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Swarthout v. Superior Court (Culver City Police Department)

California Court of Appeals, Second District, Third Division
Sep 4, 2012
No. B241132 (Cal. Ct. App. Sep. 4, 2012)

Opinion


GARY SWARTHOUT, as Warden, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent CULVER CITY POLICE DEPARTMENT, Real Party in Interest. B241132 California Court of Appeals, Second District, Third Division September 4, 2012

Los Angeles County Super. Ct. No. A468114

ORDER: (1)MODIFYING OPINION AND (2)ORDER DENYING PETITION FOR REHEARING

It is ordered that the opinion filed herein on August 16, 2012, is modified as follows:

On page 12, line four, add new footnote 10 after the word “circumstances.” The footnote reads:

Subsequent to the trial court’s issuance of its order temporarily transferring J.T., the Legislature amended Penal Code section 2690, as an urgency matter, to provide that the Secretary of the Department of Corrections and Rehabilitation may authorize the temporary removal of any inmate from prison in order to “permit[] the inmate to participate in or assist with the gathering of evidence relating to crimes.” (Stats. 2012, ch. 145, § 1.) The City argues that this amendment implies that orders to release inmates for investigative purposes “have now been expressly approved by the California Legislature as being a proper exercise of the judicial function.” On the contrary, the Legislature granted authority for such orders to the Secretary of the Department of Corrections, not the courts. Moreover, the Secretary of the Department of Corrections is, by this statute, granted discretion to authorize the temporary removal of an inmate for investigative purposes; such authority necessarily includes the discretion on the part of the Secretary to refuse a request for such removal. That appears to be precisely what occurred in this case, as the warden, acting on behalf of the Department of Corrections, denied the request for removal.

The remaining footnote is to be renumbered.

The petition for rehearing filed by the City is denied.

[There is no change in the judgment.]


Summaries of

Swarthout v. Superior Court (Culver City Police Department)

California Court of Appeals, Second District, Third Division
Sep 4, 2012
No. B241132 (Cal. Ct. App. Sep. 4, 2012)
Case details for

Swarthout v. Superior Court (Culver City Police Department)

Case Details

Full title:GARY SWARTHOUT, as Warden, etc., Petitioner, v. THE SUPERIOR COURT OF LOS…

Court:California Court of Appeals, Second District, Third Division

Date published: Sep 4, 2012

Citations

No. B241132 (Cal. Ct. App. Sep. 4, 2012)