Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. James T. Warren, Judge, Super. Ct. No. RIC467346.
Rod Pacheco, District Attorney, and Matt Reilly, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Gary Windom, Public Defender, William A. Meronek and Nathan R. Livingston, Deputy Public Defenders, for Real Party in Interest.
OPINION
GAUT, Acting P.J.
The People seek a writ of mandate directing the trial court to vacate its order dismissing a commitment petition filed pursuant to the Sexually Violent Predator (SVP) Act. (Welf. & Inst. Code, § 6600 et seq.) We grant the petition, finding that real party in interest (defendant) was not in lawful custody at the time the petition was filed, but that this was the result of a good faith mistake of fact and/or law.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
Defendant was convicted in 1990 of molesting his own daughter. In 1994, while a parolee at large, he was convicted in Nevada of attempted sexual battery.
Defendant pled guilty in March 2005 for failing to register and was sentenced to two years eight months in state prison. The court at that time recommended psychiatric evaluations and treatment for him.
After defendant was received in prison in May 2005, California Department of Corrections and Rehabilitation (CDCR) conducted an intake audit and calculated his release date as Saturday, January 20, 2007. A 60-day audit was conducted on November 21, 2006.
On January 8, 2007, a 10-day parole audit was conducted and it was determined that defendant’s parole status would be designated as “within the highest control or risk” under Penal Code section 3060.7.
On January 19, 2007, a three-day hold was imposed to allow for completion of a clinical evaluation as a sexually violent predator by the Department of Mental Health pursuant to California Code of Regulations, title 15, section 2600.1.
Another parole hold was imposed on January 23, 2007, and again on January 25, 2007. That hold was removed and a 45-day hold was imposed under section 6601.3 to remain in effect until March 11—50 days after his initially scheduled release date.
The Riverside County District Attorney filed a petition to commit defendant under the SVP Act on March 9, 2007.
A probable cause hearing was held in April 2007 and the court found probable cause to find defendant would be dangerous if released.
Thereafter, defendant filed a motion to dismiss on the ground that the petition was filed 47 days beyond his scheduled release date, apparently because the CDCR had improperly tried to “stack” a 45-day parole hold and a three-day hold.
The People conceded that the 45-day hold could not be stacked with other holds, but asserted that the stacking was based on a good faith mistake of law so that the petition should not be dismissed. They relied on the provisions of section 6601, subdivision (a)(2), that provides 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.”
The People called Raquel Fassnacht, employed as a deputy commissioner with CDCR, to testify as to the good faith mistake issue. She testified that after the passage of Jessica’s Law in November 2006, it was her job to write policy and procedures as well as to conduct probable cause hearings and place 45-day holds. Under the procedure, a 72-hour hold was placed on an inmate to determine if he should be evaluated by the Department of Mental Health. The 45-day hold was placed only after it was determined the inmate had a “static 99” score—i.e., to determine if he committed a certain amount of crimes, if he is emotionally disturbed, and if he would reoffend. In other words, the three-day hold is used just to determine whether the inmate is eligible for a 45-day hold.
The SVP Act was amended in several respects by Proposition 83, known as The Sexual Predator Punishment and Control Act, or Jessica’s law, a voter initiative enacted on November 7, 2006.
Fassnacht further stated that she and others at CDCR believed that the two holds were unrelated to one another, even after she read the statute. Because she was the only one doing holds, she decided that she had to implement a different procedure so she consulted staff counsel who then advised her that there was a problem. As a result of that conversation, emergency regulations were changed. Apparently, this occurred in April 2007—after defendant’s holds had been placed. She further stated that it was her belief that the 45-day and three-day holds could be stacked.
Another issue at the hearing was the failure to conduct an evaluation of defendant at least six months prior to his release date. The trial court opined that section 6601 was clear and CDCR did not have a choice because the statute said “shall,” so it was mandatory. The court also commented that it did not understand how anyone reading the statute could come to the conclusion that you can stack the holds. “I don’t see how that could be a mistake of law or fact. But maybe you can—I mean 6601.3 is clear as can be.”
Later and after considering People v. Superior Court (Small) (2008) 159 Cal.App.4th 301 (Small), the trial court found that defendant was not in lawful custody and could not find there was a good faith mistake of fact or law. Accordingly, it ordered the petition dismissed and defendant released.
The People sought writ review in this court and we issued an order to show cause.
DISCUSSION
The SVP Act applies to a defendant who is in custody at the time the petition is filed. (§ 6601, subd. (a)(1).) A defendant’s period of custody may be extended for 45 days beyond his scheduled release date on a showing of good cause in order to conduct a full evaluation for SVP purposes. (§ 6601.3.)
The fact that a defendant was not legally in custody when a SVP petition was filed does not in and of itself require dismissal of the petition. The SVP Act states 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.” (§ 6601, subd. (a)(2).) “Thus, the Legislature has made it absolutely clear that... lawful custody [is not] a jurisdictional prerequisite to filing an SVP petition; a later judicial or administrative proceeding determination the custody was unlawful does not deprive the court of the power to proceed on an SVP petition if the custody status when the petition was filed was a result of a good faith mistake of law or fact.” (People v. Wakefield (2000) 81 Cal.App.4th 893, 898.)
Generally, a mistake of fact occurs when a person understands the facts to be other than they are. (People v. Kelly (1939) 35 Cal.App.2d 571, 574.) A mistake of law is a mistake occurring when a person knows the facts as they are but has a mistaken belief as to the legal consequence of those facts. Not every mistake is excusable, but an honest mistake is excusable, the determining factor being the reasonableness of the misconception. (Powell v. City of Long Beach (1985) 172 Cal.App.3d 105, 109.) While determination of a good faith mistake is an evidentiary matter, the only evidence on the issue is Fassnacht’s testimony. That testimony is undisputed and shows that she relied on a valid regulation. It clearly appears that the late filing of the petition was not due to any negligence or intentional wrongdoing, but a misapprehension of the interplay between the statutory and regulatory holds. In short, she made a good faith mistake of law. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1228-1229.) The trial court concluded that the law was clear to it, so concluded that there could not be a good faith mistake of law. However, it made no finding that Fassnacht was not credible as to what her beliefs were at the time. As a reviewing court we draw a different conclusion based on the undisputed evidence. We cannot conclude that it was totally unreasonable for a lay person to believe that the provision for a three-day hold in the California Code of Regulations could be used in addition to the 45-day hold set forth in a statute. Fassnacht testified that she believed the holds were separate; while this conclusion was certainly mistaken, it was made in good faith.
Furthermore, we agree with defendant that there certainly were delays in processing his case and completing the necessary evaluations, but the superior court made no factual determination that the delay in filing the petition was due to this bureaucratic delay. It found simply that the mistake in determining the release date was not a good faith mistake. The superior court cited Small only to the effect that that decision made clear that it would have to dismiss the case unless it could find a mistake of fact or law. The Small case is distinguishable. There, a 45-day hold was placed on the prisoner in order to conduct a SVP evaluation. The evaluations were completed late causing the district attorney to file the SVP petition one day after the expiration of the 45-day period. The CDCR argued that the reason for the delay in completing the mental health evaluations was due to the passage of Jessica’s law and the exponential increase in the number of evaluations that were required. The appellate court held that the increased workload does not amount to a mistake of law or fact and is something that the CDCR and mental health could have anticipated and prepared for. (Small, supra, 159 Cal.App.4th at p. 310)
As a last ditch effort to avoid dismissal, the People in Small argued that the 45-day hold expired on a Sunday and it was claimed that they had until the following Monday to file the petition. The court rejected this argument, finding Code of Civil Procedure section 12a did not apply to the 45-day hold. There was no argument in Small that the People did not file the petition earlier because there was a mistake of law that his lawful custody extended until Monday. As already noted above, here it was undisputed that officials believed that defendant’s lawful custody was extended by the three-day hold tacked onto the 45-day hold. Defendant says that the evaluation was not completed in a timely manner, but we cannot presume that the petition could not have been filed a few days earlier if those charged with processing the matter had been correctly informed of the last date of defendant’s lawful custody.
DISPOSITION
Let a peremptory writ of mandate issue to the Superior Court of Riverside County directing it to set aside its order dismissing the commitment petition and to issue a new order denying real party in interest’s motion to dismiss. Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: Hollenhorst, J., McKinster, J.