Yancy v. Super. Ct.

Filed 3/28/12 Yancy 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
JAMES YANCY,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045213
(Super. Ct. No. M11040)
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
In October 2002, James Yancy was found to be a sexually violent predator
under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600
et seq. (SVPA)1 and was committed for two years. He was the subject of SVPA
recommitment petitions filed in 2004 and 2006. 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 2002, Yancy was found to be a sexually violent predator under
the SVPA and was committed to the State Department of Mental Health (DMH) for
treatment. The Orange County District Attorney filed a petition for recommitment in
October 2004 and a petition for recommitment in 2006 (the SVPA Petition). The SVPA
Petition was based on evaluations of Yancy conducted by Clark Clipson, Ph.D., and
Shoba Sreenivasan, Ph.D., both of whom concluded Yancy met 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 October 2006, Judge Kazuharu Makino reviewed the SVPA Petition and
found it stated sufficient facts which, if true, would constitute probable cause to believe
Yancy was likely to engage in sexually violent predatory criminal behavior on his release
from commitment. As a consequence, Judge Makino ordered Yancy to be detained
pursuant to section 6601.5 in a secured facility until the probable cause hearing.
Judge Richard M. King conducted a probable cause hearing in January
2007. Judge King found, pursuant to section 6602, probable cause existed to believe
Yancy 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
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, Yancy 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 Yancy, 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. Sreenivasan
and Dr. Clipson to evaluate Yancy. In a report dated January 25, 2011, Dr. Sreenivasan
concluded Yancy continued to meet the criteria for commitment as a sexually violent

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predator. In a report dated February 24, 2011, Dr. Clipson concluded Yancy no longer
met those criteria.
Due to the difference of opinions, the DMH ordered independent
evaluations of Yancy to be conducted by Michael Selby, Ph.D., and Christopher
Matosich, Ph.D. In a report dated February 28, 2011, Dr. Matosich concluded Yancy met
the criteria for commitment as a sexually violent predator. In a report dated March 14,
2011, Dr. Selby concluded Yancy did not meet those criteria.
In March 2011, Yancy filed a plea in abatement seeking dismissal of the
SVPA Petition based on Dr. Clipson’s post-Ronje report only. The district attorney did
not file a formal opposition. In a supplemental memorandum of points and authorities,
Yancy 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 Yancy and nine others. The full evaluation reports of Dr. Sreenivasan,
Dr. Clipson, Dr. Selby, and Dr. Matosich were not presented to the trial court, which
apparently considered only the results of their evaluations when it denied Yancy’s plea in
abatement.
The next month, Yancy 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,

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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 Yancy’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 full
reports of the post-Ronje evaluators were not before the trial court when it denied
Yancy’s plea in abatement. The plea in abatement was based entirely on Dr. Clipson’s

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report. Although the results of all four post-Ronje evaluations were provided to the trial
court, it should have the opportunity to consider the full reports and address any Ghilotti
challenges to them. As in Boysel, our decision to deny Yancy’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 the full reports of all 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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