Filed 12/6/13 Ronje v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
EDWARD RONJE,
Petitioner,
v. G046850
THE SUPERIOR COURT OF ORANGE (Super. Ct. No. M10821)
COUNTY,
OPINION
Respondent;
THE PEOPLE,
Real Party in Interest.
Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, David A. Hoffer, Judge.
Petition denied.
Frank Ospino, Public Defender, Jean Wilkinson, Chief Deputy Public
Defender, Sharon Petrosino 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
Edward Ronje is the subject of a commitment petition filed pursuant to the
Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq.
1
(SVPA). The respondent court found, pursuant to section 6602, probable cause existed
to believe Ronje met the criteria for commitment as a sexually violent predator. By this
petition for writ of mandate or prohibition, Ronje challenges the respondent court’s
decision to receive in evidence at the probable cause hearing two evaluation reports
prepared by psychologists appointed to evaluate him pursuant to section 6601. For
reasons we will explain, we deny the petition.
OVERVIEW OF THE SVPA SCREENING AND
EVALUATION PROCESS
The SVPA provides for involuntary civil commitment of an offender
immediately upon conclusion of his or her prison term if the offender is found to be a
sexually violent predator. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646 (Reilly);
People v. Yartz (2005) 37 Cal.4th 529, 534.) A sexually violent predator is defined 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.” (§ 6600, subd. (a)(1).) A “diagnosed mental disorder” is defined to include “a
congenital or acquired condition affecting the emotional or volitional capacity that
predisposes the person to the commission of criminal sexual acts in a degree constituting
the person a menace to the health and safety of others.” (§ 6600, subd. (c).)
1
Further code references are to the Welfare and Institutions Code unless otherwise
indicated.
2
The procedure for commitment under the SVPA begins with an initial
screen in which the Secretary of California’s Department of Corrections and
Rehabilitation (CDCR) determines whether a person in CDCR custody might be a
sexually violent predator. (§ 6601, subd. (a)(1).) If the secretary determines the person
might be a sexually violent predator, the secretary refers that person to the next level
evaluation. (Ibid.)
After the secretary’s referral, the person is screened by the CDCR and the
Board of Parole Hearings in accordance with “a structured screening instrument”
developed and updated by the State Department of State Hospitals (SDSH) in
consultation with the CDCR. (§ 6601, subd. (b).) “If as a result of this screening it is
determined that the person is likely to be a sexually violent predator, the [CDCR] shall
refer the person to the [SDSH] for a full evaluation of whether the person meets the
criteria in Section 6600.” (Ibid.)
The procedures for a full evaluation are set forth in section 6601,
subdivision (c) (section 6601(c)) and section 6601, subdivisions (d) through (i). Under
section 6601(c) and section 6601, subdivision (d), the person is evaluated by two
practicing psychiatrists or psychologists, or by one of each profession. The evaluations
must be conducted “in accordance with a standardized assessment protocol, developed
and updated by the [SDSH], to determine whether the person is a sexually violent
predator as defined in this article.” (§ 6601(c).) If both evaluators find 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,” then the SDSH forwards a request to file a
petition for commitment to the county of the person’s last conviction. (§ 6601,
subd. (d).) If the county’s designated counsel concurs with the recommendation, then
counsel files a petition for commitment in the superior court. (§ 6601, subd. (i).)
If one of the two professionals performing the evaluation does not conclude
the person meets the criteria for commitment as a sexually violent predator, and the other
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concludes the person does meet those criteria, then the SDSH “shall arrange for further
examination of the person by two independent professionals selected in accordance with
subdivision (g).” (§ 6601, subd. (e).) If an evaluation by two independent professionals
is conducted, a petition for commitment may be filed only if both concur the person
meets the criteria for commitment as a sexually violent predator. (§ 6601, subd. (f).)
Upon filing of the SVPA commitment petition, the superior court must
review the petition and determine “whether the petition states or contains sufficient facts
that, if true, would constitute probable cause to believe that the individual named in the
petition is likely to engage in sexually violent predatory criminal behavior upon his or her
release.” (§ 6601.5.) If the court determines the petition on its face supports a finding of
probable cause, then it must order the person named in the petition to be kept in a secure
facility until a probable cause hearing under section 6602 is conducted. (§ 6601.5.) The
probable cause hearing must be conducted within 10 calendar days of the issuance of the
order finding the petition would support a finding of probable cause. (Ibid.)
The purpose of the probable cause hearing is to determine whether “there is
probable cause to believe that the individual named in the petition is likely to engage in
sexually violent predatory criminal behavior upon his or her release.” (§ 6602, subd. (a).)
If the court finds probable cause, it orders a trial to determine whether the person is a
sexually violent predator under section 6600. (§ 6602, subd. (a).) The person named in
the petition must remain in a secure facility between the time probable cause is found and
the time trial is completed. (Ibid.)
ALLEGATIONS OF THE PETITION AND THE RETURN
In February 2006, the Orange County District Attorney filed a petition for
commitment under the SVPA alleging Ronje was a sexually violent predator as defined
in section 6600. Attached to the SVPA commitment petition were two evaluation reports
of Ronje; one report was prepared by John Hupka, Ph.D., and the other was prepared by
C. Mark Patterson, Ph.D. Judge Kazuharu Makino reviewed the petition and found it
4
stated sufficient facts which, if true, would constitute probable cause to believe Ronje
was likely to engage in sexually violent predatory criminal behavior on his release. As a
consequence, Judge Makino ordered Ronje to be detained, pursuant to section 6601.5, in
a secure facility until the probable cause hearing.
In April 2006, Judge John Conley found, pursuant to section 6602, probable
cause existed to believe Ronje met the criteria for commitment as a sexually violent
predator. Judge Conley ordered that Ronje be detained in a secure facility until trial.
In August 2008, the Office of Administrative Law (OAL) issued 2008 OAL
Determination No. 19, in which the OAL determined the 2007 version of the SDSH’s
Clinical Evaluator Handbook and Standardized Assessment Protocol (Aug. 2007)
(2007 SAP) used for SVPA evaluations amounted to an “underground regulation”
because portions of the assessment protocol, though regulatory in nature, had not been
adopted pursuant to Government Code section 11340.5, part of the Administrative
Procedure Act (APA; Gov. Code, § 11340 et seq.). (2008 OAL Determination No. 19
(Aug. 15, 2008) p. 3, available at [as of Dec. 6, 2013]; see Reilly, supra, 57
Cal.4th at p. 649.) In 2009, the SDSH issued the 2009 version of its Standardized
Assessment Protocol for Sexually Violent Predator Evaluations (Feb. 2009) (2009 SAP)
as the new standardized assessment protocol for SVPA evaluations. In February 2009,
the OAL took emergency regulatory action to adopt part of the 2009 SAP. In September
2009, the OAL made permanent the emergency regulatory action.
In December 2008, Ronje filed a petition for writ of habeas corpus seeking
relief on the ground his evaluations under section 6601 leading to the SVPA commitment
petition were conducted under the 2007 SAP, which had been determined by the OAL to
be invalid. As a remedy, Ronje sought dismissal of the SVPA commitment petition or
new evaluations based on a valid standardized assessment protocol. In In re Ronje
(2009) 179 Cal.App.4th 509, 516-517 (Ronje), disapproved in Reilly, supra, 57 Cal.4th
5
641, we agreed with the OAL and likewise concluded the 2007 SAP was invalid as an
underground regulation. We granted Ronje’s petition for writ of habeas corpus and
remanded the matter with directions to “(1) order new evaluations of Ronje under
section 6601 using a valid assessment protocol, and (2) conduct another probable cause
hearing under section 6602, subdivision (a) based on those new evaluations.” (Ronje,
supra, at p. 521.)
In response to Ronje, in November 2010, Judge Patrick Donahue ordered
new evaluations of Ronje, pursuant to section 6601, using a valid standardized
assessment protocol and ordered a new probable cause hearing based on the new
evaluations. In compliance with the order, the SDSH reassigned Dr. Patterson and
assigned Eric P. Simon, Ph.D., to evaluate Ronje. In a report dated March 4, 2011,
Dr. Patterson concluded Ronje met the criteria for commitment as a sexually violent
predator. In a report dated February 5, 2011, Dr. Simon also concluded Ronje met those
criteria.
A probable cause hearing was conducted over several days in January and
March 2012 before the respondent court. No witnesses testified at the probable cause
hearing.
At the outset of the probable cause hearing, Ronje filed a “Request for
Compliance with the Orders Issued by the Court of Appeal” (Request for Compliance)
[2]
and a “Request for Ghilotti Review.” In the Request for Compliance, Ronje argued the
respondent court should not receive in evidence Dr. Patterson’s March 2011 report or
Dr. Simon’s February 2011 report unless the district attorney established those reports
reflected new rather than updated evaluations conducted pursuant to a valid assessment
protocol. In the request for Ghilotti review, Ronje argued the evaluations of him
conducted by Dr. Patterson and Dr. Simon were invalid because they were conducted in
2
People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 (Ghilotti).
6
accordance with the 2009 SAP, which, he argued, is not a valid standardized assessment
protocol under the SVPA and had not been promulgated as a regulation.
In support of his request for Ghilotti review, Ronje submitted declarations
from two psychologists (Richard Wollert, Ph.D., and Robert L. Halon, Ph.D.), both of
whom expressed the opinion that the 2009 SAP is not a “standardized assessment
protocol,” as that term is understood in the “scientific and psychological community.” In
opposition, the district attorney submitted a copy of a declaration, dated April 23, 2010,
from Amy Phenix, Ph.D., the psychologist who developed the SVPA standardized
assessment protocols. Dr. Phenix expressed the opinion the 2009 SAP “comports with
the generally accepted definition of a ‘standardized assessment protocol’” and “comprises
a ‘standardized assessment protocol’ according to general acceptance in the field of
psychology.”
On March 2, 2012, the respondent court issued a written ruling that denied
the Request for Compliance and request for Ghilotti review. Dr. Patterson’s March 2011
report and Dr. Simon’s February 2011 report were received in evidence. The court
concluded the 2009 SAP “meets and exceeds the statutory criteria of section 6601,
subdivision (c)” and therefore is a valid standardized assessment protocol. The court
denied Ronje’s request to cross-examine Dr. Phenix on the ground “the court bases its
ruling on its own independent review of the 2009 SAP.” The court also concluded
(1) section IV.D. of the 2009 SAP, which requires the evaluators to use certain
assessment tools, had been submitted to the OAL as an emergency regulation and
approved as a permanent regulation in September 2009 and (2) the rest of the 2009 SAP
consists of statements from the SVPA and case law and therefore did not require approval
as a regulation by the OAL.
After issuing the written ruling, the respondent court found, pursuant to
section 6602, probable cause existed to believe Ronje met the criteria for commitment as
a sexually violent predator.
7
HISTORY OF WRIT PETITION PROCEEDINGS
In May 2012, Ronje filed this petition for writ of mandate or prohibition to
challenge the respondent court’s order receiving in evidence the 2011 evaluation reports
of Dr. Patterson and Dr. Simon. We summarily denied Ronje’s writ petition.
Ronje petitioned the California Supreme Court for review of our order
summarily denying his writ petition. He presented four issues for Supreme Court review,
one of which was whether Dr. Patterson’s March 2011 evaluation report and Dr. Simon’s
February 2011 evaluation report were updated or new evaluations. The Supreme Court
granted the petition for review and transferred the matter back to us with directions to
vacate our order denying mandate and to issue an order directing the respondent court to
show cause why the relief requested in the petition for writ of mandate or prohibition
should not be granted. We complied with the Supreme Court’s directions. The district
attorney filed a return to Ronje’s petition for writ of mandate or prohibition, to which
Ronje filed a reply.
After oral argument, we vacated submission to allow the parties to file
supplemental letter briefs addressing the impact of Reilly, supra, 57 Cal.4th 641, on this
case. After receiving supplemental letter briefs from the district attorney and Ronje, we
resubmitted the matter.
DISCUSSION
I.
The Evaluators Conducted New Evaluations
as Then Required by Ronje.
Ronje argues Dr. Patterson’s March 2011 evaluation report and
Dr. Simon’s February 2011 evaluation report were updated rather than new evaluations
and, therefore, should not have been received in evidence at the probable cause hearing.
We disagree. Under Reilly, supra, 57 Cal.4th 641, Ronje cannot prevail even if this
argument has merit.
8
In Reilly, the Supreme Court concluded a court is not required to dismiss
SVPA commitment proceedings if the OAL determines the initial evaluations supporting
the SVPA commitment petition were conducted under a standardized assessment protocol
that did not comply with the OAL’s procedural requirements. (Reilly, supra, 57 Cal.4th
at p. 646.) “Instead, an alleged sexually violent predator (SVP) must show that any fault
that did occur under the assessment protocol created a material error.” (Ibid.) “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 . . . .’” (Id. at p. 656.) Reilly disapproved Ronje, supra, 179
Cal.App.4th 509, to the extent it required new evaluations using a valid standardized
assessment protocol without a showing of material error. (Reilly, supra, at pp. 655, 656.)
In Rabuck v. Superior Court (Dec. 6, 2013, G046936) __ Cal.App.4th __,
__ [page 10] (Rabuck), we concluded that absent a showing of material error in using the
2007 SAP, whether evaluation reports prepared using the 2009 SAP constituted new or
updated ones would make no difference to their admissibility at the probable cause
hearing. Thus, “[a]bsent a showing of material error, the [initial] evaluations of [Ronje]
would be valid and would support filing the SVPA commitment petition, and the 2011
evaluations properly could serve as either new or updated evaluations under section 6603,
subdivision (c)(1).” (Id. at p. __ [p. 10].) Ronje has not shown that use of an invalid
assessment protocol materially affected his initial evaluations. (See Reilly, supra, 57
Cal.4th at p. 656.) Since evaluators concluded Ronje was a sexually violent predator
3
under both the 2009 SAP and, in effect, the 2007 SAP, “it is clear that the 2007 protocol
error did not materially affect the outcome of his probable cause hearing.” (Ibid.)
3
The initial evaluations of Ronje were conducted in accordance with the 2004
assessment protocol. (Ronje, supra, 179 Cal.App.4th at p. 516.) “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
9
Ronje’s contention the evaluations were “updates” rather than “new” has no
merit even if it remains viable after Reilly. Ronje required new evaluations under
section 6601(c); that is, evaluations conducted as though no prior diagnosis had been
reached and no SVPA commitment petition had yet been filed. In contrast, updated
evaluations are permitted under section 6603, subdivision (c)(1), “[i]f the attorney
petitioning for commitment under this article determines that updated evaluations are
necessary in order to properly present the case for commitment.”
We have reviewed Dr. Patterson’s 46-page March 2011 evaluation report
and Dr. Simon’s 32-page February 2011 report, and our review leads us to conclude that
both constitute new evaluations pursuant to section 6601(c). Both Dr. Patterson and
Dr. Simon conducted clinical interviews of Ronje in 2011 as part of the new evaluations,
and both considered Ronje’s entire psychiatric, family, criminal, and qualifying offense
history. Neither Dr. Patterson nor Dr. Simon merely updated previous diagnoses; rather,
their reports demonstrate they both started anew in reaching the conclusion Ronje met the
criteria for commitment as a sexually violent predator.
II.
The Evaluators Followed the 2009 SAP.
Ronje argues that Dr. Patterson and Dr. Simon, though purporting to use
the 2009 SAP, in fact used the 2007 SAP in preparing their 2011 evaluations of him.
According to Ronje, the 2011 evaluation reports prepared by Dr. Patterson and Dr. Simon
demonstrate they used the 2007 SAP because those reports include the same headings,
apply the same criteria, make the same findings, and use the same diagnostic tools and
risk factors, as those required by the 2007 SAP.
Under Reilly, if Dr. Patterson and Dr. Simon used the 2007 SAP in
preparing their 2011 evaluation reports of Ronje, any error would be harmless unless he
few, nonsubstantive respects from the corresponding portions in the 2007 version that
were the basis for 2008 OAL Determination No. 19.” (Ibid.)
10
made a showing that use of the 2007 SAP resulted in material error. (Reilly, supra, 57
Cal.4th at p. 656 & fn. 5.) Neither in his writ petition nor his supplemental letter brief
addressing Reilly, did Ronje make such a showing. Ronje does not contend any of the
reports prepared by Dr. Patterson and Dr. Simon, or any of their diagnoses and
conclusions, are inaccurate or otherwise invalid.
Ronje argues Dr. Patterson and Dr. Simon did in fact follow the 2007 SAP
“[s]ince each of the doctor’s reports contain[s] provisions required by the 2007 SAP, and
these same provisions are not required by or even mentioned in the 2009 SAP.”
Dr. Patterson’s and Dr. Simon’s 2011 evaluation reports did follow the format, outline,
and structure provided in the 2007 SAP and did include notice, provisions, and findings
required by that protocol. But the 2009 SAP does not prohibit them from doing so and
does not prescribe a particular format, outline, or structure for an evaluation report.
(Rabuck, supra, __ Cal.App.4th at p. __ [p. 12].) As Ronje argues, Dr. Patterson’s and
Dr. Simon’s 2011 evaluation reports used the headings “Identifying Information,”
“Findings,” and “Conclusion” or “Summary and Conclusions” (boldface & some
capitalization omitted), which were provided by the 2007 SAP. In Rabuck, supra, __
Cal.App.4th at page __ [page 12], we concluded, “those are logical and natural headings
for sections within an SVPA evaluation report.”
As further proof that Dr. Patterson and Dr. Simon did not follow the 2009
SAP, Ronje asserts they drafted their conclusions in a specific format required by the
4
2007 SAP. Section IV.C. of the 2009 SAP, supra, at page 3, identifies the question the
evaluator must answer as “[d]oes the person being evaluated have a diagnosed mental
4
Dr. Patterson concluded: “Based on the above information, it is my opinion that
Mr. Ronje meets the criteria as a Sexually Violent Predator as described in §6600(a) of
the Welfare and Institutions Code.” Dr. Simon concluded: “Based on the above
information, it is this evaluator’s professional opinion that the prisoner does meet the
criteria as a sexually violent predator as described in Section 6600(a) of the Welfare and
Institutions Code.”
11
disorder so that he or she is likely to engage in acts of sexual violence without
appropriate treatment and custody?” The findings in Dr. Patterson’s 2011 evaluation
report and Dr. Simon’s 2011 evaluation report track this question and answer it.
“Dr. [Patterson] and Dr. [Simon] drafted their respective conclusions in a format that is
so obvious and logical that it cannot be said to be specific to the 2007 SAP.” (Rabuck,
supra, __ Cal.App.4th at p. __ [p. 13].)
Ronje contends Dr. Patterson and Dr. Simon followed the 2007 SAP
because they used procedures, diagnostic tests, and actuarial risk assessment tools
specifically required by that protocol. In Rabuck, supra, __ Cal.App.4th at page __
[pages 13-14], we rejected a similar argument. We explained that “[u]nlike the 2007
SAP, which provided detailed instructions on how to conduct a sexually violent predator
assessment and prepare an evaluation report, the 2009 SAP relies on each evaluator’s
exercise of ‘independent professional judgment in the course of performing SVP
[(sexually violent predator)] evaluations.’ [Citation.]” (Id. at p. __ [p. 13].) We
concluded that the evaluators’ decision to follow procedures and practices and to apply
tests, instruments, and actuarial risk tools that were required by the 2007 SAP did not
mean they failed to use the 2009 SAP. (Id. at p. __ [p. 14].)
Likewise, “the fact Dr. [Patterson] and Dr. [Simon] decided to follow
procedures and practices and to apply tests, instruments, and actuarial risk tools that were
required by the 2007 SAP does not mean they failed to use the 2009 SAP.” (Rabuck,
supra, __Cal.App.4th at p. __ [p. 14].) In compliance with the 2009 SAP, Dr. Patterson
and Dr. Simon explained in their respective 2011 evaluation reports how the tests,
instruments, and risk factors they used had gained professional recognition or acceptance
in the field of diagnosing, evaluating, or treating sexual offenders, how they were
applied, and why they were appropriate to Ronje.
Ronje argues Dr. Patterson and Dr. Simon used the 2007 SAP because, at
the beginning of their 2011 evaluation reports, each stated he provided Ronje with a
12
notice of evaluation as a sexually violent predator, presumably in the form attached as
appendix B to the 2007 SAP. We rejected the identical argument in Rabuck, supra,
__Cal.App.4th at page __ [page 14]. Ronje also argues that Dr. Patterson and Dr. Simon
followed the 2007 SAP by including in their respective 2011 evaluation reports a
statement, required by the 2007 SAP, on the question whether Ronje’s future sexually
violent acts and offenses would, or likely would, be predatory in nature. “But the fact
Dr. [Patterson] and Dr. [Simon] answered a question presented by the 2007 SAP does not
lead to the conclusion they did not follow the 2009 SAP and meet its requirements.”
(Rabuck, supra, __Cal.App.4th at p. __ [p. 15].)
III.
The 2009 SAP Is a Legitimate Standardized Assessment
Protocol and Complies with Section 6601(c).
Ronje argues the 2009 SAP is invalid because it is not a standardized
assessment protocol as that term is understood in the scientific and psychological
communities. In support of this argument, he relies on the declarations of Dr. Wollert
and Dr. Halon, both of whom presented a definition of standardized assessment protocol,
reviewed the 2009 SAP, and concluded it did not come within that definition. The
district attorney, in response, relies on Dr. Phenix’s declaration. Dr. Phenix, who was
instrumental in developing the assessment protocols under the SVPA, declared the 2009
SAP is a standardized assessment protocol according to generally accepted principles of
psychology.
The respondent court did not base its decision on the declarations. Instead,
the court conducted its own independent review of the 2009 SAP and concluded, “the
2009 SAP is a genuine one because it meets and exceeds the statutory criteria of
section 6601, subdivision (c).” In Rabuck, supra, __ Cal.App.4th at page __
[pages 15-18], we concluded the 2009 SAP is a legitimate standardized assessment
protocol as required by section 6601(c).
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IV.
The 2009 SAP Was Properly Promulgated
as a Regulation.
Ronje argues that if the 2009 SAP is a legitimate standardized assessment
protocol, it is invalid nonetheless because it is an underground regulation that was not
promulgated in accordance with the APA. But if the 2009 SAP was not promulgated in
accordance with the APA, then Ronje would have the burden of showing material error
(Reilly, supra, 57 Cal.4th at pp. 646, 656-657); that is, “the invalid assessment protocol
materially affected his . . . evaluations” (id. at p. 656). He has not done so. In addition,
in Rabuck, supra, __Cal.App.4th at page __ [pages 18-19], we concluded the 2009 SAP
was validly promulgated as a regulation.
Government Code section 11350 identifies the limited grounds on which
the validity of a regulation may be challenged. Ronje does not challenge the OAL’s
approval of section IV.D. of the 2009 SAP on any of the grounds identified in
Government Code section 11350.
DISPOSITION
The petition for writ of mandate or prohibition is denied.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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