Chambers v. Super. Ct.

Filed 3/28/12 Chambers 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
RONNIE CHAMBERS,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045209
(Super. Ct. No. M11891)
O P I N I O N
Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, Richard M. King, Judge.
Petition denied.
Deborah A. Kwast, Public Defender, Frank Ospino, Interim Public
Defender, Jean Wilkinson, Chief Deputy Public Defender, Denise Gragg and Mark S.
Brown, Assistant Public Defenders, for Petitioner.

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No appearance for Respondent.
Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy
District Attorney, for Real Party in Interest.
* * *
INTRODUCTION
Ronnie Chambers is the subject of a commitment petition filed pursuant to
the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq.
(SVPA).1 He filed a plea in abatement in the trial court, seeking dismissal of the SVPA
commitment petition on the ground it was not supported by the concurrence of the two
evaluators appointed pursuant to section 6601 after our decision in In re Ronje (2009)
179 Cal.App.4th 509 (Ronje). His petition for writ of mandamus/prohibition challenges
the trial court’s order denying his plea in abatement.
Following our decision in Wright v. Superior Court (Mar. 28, 2012,
G045203) __ Cal.App.4th __ (Wright), we deny the writ petition without prejudice to
renewing the challenge to the SVPA commitment petition when the post-Ronje
evaluation process is completed, based on the full reports of all post-Ronje evaluators.
ALLEGATIONS OF THE PETITION AND THE RETURN
In July 2008, the Orange County District Attorney filed a petition for
commitment as a sexually violent predator (the SVPA Petition), alleging Chambers was a
sexually violent predator under the SVPA. The SVPA Petition was based on an
evaluation from Mary Jane Alumbaugh, Ph.D., dated April 27, 2008, and an evaluation
conducted by Gary Zinik, Ph.D., dated April 10, 2008.
In August 2008, Judge Robert Fitzgerald reviewed the SVPA Petition and
found it stated sufficient facts which, if true, would constitute probable cause to believe
Chambers was likely to engage in sexually violent predatory criminal behavior on his
1 Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

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release from prison. As a consequence, Judge Fitzgerald ordered Chambers to be
detained pursuant to section 6601.5 in a secured facility until the probable cause hearing.
One week later, Judge Fitzgerald conducted a probable cause hearing at which he
received the evaluations prepared by Dr. Alumbaugh and Dr. Zinik. Judge Fitzgerald
found, pursuant to section 6602, probable cause existed to believe Chambers met the
criteria for commitment as a sexually violent predator.
In August 2008, the state Office of Administrative Law (OAL) issued 2008
OAL Determination No. 19, in which the OAL determined the 2007 version of the State
Department of Mental Health’s (DMH) assessment protocol amounted to an
“underground regulation” because portions of the assessment protocol, though regulatory
in nature, had not been adopted pursuant to the Administrative Procedure Act,
Government Code section 11340.5. (See Ronje, supra, 179 Cal.App.4th at p. 515.) In
Ronje, supra, 179 Cal.App.4th at pages 516-517, we agreed with the OAL and likewise
concluded the 2007 assessment protocol was invalid as an underground regulation.
In 2009, the DMH drafted a new standardized assessment protocol for
SVPA evaluations. Pursuant to Government Code section 11349.6, subdivision (d), the
OAL approved the new assessment protocol in September 2009.
In March 2010, Chambers 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 Chambers, 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. Alumbaugh
and Dr. Zinik to evaluate Chambers. In a report dated February 28, 2011,
Dr. Alumbaugh concluded Chambers no longer met the criteria for commitment as a
sexually violent predator. Dr. Zinik prepared a report dated April 18, 2011.

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In March 2011, Chambers filed a plea in abatement seeking dismissal of the
SVPA Petition based on the post-Ronje evaluation report of Dr. Alumbaugh. The district
attorney did not file a formal opposition, but the court considered the oppositions filed in
the related pleas in abatement that were before it.
On April 15, 2011, Judge Richard M. King issued an order denying the
pleas in abatement filed by Chambers and nine others. Dr. Zinik’s report was not
available when the trial court issued its order. As Dr. Zinik’s report was not before the
trial court, we decline to consider its contents and conclusions.
The next month, Chambers filed his petition for writ of mandate/prohibition
challenging that order. 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 Wright, supra, __ Cal.App.4th __, Boysel v. Superior Court (Mar. 28,
2012, G045202) __ Cal.App.4th __ (Boysel), and Reilly v. Superior Court (Mar. 28,
2012, G045118) __ Cal.App.4th __ (Reilly), we addressed whether, before the probable
cause hearing, a person named in an SVPA commitment petition may challenge the
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 Chambers’s plea in abatement to have constituted such a nonstatutory pleading.

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In Wright, Boysel, and Reilly, we addressed the effect of post-Ronje
evaluations in different scenarios. In Wright, 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, but there was no
evidence in the record that two independent post-Ronje evaluators have been appointed.
In Boysel, 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. 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 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 Wright, supra, __ Cal.App.4th __, in that the
post-Ronje evaluation process had not been completed when the trial court denied
Chambers’s plea in abatement. In a report dated February 28, 2011, Dr. Alumbaugh
concluded Chambers no longer met the criteria for commitment as a sexually violent
predator. Dr. Zinik’s report, dated April 18, 2011, was not available to the trial court
when it denied the plea in abatement on April 15. Although the district attorney has
supplied us the first page and the conclusion page of Dr. Zinik’s report, we decline to
consider them because the report was not presented to the trial court. In addition, we
note, only a two-page excerpt of Dr. Alumbaugh’s report was presented to the trial court.
Depending on the conclusion of Dr. Zinik’s report, it might be necessary,
under section 6601, subdivision (c), to appoint two post-Ronje independent evaluators to

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examine Chambers and determine whether he met the statutory criteria for commitment
as a sexually violent predator. There was no evidence in the record that two independent
post-Ronje evaluators have been appointed.
As in Wright, the trial court did not err by denying Chambers’s plea in
abatement because the statutorily required evaluation process had not been completed.
Also as in Wright, our decision to deny Chambers’s writ petition is without prejudice to
renewing the challenge to the SVPA Petition by motion or pleading pursuant to Ghilotti
when the post-Ronje evaluation process, including, if necessary, two independent
evaluations, is completed. The full reports of all post-Ronje evaluators must be attached
to or included with any such Ghilotti motion or pleading.
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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