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Name: Reilly v. Superior Court
Case #: S202280
Court: CA Supreme Court
District CalSup
Opinion Date: 08/19/2013

Petitioner’s SVP recommitment was wrongly set aside where doctors evaluated him under an invalid assessment protocol, but there was no finding of material error. Reilly was committed as a sexually violent predator (SVP) and, in 2008, the Department of Corrections and Rehabilitation sought his recommitment. Two doctors evaluated him under the applicable assessment protocol and concluded that he was still an SVP. A recommitment petition was filed. While the petition was pending, the assessment protocol used in the evaluations was determined to be invalid and the doctors conducted updated evaluations under a new emergency protocol that was adopted in 2009. They again concluded that Reilly was an SVP. In March 2010, Reilly asked the trial court to cancel his trial, conduct new evaluations, and hold a new probable cause hearing in light of In re Ronje (2009) 179 Cal.App.4th 509, which concluded that alleged SVPs who had been evaluated under the invalid 2007 protocol were entitled to entirely new evaluations and a new probable cause hearing based on them. The court granted the motion, new evaluations were conducted, and both doctors concluded that Reilly no longer met the criteria for commitment as an SVP. Reilly then sought dismissal of the commitment petition. The trial court denied the dismissal, and Reilly filed a petition for writ of mandate. The appellate court granted the writ petition, holding that dismissal was required because the third evaluations of Reilly did not meet the requirements of section 6601, subdivision (e) or (f), no petition could be filed without two concurring evaluations, and the trial court lacked jurisdiction to conduct further proceedings. The Supreme Court granted the prosecutor’s petition for review and reversed. The trial court was not required to dismiss the commitment proceedings under these circumstances. Instead, an SVP must show that any fault that occurred under the assessment protocol created a material error. The court disapproved Ronje to the extent it omitted the materiality requirement. The 2007 and 2009 SVPA assessment protocols differ and courts should decide how they might affect a particular evaluation on the merits of each case. Here, Reilly was found to be an SVP under the new protocol, so it is clear that the 2007 protocol error did not materially affect the outcome of his probable cause hearing.