(Los Angeles County Super. Ct. No. ZM017031) ORIGINAL PROCEEDING. Petition for writ of mandate. Harold Shabo, Judge. Petition granted.
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Real party in interest Michael O'Connor's scheduled prison release date of January 5, 2011 was extended 45 days pursuant to Welfare and Institutions Code section 6601.3*fn1 and California Code of Regulations, title 15, section 2600.1, subdivision (d) (Regulation 2600.1(d)), to permit professionals at the California Department of Mental Health to complete evaluations to determine whether O'Connor met the criteria for confinement as a sexually violent predator (SVP). Based on the completed evaluations, the Los Angeles County District Attorney filed a petition on February 8, 2011 for commitment of O'Connor as an SVP. Respondent Los Angeles Superior Court granted O'Connor's motion to dismiss the petition and ordered O'Connor released from custody, finding there was not good cause within the meaning of section 6601.3, as amended effective January 1, 2011, to extend O'Connor's release date and O'Connor's ensuing unlawful custody was not attributable to a good faith mistake of fact or law under section 6601, subdivision (a)(2).
The People seek a writ of mandate directing the superior court to vacate its orders and to enter a new order reinstating the proceedings pursuant to the Sexually Violent Predator Act (SVPA) (§ 6600 et seq.). We agree with the superior court that the inability to complete O'Connor's evaluations because of increased workload and a shortage of professional staff due to California's ongoing budgetary crisis is not an "exigent circumstance" establishing good cause for a 45-day hold pursuant to section 6601.3, as amended. However, in the absence of either a prior judicial construction of that statute or an administrative repeal or judicial declaration that Regulation 2600.1(d) is invalid, the unlawful 45-day hold in this case was the result of a good faith mistake of law under section 6601, subdivision (a)(2); and dismissal of the petition was not justified. Accordingly, we grant the petition for writ of mandate and direct the superior court to vacate its order of March 30, 2011 dismissing the petition to have O'Connor declared an SVP and releasing him from custody and to enter a new and different order reinstating the petition.
PROCEDURES GOVERNING SVP COMMITMENTS
The SVPA authorizes the state to identify incarcerated individuals who suffer from mental disorders that predispose them to commit violent sexual crimes and to confine and treat them until they no longer threaten society. (People v. Allen (2008) 44 Cal.4th 843, 857; Moore v. Superior Court (2010) 50 Cal.4th 802, 814 ["[t]he SVPA targets a select group of convicted sex offenders whose mental disorders predispose them to commit sexually violent acts if released following punishment for their crimes"].) The process "begins when the secretary of the Department of Corrections and Rehabilitation determines that an individual in the custody of the department may be a sexually violent predator, and the secretary refers the individual to the State Department of Mental Health for an evaluation. If two evaluators concur that the individual meets the statutory criteria of a sexually violent predator, the Director of Mental Health shall request the county in which the person was convicted of the offense for which he or she is incarcerated to file a petition for commitment under the SVPA. (§ 6601.)" (Allen, at pp. 857-858; see People v. McKee (2010) 47 Cal.4th 1172, 1185-1187.) "If the county's SVP counsel (either the district attorney or county counsel, as designated by the county board of supervisors) concurs with the recommendation, a petition for commitment is filed in the trial court. ([§ 6601, ]subd. (i).)" (Moore, at p. 816.)
The initial screening and referral of an inmate by the Department of Corrections and Rehabilitation to the Department of Mental Health for full evaluation must, in most instances, occur at least six months before the inmate's scheduled date for release from prison. (§ 6601, subds. (a)(1), (b); see Moore v. Superior Court, supra, 50 Cal.4th at p. 816.)*fn2 Once the inmate has been referred to the Department of Mental Health, section 6601, subdivisions (c) through (h), specify the procedures to be used by it to evaluate whether the inmate meets the criteria in section 6600 for an SVP, that is, "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).) Upon a showing of good cause, the Board of Parole Hearings,*fn3 a component of the Department of Corrections and Rehabilitation (Gov. Code, § 12838, subd. (a)), may order an inmate in the evaluation process held in custody for a period not to exceed 45 days beyond the person's scheduled release date. (§ 6601.3, subd. (a); see also former § 6601.3, as amended by Stats. 2000, ch. 41, § 1, p. 129.)
Prior to its amendment effective January 1, 2011, section 6601.3 did
not define "good cause" for a 45-day hold. Regulation 2600.1(d), a
regulation promulgated by the Board of Parole Hearings,*fn4
supplied the definition: "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."
Senate Bill No. 1201 (2009-2010 Reg. Sess.) (Senate Bill 1201) added a new subdivision (b) to section 6601.3, to provide a statutory definition of the term "good cause," effective January 1, 2011. "For purposes of this section, good cause means circumstances where there is a recalculation of credits or a restoration of denied or lost credits, a resentencing by a court, the receipt of the prisoner into custody, or equivalent exigent circumstances which result in there being less than 45 days prior to the person's scheduled release date for the full evaluation described in subdivisions (c) to (i), inclusive, of Section 6601." (§ 6601.3, subd. (b); Stats. 2010, ch. 710, § 5.)
Once an SVP petition has been filed, "[i]f the trial court determines that the petition establishes 'probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release,' the court shall order a trial to determine whether the person is a sexually violent predator. (§§ 6601.5, 6602.)[*fn5 ] The individual 'shall be entitled to a trial by jury, to the assistance of counsel, to 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).) If the individual is indigent, the court shall appoint counsel to assist the individual in obtaining an expert evaluation and expert assistance at trial. (Ibid.) To secure the individual's commitment, the district attorney must prove beyond a reasonable doubt that the person is a sexually violent predator. (§ 6604.) When a jury decides the case, its verdict must be unanimous. (§ 6603, subd. (f).)" (People v. Allen, supra, 44 Cal.4th at pp. 857-858.)
As amended in 2006, the SVPA provides, if the trier of fact finds beyond a reasonable doubt the person is a sexually violent predator within the meaning of section 6600, "the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health . . . ." (§ 6604.)*fn6 A person committed as a sexually violent predator has the right pursuant to the SVPA to an annual medical review of his or her mental condition. (§ 6605, subd. (a).) If the report concludes the person no longer meets the definition of a sexually violent predator or conditional release is appropriate, the Department of Mental Health must authorize the person to petition the committing court for release (§ 6605, subd. (b)). If the court determines there is probable cause to believe the person's mental disorder has so changed that he or she is not a danger to the health and safety of others and is not likely to engage in sexually violent criminal activity, the court must set a hearing to determine whether the person's release or conditional release is appropriate. (§ 6605, subd. (c); People v. McKee, supra, 47 Cal.4th at p. 1187.)
This comprehensive statutory scheme, like other involuntary civil commitment procedures, "represents a delicate balancing of countervailing public and individual interests." (People v. Allen (2007) 42 Cal.4th 91, 98 [district attorney's untimely petition to extend commitment under the Mentally Disordered Offenders Act precluded trial court from extending the expired commitment].) The public has an obvious right to be safe and protected from identified dangerous and mentally ill ex-prisoners. (Ibid.) But commitment under the SVPA involves a significant limitation on the liberty interest of the affected defendants, who have a corollary right to be released from prison as soon as otherwise provided by law. (See People v. Allen, supra, 44 Cal.4th at p. 863 ["'[t]he California Legislature has recognized that the interests involved in civil commitment proceedings are no less fundamental than those in criminal proceedings and that liberty is no less precious because forfeited in a civil proceeding than when taken as a consequence of a criminal conviction'"]; see also Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 873-874.)
FACTUAL AND PROCEDURAL BACKGROUND
1. O'Connor's SVP Evaluations; the 45-day Hold
Following a court trial O'Connor was convicted on May 4, 1990 of 14 counts of committing lewd and lascivious acts upon a child under the age of 14 years involving two victims. (Pen. Code, § 288a.) He was sentenced to an aggregate state prison term of 34 years. O'Connor was received into the custody of the Department of Corrections and Rehabilitation on June 20, 1990. While in prison O'Connor has sustained numerous rules ...