Full opinion text
Opinion BAXTER, J. The Sexually Violent Predators Act (SVPA or Act) (Welf. & Inst. Code, § 6600 et seq.) provides a court process by which certain convicted violent sex offenders, whose current mental disorders make them likely to reoffend if free, may be committed, at the end of their prison terms, for successive two-year periods of state hospital confinement and treatment as long as the disorder-related danger persists. Before an SVPA commitment or recommitment proceeding may even be initiated, at least two mental health professionals designated by the Director of the State Department of Mental Health (Director) must evaluate the candidate under a standardized assessment protocol to determine whether, as the result of a diagnosed mental disorder, the person is likely to commit new acts of criminal sexual violence unless confined and treated. (§ 6601.) Petitioner Patrick Henry Ghilotti served two separate prison terms for multiple violent sex offenses committed in Marin County. He has been in state hospital confinement under the SVPA since his second prison term expired in 1998. Recently, psychologists designated by the Director conducted formal evaluations of Ghilotti’s current condition to determine whether he should be recommitted for an additional SVPA term, or should instead be released without conditions. The People concede these evaluators ultimately concluded that Ghilotti no longer meets the statutory criteria for commitment. However, the Director disagreed with the designated evaluators’ recommendations. According to the Director, the evaluators’ reports agreed that supervision and treatment are important to reduce Ghilotti’s risk of reoffense. In the Director’s view, the reports actually disclosed a likelihood that Ghilotti will reoffend if released without such conditions. Moreover, the Director asserted, hospital psychiatrists most familiar with Ghilotti’s treatment progress are convinced that he is not ready for unconditional release, and that his mental disorder still creates a high danger of reoffense in that circumstance. Therefore, despite the evaluators’ contrary recommendations, the Director wrote to the Marin District Attorney, asking her to file a superior court petition seeking Ghilotti’s recommitment. The district attorney did so. The petition attached the Director’s letter, which expressed his disagreement with the evaluators’ conclusions and indicated his further concern that, by correct statutory criteria, the evaluators’ reports actually supported Ghilotti’s recommitment. Also attached to the petition were declarations from hospital psychiatrists urging that Ghilotti is not yet suitable for unsupervised release. However, the designated evaluators’ reports themselves were not provided to the superior court. The district attorney did not ask the court to review the reports to determine if they reached their conclusions by incorrect statutory standards and were therefore legally deficient. Instead, she argued that the Director may disregard the designated evaluators’ recommendations, and may request the filing of a petition for commitment or recommitment, if he independently concludes the candidate is or remains dangerously disordered and likely to reoffend without treatment and custody. The superior court expressed concern that the designated evaluators’ reports had incorrectly applied the statutory criteria and were thus legally “incompetent.” However, the court rejected the district attorney’s sole argument that the Director may request a petition without regard to the contrary recommendations of the designated evaluators. Accordingly, the superior court dismissed the petition and ordered Ghilotti’s release. The People sought mandamus and a temporary stay in the Court of Appeal, raising again the single argument the superior court had rejected. The Court of Appeal summarily denied relief, making clear it agreed with the superior court that the Director cannot simply overrule or disregard the designated evaluators’ recommendations against commitment. We granted review and issued an order to show cause, staying Ghilotti’s release in the meantime, to address the issue presented in the courts below and to consider certain additional issues that are potentially important to the proper disposition of this and other SVPA proceedings, and otherwise might evade review. The matter was set for expedited briefing and argument. We now reach the following conclusions: First, contrary to the People’s argument below, a petition seeking the commitment or recommitment of a person as a sexually violent predator cannot be filed unless two mental health professionals, specifically designated by the Director under statutory procedures to evaluate the person for this purpose, have agreed, by correct application of the statutory standards, that the person “has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.” (§ 6601, subd. (d).) Second, this statutory standard is met if, because of the person’s diagnosed mental disorder, he or she currently presents a substantial danger— that is, a serious and well-founded risk—of criminal sexual violence unless maintained in an appropriate custodial setting which offers mandatory treatment for the disorder. On the other hand, section 6601, subdivision (d), does not require an evaluator to determine there is a better than even chance of new criminal sexual violence if the person is free of custody and mandatory treatment. An evaluator’s conclusion that one does not meet the criteria for commitment or recommitment is legally erroneous if it stems from a conclusion that, although the person presents a serious and well-founded risk of reoffense if free without conditions, the evaluator cannot say the risk exceeds 50 percent. Third, an evaluator’s recommendation for or against commitment or recommitment is invalid if there appears a reasonable probability it was influenced by the evaluator’s legal error, including misinterpretation of the “likely to reoffend” standard. The recommendation of an evaluator is subject to judicial review for such material legal error at the behest of the appropriate party. If, upon review, the court finds no material legal error on the face of the report, the court shall deem the evaluator’s recommendation valid, and shall dispose of the petition accordingly. If the court finds material legal error on the face of the report, it shall direct that the erring evaluator prepare a new or corrected report applying correct legal standards. Because several of the issues we decide are matters of first impression, the courts and parties were unaware of the appropriate procedures at all stages below. Under the circumstances, we conclude we must vacate the Court of Appeal’s order denying mandamus. We will remand the cause to the Court of Appeal with directions (1) to issue a writ of mandamus vacating the superior court’s order dismissing the recommitment petition, and (2) to remand the matter to the superior court for further proceedings consistent with the views expressed herein. Facts On November 28, 2001, the Marin District Attorney filed in Marin Superior Court a petition (the 2001 recommitment petition) seeking Ghilotti’s recommitment to a two-year term of hospital confinement and treatment under the SVPA. The 2001 recommitment petition alleged: In March 1979 and September 1985, Ghilotti was convicted in Marin Superior Court of four counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)), which are sexually violent predatory offenses as defined by the SVPA. The offenses were against multiple victims. In September 1997, as Ghilotti’s prison terms for these crimes drew to a close, an SVPA commitment petition, supported by the evaluations of two designated mental health professionals, was filed in Marin Superior Court. In March 1998, a jury found Ghilotti to be a sexually violent predator (SVP) as defined by the Act, and he was committed for a two-year hospital term to expire on March 4, 2000. In December 1999, a recommitment petition, again supported by the reports of two designated evaluators, was filed. A probable cause hearing on the 1999 recommitment petition was set for April 3, 2000. Ghilotti then stipulated to an extension of his term until December 1, 2001. The 2001 recommitment petition continued: In December 2000, during his extended term, Ghilotti filed a petition under section 6608 for “release into a conditional release plan with terms and conditions. The court made a finding that . . . Ghilotti would be a suitable candidate for conditional release. Ultimately, on October 1, 2001, . . . Ghilotti refused to accept the terms and conditions of release as set forth by the Department of Mental Health and CONREP [(i.e., the conditional release program)] that would permit his release.” The 2001 recommitment petition further alleged: On November 9, 2001, the Director requested the district attorney to seek another two-year SVP commitment for Ghilotti. The request stated the Director’s opinion that Ghilotti still suffers from a mental disorder which makes him likely to engage in sexually violent criminal behavior as defined by the Act. The Director’s request and opinion were supported by the attached declarations of staff psychiatrists at Atascadero State Hospital, and of the Chief Counsel of the State Department of Mental Health. Finally, the 2001 recommitment petition averred: The district attorney’s office was aware that Robert M. Owen, Ph.D., and Wesley B. Maram, Ph.D., had been designated to evaluate Ghilotti pursuant to section 6601, subdivision (d), that the designated evaluators both concluded Ghilotti does not meet the criteria for recommitment, that the Director had “rejected Dr. Maram’s evaluation as . . . not meeting the necessary criteria for a Sexual Violent Predator evaluation, and that at the time of the filing of this Petition, another evaluation is being prepared.” Despite the “negative conclusion[s]” of Drs. Maram and Owen, the 2001 recommitment petition was being submitted under the authority of subdivision (h) of section 6601, based on the Director’s independent opinion that Ghilotti meets the criteria for recommitment. The 2001 recommitment petition prayed for a probable cause hearing and a jury trial on the issue of Ghilotti’s recommitment, and asked that he be ordered held in a secure facility until the matter was resolved. The reports of the designated evaluators were not attached to the 2001 recommitment petition. However, the petition did attach the Director’s letter requesting that the petition be filed. As indicated above, this letter stated the Director’s view that, as a result of his mental disorder, Ghilotti “is likely to engage in sexually violent criminal behavior, and thus continues to meet the legal requirement for . . . commitment [under the SVPA].” The letter also expressed the Director’s concerns about the validity of the designated evaluators’ recommendations. The letter noted that “[t]he Department [had] communicated with the evaluators that . . . Ghilotti [had] refused to accept the [conditional release] program [recently] offered by the Department and the court. The evaluations thus needed to reflect whether . . . Ghilotti was likely to engage in acts of sexual violence due to his mental disorder given the absence of community supervision and treatment, if [;unconditionally] released from hospital treatment and custody. Both psychologists concluded that the lack of community treatment constituted a risk factor that could lead . . . Ghilotti to return to committing sexually violent acts, [f] Despite citing the importance of community supervision in their reports, each psychologist concluded that . . . Ghilotti does not meet the criteria of a sexually violent predator as set forth in [section] 6600 et seq. These conclusions are based on their judgment as to the degree of risk for reoffense. Nonetheless, it is my opinion that each evaluator makes a threshold case in the body of each report that . . . Ghilotti is ‘likely’ to reoffend.” (Italics added.) On November 29, 2001, Ghilotti filed a written response, which challenged the legal validity of the 2001 recommitment petition. This pleading said: The 2001 recommitment petition conceded that two mental health professionals designated by the Director to evaluate whether Ghilotti now meets the criteria for recommitment had concluded he does not do so. Furthermore, Ghilotti’s counsel had that day received the reports of three psychologists, Drs. Maram and Owen, and Dale R. Arnold, Ph.D., “all of whom agree that Mr. Ghilotti does not now meet the statutory or forensic definitions of a sexually violent predator.” Under subdivision (d) of section 6601, an SVPA petition for commitment or recommitment cannot be filed without the concurrence of two such designated evaluators. Accordingly,.the 2001 recommitment petition should be dismissed, and Ghilotti should be released no later than December 1, 2001. The district attorney filed a reply on November 29, 2001. She argued that under subdivision (h) of section 6601, the Director may request a commitment or recommitment petition if, regardless of the opinions of the designated evaluators, he himself determines, on adequate evidence, that the person is an SVP. The superior court heard the matter on November 29, 2001. Present on behalf of the 2001 recommitment petition were a deputy from the Marin District Attorney’s Office, and Carl N. Elder, Jr., the Department’s Chief Counsel. The deputy district attorney acknowledged that since the filing of the 2001 recommitment petition, a third designated evaluator had prepared a report opining that Ghilotti does not meet the criteria for recommitment as an SVP. The deputy district attorney reiterated the argument that notwithstanding the evaluators’ views, subdivision (h) of section 6601 allows the Director to make an independent determination justifying the filing of a recommitment petition. The superior court immediately indicated its doubt about this statutory argument, suggesting that the statute’s plain wording appears to require the concurrence of designated evaluators. On the other hand, though the designated evaluators’ reports had not been placed before it, the court stated its concern, based on the papers which were presented, that the designated evaluators’ determinations might be legally “incompetent,” in that they had misapplied the statutory criteria. The court questioned Elder at length about whether the Department has taken steps to assure that its evaluators are applying correct criteria to reach their conclusions. However, when the deputy district attorney finally asked if it would be helpful for the court to review the reports, the court stated its belief that such review “is [not] really my province.” The court suggested it would feel more comfortable about proceeding if the Department would declare it had “determined [the existing evaluations] to be incompetent and [was] setting about finding appropriate evaluations based on correct criteria.” Elder expressed doubt he could “direct my Director to refer to [the reports] as incompetent.” Nonetheless, at the deputy district attorney’s request, the court ordered a one-day continuance to allow the Department to reconsider its position and, if it desired, to offer additional information based on the court’s remarks. The hearing resumed the following day, November 30, 2001. The deputy district attorney indicated that he had nothing further to offer. Accordingly, the court dismissed the petition and, finding no pending proceeding, declined to issue a temporary stay of Ghilotti’s release. The same day, November 30, 2001, the People, represented by the Attorney General, filed in the Court of Appeal a petition seeking mandamus and/or prohibition to overturn the trial court’s dismissal order, and a temporary stay of Ghilotti’s release. The mandate petition acknowledged that the evaluators designated by the Director to determine whether Ghilotti meets the criteria for recommitment had concluded he does not meet those criteria. The mandate petition reiterated the argument that an SVPA recommitment petition can be filed even absent the concurrence of designated evaluators. Again on November 30, 2001, the Court of Appeal, First Appellate District, Division Four, summarily denied relief. The Court of Appeal’s order stated: “A petition for commitment or recommitment under the [SVPA] shall only be filed if both mental health professionals selected to perform evaluations concur the person to be committed meets the criteria for commitment. (Welf. & Inst. Code, § 6601, subd[s]. (d), (f); Peters v. Superior Court (2000) 79 Cal.App.4th 845, 851 [94 Cal.Rptr.2d 350]. As the [mandate] petition admits that the mental health experts selected to evaluate [Ghilotti] concluded he did not meet the criteria for commitment, there was no legal basis for the petition for recommitment as a sexually violent predator.” The People immediately sought review and a stay in this court. On November 30, 2001, the Chief Justice issued a temporary stay of Ghilotti’s release from confinement pending the full court’s consideration of the petition for review, and ordered Ghilotti to file written opposition on or before December 7, 2001. On December 6, 2001, Ghilotti filed a written opposition as directed. On December 12, 2001, we granted review and directed issuance of an order to show cause. Our order included a reference to the relatively narrow issue presented to the courts below, namely, whether subdivision (h) of section 6601 allows the filing of a petition for recommitment or recommitment under the SVPA without the concurrence of two designated mental health evaluators. However, the case presents additional concerns of substantial importance. The Director, and hospital psychiatrists familiar with Ghilotti’s case, have invoked the SVPA’s core public safety concerns by asserting that Ghilotti remains likely to reoffend, within the meaning of the statute, if unconditionally released. The Director has further voiced reservations about the means by which Ghilotti’s evaluators reached contrary conclusions. These matters were alluded to in the proceedings below, where the superior court itself questioned the legal “[ ]competence” of the designated evaluators’ conclusions and expressed doubt that Ghilotti is suitable for unsupervised release. However, there was understandable uncertainty about how to proceed in this situation. We therefore deemed it necessary to expand our order to include additional issues. Accordingly, our order also directed the parties to brief and argue the following questions: First, if section 6601 allows the filing of a commitment or recommitment petition only with the concurrence of designated evaluators, when, if ever, should the trial court examine evaluators’ reports for material legal error, and what steps should be taken if such error is found? Second, what is the meaning of the statutory standard on which the evaluators are to opine, i.e., whether the person under evaluation has a diagnosed mental disorder “so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody” (§ 6601, subd. (d), italics in order)? Our order further provided: “Pending resolution of the petition for writ of mandate or further order of this court, whichever occurs sooner, the trial court’s order dismissing the petition for petitioner’s recommitment under the [SVPA], petitioner’s release from confinement in a secure mental health facility, and all further trial court proceedings in this matter, are hereby stayed. (People v. Superior Court (Johannes) (1999) 70 Cal.App.4th 558, 561-562, fn. 5 [when a trial court dismisses a petition filed under the [SVPA], ‘the People . . . may seek writ review and a temporary stay where the dismissal will result in the release of one potentially dangerous to the public, until the propriety of the dismissal order can be reviewed’]; People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 833-835 [similar holding with regard to the Mentally Disordered Offender Law (Pen. Code, § 2960 et seq.].)” We turn to an examination of the specified issues. Discussion A. Overview of the SVPA. The SVPA took effect on January 1, 1996. (Stats. 1995, ch. 763, § 3.) It provides for the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be SVP’s because they have previously been convicted of sexually violent crimes and currently suffer diagnosed mental disorders which make them dangerous in that they are likely to engage in sexually violent criminal behavior. (§ 6600 et seq.) One’s initial or extended commitment under the SVPA depends upon his or her status as an SVP. An SVP is “a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) “ ‘Diagnosed mental disorder’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” {Id., subd. (c).) “The process for determining whether a convicted sex offender meets the foregoing requirements takes place in several stages, both administrative and judicial. Generally, the Department of Corrections screens inmates in its custody who are ‘serving a determinate prison sentence or whose parole has been revoked’ at least six months before their scheduled date of release from prison. (§ 6601, subd. (a).) .... If officials find the inmate is likely to be an SVP, he is referred to the Department ... for a ‘full evaluation’ as to whether he meets the criteria in section 6600. (§ 6601, subd. (b).)” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1145 [81 Cal.Rptr.2d 492, 969 P.2d 584] (Hubbart), fn. omitted.) “The . . . Department. . . shall evaluate the person in accordance with a standardized assessment protocol ... to determine whether the person is a sexually violent predator as defined in this article. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders [, including] criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (§ 6601, subd. (c).) “Pursuant to subdivision (c) [of section 6601], the person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, designated by the Director .... If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director shall forward a request for a [commitment] petition ... to the county designated in [section 6601,] subdivision (i)” (§ 6601, subd. (d)), i.e., the county where the offender was convicted of the crime for which he is currently imprisoned. If one such evaluator finds that the person meets the criteria set forth in section 6601, subdivision (d), but the other evaluator disagrees, “the Director . . . shall arrange for further examination of the person by two independent professionals.” (§ 6601, subd. (e).) Persons designated as “independent professionals]” may not be state government employees, “shall include psychiatrists and licensed psychologists who have a doctoral degree in psychology,” and must have at least five years of experience in the diagnosis of mental disorders. (Id., subd. (g).) “If an examination by independent professionals pursuant to subdivision (e) [of section 6601] is conducted, a petition [for] commitment . . . shall only be filed if both independent professionals . . . concur that the person meets the criteria for commitment specified in [section 6601,] subdivision (d).” (§ 6601, subd. (f).) “[I]f the . . . Department . . . determines that the person is a sexually violent predator as defined in this article, the Director . . . shall forward a request for a [commitment] petition ... to the county designated in [section 6601,] subdivision (i).” (§ 6601, subd. (h).) When a petition request is forwarded by the Director, and the county’s legal counsel agrees with the request, a petition for commitment is filed in the superior court. (§ 6601, subd. (i).) “The filing of the petition triggers a new round of proceedings under the Act. The superior court first holds a hearing [at which the person is entitled to the assistance of counsel] to determine whether there is ‘probable cause’ to believe that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. (§ 6602, as amended by Stats. 1996, ch. 4, § 4, and by Stats. 1998, ch. 19, § 3.) . . .If no probable cause is found, the petition is dismissed. However, if the court finds probable cause within the meaning of this section, the court orders a trial to determine whether the person is an SVP under section 6600. . . . (§ 6602[, subds. (a), (b)].)” (Hubbart, supra, 19 Cal.4th 1138, 1146-1147, fns. omitted.) “At trial, the alleged predator is entitled to ‘the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and [to] have access to all relevant medical and psychological records and reports.’ (§ 6603, subd. (a).) Either party may demand and receive trial by jury. (Id., subds. (a) & (b); see id., subd. (c).)” (Hubbart, supra, 19 Cal.4th 1138, 1147.) “The trier of fact is charged with determining whether the requirements for classification as an SVP have been established ‘beyond a reasonable doubt.’ (§ 6604.) Any jury verdict on the issue must be ‘unanimous.’ (§ 6603, subd. (d).) . . . [Wjhere the requisite SVP findings are made, ‘the person shall be committed for two years to the custody of the . . . Department ... for appropriate treatment and confinement in a secure facility . . . .’ ([§ 6604].)” (Hubbart, supra, 19 Cal.4th 1138, 1147.) Any extended term of commitment shall also be for two years, and shall commence on the day the previous term expires. (§ 6604.1, subd. (a).) As a prerequisite to any recommitment for an extended term, “[t]he person shall be evaluated by two practicing psychologists or psychiatrists, or by one practicing psychologist and one practicing psychiatrist, designated by the . . . Department .... The provisions of subdivisions (c) to (i), inclusive, of Section 6601 shall apply to evaluations performed for purposes of extended commitments. The rights, requirements, and procedures set forth in Section 6603 shall apply to extended commitment proceedings.” (§ 6604.1, subd. (b).) B. Issues presented 1. May an SVPA recommitment petition be filed without the concurrence of two designated evaluators, as set forth in section 6601, subdivision (d), or two independent evaluators, as set forth in section 6601, subdivisions (e) and If)? As below, the People argue that the Director may request the filing of a petition for commitment or recommitment even if the evaluations performed under subdivisions (c) through (f) of section 6601 do not produce the concurrence of two designated evaluators under subdivision (d), or of two independent professionals under subdivisions (e) and (f), that the person meets the criteria for commitment. The People point to subdivision (h) of section 6601, which states that the Director “shall” request such a petition “[i]f the . . . Department . . . determines that the person is a sexually violent predator as defined in this article. . . .” (Italics added.) In the People’s view, subdivision (h) operates independently of subdivisions (c) through (f), and makes such a request mandatory if, despite the evaluators’ contrary conclusions, the Director himself, upon reviewing the evidence, reaches a “determin[ation]” that the person is, or remains, an SVP. We agree with the superior court and the Court of Appeal that this is not a plausible reading of the statute. “ ‘To determine legislative intent, a court begins with the words of the statute, because they generally provide the most reliable indicator of legislative intent.’ [Citation.] If it is clear and unambiguous our inquiry ends. There is no need for judicial construction and a court may not indulge in it. [Citation.] ‘If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.’ [Citation.]” (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1047 [80 Cal.Rptr.2d 828, 968 P.2d 539].) Here, the plain language of section 6601 refutes the People’s argument. Subdivisions (b) through (g) of section 6601 set forth the procedures, including the concurrence of two mental health evaluators, by which the Department must make the “determin[ation]” to which subdivision (h) refers. Subdivision (h), in turn, refers to a “determin[ation]” made by resort to those procedures, not in disregard of them. As we have seen, subdivision (b) of section 6601 provides that when a person may be eligible for commitment or recommitment as an SVP, the person shall undergo a “full evaluation” by the Department. (Italics added.) Under subdivision (c) of section 6601, the Department “shall evaluate the person” (italics added) by means of a “standardized assessment protocol” that considers diagnosable mental disorders and various factors known to bear upon a sex offender’s risk of reoffense. Under subdivision (d) of section 6601, “the person shall be evaluated” (italics added) by two practicing psychologists or psychiatrists “designated by the Director,” and if both “evaluators” agree “that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody,” the Director “shall forward” a petition request to the proper county. (Italics added.) However, under subdivision (e) of section 6601, if “the professionals performing the evaluation pursuant to subdivision (d)” are split on whether the person meets the criteria for commitment or recommitment, “the Director . . . shall arrange for further examination of the person by two independent professionals” (italics added) who meet qualifications set forth in section 6601, subdivision (g). Under subdivision (f) of section 6601, a petition “shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d).” (Italics added.) Finally, under subdivision (h) of section 6601, the Director “shall” forward a petition request to the appropriate county “[i]f the . . . Department . . . determines that the person is a sexually violent predator as defined in this article . . . .” “Copies of the evaluation reports and any other supporting documents shall be made available” to the county’s attorney. (Ibid., italics added.) The clear import of this scheme is that the Department’s “determin[ation]” under section 6601, subdivision (h), is governed by the evaluation procedure described at length in subdivisions (c) through (g) of the same section. When subdivisions (c) through (h) of section 6601 are read together, they ascribe the Director’s authority as follows: Before requesting a petition, the Director must designate two mental health professionals to evaluate the person. If these two evaluators agree that the person meets the criteria for commitment, the Director must request a petition. If, however, these first two evaluators do not agree on that issue, the Director must arrange a further examination by two independent professionals. If these independent professionals also do not concur that the person meets the criteria for commitment, the Director may not request the filing of a petition. The authorities uniformly support our conclusion. In Hubbart, supra, 19 Cal.4th 1138, we said that “[t]wo evaluators must agree that the inmate is mentally disordered and dangerous within the meaning of section 6600 in order for proceedings to go forward under the Act. (§ 6601, subd. (d).)” (Hubbart, supra, at p. 1146; see also Albertson v. Superior Court (2001) 25 Cal.4th 796, 799 [107 Cal.Rptr.2d 381, 23 P.3d 611].) The Courts of Appeal have so assumed, specifically applying the rule to extended commitments under the SVPA. (People v. Superior Court (Gary) (2000) 85 Cal.App.4th 207, 213-218 [101 Cal.Rptr.2d 874]; Peters v. Superior Court, supra, 79 Cal.App.4th 845, 848-851; Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 1178-1182 [93 Cal.Rptr.2d 468] (Butler).) As the Butler court remarked, “The Legislature specifically provided that the [Department] may not request a petition for commitment if only one of the two evaluators concludes that the person meets the criteria for commitment under the SVPA. (§ 6601, subd. (e).) This indicates that the Legislature felt it important for two professionals to concur in their evaluations of a potential SVP’s mental condition before a petition for commitment could be filed.” (Butler, supra, at p. 1180.) A 2000 amendment to section 6604.1 added subdivision (b), making clear that the evaluation process set forth in “subdivisions (c) to (i), inclusive,” of section 6601 applies to petitions for recommitment for extended terms under the SVPA. At least one Court of Appeal has ruled that section 6604.1, subdivision (b), precludes the filing of a recommitment petition without the concurrence of two professional evaluators under section 6601. (People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1127 [105 Cal.Rptr.2d 159].) The People urge, however, that subdivisions (d) through (f) of section 6601 must be reconciled with subdivision (h), which requires the Department to request a petition if it “determines that the person is a sexually violent predator.” Indeed, the People suggest, the responsibility for a “full evaluation” of the person (§ 6601, subd. (b)), as provided in subdivisions (b) and (c) of section 6601, is not placed on the individual evaluators described in subdivisions (d) through (f), but on the Department as a distinct entity, and the evaluators’ conclusions do not negate the Department’s independent duty to “determine[ ],” under subdivision (h), who is an appropriate candidate for commitment or recommitment. All subdivisions of section 6601 may be harmonized to this end, the People assert, by construing that section as follows: The Director must request a petition if the evaluators designated under subdivision (d) concur; he may do so if the independent evaluators appointed under subdivision (e) concur; but in any event, he must do so if he independently determines, under subdivision (h), that the person under examination is an SVP. However, the People’s proposed construction ignores the express language of subdivisions (e) and (f) of section 6601. That language specifies that if the two original evaluators fail to agree the person should be committed or recommitted, the Director “shall arrange” for additional evaluations by “two independent professionals” (id., subd. (e)), and a petition “shall only be filed if both independent professionals” agree (id., subd. (f), italics added). Indeed, subdivision (h) of section 6601 itself makes clear that the “determin[ation]” described in subdivision (h) flows from the evaluation process. The subdivision provides that when, upon the Department’s “deter-min[ation],” a petition request is forwarded, “[c]opies of the evaluation reports . . . shall be made available” to the attorney for the petitioning county. Contrary to the People’s assertion, this interpretation of the statutory scheme does not negate subdivision (h) of section 6601. Subdivision (h) importantly provides that once the Department does “determine,” by the process set forth in the preceding subdivisions, that the person meets the criteria for commitment or recommitment, “the Director . . . shall forward a request for a petition.” (Italics added.) The People insist that the purpose of the Act, i.e., to protect the public from dangerously disordered sex offenders, is best served by allowing the Director independently to determine the current mental status of an offender, such as Ghilotti, who is already under the Director’s treatment and custody. As the People observe, the Director, through consultation with the day-today treatment staff, may be better situated to assess the person’s condition than outside evaluators. Be that as it may, we cannot contravene the plain statutory language. As the Butler court indicated, in view of the loss of liberty involved in an involuntary SVP commitment, the Legislature may have felt that the initial screening process should include the formal concurrence of two mental health professionals. (See Butler, supra, 78 Cal.App.4th 1171, 1180.) Accordingly we, like the courts below, conclude that a petition for commitment or recommitment may not be filed unless two evaluators, appointed under the procedures specified in section 6601, subdivisions (d) and (e), have concurred that the person currently meets the criteria for commitment under the SVPA. 2. May and should the superior court review the evaluators’ reports to determine whether they are infected with legal error? As we have explained, a petition for commitment or recommitment under the SVPA cannot be filed unless two designated evaluators under section 6601, subdivision (d), or two independent evaluators under section 6601, subdivision (e), concur that the person meets the criteria for commitment. Insofar as the evaluators’ recommendations represent the application of their professional expertise and judgment within statutory requirements, those recommendations conclusively determine whether an SVPA petition may be filed. On the other hand, the statute does not allow the evaluators utter free rein. Instead, it imposes certain specific standards on their assessments. They must examine the person “in accordance with a standardized assessment protocol” that considers “diagnosable mental disorders, as well as various factors,” including “criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder,” which factors are “known to be associated with the risk of reoffense among sex offenders.” (§ 6601, subd. (c).) On this basis, the evaluators are to answer a crucial question, i.e., whether “the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.” {Id., subd. (d), italics added.) The evaluators’ professional judgment is therefore to be exercised within a specified legal framework, and their legally accurate understanding of the statutory criteria is crucial to the Act’s proper operation. In the case before us, questions have arisen whether one or more of the designated evaluators, lacking guidance as to the meaning of the statutory criteria, may have understood them inaccurately, and thus committed legal error, when reaching conclusions that Ghilotti does not qualify for recommitment under the SVPA. We must therefore determine the means of resolving that issue. The SVPA contains no express provision for judicial review of the reports of designated evaluators to determine whether they are infected with legal error. It appears to be an issue of first impression whether a court entertaining a petition for an involuntary civil commitment has authority to review for legal error the expert evaluations which are a prerequisite to the filing of such a petition. Under the SVPA, however, an affirmative conclusion is inherent in the statutory scheme, and in the nature of the judicial power. As we have indicated, the SVPA makes the evaluators’ conclusions, reached pursuant to the specific procedures and standards described above, critical to the legal authority to file a petition for commitment or recommitment. (§ 6601, subds. (d)-(f).) Without the concurrence of two evaluators, as set forth in the statute, no such petition may be filed, and the person must be unconditionally released without further proceedings to determine if he or she is an SVP. On the other hand, with such concurrence, a petition may be filed, and proceedings to determine whether the person is an SVP may go forward. The statutory scheme thus necessarily calls into question whether the evaluators, in reaching their conclusions at this critical gatekeeping stage, have accurately understood the statutory criteria. When such a question arises, the superior court entertaining the petition must address it. A distant analogy arises under the law allowing diversion of certain convicted persons for hospital treatment of their narcotics addictions. (§ 3050 et seq.) Under this law, a court, upon finding that the person is addicted, or in imminent danger of being addicted, to narcotics, and that the person’s pattern of criminality does not make him or her an unfit subject for diversion, may suspend execution of the sentence and commit the person to the California Rehabilitation Center (CRC) for appropriate treatment. (§ 3051.) However, if the Director of Corrections thereafter determines that “because of excessive criminality or for other relevant reason,” the person “is not a fit subject” for detention and treatment at CRC, that official shall return the person to the superior court for resumption of criminal proceedings. (§ 3053, subd. (a).) Though the CRC diversion statute does not expressly provide for judicial review of the decision of the Director of Corrections, case law has long held that the decision is judicially reviewable. (E.g., People v. Toscano (1977) 69 Cal.App.3d 140, 146-147 [137 Cal.Rptr. 893] [noting People’s right of appeal from judicial decision recommitting person to CRC after rejection by Director of Corrections]; People v. Peoro (1976) 56 Cal.App.3d 35, 39 [128 Cal.Rptr. 130] [same]; People v. Munoz (1973) 31 Cal.App.3d 87, 91 [107 Cal-Rptr. 451] [same]; People v. Morgan (1971) 21 Cal.App.3d 33, 38-39 [98 Cal.Rptr. 165]; People v. Berry (1967) 247 Cal.App.2d 846, 849-850 [56 Cal.Rptr. 123].) We say the analogy is “distant” because the procedural contexts of the two schemes are not identical. Under the CRC diversion statute, the Director makes a final decision to reject an already committed divertee (§ 3053, subd. (a)), while under the SVPA, the evaluators’ reports simply determine whether a commitment petition may be filed in the first instance. However, the premise is the same; the court has authority to provide legal oversight of an administrative determination which involves the exercise of discretion or judgment subject to statutory standards, and which has a legal effect on proceedings properly before the court. Ghilotti urges that the SVPA’s requirement of the concurrence of two evaluators (§ 6601, subds. (d)-(f)), together with the statute’s failure to provide specifically for judicial review of the evaluators’ reports, gives rise to a statutory right, and thus a state-created constitutional due process right (see Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 2229-2230, 65 L.Ed.2d 175]), to unquestioning reliance on the evaluators’ conclusions. Under these circumstances, Ghilotti insists, any judicial review of the evaluators’ analyses constitutes an act in excess of jurisdiction. (See Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 [109 P.2d 942, 132 A.L.R. 715].) We disagree. Ghilotti’s arguments beg the question of what the SVPA requires or forbids. As we have explained, the requirement that SVPA evaluators apply criteria set forth in the statute invokes the inherent judicial power to determine whether an evaluator’s recommendation stems, on its face, from an inaccurate understanding of those criteria, and thus constitutes legal error. Nothing in the SVPA indicates otherwise. Of course, the court entertaining an SVPA commitment or recommitment petition does not have a sua sponte duty to examine the reports of designated evaluators in every case. The court should exercise its authority to do so only where the issue is properly in dispute. On the other hand, the Director, who has custody of persons committed under the SVPA, oversees their diagnosis and treatment while they are committed, and is responsible for the initiation of commitment or recommitment proceedings, cannot be powerless to take action for the public safety when he disagrees, on legal grounds, with evaluators’ conclusions that a person does not meet the criteria for commitment or recommitment. Means must exist by which he can make that issue the subject of judicial inquiry. Thus, in future cases like this one, when the Director (1) receives one or more formal evaluations that recommend against commitment or recommitment, (2) disagrees with those recommendations, (3) believes they may be infected with material legal error, and (4) does not choose, or is not permitted within the statutory scheme, to seek additional evaluations, he may nonetheless forward a request that an SVPA commitment or recommitment petition be filed, and the county’s attorney may submit such a petition for filing, with copies of the evaluators’ reports attached. (See, e.g., In re Parker (1998) 60 Cal.App.4th 1453, 1468-1469, fn. 15 [71 Cal.Rptr.2d 167].) The person named in the petition may then file a pleading challenging the validity of the petition on grounds that it is not supported by the concurrence of two evaluators under section 6601, subdivisions (d) through (f). In response, the petitioning authorities may defend the petition by asserting that one or more nonconcurring reports are infected by legal error. Similarly, if the Director has obtained reports that do concur the person meets the criteria for commitment or recommitment, and a petition is filed on that basis, the evaluators’ reports should also be attached to the petition. The person may then file a pleading challenging the petition’s validity on grounds that one or more of the supposedly concurring reports are infected by legal error. We stress that such judicial review is limited to whether one or more evaluators’ reports are infected by material legal error. An evaluator’s report is infected with legal error if, on its face, it reflects an inaccurate understanding of the statutory criteria governing the evaluation. On the other hand, judicial review of an evaluator’s report does not extend to matters of debatable professional judgment within an evaluator’s expertise. The professional determinations of an evaluator, insofar as based on consideration and application of correct legal standards, is conclusive at the initial screening .stage set forth in section 6601. If the court concludes that one or more evaluators has committed legal error in reaching his or her conclusions, the court must further determine whether the error is material. An evaluator’s legal error shall be deemed material if, and only if, (1) there appears a reasonable probability, sufficient to undermine confidence in the outcome, that the error affected the evaluator’s ultimate conclusion, and (2) a change in the evaluator’s conclusion would either supply, or dissolve, the necessary concurrence of two designated evaluators. If the court’s review of the reports indicates that the conclusions drawn by the evaluators are not infected by legal error as indicated above, or that any error was immaterial, it must accept the recommendations set forth in the reports and take the appropriate responsive action, either by dismissing the petition, or by going forward with proceedings to determine whether the person is an SVP. If the court finds material legal error in an evaluator’s report, the court shall provide the evaluator opportunity promptly either to correct the report or to prepare a new report, so as to set forth the conclusions the evaluator reaches under correct legal principles. Ghilotti and his amici curiae claim the People waived judicial examination of the evaluators’ reports in this case because they expressly disclaimed reliance on the reports, never asked the court to review them, conceded they were unsupportive, did not argue they were legally defective, and persisted in this course though given multiple opportunities to abandon it. Thus, Ghilotti and his amici curiae suggest, there was no basis for the court to examine reports which, they say, were extrinsic to the proceeding. This overstates the facts. When, at the hearing of November 29, 2001, the superior court broached the issue whether the evaluators had followed the correct criteria, the county’s attorney did belatedly ask whether the court wished to review the reports, but the court demurred. The court later granted a continuance, but only to allow the Department unilaterally to reject the current evaluators’ reports as incompetent, and to seek new evaluations. In any event, it seems clear that both the court and the parties were understandably uncertain how to proceed in the unusual procedural situation presented by the case. On the one hand, the evaluators designated by the Director had recommended against Ghilotti’s recommitment. The SVPA provides no direct hint that the legal validity of such recommendations is subject to judicial review, and no prior decision has addressed that issue. Thus, as of November 2001, it was entirely plausible for both the parties and the court to conclude, as they apparently did, that review of evaluators’ recommendations for legal error was outside the judicial province. On the other hand, both the Director and the superior court questioned whether the evaluators in fact had applied the statute in a legally correct manner—as the court phrased it, whether their conclusions were legally “incompetent”—and whether legal error had affected the evaluators’ conclusions that Ghilotti does not meet the statutory criteria for continued confinement, supervision, and treatment. In these circumstances, and given the important public safety interests at stake, we cannot conclude that the issue was waived. Under the extraordinary circumstances, we conclude, we must vacate the Court of Appeal’s order denying mandamus. We will direct the Court of Appeal to issue a writ of mandamus vacating the superior court’s order dismissing the 2001 recommitment petition, and to remand the matter to the trial court with directions (1) to review the reports of the designated evaluators for material legal error, and (2) thereafter to proceed under the principles expressed in this opinion. Before entering our dispositional order, however, we address an additional issue pertinent to the further proceedings we contemplate. 3. What is the meaning of the phrase upon which the evaluators are to opine, i.e., whether “the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody” (§ 6601, subd. (d), emphasis added)? In earlier parts of this opinion, we have concluded (1) that a petition to commit or recommit a person under the SVPA cannot be filed without the concurrence of two evaluators, as provided in subdivisions (d) through (f) of section 6601, that the person meets the statutory criteria for commitment, as set forth in subdivision (d) of section 6601; (2) that an evaluator’s recommendation for or against commitment or recommitment is invalid if infected by material legal error; and (3) that evaluators’ reports are subject to judicial review for such material legal error at the time a petition is submitted for filing. To guard against such error, and to provide guidance on remand in the instant case, we address the meaning of the statutory standard that governs the evaluators’ opinions, i.e., whether “the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody.” (§ 6601, subd. (d), italics added.) Ghilotti and his amici curiae contend that “likely,” as used in this context, means “highly likely,” or at least “more likely than not.” They also suggest that if the evaluators think the person is more likely than not to reoffend without appropriate continuing treatment, but does not present that level of risk with such treatment, the evaluators must reduce their overall risk assessment to the extent they believe the person is likely to pursue such treatment voluntarily after his or her unconditional release. The People, on the other hand, urge that “likely,” as statutorily applied to a person’s risk of violent sexual reoffense, does not mean “probable” or “more likely than not,” but refers to “a significant chance, not minimal; something less than ‘more likely than not’ and more than merely ‘possible.’ ” Moreover, the People assert, because the standard set forth in section 6601, subdivision (d), requires the evaluators to predict whether the person is likely to reoffend “without appropriate treatment and custody” (italics added), the evaluators must assume, as the trial court suggested, that the person will not be subject to custody or supervision and will not be receiving appropriate treatment. We conclude that neither the People, nor Ghilotti and his amici curiae, are entirely correct. We agree with the People that “likely to engage in acts of sexual violence” (italics added), as used in section 6601, subdivision (d), does not mean the risk of reoffense must be higher than 50 percent. Instead, the phrase requires a determination that, as the result of a current mental disorder which predisposes the person to commit violent sex offenses, he or she presents a substantial danger—that is, a serious and well-founded risk—of reoffending in this way if free. If an evaluator finds such a serious and well-founded risk, but nonetheless recommends against commitment or recommitment solely because the evaluator cannot conclude the person is more likely than not to reoffend, the evaluator has applied the statute erroneously. On the other hand, we agree with Ghilotti and his amici curiae that the phrase “without appropriate treatment and custody” does not preclude the evaluators from concluding, with all due prudence, that the person’s amenability to effective voluntary treatment reduces below this serious level his potential danger of reoffense if free, and that the person therefore does not meet the criteria for commitment to the Department’s custody. We explain our reasoning in detail. We first examine the language of the statute, and, in particular, the phrase “likely to engage in acts of sexual violence” (§ 6601, subd. (d)). Ghilotti urges at the outset that the most commonly understood meaning of “likely” is “having a better chance of occurring than not.” While the word is often defined in these terms (see, e.g., 8 Oxford English Dict. (2d ed. 1989) p. 949, col. 1; Webster’s 3d New Intemat. Diet. (1965) p. 1310, col. 3), modem legal references in particular suggest that “likely” may be used flexibly to cover a range of expectability from possible to probable. For example, a legal dictionary states that while “likely . . . [m]ost often . . . indicates a degree of probability greater than five on a scale of one to ten . . . it may also refer to a degree of possibility that is less than five on that same scale.” (Gamer, A Dict. of Modem Legal Usage (2d ed. 1995) p. 530, col. 1.) This same source refers the reader to the definition of “probable” (ibid.), there explaining that the words “probable,” “likely,” and “possible” represent, in order of decreasing strength, gradations of the relative chance that something might happen, such that “likely” “is ‘a strong “possible” but a weak “probable.” ’ [Citation.]” (Id., p. 693, col. 2 to p. 694, col. 1, italics in original.) One legal thesaurus includes, as synonyms for “likelihood,” the following: “chance,” “conceivability,” “fair chance,” “fair prospect,” “plausibility,” “possibility,” “potential,” “reasonable chance,” and “well-grounded possibility.” (Burton, Legal Thesaurus (2d ed. 1992) p. 320, col. 2.) Another legal dictionary/thesaurus indicates a parallel range of meaning, citing “inclined,” “conceivable,” and “possible” among the synonyms for “likely.” (Stratsky, West’s Legal Thesaurus/Dict. (Special Deluxe Ed. 1986) p. 459.) Legal usage in the United Kingdom reflects similar flexibility, depending on the context in which the word is used. A prominent British reference suggests that “ ‘[l]ikely’ may have a range of definitions from possible to probable . . . .” (2 Greenberg & Millbrook, Stroud’s Judicial Diet, of Words and Phrases (6th ed. 2000) p. 1476, col. 2.) California decisions indicate a varied contextual understanding of the word “likely.” In People v. Sargent (1999) 19 Cal.4th 1206 [81 Cal.Rptr.2d 835, 970 P.2d 409], we said in passing that the felony child endangerment statute, which punishes a caretaker’s willful abuse or neglect of a child under “ ‘ “circumstances . . . likely to produce great bodily harm or death” ’ ” (Pen. Code, § 273a, subd. (a)) is “ ‘intended to protect a child from an abusive situation in which the probability of serious injury is great.’ ” (Sargent, supra, 19 Cal.4th at p. 1216, quoting People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [159 Cal.Rptr. 771].) But People v. Hansen (1997) 59 Cal.App.4th 473 [68 Cal.Rptr.2d 897] indicated this statute is satisfied when the child is placed in a situation where a serious health hazard or physical danger is “reasonably foreseeable” (id., at p. 479), as where the caretaker stores a loaded gun in a home occupied by children without denying the children access to the weapon (id., at p. 480). In People v. Savedra (1993) 15 Cal.App.4th 738 [19 Cal.Rptr.2d 115], the defendant was charged with possessing a deadly weapon in jail (Pen. Code, § 4574, subd. (a)), i.e., a msty nail with a handle made of toilet paper. The trial court instructed, under People v. Rodriquez (1975) 50 Cal.App.3d 389, 396 [123 Cal.Rptr. 185], that a deadly weapon for this purpose is any instrument or object likely to produce death or great bodily injury. The jury asked whether “likely” meant “ ‘more probable than not’ ” or “ ‘merely possible’ the court answered that “likely” referred to the “ ‘potential for use as a deadly weapon.’ ” (Savedra, supra, at p. 744, italics added.) The Court of Appeal found no error. It noted that, although “likely” most often means “more likely than not,” the word has a broader meaning in connection with a statute seeking to protect inmates and jail personnel from armed attack. (Id., at pp. 744-745.) We ourselves consistently have given a similar flexible interpretation to the statute requiring a change of venue in any criminal case where there is a “reasonable] likelfihood]” the defendant cannot otherwise receive a fair trial. (Pen. Code, § 1033, subd. (a).) As we have indicated, “[i]n this context, ‘reasonably likely’ ‘ “means something less than ‘more probable than not’ ” and “something more than merely ‘possible.’ ” [Citation.]’ ” (People v. Dennis (1998) 17 Cal.4th 468, 523 [71 Cal.Rptr.2d 680, 950 P.2d 1035], quoting People v. Proctor (1992) 4 Cal.4th 499, 523 [15 Cal.Rptr.2d 340, 842 P.2d 1100].) Courts have also relied heavily on context to interpret and apply such . closely related words and phrases as “probability,” “reasonable