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In Re David Lucas On Habeas Corpus. v. the Superior Court of Los Angeles County

March 5, 2012


Placer County Super. Ct. No. SCV23989 Ct.App. 3 C062809 Los Angeles County Super. Ct. No. ZM014203 Ct.App. 2/3 B219011 Judge: Maria E. Stratton and Colleen Nichols

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

These consolidated cases raise the following question: Under the statutes and regulations applicable here, what showing must be made to postpone the filing of a sexually violent predator (SVP) petition beyond the inmate's scheduled release date to allow for the completion of a full SVP evaluation?

A petition to commit a person as an SVP may be filed only "if the individual was in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to Section 6601.3, at the time the petition is filed." (Welf. & Inst. Code, § 6601, subd. (a)(2).)*fn1

The hold procedure of section 6601.3 allows that, "[u]pon a showing of good cause," the Board of Parole Hearings (Board) may issue a hold to extend the custody of a possible SVP "for no more than 45 days beyond the person's scheduled release date" in order to complete the evaluation required to support a commitment petition.*fn2

Reading these sections together, then, the statute provides that, to be timely, a petition must be filed while the inmate is in lawful custody. The lawful custody period extends up to the release date. However, an inmate may be held for up to 45 days beyond the release date upon a showing of good cause.

In 2008, when these cases arose, section 6601.3 did not define "good cause."*fn3 However, the concept was addressed by regulation. California Code of Regulations, title 15, section 2600.1, subdivision (d),*fn4 defines "good cause" as "[s]ome evidence" that the person has a qualifying conviction and is "likely to engage in sexually violent predatory criminal behavior." (Reg. 2600.1, subd. (d)(2).) Thus, the regulation as currently written defines good cause in terms of the inmate's potential to satisfy the SVP criteria. It does not link the required showing to the need for an extension beyond the scheduled release date.

In terms of remedies, section 6601, subdivision (a)(2), specifically provides that "[a] petition shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law."

Petitioners Sharkey and Lucas argue that the regulation's definition of good cause is inadequate because it does not require a showing that the need for the requested delay is justified. The omission, they urge, is inconsistent with the Legislature's intent in adopting the overall statutory scheme. They claim that, because they were held beyond their scheduled release dates without a proper showing of good cause, their SVP petitions were untimely and must be dismissed. They further argue that the Board cannot rely on section 6601, subdivision (a)(2), to bar dismissal because its reliance on the defective regulation was not a good faith mistake of law.

We conclude the regulation is invalid, but that the Board's reliance upon it was excusable as a good faith mistake of law.


A brief overview of the SVP procedure will put the facts here in context. The Legislature has provided that certain convicted sex offenders may be civilly committed after they have completed service of their criminal sentences. "The [SVP 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. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1144 (Hubbart).)" (People v. Allen (2008) 44 Cal.4th 843, 857 (Allen).) The Legislature set out a statutory scheme balancing the rights of the offender against the need for public safety. (See generally Allen, 44 Cal.4th at pp. 857-859; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 902-905.)

The process begins when the secretary of the Department of Corrections and Rehabilitation (DCR) determines that a person in custody because of a determinate prison sentence or parole revocation may be a sexually violent predator. If such an initial determination is made, the secretary refers the inmate for an evaluation. Subject to exceptions not relevant here, the secretary's referral is to be made at least six months before the inmate's scheduled release date. (§ 6601, subd. (a)(1).)

After the secretary's referral, the inmate is screened by the DCR and the Board to determine whether the person is likely to be an SVP. If the DCR and the Board conclude that is the case, the inmate is referred for full evaluation by the State Department of Mental Health (DMH). (§ 6601, subd. (b).)

A full evaluation is done by two practicing psychiatrists or psychologists, or by one of each profession. (§ 6601, subd. (d).) If one evaluator concludes the inmate meets the SVP criteria, but the other evaluator disagrees, two more independent evaluators are appointed. (§ 6601, subd. (e).) A petition for commitment may not be requested unless the initial two evaluators appointed under subdivision (d), or the two independent evaluators appointed under subdivision (e), agree that the inmate meets the commitment criteria. (§ 6601, subds. (d), (f).)

If, after the full evaluation is completed, the DMH concludes that the inmate is an SVP, the director of the DMH requests that a petition for commitment be filed by the district attorney or the county counsel of the county where the inmate was convicted. If upon review that official concurs, a petition for commitment is filed in the superior court. (§ 6601, subds. (h), (i).) As noted, the petition must be filed while the inmate is in lawful custody, that is, either before the scheduled release date or while subject to a 45-day hold under section 6601.3. It is apparent that the process has a number of steps and may take some considerable time to complete.

A. People v. Superior Court (Sharkey)

Sharkey was imprisoned for forcible rape*fn5 and assault with intent to commit rape.*fn6 His scheduled release date was November 24, 2008. On March 12, 2008, the secretary of the DCR referred his case to the Board for further evaluation. This referral was timely. However, the matter was not acted upon for six months, largely because it was assigned to a part-time Board employee who was later laid off. On September 11, 2008, the Board notified the DMH that Sharkey met the initial screening criteria. On November 18, a DMH case worker requested a 45-day hold so that Sharkey's full psychological evaluations could be completed. On November 20, the Board issued the hold "to facilitate full SVP evaluations to be concluded by the DMH." By December 2, two psychologists concluded that Sharkey met the criteria for treatment under the sexually violent predator act. (§ 6600 et seq.; (SVPA).) On December 10, the DMH recommended that the district attorney file a commitment petition. The petition was filed on December 23, 2008.

Sharkey moved to dismiss the petition. He claimed he was not in lawful custody when the SVP petition was filed because no good cause showing was made to justify the 45-day hold. The trial court granted the motion, explaining, "Under the definition of good cause in section 2600[.1] of the regulations, there is good cause. There was 'some evidence' that Mr. Sharkey met both parts of the criteria listed in section 2600[.1] - a qualifying offense and a [likelihood] of engaging in sexually violent predatory behavior . . . . [¶] However, the court finds that the good cause definition set out in section 2600[.1] of the CCR is clearly erroneous. It is not a definition of good cause - a reason why more time is needed. It simply declares that if the state of the underlying evidence is satisfactory under the 'some evidence' standard, the deadline is not enforced. [¶] By analogy, a trial court can continue a felony criminal trial beyond the 60-day deadline upon a finding of good cause, i.e., a party giving a good reason why the trial cannot timely go forward. Good cause in that context is not established by showing that probable cause exists [to believe] that defendant committed the charged crime. That the evidence satisfies the probable cause standard does not release the parties from having to give a good reason why they cannot meet the statutory deadline. [¶] Similarly, because 'some evidence' exists that an inmate meets the criteria as a SVP cannot establish good cause" why the filing deadline cannot be met.

In other words, the trial court held that the regulatory definition of "good cause" is invalid because it does not define what kind of showing would be sufficient to justify the requested delay. The regulation simply provides that inmates can be held beyond their scheduled release dates if there is some evidence they are likely to be found SVP's.

The trial court further ruled that the Board's reliance on the regulation's definition of "good cause" could not be excused as a good faith mistake of law "because the regulation eviscerates the common legal definition of good cause."

The People sought a writ of mandate from the Court of Appeal to overturn the dismissal and reinstate the SVP petition. The Court of Appeal issued the writ. It held the regulation's "good cause" definition is valid because it fell within the scope of the Board's authority and is reasonably necessary to effectuate both the purpose of section 6601.3 and of the SVPA generally. In addition, the regulation was formally adopted under the Administrative Procedure Act (Gov. Code, § 11340 et seq.) and embodies a long-standing statutory interpretation. For these reasons the regulation was entitled to judicial deference.

The Court of Appeal further held that even if the regulation is invalid, reliance on it was excusable as a good faith mistake of law. "[T]he trial court should have recognized that absent a judicial determination of invalidity, the Board and the People were entitled to rely on the regulation . . . ."

The Court of Appeal issued a writ of mandate directing the superior court to vacate its dismissal of the petition to commit Sharkey as an SVP, to enter a new order denying the dismissal motion, and to set the matter for SVPA proceedings. We granted Sharkey's petition for review.

B. In re Lucas on Habeas Corpus

Lucas went to prison for failing to register as a sex offender.*fn7 His scheduled release date was October 12, 2008. On December 21, 2007, the DCR secretary determined that Lucas met initial SVP screening standards. Among other offenses, he had been convicted of lewd and lascivious acts with a minor,*fn8 which involved intercourse and sodomy with an eight-year-old girl. The screening form was not received by the DCR's classifications services unit until October 1, 2008, 11 days before Lucas's scheduled release date. The record contains no explanation for this delay. The DCR referred the matter to the Board the next day, and on October 7, the Board referred it to the DMH. On October 9, the Board issued a 45-day hold "to facilitate full SVP evaluations to ...

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