In re Lucas 3/5/10 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C062809

Case Date: 06/17/2010

Preview:Filed 3/5/10

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer) ----

In re DAVID LUCAS on Habeas Corpus.

C062809 (Super. Ct. No. SCV23989)

ORIGINAL PROCEEDING: Petition denied.

Petition for writ of habeas corpus.

Richard A. Ciummo & Associates, Jonathan Richter and Richard H. Kohl for Petitioner. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Jeffrey D. Firestone and Jennifer M. Poe, Deputy Attorneys General, for Respondent.

In this habeas proceeding, petitioner David Lucas claims that when the Placer County District Attorney filed the petition to commit him as a sexually violent predator in November 2008, he was not in the lawful custody of the Department of Corrections and Rehabilitation (corrections) because the Board of Parole Hearings (the board) had extended his custody for 45

1

days under Welfare and Institutions Code1 section 6601.3 without the showing of good cause required by that statute. We agree.

As Lucas argues, the definition of good cause contained in subdivision (d) of section 2600.1 of title 15 of the California Code of Regulations (regulation 2600.1(d)) is inconsistent with the legislative intent behind the statutory good cause requirement. Thus, to the extent the board relied on the

regulation in extending Lucass incarceration, Lucass custody was unlawful. As we will explain, however, this conclusion does not entitle Lucas to any relief. Because Lucas has not carried his

burden of proving otherwise, we must conclude the board did, in fact, rely on regulation 2600.1(d) in placing the 45-day hold on Lucas. Furthermore, although we conclude the regulations

formulation of good cause is inconsistent with the governing statute, the regulation was apparently valid when the board relied on it. Under subdivision (a)(2) of section 6601 (section

6601(a)(2)), a petition to commit a person as a sexually violent predator cannot be dismissed on the ground the persons custody was unlawful if the unlawful custody was the result of a good faith mistake of fact or law. That is the case here. The

boards presumptive reliance on regulation 2600.1(d) constitutes a good faith mistake of law. petition. Accordingly, we will deny Lucass

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All further section references are to the Welfare and Institutions Code. 2

FACTUAL AND PROCEDURAL BACKGROUND Lucas was in prison serving a seven-year determinate sentence for failing to register as a sex offender and was scheduled to be released on parole on October 12, 2008. On

December 21, 2007 -- well in advance of his parole release date -- corrections personnel completed a sexually violent predator screening and determined that Lucas met the criteria as a potential sexually violent predator. Nothing further happened,

however, until October 1, 2008 -- 11 days before his parole release date -- when the screening form was received by correctionss classification services unit. Unable to make a final determination based on available documentation, corrections referred the matter to the board the next day. On October 7, the board referred the matter to the On

Department of Mental Health (mental health) for assessment. October 9, a psychiatrist conducted a level II screening and referred the matter for a level III evaluation. three days before Lucass release date. The same day the matter was referred for a level III

It was now only

evaluation, the board placed a 45-day hold on Lucas pursuant to section 6601.3 "to facilitate full [sexually violent predator] evaluations to be concluded by [mental health]." Consequently,

Lucass release date was extended to November 26, 2008. During the period of the hold, four psychologists evaluated Lucas; three of them concluded he met the sexually violent predator criteria. On November 17, mental health sent a letter

to the Placer County District Attorney recommending that Lucas 3

be committed as a sexually violent predator.

The district On

attorney filed a commitment petition on November 20.

November 26, the court found the petition was sufficient to support a finding of probable cause to believe Lucas is a sexually violent predator and set a probable cause hearing for December 3. On December 3, Lucas waived time for the probable cause hearing. In April 2009, he moved to dismiss the petition on the

ground that the late completion of the screening and evaluation process had resulted in constitutional and statutory violations. As pertinent here, Lucas argued there was no showing of good cause to keep him in custody beyond October 12, 2008, pursuant to section 6601.3 and his unlawful custody was not the result of a good faith mistake of law or fact. In opposition to the motion to dismiss, the district attorney argued it was up to the board to determine whether there was good cause to extend Lucass custody under section 6601.3 and the board acted well within its statutory authority. In the district attorneys view, good faith mistake

of law or fact was not an issue because there was no unlawful custody. In denying Lucass motion, the court did not expressly conclude that the board had good cause to place a 45-day hold on Lucas pursuant to section 6601.3, but stated generally that it did "not find . . . any violation of a statutory procedure in what was done here. . . . [E]very stage of the process was

within the defined statutory periods." 4

On May 6, 2009, further proceedings on Lucass commitment as a sexually violent predator were stayed to allow him to seek writ review. In June 2009, Lucas filed a habeas corpus petition As pertinent

in the appellate division of the superior court.

here, in denying Lucass petition the court concluded that "[a]lthough [corrections] waited until the last minute, the fact remains that the process was completed within the statutory framework." On September 3, 2009, Lucas commenced the present proceeding by filing a habeas corpus petition in this court. Following receipt of the Peoples opposition, we directed that an order to show cause issue "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." DISCUSSION I Legal Principles "The [Sexually Violent Predator Act (

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