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People v. Superior Court of Los Angeles County

March 25, 2010

THE PEOPLE, PETITIONER,
v.
SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT; CHRISTOPHER SHARKEY, REAL PARTY IN INTEREST.



ORIGINAL PROCEEDINGS in mandate. Maria E. Stratton, Judge. Order to show cause is discharged; petition granted. (Los Angeles County Super. Ct. No. ZM014203).

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

CERTIFIED FOR PUBLICATION

The People seek a writ of mandate directing respondent superior court to vacate its order dismissing a petition for commitment of Christopher Sharkey (Sharkey) as a sexually violent predator (SVP) and to enter a new order setting the matter for proceedings pursuant to the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).*fn1

Four days before Sharkey's scheduled parole release date, because his evaluation as a potential SVP was not yet complete, the Board of Parole Hearings (Board) placed a 45-day hold pursuant to section 6601.3, to facilitate full SVP evaluations to be completed by the California Department of Mental Health (CDMH).

Section 6601.3 provides for a hold of up to 45 days for "good cause." Section 6601.3 does not specify what constitutes "good cause" for such a hold. However, California Code of Regulations, title 15, section 2600.1, subdivision (d), a regulation promulgated by the Board, supplies the definition. The regulation states: "For purposes of this section, good cause to place a 45-day hold pursuant to Welfare and Institutions Code section 6601.3 exists when either the inmate or parolee in revoked status is found to meet all the following criteria: [¶] (1) Some evidence that the person committed a sexually violent offense by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person,... which resulted in a conviction or a finding of not guilty by reason of insanity.... [¶]... [¶]... (2) Some evidence that the person is likely to engage in sexually violent predatory criminal behavior." (Cal. Code Regs., tit. 15, § 2600.1, subd. (d), italics added.)

The essential issue before this court is the validity of the regulation's definition of good cause for imposition of a 45-day hold. We conclude the regulation's standard for good cause is proper.

Further, the regulation's standard for good cause was met in this case - there was some evidence before the Board that Sharkey had committed a qualifying offense and some evidence he is likely to engage in sexually violent predatory criminal behavior. Therefore, the Board had good cause to impose a 45-day hold. Accordingly, we grant the People's petition and direct the trial court to reinstate the SVPA commitment petition.

FACTUAL AND PROCEDURAL BACKGROUND

According to the petition to commit Sharkey as an SVP, in 1979 he was convicted of one count of rape by force (Pen. Code, § 261), and in 1990 he again was convicted of one count of rape by force and an additional count of assault with intent to commit rape (Pen. Code, § 220).

The 1990 conviction resulted in a 37-year prison sentence. Sharkey's scheduled parole release date was November 24, 2008.

1. Sharkey's Screening and Evaluation as a Potential SVP; Sharkey is Referred to the Board for Evaluation as a Potential SVP

On February 19, 2008, about nine months before the scheduled release date, Sharkey was screened by a correctional counselor, who determined that Sharkey "meets criteria as a potential SVP pursuant to" section 6600 et seq.*fn2

On March 12, 2008, after having determined that Sharkey met the requirements for referral to the CDMH as a potential SVP, the California Department of Corrections and Rehabilitation (CDCR) referred Sharkey's case to the Board for further evaluation as an SVP, pursuant to section 6601, subdivision (b).*fn3 The referral packet included CDCR form 7377 with supporting documentation pertaining to the 1990 conviction, namely, a legal status summary, a staff recommendation summary which contained information obtained on Sharkey by the correctional counselor, the probation officer's report, the abstract of judgment, chronological history of records by staff, the complaint and information in the criminal case, and a criminal history on Sharkey.

On March 17, 2008, following the Board's receipt of Sharkey's packet, it was assigned to Richard Perry (Perry), a retired parole agent who was working part-time. Perry was assigned cases in which the release date was six to nine months away. Perry's role at that point was to confirm the qualifying convictions. In July 2008, Perry was laid off pursuant to a cost control directive.

On August 13, 2008, the Board reassigned Sharkey's case to parole agent Andrea Zahner (Zahner).

Zahner's file notes reflected that she did not review the two 1990 convictions that had previously been identified. Rather, she sought information on the 1979 rape conviction. Although a single qualifying conviction sufficed under the SVPA, it was the Board's policy to provide as much information as possible to the CDMH for its review.

On September 11, 2008, the Board notified the CDMH that the CDCR had determined that Sharkey "meets the first level sexually violent predator... criteria... and has referred the package to the Board," and that the Board's "[i]ndependent review of the factors also indicates that this case meets the first level sexually violent predator criteria for referral to the [CDMH]," citing Sharkey's 1979 and 1990 convictions.

On September 16, 2008, Sharkey's files were uploaded by the CDMH. On September 19, 2008, Garret Essres, Ph.D., a licensed psychologist on the CDMH panel, performed a Level II screening of Sharkey's records to determine "whether or not there is any chance of a diagnosis in the presented case. If there is no chance of diagnosis or the risk is too low the case is not sent on for further evaluation." Dr. Essres referred Sharkey for further evaluation by the CDMH because of the "high actuarial risk, possible applicable diagnosis, predatory, untested in the community and high chronicity."

Sharkey was interviewed by Dr. Karlsson on October 3, 2008, and by Dr. Koetting on October 14, 2008. Dr. Karlsson submitted his report on October 29, 2008. Dr. Karlsson opined in his Clinical Evaluation Summary that Sharkey met the criteria for prosecution under the SVPA.

On November 18, 2008, with only six days remaining before Sharkey's scheduled release date and with Dr. Koetting's report not yet having been completed, Elizabeth Mard, a case worker with the CDMH, requested a 45-day extension of time from the Board in order to allow Dr. Koetting additional time to complete his report.

On November 20, 2008, the Board placed a 45-day hold effective November 24, 2008, pursuant to section 6601.3, "to facilitate full SVP evaluations to be concluded by the [CDMH]."

On December 2, 2008, Dr. Koetting submitted a 61-page evaluation of Sharkey. Dr. Koetting concurred with Dr. Karlsson that Sharkey met the criteria for prosecution under the SVPA.

On December 10, 2008, the CDMH recommended to the Los Angeles County District Attorney that it proceed with a civil commitment petition because Sharkey met the statutory criteria for commitment under the SVPA.

2. SVPA Proceedings

On December 23, 2008, the People filed a petition for commitment of ...


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