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In re Hovanski

June 19, 2009

IN RE THOMAS HOVANSKI ON HABEAS CORPUS.


ORIGINAL PROCEEDINGS: Petition for Writ of Habeas Corpus. Petition denied. (Super. Ct. No. MHO 07-001).

The opinion of the court was delivered by: Butz, J.

CERTIFIED FOR PUBLICATION

This petition for habeas corpus comes before us after the California Supreme Court issued an order requiring the Secretary of the California Department of Corrections and Rehabilitation (CDCR) to show cause before this court why petitioner Thomas Hovanski should not be granted relief, based upon CDCR‟s extension of parole past his parole discharge date by placing a hold on him pursuant to Welfare and Institutions Code section 6601.3.*fn1 Section 6601.3 authorizes the Board of Parole Hearings (BPH)*fn2 to order that an inmate referred to the Department of Mental Health (DMH) for evaluation as a potential sexually violent predator (SVP) "remain in custody for no more than 45 days beyond the person‟s scheduled release date for full evaluation pursuant to [the SVPA]."

Hovanski was serving the last day before his parole discharge date when BPH ordered a hold placed on him under section 6601.3 (45-day hold). A month later, the district attorney filed a petition seeking to commit him as an SVP.

Hovanski contends section 6601.3 does not authorize the extension of custody beyond his parole discharge date; that section 6601.5, not section 6601.3, was the sole means by which CDCR could detain him past his discharge date; and that the 45-day hold was therefore void. He further argues that if his continued custody past his discharge date was authorized by section 6601.3, it constituted a retroactive increase in his prison sentence, which was barred by state and federal constitutional prohibitions against ex post facto laws. We reject these arguments and shall deny the petition.

PROCEDURAL BACKGROUND

Events Leading up to the Habeas Petition

Following his conviction in 1995 of multiple sex crimes involving children under the age of 14, Hovanski was committed to state prison. He was paroled initially in November 2002. However, Hovanski violated his parole and was returned to prison on July 24, 2006 (all further calendar references are to that year unless otherwise indicated) to serve out the remainder of his term. On that date, the CDCR determined that his maximum confinement would terminate on December 15. Consequently, Hovanski was given a certificate of discharge, confirming his revocation release and discharge from parole as of December 15.

On October 24, CDCR completed an SVP screening form, indicating that Hovanski met the criteria as a potential SVP pursuant to section 6600. On November 4, CDCR completed a justification referral sheet, referring Hovanski for screening and evaluation pursuant to section 6601, subdivision (a)(1) of the SVPA.

On November 29, CDCR referred Hovanski to the DMH for full evaluation. On December 8, he received a second level screening from a DMH physician.

On December 14, while Hovanski was serving the last day in prison before his scheduled discharge from parole, DMH wrote to the BPH, requesting that it schedule a probable cause hearing for purposes of imposing a 45-day hold pursuant to section 6601.3. The letter concluded that DMH was requesting the hold "in order to complete full evaluation pursuant to [section] 6601[,] [subdivisions] (c) to (i), inclusive." On the same day, BPH imposed a 45-day hold on Hovanski under section 6601.3. As a result, Hovanski was not released from prison on his discharge date.

On January 26, 2007, the Yuba County District Attorney filed a petition to commit Hovanski as an SVP. (§ 6602.) Three days later, the superior court ordered him temporarily held in custody pending a probable cause hearing. On April 27, 2007, the court, after a probable cause hearing, ordered that Hovanski remain in the custody of the CDCR pending the outcome of trial on the petition.

Habeas Proceedings

On July 12, 2007, Hovanski filed a petition for writ of mandate in this court alleging that at the time the petition to commit him as an SVP was filed, he was subject to an illegal parole hold. (Hovanski v. Superior Court, C056213.) After requesting ...


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