Filed 1/14/14 Gordon v. Superior Court 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 and Frank Ospino, Public Defenders, Jean Wilkinson, 

Chief Deputy Public Defender, Denise Gragg and Mark S. Brown, Assistant Public 

Defenders, for Petitioner.
2

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

 In our prior opinion, Gordon v. Superior Court (Mar. 28, 2012, G045207) 

(nonpub. opn.), review granted June 27, 2012, S202322, we denied Gordon’s petition for 

writ of mandate/prohibition, which sought a writ directing the respondent court to grant 

his plea in abatement and dismiss the commitment petition.

The California Supreme Court granted review of our opinion. After issuing 

its decision in Reilly v. Superior Court (2013) 57 Cal.4th 641 (Reilly), the Supreme Court 

transferred this matter to us for reconsideration in light of that decision. No party filed a 

supplemental brief pursuant to rule 8.200(b)(1) of the California Rules of Court.

As the Supreme Court directed, we have reconsidered this matter in light of 

Reilly and again deny Gordon’s petition for writ of mandate/prohibition. Our decision is 

without prejudice to Gordon challenging the probable cause determination pursuant to 

Reilly, supra, 57 Cal.4th at pages 656-657, footnote 5, and without prejudice to Gordon 

and the People obtaining further examinations and evaluations permitted by the SVPA. 

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 

 

 

1

 Further code references are to the Welfare and Institutions Code unless otherwise 

indicated.
3

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. 

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 Office of Administrative Law (OAL) issued 2008 OAL 

Determination No. 19, in which the OAL determined the 2007 version of the State 

Department of State Hospitals (SDSH), Clinical Evaluator Handbook and Standardized 

Assessment Protocol (Aug. 2007) (2007 SAP), used for SVPA evaluations, amounted to 

an “underground regulation” because portions of the assessment protocol, though 

regulatory in nature, had not been adopted pursuant to Government Code 

section 11340.5, part of the Administrative Procedure Act (APA; Gov. Code, § 11340 et 

seq.). (2008 OAL Determination No. 19 (Aug. 15, 2008) p. 3, available at 

<http://www.oal.ca.gov/res/docs/pdf/determinations/2008/2008_OAL_Determination_19

.pdf> [as of Jan. 14, 2014]; see Reilly, supra, 57 Cal.4th at p. 649.) In In re Ronje (2009) 

179 Cal.App.4th 509, 516-517 (Ronje), disapproved in Reilly, supra, 57 Cal.4th 641, we 

agreed with the OAL and likewise concluded the 2007 SAP was invalid as an 

underground regulation. In 2009, the SDSH issued the Standardized Assessment 

Protocol for Sexually Violent Predator Evaluations (Feb. 2009) (2009 SAP), as the new 

standardized assessment protocol for SVPA evaluations. In February 2009, the OAL 

took emergency regulatory action to adopt part of the 2009 SAP. In September 2009, the 

OAL made permanent the emergency regulatory action.
4

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 SDSH 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 

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 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, the respondent court issued an order denying the plea in 

abatement filed by Gordon. 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. In our prior opinion, we denied Gordon’s writ petition. We concluded that 

“the trial court did not err by denying Gordon’s plea in abatement because the 

[post-Ronje] evaluation process had not been completed.” (Gordon v. Superior Court, 

supra, G045207.)

DISCUSSION

In Reilly, supra, 57 Cal.4th at page 646, the California Supreme Court 

addressed the issue whether a court must dismiss an SVPA commitment petition that was 

supported by evaluations conducted under an invalid standardized assessment protocol. 
5

The initial evaluations of the alleged sexually violent predator in Reilly had been 

conducted under the standardized assessment protocol later deemed invalid by the OAL. 

(Ibid.) The trial court found probable cause and set the matter for trial. (Id. at p. 650.) A 

year later, new evaluations pursuant to Ronje were ordered, and the two initial post-Ronje

evaluators agreed the alleged sexually violent predator no longer met the criteria for 

commitment as a sexually violent predator. (Reilly, supra, at pp. 650-651.) The alleged 

sexually violent predator sought a writ of mandate or prohibition to compel the trial court 

to grant his plea in abatement to dismiss the SVPA commitment petition. (Id. at p. 651.) 

We granted the petition in an opinion concluding that dismissal of the SVPA 

commitment petition was required because it was not supported by two concurring 

evaluations, as required by section 6601. (Reilly, supra, at p. 651.) 

The California Supreme Court reversed our judgment. (Reilly, supra, 57 

Cal.4th at p. 646.) The Supreme Court concluded a court is not required to dismiss 

commitment proceedings under the SVPA if the OAL determines that the initial 

evaluations supporting the petition were conducted under an assessment protocol that did 

not comply with the OAL’s procedural requirements. (Reilly, supra, at p. 646.) 

“Instead,” the Supreme Court concluded, “an alleged sexually violent predator (SVP) 

must show that any fault that did occur under the assessment protocol created a material

error. [Citation.]” (Ibid.) The Supreme Court disapproved Ronje because it did not 

require the alleged sexually violent predator also to show such material error. (Reilly, 

supra, at p. 655.)

Under the Supreme Court’s opinion in Reilly, Dr. Schwartz’s May 2002 

evaluation report and Dr. Jackson’s May 2002 evaluation report were sufficient to 

support the filing of the SVPA Petition against Gordon unless he showed that any fault 

occurring under the standardized assessment protocol in use at that time created “a 

material error.” (Reilly, supra, 57 Cal.4th at p. 646.) Gordon has not made such a 

showing.
6

In Reilly, unlike this case, the alleged sexually violent predator had been the 

subject of updated evaluations, pursuant to section 6603, subdivision (c), that were 

performed in accordance with the 2009 SAP. (Reilly, supra, 57 Cal.4th at p. 650.) Those 

updated evaluations, conducted before the post-Ronje evaluations, concluded the alleged 

sexually violent predator met the criteria for commitment under the SVPA. (Reilly, 

supra, at p. 650.) The Supreme Court stated: “In this case, two evaluators concluded in 

2008, under the 2007 protocol, and again in 2009, under the subsequently adopted 2009 

protocol, that Reilly was an SVP [(sexually violent predator)]. Under these 

circumstances, where Reilly was found to be an SVP under the new protocol, it is clear 

that the 2007 protocol error did not materially affect the outcome of his probable cause 

hearing. Reilly has therefore not shown that the invalid assessment protocol materially 

affected his initial evaluations.” (Id. at p. 656.)

Other than the post-Ronje evaluations, Gordon has not been evaluated 

under the 2009 SAP. In 2004, the trial court found probable cause to believe Gordon met 

the criteria for commitment as a sexually violent predator. Footnote 5 of Reilly, supra, 57 

Cal.4th at pages 656-657, is therefore applicable. Footnote 5 reads: “Although not 

applicable here, in future cases in which the alleged SVP [(sexually violent predator)] has 

only been evaluated under the 2007 assessment protocol and in which a court finds 

probable cause that the individual meets the SVP criteria, the individual may petition the 

court to set aside the probable cause determination on the ground that the use of the 

invalid 2007 assessment protocol materially affected the outcome of the hearing. The 

court may then order new evaluations under section 6603 et seq., using the 2009 

assessment protocol, and may, in its discretion, order a new probable cause hearing if the 

new evaluations support the petition. If a 2007 assessment protocol error is identified 

before a probable cause determination, the alleged SVP may file a plea in abatement 

asserting the procedural error and asking the court to substitute new evaluations that use 

the 2009 assessment protocol.” (Reilly, supra, at pp. 656-657, fn. 5.)
7

Our decision to deny Gordon’s petition for writ of mandate/prohibition is 

therefore without prejudice to Gordon challenging the probable cause determination 

pursuant to Reilly, supra, 57 Cal.4th at pages 656-657, footnote 5. In addition, our 

decision is without prejudice to Gordon and the People exercising their statutory rights 

under the SVPA to obtain new or updated evaluations under section 6603, 

subdivisions (a) and (c)(1). (See Reilly, supra, at p. 657.)

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.