Gordon v. Super. Ct.

Filed 3/28/12 Gordon 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
DONALD GORDON,
Petitioner,
v.
THE SUPERIOR COURT OF ORANGE
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
G045207
(Super. Ct. No. M9642)
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
Donald Gordon 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 2002, the Orange County District Attorney filed a petition for
commitment as a sexually violent predator (the SVPA Petition), alleging Gordon was a
sexually violent predator under the SVPA. The SVPA Petition was based on an
evaluation from Mark Schwartz, Ph.D., dated May 22, 2002, and an evaluation conducted
by Charles Jackson, Ph.D., also dated May 22, 2002. In July 2004, Douglas Korpi,
Ph.D., completed a replacement evaluation and concluded Gordon 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 August 2004, Judge Daniel J. Didier conducted a probable cause hearing
in which he received the evaluations prepared by Dr. Schwartz, Dr. Jackson, and
Dr. Korpi. Judge Didier found, pursuant to section 6602, probable cause existed to
believe Gordon met the criteria for commitment as a sexually violent predator.
Dr. Schwartz and Dr. Korpi completed updated evaluations of Gordon in
2006. Both Dr. Schwartz and Dr. Korpi concluded Gordon continued to meet 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, Gordon 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 Gordon, 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. Schwartz and
Dr. Korpi to reevaluate Gordon. In a report dated February 25, 2011, Dr. Schwartz
concluded Gordon continued to meet the criteria for commitment as a sexually violent

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predator. In a report dated February 22, 2011, Dr. Korpi concluded Gordon no longer
met those criteria.
In March 2011, Gordon filed a plea in abatement seeking dismissal of the
SVPA Petition based on the most post-Ronje evaluation reports of Dr. Schwartz and Dr.
Korpi. The district attorney filed opposition to the plea in abatement. In a supplemental
memorandum of points and authorities, Gordon 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 Richard M. King issued an order denying the pleas in
abatement filed by Gordon and nine others. The next month, Gordon 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 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

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probable cause hearing, on the ground of lack of the required concurring evaluations. We
deem Gordon’s plea in abatement to have constituted such a nonstatutory pleading.
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
Gordon’s plea in abatement. Here, there was a split decision between the two post-Ronje
evaluators. Thus, it was necessary, under section 6601, subdivision (c), to appoint two
post-Ronje independent evaluators to examine Gordon and determine whether he met the
statutory criteria for commitment as a sexually violent predator. In the reply, Gordon
asserts two independent evaluators were appointed and prepared reports dated,
respectively, August 25, 2011 and July 26, 2011. The record presented to us does not

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establish that the post-Ronje evaluation process had been completed when the trial court
denied the plea in abatement in April 2011.
Thus, as in Wright, the trial court did not err by denying Gordon’s plea in
abatement because the statutorily required evaluation process had not been completed.
Our decision to deny Gordon’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 is completed, depending on the outcome of the two
independent post-Ronje evaluations.
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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