Filed 3/5/12
IN THE SUPREME COURT OF CALIFORNIA
) S181788
In re DAVID LUCAS )
) Ct.App. 3 C062809
on Habeas Corpus. ) Placer County
____________________________________) Super. Ct. No. SCV23989
)
THE PEOPLE, ) S182355
)
Petitioner, ) Ct.App. 2/3 B219011
) Los Angeles County
v. ) Super. Ct. No. ZM014203
)
THE SUPERIOR COURT OF )
LOS ANGELES COUNTY, )
)
Respondent; )
)
CHRISTOPHER SHARKEY, )
)
Real Party in Interest. )
____________________________________)
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
1
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).)1
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.2
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.”3 However, the concept was addressed by regulation. California Code of
Regulations, title 15, section 2600.1, subdivision (d),4 defines “good cause” as
“[s]ome evidence” that the person has a qualifying conviction and is “likely to
1 Unless otherwise indicated, all further statutory references will be to the
Welfare and Institutions Code.
2 Except where otherwise indicated, our references to section 6601.3 will be
to the statute as amended in 2000, the version in effect when these cases arose.
(Stats. 2000, ch. 41, § 1, p. 129.)
3 In 2010, section 6601.3 was amended by adding subdivision (b), which
does provide a definition of “good cause” as used in the section. “(b) 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.” (Stats. 2010, ch. 710, § 5.) The regulation has not yet been revised to
track the 2010 amendment defining good cause.
4 For convenience, California Code of Regulations, title 15, section 2600.1
will be referred to as “regulation 2600.1.”
2
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.
I. FACTUAL AND PROCEDURAL BACKGROUND
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
3
(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
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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 rape5 and assault with intent to
commit rape.6 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
5 Penal Code section 261, subdivision (a)(2).
6 Penal Code section 220.
5
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
6
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.7 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,8
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 be concluded by DMH.”
7 Penal Code section 290.
8 Penal Code section 288.
7
During the hold period, three of the four psychologists who evaluated Lucas
concluded that he met the SVP criteria, and the district attorney filed a
commitment petition.
Lucas moved to dismiss the petition. Like Sharkey, he argued he was not
in lawful custody when the SVP petition was filed because good cause had not
been shown for the 45-day hold.9 The motion was denied. Lucas’s petition for
writ of habeas corpus to review this decision was denied by the appellate division
of the superior court.
When Lucas sought habeas corpus relief in the Court of Appeal, it issued an
order to show cause “limited to the claim that [Lucas]’s extended commitment
under Welfare & Institutions Code section 6601.3 was unlawful because there was
no ‘showing of good cause’ as required by this statute.”
The Court of Appeal held the regulation invalid. “Because regulation
2600.1[, subdivision](d) purports to allow a finding of good cause for a 45-day
hold based solely on evidence that the inmate may be a sexually violent predator,
and does not require a showing of exceptional circumstances that precluded the
completion of the sexually violent predator evaluation within the normal
timeframe, the regulation is invalid, as it is inconsistent with the legislative intent
behind section 6601.3.” However, the court concluded that the Board’s reliance
on the regulation’s definition of “good cause” was excusable as a good faith
mistake of law. “When the board placed the 45-day hold on Lucas in October
2008, there was no judicial or administrative decision that had addressed the
validity of regulation 2600.1[, subdivision](d), and the regulation was, to all
9 Lucas also claimed that he was denied due process of law because his SVP
petition was not tried before his scheduled release date. He does not renew that
claim here.
8
appearances, valid. Thus, the board could have relied in good faith on that
regulation in placing the hold on Lucas.” Accordingly, the court discharged the
order to show cause and denied the habeas corpus petition. We granted Lucas’s
petition for review.
II. DISCUSSION
A. The Regulatory Definition of “Good Cause” Is Invalid
“It is well settled that the proper goal of statutory construction ‘is to
ascertain and effectuate legislative intent, giving the words of the statute their
usual and ordinary meaning. When the statutory language is clear, we need go no
further. If, however, the language supports more than one reasonable
interpretation, we look to a variety of extrinsic aids, including the objects to be
achieved, the evils to be remedied, legislative history, the statutory scheme of
which the statute is a part, contemporaneous administrative construction, and
questions of public policy. (In re Derrick B. (2006) 39 Cal.4th 535, 539.)’
(Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 783.)”
(People v. Ramirez (2009) 45 Cal.4th 980, 987.)
Here, the statute was not clear on its face. Indeed, when these cases arose
the Legislature provided no definition of “good cause” in section 6601.3 It has
long been recognized that “[t]he term ‘good cause’ is not susceptible of precise
definition. In fact, its definition varies with the context in which it is used.”
(Zorrero v. Unemployment Ins. Appeals Bd. (1975) 47 Cal.App.3d 434, 439.)
Therefore, it is appropriate to resort to extrinsic sources to determine legislative
intent and construe the applicable administrative regulations.
The Legislature provided that an inmate could be held beyond the release
date upon a showing of “good cause.” (§ 6601.3.) Because the Legislature did not
define what kind of showing would be sufficient to demonstrate the existence of
good cause, it fell to the Board to define that term by regulation. “When an
9
administrative agency construes a statute in adopting a regulation or formulating a
policy, the court will respect the agency interpretation as one of several
interpretive tools that may be helpful. In the end, however, ‘[the court]
must . . . independently judge the text of the statute.’ (Yamaha Corp. of America
v. State Board of Equalization (1998) 19 Cal.4th 1, 7–8.)” (Agnew v. State Bd. of
Equalization (1999) 21 Cal.4th 310, 322; accord, Murphy v. Kenneth Cole
Productions, Inc. (2007) 40 Cal.4th 1094, 1106.) We do not accord deference to
an interpretation that is clearly erroneous. (Bonnell v. Medical Board (2003) 31
Cal.4th 1255, 1265; Yamaha Corp. of America, supra, 19 Cal.4th at p.14; People
ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 309.) If a regulation
does not properly implement the statute, the regulation must fail.
This regulation is deficient. It fails because it links good cause to the
wrong showing. The showing required by section 6601.3 is not a demonstration
of good cause to believe an inmate may be, or is likely to be, an SVP. Those
questions are determined under section 6601, subdivisions (a)(1) and (b). Instead,
the showing required under section 6601.3 is that good cause justifies a delay in
filing the petition beyond the inmate’s scheduled release date. This interpretation
is supported by an examination of the legislative scheme itself.
By the time a request for a hold is filed, a preliminary determination that an
inmate may be an SVP has already been made more than once. First, the DCR
secretary determines an inmate “may be a sexually violent predator.” (§ 6601,
subd. (a)(1), italics added.) This determination cannot be made arbitrarily, but
must be based on some evidence. Upon the secretary’s referral, the DCR and the
Board perform a screening to determine whether the inmate “is likely to be a
sexually violent predator.” (§ 6601, subd. (b), italics added.) Indeed, the statute
requires that the process be conducted using a “structured screening instrument”
developed and updated by the DMH in consultation with the DCR. (Ibid.) Again,
10
the requirement of a determination implies that there is some evidence to support
it. Logically, section 6601.3’s provision for a hold beyond the scheduled release
date requires a good cause showing different from those determinations required
to put the process in motion in the first place. If the Board could find good cause
for a 45-day hold based solely on a showing of some evidence that an inmate met
the SVP criteria, the exception would swallow the rule.
This conclusion is further supported by the legislative history of the
amendment that made the good cause requirement a part of section 6601.3. (Stats.
2000, ch. 41, § 1, p. 129.) Section 6601.3 was first added to the SVP scheme in
1996. It originally empowered the Board to order that an inmate remain in
custody for no more than 45 days to facilitate evaluation, but made no mention of
a good cause showing. (Stats. 1996, ch. 4, § 2, p. 16.) According to a committee
analysis, the purpose of the 2000 amendment was to clarify “that an inmate
referred to the [sexually violent predator] process may be detained 45 days beyond
the scheduled release date, in order to cover situations in which an inmate’s
release date may be unexpectedly moved up, or when a parole revocation term
allows insufficient time to complete the evaluation process.” (Assem. Com. on
Appropriations, Analysis of Sen. Bill No. 451 (1999–2000 Reg. Sess.) Apr. 12,
2000, pp. 1–2, underscoring omitted.)
The amendment clarified the Legislature’s intent to authorize the grant of a
hold if good cause could be shown. It can reasonably be inferred that the
Legislature intended that the required showing justify the extension, which it had
taken pains to make available, as an exception to the general requirement that a
commitment petition be filed before the scheduled release date.
We emphasize that our construction of the term “good cause” is specific to
this statutory framework. “ ‘When related to the context of the statute, “good
cause” takes on the hue of its surroundings, and . . . must be construed in the light
11
reflected by its text and objectives.’ ” (Cal. Portland Cement Co. v. Cal. Unemp.
Ins. Appeals Board (1960) 178 Cal.App.2d 263, 273.)
In Lucas, the Attorney General concedes the regulation is invalid.10 In
Sharkey, the district attorney claims it is valid. However, the district attorney fails
to grapple with either the overall approach taken by the Legislature or section
6601.3’s legislative history.
The district attorney argues, in essence, that a good cause showing of need
for a 45-day hold should not be required because to do so would prevent the Board
from carrying out the legislative purpose of the SVPA. It is true that the SVPA
was enacted to protect the public and provide treatment beyond an inmate’s
determinate prison commitment. (See generally Allen, supra, 44 Cal.4th at p. 857;
Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143–1144 (Hubbart).)
However, both the public and the inmate have interests at stake in an SVP
proceeding. An inmate’s individual interests include the limitations on liberty,
stigma, and subjection to unwanted treatment consequent upon an SVP finding.
(Allen, supra, 44 Cal.4th at p. 863.) To allow the Board to place a 45-day hold
without a showing that more time is legitimately required to complete an
evaluation would deny an inmate these important liberty interests, and undermine
the balance among competing interests the Legislature sought to achieve.
The district attorney’s analysis reads the statutes and regulation together as
follows. Once determinations are made that an inmate may be an SVP (§ 6601,
10 In the Court of Appeal in Lucas, the Attorney General took the position that
the regulation was valid. “Good cause exists if the person in custody may be an
SVP.” Now the Attorney General argues that, “based on legislative intent . . . ,
‘good cause’ in this statute requires a showing that, due to exigent circumstances,
such as when an inmate’s release date is unexpectedly moved up, or where there is
a shorter parole revocation term, it is difficult or impossible to timely complete a
full evaluation of an inmate” before the scheduled release date.
12
subd. (a)(1)) and that he or she is likely to be an SVP (§ 6601, subd. (b)), a petition
must be filed before the inmate’s scheduled release, plus 45 days. Good cause
would support a 45-day extension in every case because every inmate referred for
a full screening would, of necessity, have been found to meet the criteria applied
in screenings under subdivisions (a)(1) and (b). Such an interpretation would
allow the regulatory provision implementing the 45-day hold to completely vitiate
the statutory requirement of filing before the release date except in limited
circumstances.
B. Reliance Was Excusable as a Good Faith Mistake of Law
While the Courts of Appeal in Sharkey and Lucas differed on whether
regulation 2600.1, subdivision (d)’s definition of good cause was deficient, they
both went on to conclude that the Board’s reliance on the regulation was excusable
as a good faith mistake of law because it had not been called into question in any
earlier administrative or judicial decision.
As noted, section 6601, subdivision (a)(2), 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.”
The legislative history of section 6601, subdivision (a)(2) reveals that a
“good faith mistake of law” as used there is one that does not involve “ ‘negligent
or intentional wrongdoing’ ” by correctional authorities. (In re Smith (2008) 42
Cal.4th 1251, 1260; see id. at pp. 1259-1261 (Smith).) We reviewed the legislative
history in Smith and concluded the statute was intended to codify the holding of
People v. Superior Court (Whitley) (1999) 68 Cal.App.4th 1383 (Whitley II). Prior
to Whitley II, in Terhune v. Superior Court (1998) 65 Cal.App.4th 864 (Whitley I),
a trial court had dismissed SVP proceedings against Whitley for lack of probable
cause. However, instead of releasing him, the Board revoked his parole under a
13
regulation that purported to authorize parole revocation for psychiatric treatment.
Whitley successfully challenged the regulation in Whitley I. There the court held
that the regulation exceeded the Board’s authority because it was basically an end-
run around the procedural protections of the SVP Act. (Smith, 42 Cal.4th at p.
1259.)
Whitley II, supra, 68 Cal.App.4th 1383, involved the question whether
Whitley was entitled to release because the Board mistakenly relied on the invalid
regulation to revoke his parole. The Whitley II court concluded that he remained
subject to SVP proceedings. “ ‘[T]he record in the present case does not indicate
negligent or intentional wrongdoing by the Department of Corrections in revoking
Whitley’s parole for psychiatric conditions based on [Cal. Code Regs., tit. 15, §
2616, subd. (a)(7)]. The department’s error in revoking his parole on that basis
resulted from its mistake of law concerning the scope of its broad statutory
authority to establish and enforce regulations governing parole. Until we decided
[Whitley I], there was no controlling judicial decision directly on point . . . . Given
these factors and in light of the serious public safety purpose underlying the Act,
we conclude that despite the department’s legal error, the trial court had
jurisdiction or power to consider the People’s latest petition for Whitley’s
commitment.’ (Whitley II, supra, 68 Cal.App.4th at pp. 1389-1390.)” (Smith,
supra, 42 Cal.4th at p. 1260.)
In Smith, supra, 42 Cal.4th 1251, we noted that when section 6601,
subdivision (a)(2) was added to the SVP Act in 1999, “legislative committee
analyses made clear that it was intended to adopt a rule similar to the holding in
Whitley II. The Senate Committee on Public Safety’s analysis of the amendment
states that it was ‘a response to [Whitley I], in which the Court of Appeal barred
SVP proceedings against inmate Whitley . . . . [¶] In [Whitley II], . . . the court
held that because [the Board of Prison Terms] and the [Department of Corrections]
14
did not unlawfully hold Whitley in custody through “negligent or intentional
wrongdoing,” an SVP petition against Whitley could proceed.’ (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 11 (1999-2000 Reg. Sess.) as amended
Mar. 23, 1999, pp. 3-4.) . . . [¶] . . . [¶] An Assembly Republican bill analysis
stated: ‘The bill responds to an ambiguity created by an appellate court decision
and makes it clear that sexually violent predators are not to be unleashed on
society simply because “the constable has blundered.” ’ (Assem. Com. on Public
Safety, Republican Analysis of Sen. Bill No. 11 (1999-2000 Reg. Sess.) as
amended Apr. 6, 1999, p. 1.)” (Smith, supra, 42 Cal.4th at pp. 1260-1261.)
The mistake of law in the cases at bar is essentially similar to that in
Whitley II. Just as in Whitley II, the Board here relied on a regulation that was
later held to be clearly invalid. However, although the regulation’s invalidity is
readily apparent to us now, the Board cannot be faulted for not having anticipated
our decision, given that no previous judicial decision questioned its validity and
that the Courts of Appeal in these very cases split on the question.11 Moreover,
the Board’s interpretation of “good cause” is contained in a regulation formally
adopted pursuant to the Administrative Procedure Act (Gov. Code, § 11340 et.
seq.). “ ‘ “[A]n interpretation of a statute contained in a regulation adopted after
public notice and comment is more deserving of deference than [one] contained in
an advice letter prepared by a single staff member.” ’ ” (Ramirez v. Yosemite
Water Co. (1999) 20 Cal.4th 785, 801.) Finally, the regulation is entitled to
11 Petitioners argue that unexcused delay in handling their evaluations
precluded a finding that the orders extending their custody were the products of a
good faith mistake of law. However, as we have explained, at the time the
extension orders were made, the Board was entitled to rely on regulation 2600.1,
subdivision (d), which did not require a good cause showing to excuse delay.
15
“greater deference” because it embodies a statutory interpretation that the Board
has consistently maintained and that has gone unchallenged for over 13 years.
(Ibid.) Accordingly, in the absence of any indication of negligent or intentional
wrongdoing by correctional authorities, we conclude that the Board’s reliance on
the regulation here was excusable as a good faith mistake of law.
Petitioners disagree. They make alternative arguments in support of their
contention that the Board’s reliance on the regulation was not excusable.
First, petitioners claim that the Board failed to follow the procedure set out
in the regulation for issuing a 45-day hold. They point to subdivision (a) of
regulation 2600.1, part of the same regulation that, in subdivision (d), defines good
cause for a 45-day extension. Subdivision (a) permits a hold for up to three days
beyond the scheduled release date. By its terms, subdivision (a) applies when
“exceptional circumstances preclude an earlier evaluation.”12
Petitioners claim that in order to grant a 45-day extension order under
regulation 2600.1, subdivision (d), the Board “must first comply with subdivision
(a)’s 3-day hold requirement.” They conclude that “[i]t would constitute an
absurd result if the imposition of a 3-day hold required a finding of ‘exceptional
circumstances’ while the imposition of a 45-day hold did not.”
12 Regulation 2600.1, subdivision (a) provides: “Upon notification from the
Division of Adult Institutions, Department of Mental Health, or Board of Parole
Hearings (board) staff that either an inmate or parolee in revoked status may or
does require a full evaluation pursuant to subdivisions (c) through (i) inclusive of
Welfare and Institutions Code section 6601 to determine whether that person may
be subject to commitment as a sexually violent predator, the board may order
imposition of a temporary hold on the person for up to three (3) working days
beyond their scheduled release date pending a good cause determination by the
board pursuant to section 6601.3 of the Welfare and Institutions Code where
exceptional circumstances preclude an earlier evaluation by the person pursuant to
section 6601 of the Welfare and Institutions Code.”
16
The premise of petitioners’ argument is faulty. Petitioners urge that a
three-day hold is a condition precedent to the grant of a 45-day hold. But that is
not the case. A three-day hold under regulation 2600.1, subdivision (a) is an
available, but not a mandatory, provision.
The statutory provision contemplates that the determinations required by
section 6601, subdivision (a)(1) (an inmate may be an SVP) and subdivision (b)
(an inmate is likely to be an SVP) will be made substantially earlier in the process.
As noted, the secretary’s referral is to be made at least six months before the
scheduled release date. The DCR and Board screening must generally be done in
time to allow for a full evaluation by up to four psychiatrists or psychologists, the
preparation of their reports, a final DMH determination, and a review by the
district attorney or county counsel prior to the filing of a commitment petition.
Regulation 2600.1, subdivision (a), is a safety valve that allows an extra three days
when exceptional circumstances have precluded “an earlier evaluation [of] the
person pursuant to section 6601 . . . .”
Nowhere has the Legislature by statute, or the Board by regulation,
required that a three-day hold be granted before a 45-day extension may be sought.
Indeed, in neither of these cases was a three-day hold requested or granted. There
was no need. Here, the initial determinations of section 6601, subdivisions (a) and
(b) were made but a referral for a full evaluation had not been made. The
recognition that the release date was imminent occurred with sufficient time to
permit the Board to act on a 45-day extension request.
The three-day hold provision of regulation 2600.1 is also intended to apply
when there is not enough time before the inmate’s release date for the Board to
make the “good cause” determination required for a 45-day hold. Subdivision (a)
explains that if the Board’s staff informs the Board that the inmate “may or does”
need a full evaluation, the Board may impose a three-day hold pending its good
17
cause determination. Subdivision (b) of regulation 2600.1 says that during the
three-day hold, the staff must document that the inmate has been screened or is in
the process of being screened, and that the Board’s “good cause” determination
must occur during this three-day period. Even if the staff has already decided that
the inmate “does” need a full evaluation, the Board may need three days to
confirm that determination and authorize a 45-day hold. However, there is
nothing to suggest that the Board has to impose a three-day hold if it does not need
that time to decide on a 45-day hold. (Reg. 2600.1, subds. (a), (b).)
Next, petitioners argue that, contrary to the position taken by the DCR here,
the legislative history of section 6601.3 reveals that the DCR has always
understood that 45-day holds require a showing that exceptional circumstances
prevent the timely completion of SVP evaluations. Petitioners rely on the
following statement regarding the purpose of section 6601.3 by the Youth and
Adult Correctional Agency in an enrolled bill report.13 “[T]here will always be
inmates whose release dates are advanced through judicial or administrative action
so as to collapse the 6 month lead time, either before the process of referral has
begun or before a probable cause determination can be made. The new regulation,
based on apparent legislative intent that referrals not be released prior to a
probable cause determination . . . serves this purpose, and is by this amendment
explicitly included in the SVP law.” (Cal. Youth and Adult Correctional Agency,
13 “Generally, ‘enrolled bill’ refers to a bill that has passed both houses of the
Legislature and that has been signed by the presiding officers of the two houses.
(1 Sutherland, Statutes and Statutory Construction (6th ed. 2002) § 15:1, p. 814.)”
(Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133
Cal.App.4th 26, 40.) “An ‘enrolled bill report’ is prepared by a department or
agency in the executive branch that would be affected by the legislation. Enrolled
bill reports are typically forwarded to the Governor’s office before the Governor
decides whether to sign the enrolled bill.” (Ibid.)
18
Enrolled Bill Rep. on Assem. Bill No. 1496 (1995-1996 Reg. Sess.) Jan. 25, 1996,
p. 2 (Enrolled Bill Report).)
Petitioners misapprehend the legislative history. A careful reading of the
history of section 6601.3 and of regulation 2600.1 reveals that the Board has
consistently understood section 6601.3 to authorize the issuance of a 45-day hold
upon a showing that “some evidence” indicates a suspected SVP meets the
SVPA’s criteria.
The basic provisions of the SVPA were enacted in 1995 and took effect on
January 1, 1996. (Hubbart, supra, 19 Cal.4th at p. 1143.) Section 6601.3 was not
part of the original enactment. (See Stats. 1995, ch. 763, § 3, pp. 5922-5929.)
On December 26, 1995, regulation 2600.1 was filed as an emergency
measure, to become effective on January 1, 1996. The regulation’s stated purpose
was to “provide a mechanism for screening” suspected SVP’s “where exceptional
circumstances preclude an earlier evaluation and judicial determination of
probable cause.”14 (Reg. 2600.1, former subd. (a), Register 96, No. 23 (June 7,
1996) p. 91.) The regulation provided for 45-day holds if the Board found
“probable cause” to believe a suspected SVP met the act’s criteria. (Reg. 2600.1,
former subd. (c).) “Probable cause” for a 45-day hold was defined as requiring a
showing of “[s]ome evidence” that the criteria were met. (Ibid.)
Regulation 2600.1 took effect before section 6601.3 did. Section 6601.3
was added to the statutory scheme several weeks later as a “clean up” provision. It
14 After a petition has been filed a judge determines whether it asserts facts
sufficient to constitute probable cause to believe the inmate is “likely to engage in
sexually violent predatory criminal behavior upon his or her release.” (§ 6601.5.)
If the judge makes that probable cause finding, the person is to be detained in a
secure facility pending a hearing. (Ibid.) At the probable cause hearing the inmate
is entitled to representation by counsel. (§ 6602.) If probable cause is found, the
matter proceeds to trial. (§§ 6602, 6603.)
19
was approved by the Governor on January 25, 1996, and became effective
immediately as urgency legislation. (Stats. 1996, ch. 4, §§ 2, 5, pp. 16-17.) As
originally enacted, section 6601.3 did not require a showing of either “probable
cause” or “good cause” for the issuance of a 45-day hold. Instead, it provided
only that “[t]he Board of Prison Terms may order that a person referred to the
State Department of Mental Health pursuant to subdivision (b) of Section 6601
remain in custody for no more than 45 days for full evaluation pursuant to
subdivisions (c) to (h),[15] inclusive, of Section 6601, unless his or her scheduled
date of release falls more than 45 days after referral.” (§ 6601.3, former subd. (a),
added by Stats. 1996, ch. 4, § 2, p. 16.)16
The Board construed section 6601.3 as impliedly incorporating into the
SVPA the 45-day hold procedure the Board had earlier adopted in regulation
2600.1. In the enrolled bill report relied upon by petitioners, the Youth and Adult
Correctional Agency stated that section 6601.3 “places the parole hold procedure
adopted as regulation by the Board of Prison Terms into the body of the statutory
scheme.” (Cal. Youth and Adult Correctional Agency, Enrolled Bill Rep., supra,
at p. 2.) As noted, when the enrolled bill report was written, the only required
showing under the regulation was “[s]ome evidence” that the SVPA criteria were
met. (Reg. 2600.1, former subd. (c), Register 96, No. 23 (June 7, 1996) pp. 91-
92.) Nowhere does the applicable legislative history reveal that the corrections
agency understood that a 45-day hold required a demonstration of exceptional
circumstances.
15 The 1996 statute, in speaking of “subdivisions (c) to (h), inclusive, of
Section 6601,” referred to an earlier version of the statute. (Italics added.)
16 Section 6601.3 was reenacted without change after a sunset provision in the
original measure took effect in 1998. (Stats. 1998, ch. 19, § 1, p. 145.)
20
Only in 2000 was section 6601.3 amended to require that “good cause” be
shown for the imposition of 45-day holds.17 Regulation 2600.1 was not amended
until 2007, when the term “good cause” was substituted for the term “probable
cause.” The amended regulation then provided, as it does now, that “good cause
to place a 45-day hold” existed when there was “[s]ome evidence” the person had
committed a specified offense and was likely to engage in sexually violent
predatory criminal behavior. (Reg. 2600.1, subd. (d), Register 2007, No. 48
(Nov. 30, 2007) p. 93.) Not until 2010 did the Legislature amend section 6601.3
to make explicit the meaning of “good cause” that we find implicit in the statutory
scheme.18
For the foregoing reasons, the Board’s reliance here on the regulation’s
definition of “good cause” was excusable as a good faith mistake of law.
17 “Upon a showing of good cause, the Board of Prison Terms may order that
a person referred to the State Department of Mental Health pursuant to subdivision
(b) of Section 6601 remain in custody for no more than 45 days beyond the
person’s scheduled release date for full evaluation pursuant to subdivisions (c) to
(i), inclusive, of Section 6601.” (§ 6601.3, as amended by Stats. 2000, ch. 41, § 1,
p. 129, eff. June 26, 2000.)
18 As earlier stated, after these cases arose, section 6601.3 was amended
again. New subdivision (b) provides that, “[f]or 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), as added by Stats. 2010, ch. 710, § 5.)
21
III. DISPOSITION
In People v. Superior Court (Sharkey), S182355, we affirm the judgment of
the Court of Appeal directing the superior court to vacate its order dismissing the
petition to commit Sharkey as an SVP, and to set the matter for proceedings
pursuant to the SVPA. In In re David Lucas, S181788, we affirm the judgment of
the Court of Appeal discharging the order to show cause and denying the habeas
corpus petition.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.
22
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
Under California law, a petition to commit a person as a sexually violent
predator must be filed while the person is in lawful custody. (Welf. & Inst. Code,
§ 6601, subd. (a)(2); unless otherwise indicated, all further statutory references are
to the Welfare and Institutions Code.) In 2000, the Legislature imposed a
requirement on what is now the Board of Parole Hearings (Board) that “good
cause” be shown before extending the custody period up to “45 days beyond the
person’s scheduled release date . . .” (§ 6601.3, subd. (a)), thus extending the time
for filing the petition. The statute did not define the term “good cause.” That term
has generally been considered as referring to “a legally sufficient ground or reason
for a certain action.” (Zorrero v. Unemployment Ins. Appeals Bd. (1975) 47
Cal.App.3d 434, 439.) In this case, the “certain action” to be taken pertains to
extending a person’s custody. Therefore, the mention of “good cause” in section
6601.3’s subdivision (a) requires a legally sufficient reason for extending custody.
At issue here is the Board’s 2007 regulation defining good cause. The
Board’s definition of good cause turns on the existence of a qualifying conviction
and “ ‘[s]ome evidence’ that the person is likely to engage in sexually violent
predatory criminal behavior.” (Cal. Code Regs., tit. 15, § 2600.1, subd. (d)(2);
maj. opn., ante, at pp. 2-3.) But that determination is wholly unrelated to why the
Board needs to extend a person’s custody “beyond the person’s scheduled release
date . . . .” (§ 6601.3, subd. (a).) Therefore, the regulation does not implement the
1
statutory requirement that “good cause” be shown justifying the Board’s extension
of a person’s custody. I thus agree with the majority that the regulation is invalid.
I disagree, however, with the majority’s further conclusion that petitioner
Lucas and defendant Sharkey are not entitled to relief because, in extending
custody beyond the scheduled release date, the Board made a good faith mistake
of law. (See § 6601, subd. (a)(2) [stating that unlawful custody is not a ground for
dismissing a petition to commit a person as a sexually violent predator if such
custody was “the result of a good faith mistake of fact or law”].) I explore that
issue below.
The Legislature imposed the good cause requirement on the Board in 2000.
(Stats. 2000, ch. 41, § 1, p. 129.) Before that time, the custody extension statute
(former § 6601.3; Stats. 1996, ch. 4, § 2, p. 16), enacted in 1996, lacked such a
requirement. The Board’s then existing regulation, adopted before the 1996
statute, mentioned that custody extensions had to be based on “probable cause,”
which the regulation defined as “some evidence” that the person met the sexually
violent predator criteria set forth in the statutory scheme. According to the
majority, the Board could in good faith have concluded that the Legislature’s 1996
enactment, which made no reference to either probable cause or good cause,
ratified the Board’s preexisting “probable cause” regulation. (Maj. opn., ante, at
p. 20.) For reasons discussed below, I do not share that view.
The Board’s pre-1996 “probable cause” regulation suffers from the same
defect as the Board’s post-2007 “good cause” regulation. Neither is based on
reasons why the Board needs to extend custody. (The record reveals that
defendant Sharkey’s custody was extended because a particular part-time
employee of the Board had been laid off. As to petitioner Lucas, the record has no
explanation for the extension of custody.)
2
In either instance, the Board defines probable cause and good cause as
“some evidence” that the person is likely to engage in sexually violent predatory
behavior. That definition is substantially similar to the test the Department of
Corrections and Rehabilitation applies at the first stage in the process that leads to
having a person in lawful custody committed as a sexually violent predator. That
stage requires a determination by the department that a person “may be a sexually
violent predator,” a determination that must be made “at least six months” before a
person’s scheduled release date. (§ 6601, subd. (a)(1).) Here, the Board could not
in good faith have mistakenly concluded that the “good cause” requirement of
section 6601.3’s subdivision (a) contemplated only that the Board needed to make
the same finding that the department has already made months earlier. To ascribe
such a good faith belief to the Board, as the majority does, would mean the
existence of good cause to extend a person’s custody in every case.
I would reverse the judgment of the Court of Appeal in each of these two
consolidated cases.
KENNARD, J.
3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Superior Court (Sharkey) and In re Lucas
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX183 Cal.App.4th 85 and 182 Cal.App.4th 797
Rehearing Granted
__________________________________________________________________________________
Opinion No. S182355 & S181788
Date Filed: March 5, 2012
__________________________________________________________________________________
Court: Superior
County: Los Angeles and Placer
Judge: Maria E. Stratton and Colleen Nichols
__________________________________________________________________________________
Counsel:
Steve Cooley, District Attorney, Irene Wakabayashi, Head Deputy District Attorney, and Shirley S. N. Sun,
Deputy District Attorney, for Petitioner the People in No. S182355.
Richard A. Ciummo & Associates, Jonathan Richter and Richard H. Kohl for Petitioner David Lucas in No.
S181788.
No appearance for Respondent Superior Court in No. S182355.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Jeffrey D. Firestone, Julie A. Hokans and
Jennifer M. Poe, Deputy Attorneys General, for Respondent State of California in No. S181788.
Michael P. Judge, Public Defender, Albert J. Measter, Karen King and Jack T. Weedin, Deputy Public
Defenders, for Real Party in Interest Christopher Sharkey in No. S182355.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Shirley S. N. Sun
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012-3213
(213) 893-0632
Richard H. Kohl
Richard A. Ciummo & Associates
11760 Atwood Road, Suite 4
Auburn, CA 95603
(530) 889-0280
Jennifer M. Poe
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5474
Jack T. Weedin
Deputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, CA 90012
(213) 974-3067