ORIGINAL PROCEEDING: Petition for writ of habeas corpus. Petition denied. (Super. Ct. No. SCV23989).
The opinion of the court was delivered by: Robie, J.
CERTIFIED FOR PUBLICATION
In this habeas proceeding, petitioner David Lucas claims that when the Placer County District Attorney filed the petition to commit him as a sexually violent predator in November 2008, he was not in the lawful custody of the Department of Corrections and Rehabilitation (corrections) because the Board of Parole Hearings (the board) had extended his custody for 45 days under Welfare and Institutions Code*fn1 section 6601.3 without the showing of good cause required by that statute. We agree. As Lucas argues, the definition of good cause contained in subdivision (d) of section 2600.1 of title 15 of the California Code of Regulations (regulation 2600.1(d)) is inconsistent with the legislative intent behind the statutory good cause requirement. Thus, to the extent the board relied on the regulation in extending Lucas's incarceration, Lucas's custody was unlawful.
As we will explain, however, this conclusion does not entitle Lucas to any relief. Because Lucas has not carried his burden of proving otherwise, we must conclude the board did, in fact, rely on regulation 2600.1(d) in placing the 45-day hold on Lucas. Furthermore, although we conclude the regulation's formulation of good cause is inconsistent with the governing statute, the regulation was apparently valid when the board relied on it. Under subdivision (a)(2) of section 6601 (section 6601(a)(2)), a petition to commit a person as a sexually violent predator cannot be dismissed on the ground the person's custody was unlawful if the unlawful custody was the result of a good faith mistake of fact or law. That is the case here. The board's presumptive reliance on regulation 2600.1(d) constitutes a good faith mistake of law. Accordingly, we will deny Lucas's petition.
FACTUAL AND PROCEDURAL BACKGROUND
Lucas was in prison serving a seven-year determinate sentence for failing to register as a sex offender and was scheduled to be released on parole on October 12, 2008. On December 21, 2007 -- well in advance of his parole release date -- corrections personnel completed a sexually violent predator screening and determined that Lucas met the criteria as a potential sexually violent predator. Nothing further happened, however, until October 1, 2008 -- 11 days before his parole release date -- when the screening form was received by corrections's classification services unit.
Unable to make a final determination based on available documentation, corrections referred the matter to the board the next day. On October 7, the board referred the matter to the Department of Mental Health (mental health) for assessment. On October 9, a psychiatrist conducted a level II screening and referred the matter for a level III evaluation. It was now only three days before Lucas's release date.
The same day the matter was referred for a level III evaluation, the board placed a 45-day hold on Lucas pursuant to section 6601.3 "to facilitate full [sexually violent predator] evaluations to be concluded by [mental health]." Consequently, Lucas's release date was extended to November 26, 2008.
During the period of the hold, four psychologists evaluated Lucas; three of them concluded he met the sexually violent predator criteria. On November 17, mental health sent a letter to the Placer County District Attorney recommending that Lucas be committed as a sexually violent predator. The district attorney filed a commitment petition on November 20. On November 26, the court found the petition was sufficient to support a finding of probable cause to believe Lucas is a sexually violent predator and set a probable cause hearing for December 3.
On December 3, Lucas waived time for the probable cause hearing. In April 2009, he moved to dismiss the petition on the ground that the late completion of the screening and evaluation process had resulted in constitutional and statutory violations. As pertinent here, Lucas argued there was no showing of good cause to keep him in custody beyond October 12, 2008, pursuant to section 6601.3 and his unlawful custody was not the result of a good faith mistake of law or fact.
In opposition to the motion to dismiss, the district attorney argued it was up to the board to determine whether there was good cause to extend Lucas's custody under section 6601.3 and the board acted well within its statutory authority. In the district attorney's view, good faith mistake of law or fact was not an issue because there was no unlawful custody.
In denying Lucas's motion, the court did not expressly conclude that the board had good cause to place a 45-day hold on Lucas pursuant to section 6601.3, but stated generally that it did "not find . . . any violation of a statutory procedure in what was done here. . . . [E]very stage of the process was within the defined statutory periods."
On May 6, 2009, further proceedings on Lucas's commitment as a sexually violent predator were stayed to allow him to seek writ review. In June 2009, Lucas filed a habeas corpus petition in the appellate division of the superior court. As pertinent here, in denying Lucas's petition the court concluded that "[a]lthough [corrections] waited until the last minute, the fact remains that the process was completed within the statutory framework."
On September 3, 2009, Lucas commenced the present proceeding by filing a habeas corpus petition in this court. Following receipt of the People's opposition, we directed that an order to show cause issue "limited to the claim that [Lucas]'s extended commitment under Welfare & Institutions Code section 6601.3 was unlawful because there was no `showing of good cause' as required by this statute."
"The [Sexually Violent Predator Act (§ 6600 et seq.) (the act)] provides for the involuntary civil commitment of an offender immediately upon release from prison if the offender is found to be [a sexually violent predator]. [Citation.] The [act] `was enacted to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent criminal sexual acts, and to confine and treat such individuals until it is determined they no longer present a threat to society.' [Citations.] [A sexually violent predator] is defined as `a person who has been convicted of a sexually violent offense against one or more victims 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).)" (Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1122.)
The commitment process under the act begins when the secretary of corrections "determines that an individual who is in custody under the jurisdiction of . . . Corrections . . . , and who is either serving a determinate prison sentence or whose parole has been revoked, may be" a sexually violent predator. (§ 6601, subd. (a)(1).) When that happens, the secretary must "refer the person for evaluation in accordance with this section" "at least six months prior to that individual's scheduled date for release from prison."*fn2 (Ibid.)
The first step in the evaluation process is a preliminary "screening" performed by corrections and the board "based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history." (§ 6601, subd. (b).) "If as a result of this screening it is determined that the person is likely to be a sexually violent predator, . . . Corrections . . . shall refer the person to . . . Mental Health for a full evaluation of whether the person meets the criteria in Section 6600." (§ 6601, subd. (b).)
During the "full evaluation" conducted by mental health, the person is evaluated by two psychologists or psychiatrists. (§ 6601, subds. (b) & (d).) If after examining the person both professionals agree he or she "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," a commitment petition may be filed. (§ 6601, subds. (d) & (i).) When there is a split of opinion between the evaluators, independent professionals are brought in to evaluate the person, and a petition may be filed only if both independent evaluators believe he or she meets the sexually violent predator criteria. (§ 6601, subds. (e) & (f).)
"Upon a showing of good cause, the Board . . . may order that a person referred to . . . Mental Health pursuant to subdivision (b) of Section 6601 remain in custody for no more than 45 days beyond the person's scheduled release date for full evaluation pursuant to subdivisions (c) to (i), inclusive, of Section 6601." (§ 6601.3.) A petition to commit a person as a sexually violent predator may be filed only "if the individual [i]s in custody pursuant to his or her determinate prison term, ...