Lunday v. Super. Ct.

Filed 3/28/12 Lunday 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
LEROY LUNDAY,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045208
(Super. Ct. No. M10990)
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.

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No appearance for Respondent.
Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy
District Attorney, for Real Party in Interest.
* * *
INTRODUCTION
Leroy Lunday is the subject of a commitment petition 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 Wright v. Superior Court (Mar. 28, 2012,
G045203) __ Cal.App.4th __ (Wright), we deny the writ petition without prejudice to
renewing the challenge to the SVPA commitment petition when the post-Ronje
evaluation process is completed, based on the full reports of all post-Ronje evaluators.
ALLEGATIONS OF THE PETITION AND THE RETURN
In August 2006, the Orange County District Attorney filed a petition for
commitment as a sexually violent predator (the SVPA Petition), alleging Lunday was a
sexually violent predator under the SVPA. In September 2006, Judge Richard M. King
reviewed the SVPA Petition and found it stated sufficient facts which, if true, would
constitute probable cause to believe Lunday was likely to engage in sexually violent
predatory criminal behavior on his release from prison. As a consequence, Judge King
ordered Lunday to be detained pursuant to section 6601.5 in a secured facility until the
probable cause hearing.
1 Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

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Judge Kazuharu Makino conducted the probable cause hearing in October
2006. He reviewed an evaluation conducted by Douglas Korpi, Ph.D., in July 2006 and
an evaluation conducted by Christopher Matosich, Ph.D., in the same month. Judge
Makino found, pursuant to section 6602, probable cause existed to believe Lunday is a
sexually violent predator.
In conducting their evaluations, Dr. Korpi and Dr. Matosich followed the
2004 version of the State Department of Mental Health’s (DMH) Clinical Evaluator
Handbook and Standardized Assessment Protocol. 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 DMH’s 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, Lunday 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 James P. Marion
granted the motion and ordered new evaluations of Lunday, pursuant to section 6601, and
a new probable cause hearing pursuant to Ronje based on the new evaluations.
The DMH appointed Dr. Korpi and Dr. Matosich to conduct the new
evaluations of Lunday. In a report dated January 31, 2011, Dr. Korpi concluded Lunday
no longer met the criteria for commitment as a sexually violent predator. In a report

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dated February 28, 2011, Dr. Matosich concluded Lunday continued to meet those
criteria.
In March 2011, Lunday filed a plea in abatement seeking dismissal of the
SVPA Petition based on the post-Ronje evaluation reports of Dr. Korpi and Dr. Matosich.
The district attorney filed opposition to the plea in abatement. In a supplemental
memorandum of points and authorities, Lunday requested that his plea in abatement also
be considered a demurrer under Code of Civil Procedure section 430.10, subdivision (a)
and a nonstatutory motion to dismiss.
In April 2011, Judge King issued an order denying the pleas in abatement
filed by Lunday and nine others. The next month, Lunday 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 Wright, supra, __ Cal.App.4th __, Boysel v. Superior Court (Mar. 28,
2012, G045202) __ Cal.App.4th __ (Boysel), 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
a nonstatutory pleading to challenge an SVPA commitment proceeding, before the

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probable cause hearing, on the ground of lack of the required concurring evaluations. We
deem Lunday’s plea in abatement to have constituted such a nonstatutory pleading.
In Wright, Boysel, and Reilly, we addressed the effect of post-Ronje
evaluations in different scenarios. In Wright, 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, but there was no
evidence in the record that two independent post-Ronje evaluators have been appointed.
In Boysel, 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. 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 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 Wright, supra, __ Cal.App.4th __, in that the
post-Ronje evaluation process had not been completed when the trial court denied
Lunday’s plea in abatement. Here, there was a split decision between the two post-Ronje
evaluators, Dr. Korpi and Dr. Matosich. Thus, it was necessary, under section 6601,
subdivision (c), to appoint two post-Ronje independent evaluators to examine Lunday and
determine whether he met the statutory criteria for commitment as a sexually violent
predator. The record presented to us does not disclose whether those independent
evaluators were appointed and, if so, whether they have examined Lunday and submitted
reports.

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As in Wright, the trial court did not err by denying Lunday’s plea in
abatement because the statutorily required evaluation process had not been completed.
Our decision to deny Lunday’s writ petition is without prejudice to renewing the
challenge to the SVPA Petition by motion or pleading pursuant to Ghilotti when the
post-Ronje evaluation process is completed, depending on the outcome of the two
independent post-Ronje evaluations.
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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