202280
Date Filed: August 19, 2013
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Richard M. King

__________________________________________________________________________________

Counsel:

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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark S. Brown
Assistant Public Defender
14 Civic Center Plaza
Santa Ana, CA 92701-4029
(714) 834-2144

Bradley A. Weinreb
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2290