THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; EDWARD TROYER, Real Party in Interest.
No. B263146
Second Dist., Div. Eight
Sept. 18, 2015
240 Cal. App. 4th 654
COUNSEL
No appearance for Respondent.
Ronald L. Brown, Public Defender, Albert J. Menaster, Steve McManus and Jack T. Weedin, Deputy Public Defenders, for Real Party in Interest.
OPINION
GRIMES, J.—Under the Sexually Violent Predator Act (SVPA or the Act;
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.” (
In People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 [119 Cal.Rptr.2d 1, 44 P.3d 949] (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
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 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, supra. 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 (
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.
In October 2011, one month before Troyer‘s two-year commitment was set to expire, the former State 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.
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
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 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,
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.
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.
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 (
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.
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
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 involuntary civil commitment is an appealable final judgment (
2. The SVPA and the Ghilotti Decision
a. The statutory framework
The SVPA (
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
The DSH evaluates the person “in accordance with a standardized assessment protocol” developed by the DSH. (
If the evaluators disagree whether the person qualifies as an SVP, the director must arrange for further examination by two independent professionals. (
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.” (
“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 (
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.” (
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“). (
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 the reports of designated evaluators to determine whether they are infected with legal error.” In Ghilotti, the court 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. 664, 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
Notwithstanding the evaluators’ reports, the director of the former DMH forwarded a recommitment request to the district attorney, opining that Ghilotti still suffered from a mental disorder which made 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 id. at p. 898.)
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.)
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 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. (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.’ (
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.)
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 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 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.)
Although Ghilotti involved a case in which the People took issue with the evaluators’ conclusions, Ghilotti makes clear that the challenge for material
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 [78 Cal.Rptr.3d 711].)
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 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
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 Cal.App.4th 68, 73 [115 Cal.Rptr.2d 3] [“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
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
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 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 (
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. 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
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.
Bigelow, P. J., and Rubin, J., concurred.