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The People v. Superior Court of the State of California For the County of Los Angeles

June 28, 2011

THE PEOPLE, PETITIONER,
v.
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, RESPONDENT; PHILLIP GILBERT, REAL PARTY IN INTEREST.



ORIGINAL PROCEEDING in prohibition. Harold E. Shabo, Judge. (Los Angeles County Super. Ct. No. ZM015186)

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

CERTIFIED FOR PUBLICATION

Petition granted.

By petition for writ of prohibition, the People challenge an order of the trial court dismissing a petition for the civil commitment of defendant and real party in interest Phillip Gilbert under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.*fn1 We grant the petition and direct the trial court to vacate its order of dismissal and to proceed instead with a probable cause hearing under section 6602.*fn2

Defendant was convicted of a violation of Penal Code section 289, subdivision (a), sexual penetration with a foreign object of his eight-year-old victim, and sentenced to eight years in prison, which qualifies as a predicate offense for civil commitment under the SVPA. (§ 6600, subd. (b).) We will not describe defendant's lengthy history of sex crimes or his various parole violations, as they are unnecessary to our analysis. Defendant was first paroled on August 6, 2005. On May 6, 2009, while on parole, defendant was arrested for indecent exposure and trespassing after police received a report that he was seen standing in the walkway below the victim's apartment holding his penis; police found him in the utility room of the apartment building, wearing no pants. Defendant was found in violation of parole on May 28, 2009, and he was returned to custody. Before this parole violation, defendant's parole discharge date had been July 28, 2009. After the violation, the discharge date was recalculated to August 6, 2009.

Under section 6601, subdivision (a)(1), the Department of Corrections and Rehabilitation is required to refer any inmate who may be a sexually violent predator for evaluation by the Department of Mental Health within six months of the scheduled date for release from prison, unless, as was the case here, the inmate was returned to custody with less than nine months left to serve. Defendant was returned to custody with slightly more than two months left to serve. He was housed in Los Angeles County Jail from the time of his arrest until July 23, 2009. Dean Oesterle, a parole agent with the Department of Corrections and Rehabilitation, was responsible for conducting sexually violent predator screenings in the region where defendant was housed in custody. Mr. Oesterle testified that defendant should have been screened within 10 days of his arrest on May 6, 2009, while he was housed in county jail. However, defendant was not screened within that time. Mr. Oesterle did not know why defendant was not screened within 10 days of his arrest or why his screening was performed under emergency circumstances, as described below.

On July 24, 2009, defendant was transferred to the Lancaster State Prison Reception Center, where he was housed on August 6, 2009, his controlling discharge date -- the last date of any parole term. At 3:26 p.m. that afternoon, a correctional counselor at the Lancaster prison called Gerald Franklin, a correctional counselor with the Department of Corrections and Rehabilitation in Sacramento, to ask about defendant's status. Mr. Franklin searched the sexually violent predator computer database and discovered defendant had not been screened after his return to custody in May 2009, as required by section 6601, subdivision (b) to determine if he was a sexually violent predator subject to civil commitment. At 3:28 p.m. (only two minutes later), Mr. Franklin called the Board of Parole Hearings to notify them that defendant was an offender in custody at Lancaster prison who had not been screened, and that Mr. Franklin would try to find someone to review defendant's records to begin the screening process.

Mr. Franklin saw in the sexually violent predator database that defendant had been screened on four previous occasions, which indicated defendant had been convicted of an offense that qualified for civil commitment and, consequently, under section 6601, the Department of Corrections and Rehabilitation was mandated to refer defendant for evaluation by the Department of Mental Health as a potential sexually violent predator. Mr. Franklin reported to the Board of Parole Hearings that the database indicated defendant had a qualifying conviction that required an evaluation by the Department of Mental Health before his release into the community. It was clear there was not enough time for the Department of Mental Health to evaluate defendant that day.

The Board of Parole Hearings, acting on behalf of the Department of Mental Health, issued a three-business-day hold on defendant's release. August 6 fell on a Thursday that year. Since the hold was issued near the end of the day, and the next day was a state-imposed furlough Friday for the Department of Mental Health, the three-business-day hold authorized the Department of Corrections and Rehabilitation to keep defendant in custody through and including August 11 or (if the furlough day did not count as a workday) August 12, 2009, for purposes of an evaluation by the Department of Mental Health. The Board of Parole Hearings will issue a three-day hold only in an emergency situation when necessary for the Department of Corrections and Rehabilitation to fulfill its mandated duty under the SVPA to refer a qualifying inmate or parole violator for evaluation by the Department of Mental Health.

Although defendant was housed in Lancaster, his prison records were kept at "case records south" in Rancho Cucamonga. Seven minutes after Mr. Franklin notified the Board of Parole Hearings that defendant had not been screened, he called Mr. Oesterle, the parole agent responsible for conducting sexually violent predator screenings in the region where defendant was housed, to ask him to screen defendant's file and submit a screening packet to the Department of Corrections and Rehabilitation in Sacramento. But Mr. Oesterle, who ordinarily worked in Rancho Cucamonga where defendant's records were kept, was in Los Angeles at a mandatory training session that day. He had turned off his cell phone during the training, which caused delay in receiving the message from Mr. Franklin asking him to perform a first stage or Level 1 screening.

The purpose of a Level 1 screening is to confirm whether an inmate or parole violator has a qualifying conviction for a Department of Mental Health evaluation as a potential sexually violent predator. Although the database that Mr. Franklin reviewed indicated defendant had a qualifying conviction, that database was not available to the Board of Parole Hearings, which is empowered to issue a three-day hold. In order for the Board of Parole Hearings to issue the three-day hold, Mr. Oesterle had to review defendant's prison records and complete a first level screening form 7377 confirming defendant had a qualifying conviction and there was at least one victim. After Mr. Oesterle completed the form 7377, it would have to be faxed to the Board of Parole Hearings to support issuance of the three-day hold so the Department of Mental Health could perform a second level clinical evaluation.

Mr. Oesterle drove as quickly as he could in the late afternoon Los Angeles traffic to Rancho Cucamonga. He arrived after 5:00 p.m. He spoke by telephone with Mr. Franklin at 5:11 p.m., explaining that since "case records south" ordinarily closed at 5:00 p.m., he did not expect to be able to submit the screening forms until the next day. However, Mr. Oesterle encountered a manager and received special permission to review defendant's records and perform the screening after hours. Mr. Oesterle reviewed a previous screening of defendant with the form 7377 associated with that earlier screening, the probation officer's report, the abstract of judgment, and the information for the original qualifying case. Based on this review, he concluded defendant qualified for a Level II screening. Mr. Oesterle completed the Level I screening forms and sent them by fax to Mr. Franklin in Sacramento at 5:25 p.m. on August 6, 2009. No one was in the office of Mr. Franklin's unit at that hour, so his office forwarded the screening forms by fax to the Board of Parole Hearings at 8:42 a.m. the next morning, August 7, 2009. By letter dated August 7, 2009, the Board of Parole Hearings notified the Department of Mental Health of the need to evaluate defendant.

Since August 7, 2009, was a state-imposed furlough Friday for the Department of Mental Health, the request to evaluate defendant was not received until Monday, August 10, 2009. Dr. Shelley Coate evaluated defendant and completed a Level II screening that day. Dr. Coate concluded another Level III screening was warranted because defendant remained at "high risk of sexually reoffending if released to the community. He may not act in a violent manner all the time, but there is little doubt that he will commit a sexually violent offense in the future . . . ." On August 11, 2009, the Department of Mental Health requested that the Board of Parole Hearings issue a 45-day hold to conduct a full-blown, Level III evaluation.

The Board of Parole Hearings found good cause and issued the 45-day hold on August 11, 2009, effective as of August 6, 2009, and expiring at midnight on September 20, 2009. Two doctors were assigned to evaluate defendant, and they both concluded defendant met all the criteria of a sexually violent predator under the SVPA. (ยง 6600, subd. (a)(1).) On September 14, 2009, the district attorney filed a petition pursuant to section 6601.5 to determine if defendant should be civilly committed as a sexually violent predator. In light of the 45-day ...


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