People v. Superior Court CA4/3

Filed 2/24/15 P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Petitioner,

v. G050827

THE SUPERIOR COURT OF ORANGE (Super. Ct. No. M9531) COUNTY, OPINION Respondent;

RICHARD ANTHONY SMITH,

Real Party in Interest.

Original proceedings; petition for a writ of mandate and/or prohibition to challenge an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Petition granted. Tony Rackauckas, District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Petitioner. No appearance for Respondent.

Frank Ospino, Public Defender, Sharon Petrosino, Chief Deputy Public Defender, and Mark S. Brown, Assistant Public Defender, for Real Party in Interest. * * * INTRODUCTION The issue presented by this writ proceeding is whether a mental health expert retained by the petitioner in an action brought under the Sexually Violent Predator 1 Act, Welfare and Institutions Code section 6600 et seq. (SVPA), may review the lawfully obtained evaluations of the alleged sexually violent predator and the mental health records and documents supporting those evaluations. Under the facts presented here, we resolve that issue in the affirmative. Richard Anthony Smith is the subject of a commitment petition filed pursuant to the SVPA. The district attorney brought a motion seeking an order to allow a retained expert to review evaluations of Smith conducted under section 6603, subdivision (c)(1) (section 6603(c)(1)) and to review the records and documents supporting those evaluations. Based on a prior unpublished opinion in this matter, the respondent court denied the motion. The respondent court stated, “the district attorney will not be able to hire an expert and will not be able to utilize the documents that are subpoenaed for the expert’s independent review.” The district attorney brought a petition for writ of mandate and/or prohibition to overturn the respondent court’s order. In January 2015, we issued a notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 (Palma) and invited Smith to file a supplemental informal response to address the advisability of issuing a peremptory writ in the first instance. Smith filed a supplemental informal response. We grant the petition and direct the issuance of a peremptory writ of mandate in the first instance.