LeFort v. Super. Ct.

Filed 3/28/12 LeFort v. Super. Ct. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ROBERT LEFORT,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045204
(Super. Ct. No. M11111)
O P I N I O N
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.

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Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy
District Attorney, for Real Party in Interest.
* * *
INTRODUCTION
Robert LeFort is the subject of commitment and recommitment petitions
filed pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code section
6600 et seq. (SVPA).1 He filed a plea in abatement in the trial court, seeking dismissal of
the SVPA commitment petition on the ground it was not supported by the concurrence of
the two evaluators appointed pursuant to section 6601 after our decision in In re Ronje
(2009) 179 Cal.App.4th 509 (Ronje). His petition for writ of mandamus/prohibition
challenges the trial court’s order denying his plea in abatement.
Following our decision in Boysel v. Superior Court (Mar. 28, 2012,
G045202) __ Cal.App.4th __ (Boysel), we deny the writ petition without prejudice to
renewing the challenge to the SVPA commitment petition based on a consideration of the
full reports of all four post-Ronje evaluators.
ALLEGATIONS OF THE PETITION AND THE RETURN
In October 2000, the Orange County District Attorney filed a petition for
commitment as a sexually violent predator seeking to recommit LeFort as a sexually
violent predator under the SVPA. Subsequent recommitment petitions were filed in
2002, 2004, and 2006. No probable cause hearing has been held on any of these
petitions.
In November 2006, Judge Kazuharu Makino reviewed the 2006 SVPA
recommitment petition (the SVPA Petition) and found it stated sufficient facts which, if
true, would constitute probable cause to believe LeFort was likely to engage in sexually
1 Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

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violent predatory criminal behavior on his release from prison. As a consequence, Judge
Makino ordered LeFort to remain detained pursuant to section 6601.5 in a secured facility
until the probable cause hearing.
In August 2008, the state Office of Administrative Law (OAL) issued 2008
OAL Determination No. 19, in which the OAL determined the 2007 version of the State
Department of Mental Health’s (DMH) assessment protocol amounted to an
“underground regulation” because portions of the assessment protocol, though regulatory
in nature, had not been adopted pursuant to the Administrative Procedure Act,
Government Code section 11340.5. (See Ronje, supra, 179 Cal.App.4th at p. 515.) In
Ronje, supra, 179 Cal.App.4th at pages 516-517, we agreed with the OAL and likewise
concluded the 2007 assessment protocol was invalid as an underground regulation.
In 2009, the DMH drafted a new standardized assessment protocol for
SVPA evaluations. Pursuant to Government Code section 11349.6, subdivision (d), the
OAL approved the new assessment protocol in September 2009.
In March 2010, LeFort filed a motion requesting, among other things, that
in light of Ronje, the trial court order new evaluations to be conducted to determine
whether he is a sexually violent predator. In November 2010, Judge Patrick Donahue
granted the motion and ordered new evaluations of LeFort, pursuant to section 6601, and
a new probable cause hearing pursuant to Ronje based on the new evaluations.
In compliance with the court order, the DMH reassigned Jeffrey Davis,
Ph.D., and Mary Jane Alumbaugh, Ph.D., to evaluate LeFort. In a report dated
February 12, 2011, Dr. Davis concluded LeFort continued to meet the criteria for
commitment as a sexually violent predator. In a report dated March 16, 2011,
Dr. Alumbaugh concluded LeFort no longer met those criteria.
Due to the difference of opinions, the DMH ordered independent
evaluations of LeFort to be conducted by Michael Selby, Ph.D., and Laljit Sidhu, Psy.D.

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Dr. Selby prepared a report dated March 29, 2011, and Dr. Sidhu prepared a report dated
May 17, 2011.
In March 2011, LeFort filed a plea in abatement seeking dismissal of the
SVPA Petition based on the post-Ronje evaluation reports of Dr. Davis and
Dr. Alumbaugh. The reports of Dr. Selby and Dr. Sidhu were not available at that time.
The district attorney filed opposition to the plea in abatement.
In April 2011, Judge Richard M. King issued an order denying the pleas in
abatement filed by LeFort and nine others. Judge King could not consider Dr. Selby’s
report and Dr. Sidhu’s report because they had not been presented to him. As these
reports were not presented to the trial court, we decline to consider their contents and
conclusions.
The next month, LeFort filed his petition for writ of mandate/prohibition.
We issued an order to show cause and stayed the trial court proceedings.
DISCUSSION
In Ronje, supra, 179 Cal.App.4th 509, 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 SVPA. As a remedy, we directed the trial court to order new evaluations
pursuant to section 6601 using a valid assessment protocol.
In Boysel, supra, __ Cal.App.4th __, Wright v. Superior Court (Mar. 28,
2012, G045203) __ Cal.App.4th __ (Wright), and Reilly v. Superior Court (Mar. 28,
2012, G045118) __ Cal.App.4th __ (Reilly), we addressed 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. We concluded that People v.
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 912-913 (Ghilotti) authorizes the use of

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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 LeFort’s plea in abatement to have constituted such a nonstatutory pleading.
In Boysel, Wright, and Reilly, we addressed the effect of post-Ronje
evaluations in different scenarios. In Boysel, supra, __ 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, supra, __ 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 was no evidence in the record that two independent post-Ronje evaluators have
been appointed. In Wright and Boysel, we denied the petitions for writ of
mandamus/prohibition without prejudice to later renewing the challenge to the SVPA
commitment petitions. In Reilly, supra, __ Cal.App.4th __, the two initial post-Ronje
evaluators agreed the person named in the SVPA petition no longer met the criteria for
commitment as a sexually violent predator, and, therefore, we were compelled by the
SVPA to grant the writ petition in that case.
This case is similar to Boysel, supra, __ Cal.App.4th __, in that the reports
of the two post-Ronje independent evaluators were not before the court when it denied
LeFort’s plea in abatement. LeFort’s plea in abatement, as the plea in abatement in
Boysel, was based only on the two initial post-Ronje evaluation reports, prepared by
Dr. Davis and Dr. Alumbaugh. Based on those two evaluation reports, which were the
only reports before it, the trial court did not err by denying LeFort’s plea in abatement.
As in Boysel, our decision to deny LeFort’s writ petition is without prejudice to renewing

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the challenge to the SVPA Petition in the trial court by motion or pleading pursuant to
Ghilotti, based on all four post-Ronje evaluation reports.
DISPOSITION
The petition for writ of mandate/prohibition is denied and the stay of the
trial court proceedings is lifted.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.

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