Smith v. Super. Ct.

Filed 3/28/12 Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
RICHARD ANTHONY SMITH,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045119
(Super. Ct. No. M9531)
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 granted.
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
Richard Anthony Smith 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.
Smith also challenges the trial court’s order granting the district attorney’s motion to
compel him to undergo a mental evaluation by the district attorney’s retained mental
health professional and to grant that mental health professional access to his state hospital
records.
Following our decision in Reilly v. Superior Court (Mar. 28, 2012,
G045118) __ Cal.App.4th __ (Reilly), we are compelled under the SVPA to grant the writ
petition because the two post-Ronje evaluators concluded Smith no longer meets the
criteria for commitment as a sexually violent predator. We direct the trial court to
dismiss the SVPA commitment petition against Smith and to deny the district attorney’s
motion (1) to compel him to undergo a mental evaluation by the district attorney’s
retained mental health professional and (2) to allow that mental health professional access
to Smith’s state hospital records.
1 Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

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ALLEGATIONS OF THE PETITION AND THE RETURN
In March 2002, the Orange County District Attorney filed a petition for
commitment as a sexually violent predator (the SVPA Petition), alleging Smith was a
sexually violent predator under the SVPA. Attached to the SVPA Petition were an
evaluation of Smith conducted by Dana Putnam, Ph.D., in January 2002 and an
evaluation conducted by Charles Jackson, Ph.D., in February 2002.
In March 2002, Judge Ronald Kreber reviewed the SVPA Petition and
found it stated sufficient facts which, if true, would constitute probable cause to believe
Smith was likely to engage in sexually violent predatory criminal behavior on his release
from prison. As a consequence, Judge Kreber ordered Smith to be detained pursuant to
section 6601.5 in a secured facility until the probable cause hearing.
In 2006, one updated evaluation and one replacement evaluation of Smith
were conducted pursuant to section 6603, subdivision (c)(1). Nancy Rueschenberg,
Ph.D., conducted the replacement evaluation and concluded Smith continued to meet the
criteria for commitment as a sexually violent predator. Dr. Putnam conducted the
updated evaluation. The record does not reveal Dr. Putnam’s conclusion in the updated
evaluation. In February 2007, Smith waived his right to a probable cause hearing after it
had been continued several times. Trial on the SVPA Petition has not been held.
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

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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, Smith 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 Smith, 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 appointed Dr. Putnam and
Dr. Rueschenberg to conduct the new evaluations. In a report dated February 2, 2011,
Dr. Rueschenberg concluded Smith no longer met the criteria for commitment as a
sexually violent predator. In a report dated February 7, 2011, Dr. Putnam also concluded
Smith no longer met those criteria.
At the pretrial hearing in March 2011, Smith requested his probable cause
hearing be set within 10 calendar days. Judge Richard M. King denied the request. Later
that month, the district attorney filed a motion for an order compelling Smith to undergo
a mental examination by the district attorney’s retained expert, Harry Goldberg, Ph.D.,
and granting Dr. Goldberg access to Smith’s state hospital records.
In March 2011, Smith filed a plea in abatement seeking dismissal of the
SVPA Petition based on Dr. Rueschenberg’s and Dr. Putnam’s post-Ronje evaluation
reports. The district attorney filed opposition. Judge King set a probable cause hearing
for May 6, 2011.
In April 2011, Judge King issued an order denying the pleas in abatement
filed by Smith and nine others. Judge King also granted the district attorney’s motion to

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compel Smith to undergo a mental evaluation and to grant access to his state hospital
records.
Five days later, Smith 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 Reilly, supra, __ Cal.App.4th __, Boysel v. Superior Court (Mar. 28,
2012, G045202) __ Cal.App.4th __, and Wright v. Superior Court (Mar. 28, 2012,
G045203) __ Cal.App.4th __, 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 Smith’s plea in
abatement to have constituted such a nonstatutory pleading.
In Reilly, Boysel, and Wright, we addressed the effect of post-Ronje
evaluations in different scenarios. 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. In Boysel, supra, __ Cal.App.4th __,
the two initial post-Ronje evaluators disagreed whether the person named in the SVPA

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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.
This case is similar to Reilly, supra, __ Cal.App.4th __, in that both
post-Ronje evaluators concluded Smith no longer met the criteria for commitment as a
sexually violent predator. Appointment of post-Ronje independent evaluators was not
authorized by section 6601, subdivision (e) because the initial post-Ronje evaluators
concurred Smith did not meet those criteria. As in Reilly, the SVPA Petition could not
have been filed based on the two post-Ronje evaluations, and therefore, we conclude,
now must be dismissed.
As in Reilly, we also conclude Smith cannot be compelled to undergo
another mental evaluation because the SVPA Petition must be dismissed. Evaluations by
independent mental health professionals under section 6601, subdivision (e) are not
authorized because the initial two post-Ronje evaluators concluded Smith no longer met
the criteria for commitment as a sexually violent predator. For the same reason, allowing
access to Smith’s state hospital records would not be justified.
DISPOSITION AND ORDER
The petition for writ of mandate/prohibition is granted. Let a writ of
mandate issue directing the trial court to vacate its order (1) denying Smith’s plea in

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abatement, (2) granting the district attorney’s motion to compel Smith to undergo a
mental examination, and (3) granting the district attorney’s motion to allow access to
Smith’s state hospital records, and directing the trial court to enter a new order
(1) dismissing the petition seeking commitment of Smith under the SVPA, (2) denying
the motion to compel Smith to undergo a mental examination, and (3) denying the motion
to allow access to Smith’s state hospital records.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
BEDSWORTH, J.

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