Rigby v. Super. Ct.

Filed 3/28/12 Rigby 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
ALAN RIGBY,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045614
(Super. Ct. Nos. M10354 & M11042)
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, James Patrick Marion, Judge.
Petition denied.
Frank Ospino, Interim Public Defender, Jean Wilkinson, Chief Deputy
Public Defender, Denise Gragg, Sharon Petrosino 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
Alan Rigby 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 motion 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).
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 the post-Ronje evaluators.
ALLEGATIONS OF THE PETITION AND THE RETURN
In December 2003, Rigby was adjudicated to be a sexually violent predator
under the SVPA and was committed to the State Department of Mental Health (DMH)
for treatment for two years. In October 2004, the Orange County District Attorney filed a
petition for recommitment as a sexually violent predator, alleging Rigby continued to be
a sexually violent predator under the SVPA. The SVPA recommitment petition was
based on evaluations prepared by Elaine Finnberg, Ph.D., and Christopher North, Ph.D.,
which concluded Rigby continued to meet the criteria for commitment as a sexually
violent predator.
1 Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

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In November 2004, Judge Daniel J. Didier reviewed the SVPA
recommitment petition and found it stated sufficient facts which, if true, would constitute
probable cause to believe Rigby was likely to engage in sexually violent predatory
criminal behavior on his release from commitment. As a consequence, Judge Didier
ordered Rigby to be detained pursuant to section 6601.5 in a secured facility until the
probable cause hearing.
In October 2006, the district attorney filed another SVPA recommitment
petition (the SVPA Petition) against Rigby, seeking his commitment to the DMH for an
indeterminate period. The SVPA Petition was based on evaluations conducted by
Dr. Finnberg and Dr. North, both of whom concluded Rigby continued to meet the
criteria for commitment as a sexually violent predator. Judge David A. Hoffer reviewed
the SVPA Petition and found it stated sufficient facts which, if true, would constitute
probable cause to believe Rigby was likely to engage in sexually violent predatory
criminal behavior on his release from commitment. As a consequence, Judge Hoffer
ordered Rigby to be detained pursuant to section 6601.5 in a secured facility until the
probable cause hearing.
In 2008, Dr. Finnberg prepared an updated evaluation concluding Rigby
continued to meet the criteria for commitment as a sexually violent predator. An updated
evaluation was also prepared by Robert Owen, Ph.D., who likewise concluded Rigby
continued to meet those criteria.
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,

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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 the reply, Rigby alleges that Dr. North prepared a report dated June 30,
2008, concluding Rigby no longer met the criteria for commitment as a sexually violent
predator and that Nancy Rueschenberg, Ph.D., prepared a report dated March 24, 2009,
reaching the same conclusion.
In December 2010, Rigby 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. Judge James Patrick Marion granted the
motion and ordered new evaluations of Rigby pursuant to section 6601.
In compliance with the court order, the DMH reassigned Dr. Finnberg and
Dr. Owen to evaluate Rigby. In a report dated April 22, 2011, Dr. Owen concluded
Rigby no longer met the criteria for commitment as a sexually violent predator. In a
one-page checklist dated April 26, 2011, Dr. Finnberg also concluded Rigby no longer
met those criteria. Dr. Finnberg prepared a full report dated June 20, 2011.
In May 2011, Rigby filed a motion to dismiss the SVPA Petition based on
Dr. Owen’s and Dr. Finnberg’s post-Ronje evaluations. Dr. Finnberg’s report was not
available when Rigby filed the motion to dismiss. The district attorney filed opposition
to Rigby’s motion to dismiss.
After hearing argument on June 13, 2011, Judge Marion continued the
matter to June 17. On that day, Judge Marion denied the motion to dismiss and, over
Rigby’s objection, set the probable cause hearing for October 31, 2011.
Rigby filed his petition for writ of mandate/prohibition in August 2011.
We issued an order to show cause and issued a stay of trial court proceedings.

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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
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 Rigby’s motion to dismiss 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

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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 full
report of one the two initial post-Ronje evaluators was not before the court when it denied
Rigby’s motion to dismiss. Only Dr. Owen’s report was presented to the trial court.
Although Dr. Finnberg had prepared a checklist of her evaluation, her June 20, 2011
report was not available to the trial court until after the court denied Rigby’s motion to
dismiss. Based on the single report before it, the trial court did not err by denying the
motion. As in Boysel, our decision to deny Rigby’s writ petition is without prejudice to
renewing the challenge to the SVPA Petition in the trial court by motion or pleading
pursuant to Ghilotti, based on all the full reports of the post-Ronje evaluators.
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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