People v. Superior Court (Sokolich)

         ORIGINAL PROCEEDINGS in mandate, Los Angeles County Super. Ct. No. ZM014603, Daniel Juarez, Judge.

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         COUNSEL

         Jackie Lacey, Los Angeles County District Attorney, Steven Katz, Head Deputy District Attorney, Phyllis C. Asayama and Roberta T. Schwartz, Deputy District Attorneys, for Petitioner.

         No appearance for Respondent. Ronald L. Brown, Los Angeles County Public Defender, Albert J. Menaster, David Santiago and Nicole Campbell, Deputy Public Defenders, for Real Party in Interest.

         OPINION

         MANELLA, J.

         In the underlying proceeding pursuant to the Sexually Violent Predator Act (SVP Act) (Welf. & Inst. Code, § 6600 et seq.), the trial court granted real party in interest Albert Sokolich’s motion to dismiss the petition for his commitment as a sexually violent predator.^[1] Petitioner seeks a writ directing the court to reinstate the petition, vacate the order for Sokolich’s release, and set the matter for further proceedings. We grant the petition for writ of mandate.

         RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         In May 1995, Sokolich was convicted of annoying and molesting a child under the age of 18 (Pen. Code, § 647.6) and carrying a concealed firearm in

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a vehicle (former Pen. Code, § 12025, subd. (a)(1)), after two girls, aged 11 and 12, reported that he had been following them for over a month. He was sentenced to three years of summary probation, five days in jail, and psychiatric counseling.

         Between November 1999 and February 2000, Sokolich engaged in several incidents of sexual misconduct involving children between the ages of six and eight, including exposing himself and soliciting oral sex. Upon Sokolich’s arrest following one of the incidents, officers found a knife and thumb cuffs in his car. Sokolich was convicted of two counts of annoying and molesting a child under the age of 18 (Pen. Code, § 647.6, subd. (a)), placed on formal probation for five years and, as a condition of probation, required to serve 180 days in county jail and participate in psychiatric counseling.

         In August 2001, Sokolich approached two boys while exposing himself and assaulted one as the other fled. In January 2002, a jury convicted him of criminal oral copulation (Pen. Code, § 288a) and annoying and molesting a child under the age of 18 (Pen. Code, § 647.6, subd. (a)). Sokolich was sentenced to a prison term of nine years and four months.^[2]

         On April 9, 2009, upon application of the Los Angeles County District Attorney, the superior court issued an order directing that Sokolich be delivered into the custody of the Los Angeles County Sheriff’s Department for an arraignment on a petition for his commitment as a sexually violent predator. That proceeding was set for April 21, 2009.

         In a letter to the district attorney dated April 15, 2009, the California Department of Mental Health (DMH) recommended Sokolich’s commitment as a sexually violent predator. The letter (erroneously) listed Sokolich’s release date set by the California Department of Corrections and Rehabilitation (DCR) as April 24, 2009. Two accompanying documents -- a Summary Referral Sheet and a Level II Screen -- also listed a release date of April 24, 2009. The correct release date, as reflected in a handwritten chronology prepared by the DCR, was April 20, 2009.

         On April 20, 2009, the district attorney filed a petition seeking Sokolich’s commitment as a sexually violent predator. Following his arraignment, he participated in lengthy pre-trial proceedings.

         On September 18, 2015, prior to trial, Sokolich filed a “Motion to Dismiss/Writ of Habeas Corpus, ” maintaining that he was not subject to

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confinement as a sexually violent predator because the petition had been filed on April 20, 2009, his release date. The motion relied on subdivision (a)(2) of section 6601 (section 6601(a)(2)), which states: “A petition may be filed under this section if the individual was in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to [s]ection 6601.3, at the time the petition is filed. 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.”

         Sokolich’s motion contended the petition was not timely filed, arguing that on April 20, 2009, he was not in custody pursuant to a prison or parole revocation term, and that the district attorney never sought a 45-day hold on his release pursuant to section 6601.3.^[3] Sokolich further contended there was no “good faith mistake of fact or law, ” arguing that the untimely filing was due to intentional misconduct or negligence because the district attorney’s office had information reflecting his correct release date.

         On November 13, 2015, the trial court granted the motion to dismiss. The court concluded that on April 20, 2009, Sokolich, who had been transferred to Los Angeles to be arraigned on the petition, was not “in custody” for purposes of section 6601(a)(2), finding “the release date for... Sokolich would not count as a date upon which he could be served with a petition.” The court found that although Sokolich was then in custody awaiting arraignment on the petition, he was no longer serving a determinate prison sentence. The court further concluded that the untimely filing of the petition did not reflect a good faith mistake. The court found no “intentional wrongdoing or anything [of] that nature, ” but concluded that “there was negligent reliance” by the district attorney’s office on certain documents reflecting the incorrect release date of April 24, 2009. The court stated that there was no “good faith mistake of fact or law” because the district attorney’s office and other agencies involved in the filing of the petition “should have been aware” of the correct release date.

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         On December 10, 2015, petitioner filed its petition for writ of mandate. The following day, we imposed a temporary stay. On April 6, 2016, we issued an order to show cause, and directed that the stay remain in effect.

         DISCUSSION

         Petitioner contends the trial court erred in granting the motion to dismiss. As explained below, we agree.

         A. Standard of Review

         Our examination of the ruling on the motion to dismiss applies established principles. The court’s factual findings are reviewed for the existence of substantial evidence. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255 [152 Cal.Rptr.3d 878] (Orey); Langhorne v. Superior Court (2009) 179 Cal.App.4th 225, 238 [101 Cal.Rptr.3d 560] (Langhorne).) To the extent the court resolved questions of law regarding the application of the statutory scheme, we review those determinations de novo. (See Orey, supra, at pp. 1251-1253; People v. Superior Court (George) (2008) 164 Cal.App.4th 183, 192-193 [78 Cal.Rptr.3d 711].)

         B. Sexually Violent ...