Quintero v. Super. Ct.

Filed 3/28/12 Quintero 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
AGUSTINE QUINTERO,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045200
(Super. Ct. No. M10805)
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
Agustine Quintero 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 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 February 2006, the Orange County District Attorney filed a petition for
commitment as a sexually violent predator (the SVPA Petition), alleging Quintero was a
sexually violent predator under the SVPA. The SVPA Petition was based on an
evaluation from Harold Goldberg, Ph.D., dated November 22, 2005 and an evaluation
conducted by Hy Malinek, Psy.D., dated December 12, 2005.
In February 2006, Judge Kazuharu Makino reviewed the SVPA Petition
and found it stated sufficient facts which, if true, would constitute probable cause to
believe Quintero was likely to engage in sexually violent predatory criminal behavior on
1 Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

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his release from prison. As a consequence, Judge Makino ordered Quintero to remain
detained pursuant to section 6601.5 in a secured facility until the probable cause hearing.
The probable cause hearing was conducted by Judge Richard M. King in
May 2006. Judge King reviewed Dr. Goldberg’s evaluation and Dr. Malinek’s
evaluation and found, pursuant to section 6602, probable cause existed to believe
Quintero met the criteria for commitment as a sexually violent predator.
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, Quintero 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 Quintero, 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 Dr. Goldberg and
Dr. Malinek to evaluate Quintero. In a report dated February 22, 2011, Dr. Goldberg
concluded Quintero continued to meet the criteria for commitment as a sexually violent
predator. In a report dated February 28, 2011, Dr. Malinek concluded Quintero no longer
met those criteria.

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Due to the difference of opinions, the DMH ordered independent
evaluations of Quintero to be conducted by Michael Selby, Ph.D., and Laljit Sidhu,
Psy.D. Dr. Selby prepared a report dated March 27, 2011, and Dr. Sidhu prepared a
report dated April 20, 2011.
In March 2011, Quintero filed a plea in abatement seeking dismissal of the
SVPA Petition based on the post-Ronje evaluation reports of Dr. Goldberg and
Dr. Malinek. The reports of Dr. Selby and Dr. Sidhu were not available when Quintero
filed his plea in abatement. The district attorney filed opposition to the plea in
abatement. In a supplemental memorandum of points and authorities, Quintero 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 Quintero 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, Quintero 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

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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 Quintero’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 not were before the court when it denied
Quintero’s plea in abatement. Quintero’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. Goldberg and Dr. Malinek. Based on those two evaluation reports, which were the

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only two reports before it, the trial court did not err by denying Quintero’s plea in
abatement. As in Boysel, our decision to deny Quintero’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 four post-Ronje evaluation reports.
DISPOSITION
The petition for writ of mandate and/or 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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