People v. Super. Ct. (Troyer)

Filed 9/18/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE OF THE STATE OF B263146
CALIFORNIA,
(Los Angeles County
Petitioner, Super. Ct. No. ZM018442)
v.
SUPERIOR COURT OF THE STATE OF
CALIFORNIA FOR THE COUNTY OF
LOS ANGELES,
Respondent;
EDWARD TROYER,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. James Bianco, Judge. Petition granted
and remanded.
Jackie Lacey, Los Angeles County District Attorney, Roberta Schwartz and
Matthew Brown, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Ronald L. Brown, Los Angeles County Public Defender, Albert J. Menaster, Steve
McManus and Jack T. Weedin, Deputy Public Defenders, for Real Party in Interest.
___________________________________
Under the Sexually Violent Predator Act (SVPA or the Act; Welf. & Inst. Code,
§ 6600 et seq.),1 a convicted sex offender may be declared a sexually violent predator
(SVP) and civilly committed upon completion of the criminal sentence. A petition to
commit someone under the Act may be filed in the superior court only if two mental
health evaluators agree that the person in question is an SVP and is likely to engage in
acts of sexual violence without appropriate treatment and custody. (§ 6601, subds. (d)-
(i).)
After a commitment petition is filed, the superior court holds a hearing to
determine if there is “probable cause to believe that the individual . . . is likely to engage
in sexually violent predatory criminal behavior upon his or her release.” (§ 6602,
subd. (a).) If the court finds probable cause, the court orders a trial to determine whether
the person is an SVP. (Ibid.)
In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 (Ghilotti), the
Supreme Court held that, although not expressly authorized by statute, the superior court
may review an evaluator’s report before the probable cause hearing to determine whether,
“on its face,” it contains “material legal error.” (Id. at pp. 894-895, 909-915.) The court
emphasized, however, that the scope of this review is quite limited – “the superior court’s
review of evaluators’ reports to determine the validity of an SVPA commitment or
recommitment petition is limited to whether a report is infected with material legal error;
neither the person potentially subject to commitment nor the petitioning authority is
entitled at this stage to an evidentiary hearing on the accuracy of the evaluations.” (Id. at
p. 911, fn. 8.) At this stage of the proceeding, “[i]f such legal error does not appear on
the face of the report, the court must accept the report as valid.” (Id. at p. 914, fn. 10.)
In this case, the trial court granted Edward Troyer’s motion – filed before the
probable cause hearing – to dismiss a petition seeking to recommit him for an additional
term under the SVPA. The trial court did so after concluding that the two evaluations
supporting the petition contained “material legal error” because substantial portions of
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
the evaluation reports appeared to have been copied from reports prepared by previous
evaluators and that, as a result, the opinions contained in the evaluations were not those
of its authors.
The People filed a writ petition challenging the trial court’s ruling. We agree that
the alleged deficiencies in the evaluations do not constitute “material legal error” under
Ghilotti. Accordingly, we grant the People’s writ petition and remand the matter to the
trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
1. Troyer’s Predicate Convictions
In 1975, real party in interest Edward Troyer was convicted of three counts of
committing a lewd act on three different children under the age of 14 (Pen. Code, § 288).
In 1985, he was again convicted of committing a lewd act on a child under the age of 14.
Between 1960 and 1998, Troyer was convicted of numerous other crimes and he has been
in prison or in a state hospital under an SVP commitment since 1998.2
2. The Prior SVP Commitment
The District Attorney for the County of Los Angeles (D.A.) first filed a
commitment petition against Troyer in 2003. For reasons that are unknown and are
irrelevant to this writ proceeding, the trial did not take place until 2009, at which time
Troyer was committed pursuant to a jury verdict. Although the SVPA at the time
provided for an indefinite commitment, Troyer was committed to a two-year term
pursuant to the law in effect when the commitment petition was filed.
2 Some of the other crimes of which Troyer was convicted were sexual in nature
(such as indecent exposure), but others included battery, assault with a deadly weapon
and driving under the influence.
3
3. The Recommitment Petition
In October 2011, one month before Troyer’s two-year commitment was set to
expire, the former Department of Mental Health (DMH) sent a letter to the D.A.,
recommending that a petition to recommit Troyer as an SVP be filed.3 Accompanying
the letter were two evaluations prepared earlier that month.
One evaluation was by Dr. Robin Thomas-Riddle, a licensed psychologist.
According to Dr. Thomas-Riddle’s evaluation, Troyer declined to be interviewed. The
25-page report contained extensive information about Troyer’s criminal history –
especially with respect to the SVP predicate convictions , as well as other aspects of his
personal history, such as relationship history, psychosocial history and substance abuse
history. The report also discussed Troyer’s treatment progress, and included an
assessment of Troyer’s current mental status.
Dr. Thomas-Riddle diagnosed Troyer as suffering from pedophilia, alcohol
dependence and antisocial personality disorder. She concluded her report by stating that
Troyer “is likely to commit sexually violent, predatory, criminal behavior as a result of
his diagnosed mental disorders if he were to be released to the community” and that he
“meets the criteria as a sexually violent predator as described in Section 6600(a) . . . .”
The second evaluation was prepared by Dr. Richard Starrett, also a licensed
psychologist. In contrast to Dr. Thomas-Riddle, Dr. Starrett stated in his report that he
had interviewed Troyer. Dr. Starrett’s 44-page report covered the same general subjects
as Dr. Thomas-Riddle’s report, and concluded with a statement that Troyer is “an
individual falling at the high range of risk” and he “meets the criteria as a sexually violent
predator as described in Section 6600(a) . . . .”
In December 2011, the D.A. filed a recommitment petition.
3 In 2012, the Department of State Hospitals (DSH) was created and assumed the
duties of the former DMH. (See http://www.dsh.ca.gov/AboutUs/default.asp [as of
Sept. 18, 2015]; Reilly v. Superior Court (2013) 57 Cal.4th 641, 647 (Reilly).)
4
4. Troyer Questions the Supporting Evaluations
For the next approximately two years, the probable cause hearing was continued
repeatedly.
In 2013, the Los Angeles County Public Defender (P.D.), as Troyer’s counsel,
subpoenaed documents from the former DMH and from Coalinga State Hospital, seeking
evidence that Drs. Starrett and Thomas-Riddle were “designated” to perform Troyer’s
SVP evaluations. The dismissal motion asserts that neither of the subpoenaed entities
could find evidence the doctors were “designated” to perform the evaluations.
The DSH then ordered new evaluations from different evaluators. In September
2013, two new evaluations were prepared. One concluded that Troyer qualified for
commitment as an SVP, while the other concluded he did not.4
After these split evaluations, two additional evaluations were prepared in
November 2013. Both evaluators concluded Troyer did not meet the criteria for SVP
commitment.
In January 2014, the DSH sent a letter to the D.A. with the four evaluations
prepared after those of Drs. Starrett and Thomas-Riddle. Although the former DMH had
already made a recommitment recommendation to the D.A., and such a petition had been
filed in December 2011 and was pending a hearing, the letter from DSH stated that “this
case is not being forwarded to you for a commitment petition.”
5. Troyer’s Dismissal Motion
In January 2015, Troyer filed a motion to dismiss the recommitment petition.
Troyer raised two arguments. First, he sought dismissal on the ground that there was no
evidence Drs. Starrett and Thomas-Riddle were “designated” by the former DMH to
4 The evaluator who concluded Troyer did not qualify as an SVP acknowledged it
was “a very close case” and “a reasonable argument can be made for either conclusion.”
He believed that Troyer “continues to demonstrate a high degree of negativity and anti-
sociality which suggest that he is not a ‘normal’ 72 year old person.” The evaluator
apparently believed the balance tipped against finding Troyer to be an SVP because of his
advanced age and significant health problems, and because “[h]is last sexual violent
crime carried out against a child occurred over 25 years ago.”
5
perform the evaluations. Because the trial court did not rule on this contention, we focus
on the second of the two arguments Troyer raised in his dismissal motion.
Troyer’s second contention was that the two evaluations supporting the
recommitment petition contained “material legal error” because the evaluations “were in
large part, especially in regard to their opinions and conclusions, taken from the reports
of prior evaluators, and from each other. Thus, they do not represent their independent
judgments, but the reconstituted judgments of prior evaluators.”5
In support of the second contention, Troyer presented numerous side-by-side
comparisons of excerpts from the two evaluators’ reports and those of prior evaluators.
These comparisons reflected that the reports of both Drs. Starrett and Thomas-Riddle
contained many passages that were identical to passages that could be found in reports
prepared by mental health professionals who had previously evaluated Troyer. In some
cases, the two evaluators purported to quote from the prior evaluations and provided
attribution, but in some cases they did not. Much of the copying appeared in sections
describing Troyer’s personal, medical and criminal history. However, some of the
opinions and conclusions of Drs. Starrett and Thomas-Riddle contained identical
language to language that can be found in prior reports.
The People filed a written opposition. They argued that the dismissal motion was
essentially a summary judgment motion and that such motions are not applicable to SVP
proceedings. Although the People maintained that Troyer’s contentions should be raised
at the probable cause hearing or at trial, they did not directly address the copying
contention on the merits.
5 In his dismissal motion, Troyer characterized what the doctors had done as
“plagiarism.” The trial court and the People adopted this term as a shorthand way to refer
to Troyer’s contention. It cannot be determined on the face of the reports that the doctors
appropriated the ideas of others without forming their own independent judgment, so we
will describe what the doctors did as copying words from previous reports.
6
6. The Hearing and the Trial Court’s Ruling
Troyer’s counsel called two witnesses to testify at the hearing on the dismissal
motion, both employees of DSH. Because their testimony focused solely on the
“designation” issue and related matters, we do not summarize the testimony here.
After the witnesses testified, the court and counsel discussed the two issues raised
in the motion. With respect to the copying issue, the court asked “[i]sn’t that essentially
the sort of error that was contemplated in Ghilotti?”6 The D.A. responded in the
negative, noting that one would not know if the evaluations were valid until the
evaluators were examined at a probable cause hearing concerning the bases for their
opinions.
Troyer’s counsel offered three substantially similar reasons why the copying
amounted to material legal error. All were based on the premise that the evaluations in
question did not contain the evaluators’ actual opinions but only the opinions of prior
evaluators.
Specifically, Troyer argued the evaluations (1) violated a requirement “implicit in
the SVP statutes” that the evaluator offer his or her “own personal opinion,” (2) violated
the “standardized assessment protocol” developed by DSH pursuant to a statutory
mandate (§ 6601, subd. (c)), which provides that “the evaluation process and the ultimate
opinions or conclusions [of the evaluator] are a matter of the exercise of independent,
professional judgment,” and (3) amounted to “essentially . . . fraudulent reports.”
After hearing from counsel, the court found the evaluations were not independent
as is required under the SVPA, concluded the copying amounted to material legal error,
and granted the motion to dismiss the petition.
6 As discussed more fully below, the Supreme Court in Ghilotti, supra, 27 Cal.4th
888, held that, although not expressly authorized by statute, the superior court may
review an evaluator’s report before the probable cause hearing to determine whether, “on
its face,” it contains “material legal error.” (Id. at pp. 894-895, 909-915.) At this stage of
the proceeding, neither party is entitled to an evidentiary hearing (id. at p. 911, fn. 8), and
“[t]he professional determinations of an evaluator, insofar as based on consideration and
application of correct legal standards, is conclusive” (id. at p. 913).
7
The court also determined the purported legal error was material because the
two most recent evaluations prepared after those of Drs. Starrett and Thomas-Riddle were
both negative.
Because the trial court ruled the recommitment petition should be dismissed based
on the copying argument, it expressly declined to decide whether the petition should be
dismissed based on Troyer’s contention that the evaluators had not been properly
“designated.”
The court agreed to temporarily stay its order so the People could seek relief from
this court.
7. The People’s Writ Petition
Shortly before the trial court’s temporary stay was set to expire, the People filed a
petition for a writ of mandate to challenge the ruling. They argue the trial court erred in
concluding the copying amounted to “material legal error” that can support dismissal of
the petition at this preliminary stage of the SVPA proceeding. They also ask this court to
reject Troyer’s designation argument or to remand the matter to the trial court so it may
consider the contention.
We issued a temporary stay and, after receiving an informal response and reply,
we issued an alternative writ. In the alternative writ, we advised the parties that, because
the trial court expressly declined to decide the question, we did not intend to consider the
merits of Troyer’s contention that the recommitment petition should be dismissed
because Drs. Starrett and Thomas-Riddle had not been “designated.”
After issuing the alternative writ, we received formal briefing from the parties and
heard oral argument.
DISCUSSION
1. Propriety of Writ Review
The People acknowledge in their writ petition that the trial court’s order is
appealable. As they point out, however, the Supreme Court has determined that the
People may challenge such an order by writ petition: “Dismissal of a petition for
8
involuntary civil commitment is an appealable final judgment (Code Civ. Proc., § 904.1,
subd. (a)(1); People v. Superior Court (Johannes) (1999) 70 Cal.App.4th 558, 561, fn. 5
[SVPA]; People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 834 [Mentally
Disordered Offender Law]), but the People may alternatively seek writ review, and a
stay, when the appellate remedy is inadequate (Code Civ. Proc., § 1086) because the
dismissal will result in the release of one potentially dangerous to the public.” (Ghilotti,
supra, 27 Cal.4th at p. 900, fn. 4, original brackets.)
2. The SVPA and the Ghilotti Decision
a. The statutory framework
The SVPA (§ 6600 et seq.) defines an SVP as “a person who has been convicted
of a sexually violent offense against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and safety of others in that it is
likely that he or she will engage in sexually violent criminal behavior.” (§ 6600,
subd. (a)(1).)
Under the SVPA, a convicted sex offender may be declared to be an SVP and
civilly committed after completing the criminal sentence. (Reilly, supra, 57 Cal.4th at
p. 646.) The procedure for having someone committed under the Act begins before that
person completes serving his or her sentence. First, the Department of Corrections and
Rehabilitation conducts an internal screening which is followed, if warranted, by a
referral to the DSH for a full evaluation. (Id. at pp. 646-647; see also § 6601, subds. (a)-
(d).)
The DSH evaluates the person “in accordance with a standardized assessment
protocol” developed by the DSH. (§ 6601, subd. (c).) The evaluation is performed by
two practicing mental health care professionals (psychiatrists or psychologists)
“designated” by the DSH. (§ 6601, subd. (d).) If both evaluators agree the person “has a
diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence
without appropriate treatment and custody,” the Director forwards a request to the
county’s designated counsel (a district attorney or county counsel) that a petition for
commitment be filed. (§ 6601, subds. (d) & (i); Reilly, supra, 57 Cal.4th at p. 647.)
9
If the evaluators disagree whether the person qualifies as an SVP, the Director
must arrange for further examination by two independent professionals. (§ 6601,
subd. (e); Reilly, supra, 57 Cal.4th at p. 647.) At this stage, a commitment petition may
be filed only if both independent professionals agree that the person meets the criteria for
commitment. (§ 6601, subd. (f); Reilly, at p. 647.)
Thus, “a petition for commitment or recommitment may not be filed unless
two evaluators, appointed under the procedures specified in section 6601, subdivisions
(d) and (e), have concurred that the person currently meets the criteria for commitment
under the SVPA.” (Ghilotti, supra, 27 Cal.4th at p. 909.)
After the commitment petition is filed, the superior court holds a probable cause
hearing at which the subject of the petition is entitled to counsel, to “determine whether
there is probable cause to believe that the individual named in the petition is likely to
engage in sexually violent predatory criminal behavior upon his or her release.” (§ 6602,
subd. (a).) If no probable cause is found, the petition is dismissed. (Ibid.) If the court
finds probable cause, the court orders a trial to determine whether the person is an SVP.
(Ibid.)
“Though civil in nature, this trial contains a number of procedural safeguards
commonly associated with criminal trials, including the alleged SVP’s right to a jury trial
(§ 6603, subd. (a)), to assistance of counsel (ibid.), and to a unanimous jury finding that
he or she is an SVP beyond a reasonable doubt before he or she may be committed
(§ 6604).” (Reilly, supra, 57 Cal.4th at p. 648.)
If the trial results in a determination that the person is an SVP, that person is
committed “to the custody of the State Department of State Hospitals for appropriate
treatment and confinement in a secure facility designated by the Director of State
Hospitals.” (§ 6604.) Since 2006, such commitment is for “an indeterminate term.”7
7 Before 2006, the commitment was for a two-year term, which could be extended
pursuant to a petition for extended commitment (also known as a recommitment petition).
After the 2006 amendment, a stipulation was signed by representatives of the D.A., the
10
(Ibid.; Stats. 2006, ch. 337, § 55, eff. Sept. 20, 2006; People v. Castillo, supra, 49 Cal.4th
at pp. 148-149.)
Persons committed under the SVPA are to be treated at Coalinga State Hospital,
“unless there are unique circumstances that would preclude the placement of a person at
that facility.” (§ 6600.05, subd. (a).)
The SVPA also provides that, during the pendency of the commitment proceeding,
the attorney seeking commitment may ask the DSH to prepare updated evaluations (if
“necessary in order to properly present the case for commitment”) or replacement
evaluations (“[i]f one or more of the original evaluators is no longer available to testify
for the petitioner in court proceedings”). (§ 6603, subd. (c)(1).) If an updated or
replacement evaluation results in a split of opinion as to whether the individual meets the
criteria for commitment, the DSH must obtain two additional evaluations. (§ 6603,
subd. (c)(1).) “However, although initial evaluations conducted under section 6601 must
agree, a lack of concurrence between updated or replacement evaluations does not require
dismissal of the petition. [Citation.] Rather, the updated evaluations’ primary purpose is
evidentiary or informational. [Citation.] Mandatory dismissal is not required where one
or both of the later evaluators conclude the individual does not meet the criteria for
commitment.” (Reilly, supra, 57 Cal.4th at p. 648; see also id. at p. 655, fn. 2.)
b. Ghilotti: Limited preliminary review for “material legal error”
As the Supreme Court observed in Ghilotti, supra, 27 Cal.4th at page 910, “[t]he
SVPA contains no express provision for judicial review of reports of designated
evaluators to determine whether they are infected with legal error.” In Ghilotti, the court
P.D. and the Los Angeles County Superior Court. The stipulation was later modified by
a Memorandum of Understanding signed by the same representatives. Among other
things, it was agreed that, due to uncertainty regarding retroactive application of the
change from two-year to indefinite commitments, the D.A. would continue to seek two-
year commitments for those persons whose commitment petition was filed before the
legislative change went into effect. In People v. Castillo (2010) 49 Cal.4th 145, the
Supreme Court held this stipulation was enforceable.
11
went on to hold that, notwithstanding the absence of express authority, the authority to
conduct such review “is inherent in the statutory scheme, and in the nature of the judicial
power.” (Ibid.)
In granting Troyer’s motion to dismiss the recommitment petition, the trial court
relied on this holding in Ghilotti. It is therefore important to understand the nature and
limits of the Supreme Court’s holding in that case.
Mr. Ghilotti was serving a second two-year commitment as an SVP. (See ante,
p. 11, fn. 7.) While the question of recommitment for another two-year term was being
considered, Ghilotti refused to agree to the terms of a release under the former DMH’s
conditional release program, which would have involved outpatient treatment and
supervision. Two psychologists designated by the Director of the former DMH to
evaluate Ghilotti for a possible recommitment petition prepared evaluations in which they
concluded that Ghilotti did not meet the criteria for SVP commitment. (See Ghilotti,
supra, 27 Cal.4th at pp. 895-896 & fn. 2.)
Notwithstanding the evaluators’ reports, the Director of the former DMH
forwarded a recommitment request to the district attorney, opining that Ghilotti still
suffers from a mental disorder which makes him likely to engage in sexually violent
criminal behavior as defined in the SVPA. The Director’s request and opinion were
supported by declarations from, among others, the Medical Director at Atascadero State
Hospital and a staff psychiatrist at the same hospital, both of whom opined that, in the
absence of supervised outpatient treatment, Ghilotti remained a high risk to reoffend.
(Ghilotti, supra, 27 Cal.4th at pp. 896-898 & fn. 2.)
In the request to the district attorney, the Director questioned the validity of the
designated evaluators’ conclusions. (Ghilotti, supra, 27 Cal.4th at p. 898.) As the
Supreme Court explained: “According to the Director, the evaluators’ reports agreed that
supervision and treatment are important to reduce Ghilotti’s risk of reoffense. In the
Director’s view, the reports actually disclosed a likelihood that Ghilotti will reoffend if
released without such conditions.” (Id. at p. 893; see also id. at p. 898.)
12
After the district attorney filed a recommitment petition, Ghilotti filed a response
in which he challenged the validity of the recommitment petition on the ground that it
was filed without the concurrence of two mental health evaluators as required. The
district attorney filed a reply, arguing that under subdivision (h) of section 6601, the
Director may request a commitment or recommitment petition if, regardless of the
opinions of the designated evaluators, the Director determines, on adequate evidence, that
the person is an SVP.8 (Ghilotti, supra, 27 Cal.4th at p. 898.)
Although the trial court expressed concerns that the two evaluations might be
“legally ‘incompetent,’ in that they had misapplied the statutory criteria,” the court
ultimately dismissed the petition because it read the SVPA as prohibiting the filing of a
commitment petition without the concurrence of two designated mental health evaluators.
(Ghilotti, supra, 27 Cal.4th at pp. 899-900.)
After the Court of Appeal summarily denied the People’s writ petition, the
Supreme Court granted review. The only issue raised in the petition for review was
whether subdivision (h) of section 6601 allows the filing of a commitment or
recommitment petition without the concurrence of two designated mental health
evaluators. However, after granting review, the Supreme Court asked the parties to brief
additional issues, including the following: “if section 6601 allows the filing of a
commitment or recommitment petition only with the concurrence of designated
evaluators, when, if ever, should the trial court examine evaluators’ reports for material
legal error, and what steps should be taken if such error is found?” (Ghilotti, supra,
27 Cal.4th at p. 901.)
With respect to the question raised in the petition for review, the Supreme Court
held that “a petition for commitment or recommitment may not be filed unless
8 Subdivision (h) of section 6601 provides in relevant part: “If the State Department
of State Hospitals determines that the person is a sexually violent predator as defined in
this article, the Director of State Hospitals shall forward a request for a petition to be filed
for commitment under this article to the county designated in subdivision (i).”
13
two evaluators, appointed under the procedures specified in section 6601, subdivisions
(d) and (e), have concurred that the person currently meets the criteria for commitment
under the SVPA.” (Ghilotti, supra, 27 Cal.4th at p. 909.)
Notwithstanding the statement that a commitment petition “may not be filed”
without two positive evaluator reports, the court went on to hold that a petition could still
be filed pursuant to the Director’s request, subject to judicial review for material legal
error in the evaluations. (See Ghilotti, supra, 27 Cal.4th at pp. 912-913.)
The court observed that section 6601 “does not allow the evaluators utter free rein.
Instead, it imposes certain specific standards on their assessments. They must examine
the person ‘in accordance with a standardized assessment protocol’ that considers
‘diagnosable mental disorders, as well as various factors,’ including ‘criminal and
psychosexual history, type, degree, and duration of sexual deviance, and severity of
mental disorder,’ which factors are ‘known to be associated with the risk of reoffense
among sex offenders.’ (§ 6601, subd. (c).) On this basis, the evaluators are to answer a
crucial question, i.e., whether ‘the person has a diagnosed mental disorder so that he or
she is likely to engage in acts of sexual violence without appropriate treatment and
custody.’ (Id., subd. (d), italics added.) The evaluators’ professional judgment is
therefore to be exercised within a specified legal framework, and their legally accurate
understanding of the statutory criteria is crucial to the Act’s proper operation.” (Ghilotti,
supra, 27 Cal.4th at pp. 909-910.)
The court then observed that the evaluators in the case may have misunderstood
the statutory criteria “and thus committed legal error, when reaching conclusions that
Ghilotti does not qualify for recommitment under the SVPA.” (Ghilotti, supra,27 Cal.4th at p. 910.)
The court proceeded to hold that “a court entertaining a petition for an involuntary
civil commitment has authority to review for legal error the expert evaluations which are
a prerequisite to the filing of such a petition.” (Ghilotti, supra, 27 Cal.4th at p. 910.)
While the Supreme Court held courts have such authority, the court emphasized
the narrow scope of such authority: “The recommendation of an evaluator is subject to
14
judicial review for such material legal error at the behest of the appropriate party. If,
upon review, the court finds no material legal error on the face of the report, the court
shall deem the evaluator’s recommendation valid, and shall dispose of the petition
accordingly.” (Ghilotti, supra, 27 Cal.4th at p. 895, italics added.)
In addition, the court explained: “the superior court’s review of evaluators’
reports to determine the validity of an SVPA commitment or recommitment petition is
limited to whether a report is infected with material legal error; neither the person
potentially subject to commitment nor the petitioning authority is entitled at this stage to
an evidentiary hearing on the accuracy of the evaluations.” (Ghilotti, supra, 27 Cal.4th at
p. 911, fn. 8.)
Later, the court “stress[ed] that such judicial review is limited to whether one or
more evaluators’ reports are infected by material legal error. An evaluator’s report is
infected with legal error if, on its face, it reflects an inaccurate understanding of the
statutory criteria governing the evaluation. [¶] On the other hand, judicial review of an
evaluator’s report does not extend to matters of debatable professional judgment within
an evaluator’s expertise. The professional determinations of an evaluator, insofar as
based on consideration and application of correct legal standards, is conclusive at the
initial screening stage set forth in section 6601.” (Ghilotti, supra, 27 Cal.4th at p. 913,
italics added; see also id. at p. 914, fn. 10 [“We have indicated that in future cases, where
the issue is properly presented, the trial court should review a designated evaluator’s
report to determine whether, on its face, the report is infected with material legal error. If
such legal error does not appear on the face of the report, the court must accept the report
as valid”].)
Finally, the court explained how to determine if legal error is material: “An
evaluator’s legal error shall be deemed material if, and only if, (1) there appears a
reasonable probability, sufficient to undermine confidence in the outcome, that the error
affected the evaluator’s ultimate conclusion, and (2) a change in the evaluator’s
conclusion would either supply, or dissolve, the necessary concurrence of two designated
evaluators.” (Ghilotti, supra, 27 Cal.4th. at p. 913.)
15
Although Ghilotti involved a case in which the People took issue with the
evaluators’ conclusions, Ghilotti makes clear that the challenge for material legal error
may also be made by the person who is the subject of the SVP commitment petition.
(See Ghilotti, supra, 27 Cal.4th at p. 913; see also id. at p. 895.)
Because the trial court in the case had dismissed the petition without considering
whether the supporting declarations were infected with material legal error, the Supreme
Court concluded the matter should be remanded to that court “with directions (1) to
review the reports of the designated evaluators for material legal error, and (2) thereafter
to proceed under the principles expressed in this opinion.” (Ghilotti, supra, 27 Cal.4th at
p. 915.)
As for the remedy when a court concludes than an evaluation is infected with
material legal error, the court stated: “If the court finds material legal error in an
evaluator’s report, the court shall provide the evaluator opportunity promptly either to
correct the report or to prepare a new report, so as to set forth the conclusions the
evaluator reaches under correct legal principles.” (Ghilotti, supra, 27 Cal.4th at pp. 913-
914.)
We now consider whether the trial court’s ruling is proper under the standard
established in Ghilotti.
3. Analysis
a. The standard of review
The parties disagree on the applicable standard of review. The People argue that
the petition raises a question of law, which is reviewed de novo. (People v. Superior
Court (George) (2008) 164 Cal.App.4th 183, 192.)
Troyer, on the other hand, maintains that “the issues involve questions of fact
which are subject to a[n] abuse of discretion standard of review.” Troyer claims the trial
court “made factual determinations that the two evaluations in question contained
numerous errors which were material and that they were legal in nature.”
We agree with Troyer that the trial court made factual determinations. However,
as we discuss below, this is precisely why its order must be reversed. Ghilotti authorizes
16
a trial court to conduct a preliminary review of a commitment petition for “material legal
error.” By definition, whether something constitutes legal error is a question of law,
especially where the error must appear “on the face” of the document in question.
Indeed, the Supreme Court in Ghilotti characterized the issue as purely legal. (See
Ghilotti, supra, 27 Cal.4th at p. 901 & fn. 5 [explaining that, after review was granted,
the court directed the parties to address, among other things, “when, if ever, should the
trial court examine evaluators’ reports for material legal error” and noting that this, and
other issues on which additional briefing was sought, “were pure questions of law” which
could be considered by the court, even if they were not raised in the courts below].)9
b. Troyer’s procedural contentions lack merit
Troyer raises two arguments why we should deny the petition without reaching the
merits.
First, Troyer claims the People waived their right to challenge the trial court’s
ruling because, in their written opposition to the dismissal motion and at the trial court
hearing, they did not dispute that the evaluators’ copying from previous reports
constituted material legal error.
We disagree. The People argued at the hearing that the copying did not constitute
material legal error under Ghilotti. The parties and the trial court spent considerable time
arguing and discussing whether the copying of text from previous reports constituted
material legal error under Ghilotti and the trial court decided, on the merits, that it did.
Finally, even assuming arguendo there was a waiver, the issue is a purely legal one,
which we have discretion to consider. (See Bialo v. Western Mutual Ins. Co. (2002) 95
9 As will be evident from the discussion below, we are not deciding whether the
evaluators’ reports were reliable, valid or accurate. These questions are inherently
factual. We are deciding only whether, as a question of law, their reliability, validity or
accuracy, could be determined in the context of a motion to dismiss at this preliminary
stage of the SVPA proceeding, where neither party is entitled to an evidentiary hearing.
17
Cal.App.4th 68, 73 [“Generally, issues raised for the first time on appeal which were not
litigated in the trial court are waived. [Citations.] However, where, as here, the issue is
purely legal and presented to us on undisputed facts, and involves a matter of public
interest, we retain discretion to decide it”]; Ghilotti, supra, 27 Cal.4th at p. 901 & fn. 5
[because issue was purely legal, question when court may examine evaluators’ reports for
material legal error would be considered by Supreme Court, even though issue was not
raised in the courts below].)
Second, Troyer argues the petition was not timely filed because the People waited
more than one year from the time the DSH advised the D.A. that the evaluations prepared
after those of Drs. Starrett and Thomas-Riddle did not support the filing of a
recommitment petition. However, the People are not challenging any determination by
the DSH. They are challenging the trial court’s order dismissing the recommitment
petition and they filed their petition less than 60 days after the trial court issued its order.
Troyer does not allege he was prejudiced because the petition was not filed sooner. (See
People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675, 682 [“Where there is
otherwise no statutory authority or time limit in filing a writ, it must usually be filed
within 60 days”]; People v. Superior Court (Clements) (1988) 200 Cal.App.3d 491, 496
[“Where as here there is no statutory time in which a petition must be filed, the approach
of the Supreme Court to the timeliness of a petition has been one of laches. ‘Laches
requires an unreasonable delay in filing the petition plus prejudice to real party.’ ”].) In
addition, because the petition was filed before the 60-day deadline to appeal (Cal. Rules
of Court, rule 8.308(a)), the People did not run afoul of the rule that, with certain
exceptions, “a party is not entitled to obtain review of an appealable judgment or order by
means of a petition for an extraordinary writ where he or she failed to timely file an
appeal from the ruling.” (Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 952.)
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c. The trial court erred in ruling that the alleged deficiencies in the
evaluators’ reports constituted material legal error under
Ghilotti
The People claim the copying from previous reports was not legal error under
Ghilotti. We agree.
Troyer’s argument was based on the premise that an evaluator must provide an
independent opinion, and the evaluations were infected with material legal error because
the extensive copying of text from previous reports established that the opinions of the
evaluators were not their own.
The issue in this case is not whether evaluators may rely solely on the opinions of
others in concluding that someone should be committed as an SVP. The issue is whether
one can conclude, from the face of the evaluations and without the benefit of an
evidentiary hearing, that the opinions of Drs. Starrett and Thomas-Riddle were not their
own.
In this case, however, it is not possible to determine, based solely on a comparison
of the evaluations of Drs. Starrett and Thomas-Riddle with those of prior evaluators, that
the opinions offered by Drs. Starrett and Thomas-Riddle were not their own opinions. At
best, the comparison can serve as a basis to question the validity or authenticity of the
doctors’ opinions. It cannot serve as a basis to conclude, as a matter of law, that the
opinions are invalid or were not those of the doctors. As the People succinctly put it in
their traverse: “The . . . issue is nothing more than a cross-examination point related to
the quality of [the doctors’] opinions, not a material legal error.”10 Indeed, even the trial
court impliedly recognized that it could not conclusively determine the evaluations in
10 Troyer claims an evidentiary hearing was not required because the People
admitted “to the copying of reports” by Drs. Starrett and Thomas-Riddle. However, the
issue is not whether there was copying. The issue is whether one can conclude, based
solely on the copying, that the opinions offered by Drs. Starrett and Thomas-Riddle were
not their own.
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question were not those of the authors, stating only that they “don’t appear to have been
independent evaluations.”
Although the trial court recognized that, under Ghilotti, the legal error must appear
on the face of the evaluations, and although Troyer never took issue with the requirement,
Troyer suggests in his return to the petition that the Supreme Court has essentially done
away with the requirement the legal error be shown on the face of the reports.
Specifically, he claims that in Reilly, supra, 57 Cal.4th 641, “the Supreme Court merely
required a finding of ‘materiality’ as a prerequisite for obtaining relief without any
requirement of demonstrating legal error on the face of the reports.”
This is not a correct reading of Reilly. In that case, it was undisputed that the two
original evaluations supporting the commitment petition were based on an a DSH
standardized assessment protocol which was determined to be invalid because it was not
adopted pursuant to the procedural requirements of the Administrative Procedure Act
(APA; Gov. Code, § 11340 et seq.). After numerous trial court proceedings, the Court of
Appeal granted a petition for writ of mandate by the subject of the commitment
proceeding and dismissed the petition. It did so because subsequent evaluations,
prepared by the same evaluators, concluded the subject of the commitment petition no
longer met the criteria for commitment. (Reilly, supra, 57 Cal.4th at p. 651.)
The Supreme Court reversed. The court explained: “The People do not contest
the finding that the original assessment protocol used here amounted to an invalid
regulation and that its use constituted error. Instead, they challenge the Court of
Appeal’s conclusion that an alleged SVP need not demonstrate the materiality of such
error in order to obtain dismissal of his SVPA petition. We agree with the People . . . .”
(Reilly, supra, 57 Cal.4th at p. 652, italics added.)
The court in Reilly did not do away with the requirement that the legal error
appear on the face of the evaluation. The legal error was not disputed. The only issue in
the case was materiality. Therefore, the fact the opinion contains numerous references to
materiality without mentioning “legal error” does not mean the Supreme Court
abandoned its holding in Ghilotti that the legal error appear on the face of the evaluations.
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On the contrary, the court repeatedly cited and followed its holding in Ghilotti. (See,
e.g., Reilly, supra, 57 Cal.4th at p. 654 [“Ghilotti also defines what our cases require in
order to set aside an evaluator’s error in employing an incorrect legal standard”].)
Finally, Troyer claims the evaluations of Drs. Starrett and Thomas-Riddle were
properly rejected because they were “stale” and did not reflect whether Troyer
“currently” suffers from a mental disorder as required under section 6600,
subdivision (a)(3). This contention lacks merit. First, the trial court did not purport to
reject the evaluations on the ground they were “stale” or did not reflect Troyer’s current
mental state. Second, Troyer’s argument is premised on the assumption that the opinions
contained in the reports of Drs. Starrett and Thomas-Riddle were not their own, but were
in fact those of health care professionals who had evaluated Troyer years earlier. As
discussed above, however, there is no basis to conclude, at this stage of the proceeding,
that the opinions in the reports of Drs. Starrett and Thomas-Riddle were not their own.
At subsequent proceedings, it may be discovered that the evaluations cannot
support Troyer’s commitment. Nothing in this opinion should be construed as a
reflection of this court’s opinion on the issue.
DISPOSITION
The petition is granted. The matter is remanded to the trial court, which is
directed to vacate its February 9, 2015 order granting the motion of real party in interest
to dismiss the recommitment petition, and to thereafter conduct any additional
proceedings which are warranted in conformance with this opinion.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
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