Opinion
In the underlying proceeding pursuant to the Sexually Violent Predator Act (SVPAct) (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
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 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 Sheriffs 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 State 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 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 pretrial 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
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 pehtion, 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.
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)
B. Sexually Violent Predator Proceedings
Because the motion to dismiss focused on the conduct of the district attorney’s office prior to the filing of the petition, we set forth the relevant provisions of the SVP Act. As our Supreme Court has explained, in enacting that statutory scheme, ‘“[t]he Legislature has provided that certain convicted sex offenders may be civilly committed after they have completed service of their criminal sentences. . . . [¶] The process begins when the Secretary of the [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. [Citation.]
“After the secretary’s referral, the inmate is screened by the DCR and the [Board of Parole Hearings] to determine whether the person is likely to be a . . . [sexually violent predator]. If the DCR and the Board conclude that is the case, the inmate is referred for full evaluation by the [DMH], [Citation.] [¶] . . . A petition for commitment may not be requested unless the initial [two duly-appointed] evaluators . . . agree that the inmate meets the commitment criteria. [Citations.]
C. Evidentiary Showings
1. Sokolich’s Evidence
Sokolich submitted evidence supporting the following version of the underlying events: On March 6, 2002, Sokolich was sentenced to a prison term of nine years four months, and awarded custody credits totaling 380 days. According to the DCR’s chronological history for Sokolich, while he was serving his sentence, the DCR repeatedly modified its determination of his expected release date, and at one point, calculated it to be April 24, 2009. The chronological history reflects that in March 2008, the DCR determined that the release date was April 20, 2009, rather than April 24, 2009.
In 2008, the DCR evaluated Sokolich as a potential sexually violent predator. Two DCR documents relating to the initial stage of that evaluation reflect a release date of April 20, 2009, including a September 2, 2008 referral sent to the Board of Parole Hearings (Board), which identified Sokolich as a “maybe” case.
On September 4, 2008, the DCR forwarded Sokolich’s case to the Board with a cover letter incorrectly stating that his release date was April 24, 2009. That incorrect date was reflected in a September 12, 2008 letter from the Board to the DMH referring the case for further assessment. Following that letter, the DMH requested evaluations of Sokolich from Dr. Michael Selby and Dr. Dennis Sheppard.
The DMH’s reports, evaluations, and other documents relating to Sokolich repeatedly described Sokolich’s release date as April 24, 2009. A DMH screening report dated February 3, 2009, reflected that date. In a clinical evaluation transmitted to the DMH in February 2009, Selby also identified the release date as April 24, 2009. Selby’s report stated that his evaluation of Sokolich as a sexually violent predator was “[p]ositive.”
On April 6, 2009, Sokolich executed a DCR document entitled “Notice and Conditions of Parole,” reflecting a release date of April 20, 2009. The following day, DCR redetermined the accuracy of that date.
On April 9, 2009, the district attorney successfully applied for an order directing that Sokolich be delivered into the custody of the Los Angeles County Sheriffs Department for purposes of an arraignment on a sexually violent predator petition.
Sheppard did not transmit his clinical evaluation to the DMH until April 14, 2009. His evaluation stated that Sokolich’s release date was April 24, 2009. On April 15, 2009, the DMH sent a letter to the district attorney recommending Sokolich’s commitment. The letter, attached referral sheet, and screening report all described his release date as April 24, 2009. The following day, a paralegal in the district attorney’s office sent an e-mail to the DMH, stating: “Where is the Sokolich case? We’re almost out of time.” The DMH responded the “package” would be sent by “Fed-ex” that day.
On April 16, 2009, the DCR sent a memorandum to the facility where Sokolich was incarcerated relating to the impending sexually violent predator proceedings. Although the memorandum reflects a release date of April 24, 2009, at some point, an unknown person crossed out the “24” and wrote “20” in its place.
On April 17, 2009, the deputy district attorney responsible for Sokolich’s case faxed portions of a sexually violent predator petition she had prepared to the DMH. That petition was filed on April 20, 2009.
In addition to the evidence described above, Sokolich also submitted an excerpt from the Los Angeles County District Attorney’s “SVP Procedures.” The excerpt states: “Although the evaluator’s reports include the inmate’s release date, it is important to call the correctional facility to verify that date—especially when considerable time has passed since the reports were made, or if the release date is only a few weeks away.”
2. Petitioner’s Evidence
In opposing the motion to dismiss, petitioner did not challenge Sokolich’s showing, as set forth above. Petitioner submitted a declaration from Deputy
Thorp further stated that the April 9, 2009 custodial order was obtained because the DCR and related agencies generally required 10 to 14 days advance notice that a prisoner was required for a court appearance. According to Thorp, the order was not prejudicial to Sokolich, as it could have been cancelled if necessary without affecting his release date.
D. Analysis
Petitioner contends the trial court erred in determining that under section 6601(a)(2), the commitment petition was untimely filed on April 20, 2009, because Sokolich was not then serving a determinate prison sentence. In the alternative, petitioner maintains that dismissal of the petition was improper under that statute because the petition’s untimely filing reflected “a good faith mistake.” As explained below, we reject the former contention, but agree with the latter.
1. “In Custody ”
We begin with the trial court’s finding regarding the nature of Sokolich’s custodial status on April 20, 2009. Section 6601(a)(2) authorizes the filing of a commitment petition only when the pertinent individual’s custody is “pursuant to” certain enumerated circumstances, namely, the individual is serving a determinate prison term or parole revocation term, or is subject to a section 6601.3 hold. It is undisputed that on April 20, Sokolich was neither serving a parole revocation term nor in custody under a section 6601.3 hold. The court found that the petition was untimely filed on April 20 because Sokolich was then “scheduled for release and no longer serving his determinate prison sentence.” As explained below, we see no error in that determination.
In
In re Franklin
(2008)
The evidence submitted in connection with the motion to dismiss supports the reasonable inference that Sokolich had served his determinate sentence prior to the filing of the commitment petition. There is no dispute that April 20, 2009, constituted Sokolich’s release date from his term of confinement pursuant to his determinate prison term. Absent a “separate definition,” “[t]he term ‘day’ is statutorily defined, not as 24 hours, but as ‘the period of time between any midnight and the midnight following.’ (Gov. Code, § 6806.)”
(In re Jackson
(1986)
Petitioner acknowledges that Sokolich “could have been released the morning of April 20 or at 11:59,” but maintains his custody on April 20 pursuant to the April 9 order satisfied the requirements for timely filing of the petition under section 6601(a)(2). In our view, that contention fails under Franklin, which determined that absent operation of the “good faith mistake” provision, a petition must be filed while the pertinent individual is serving a determinate prison term or parole revocation term, or is subject to a section 6601.3 hold. In sum, the trial court did not err in determining that on April 20, 2009, Sokolich was not “in custody” pursuant to the circumstances enumerated in section 6601(a)(2).
We next examine the trial court’s determination that the district attorney’s office was negligent in determining Sokolich’s actual release date, and that such negligence precluded the existence of a good faith mistake under section 6601(a)(2). In pertinent part, the statute 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(a)(2).) In view of that provision, when an untimely petition is filed and the individual is held beyond the end of his prison or parole revocation term (and any § 6601.3 hold) in order to facilitate the sexually violent predator proceedings, ‘“the custody becomes unlawful and the petition must be dismissed unless the unlawful custody resulted from a good faith mistake of fact or law.”
(People v. Superior Court (Small)
(2008)
a. Interpretation of the “Good Faith Mistake” Provision
Establishing whether the ‘“good faith mistake” provision encompasses the events relating to the untimely filing of commitment petition presents a question of statutory interpretation. As explained below, we conclude that under the provision, the existence of a good faith mistake does not require the absence of negligence. 4
i. Statutory Language
As explained in
Langhorne,
the phrase “ ‘good faith,’ ” as incorporated in section 6601(a)(2), is ‘“generally understood ‘to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation. [Citations.]’ [Citation.] In other words, good faith is ‘ ‘“a state of mind indicating honesty and lawfulness of purpose: belief in one’s legal title or right: belief that one’s conduct is not unconscionable . . . .” [Citation.]’ ”
(Langhorne, supra,
Negligence is ordinarily assessed by reference to reasonableness, viewed objectively. The general standard of care applicable to negligence is “ ‘that of a reasonably prudent person under like circumstances’ ”
(Orey, supra,
It is thus possible to make a negligent mistake while acting in good faith. As noted in
Silver Organizations Ltd. v. Frank
(1990)
In view of the differences between good faith and negligence, inquiries into them ordinarily follow different paths. “ ‘Good faith, or its absence, involves a factual inquiry into the plaintiff’s subjective state of mind [citations]: Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence.’ ”
(Langhorne, supra,
ii. Legislative History
Our conclusion comports with the legislative history of section 6601(a)(2), which is described in
In re Smith
(2008)
The Legislature responded to
Whitley
by adopting a similar rule, namely, the rule stated in the “good faith mistake” provision in section 6601(a)(2).
(Smith, supra,
42 Cal.4th at pp. 1260-1271.) The legislative analyses relating to that provision disclose an intent to establish a rule broader than the holding in
Whitley.
(See
Smith,
at p. 1260.) An analysis by the Senate Committee on
The legislative history described in Smith contains no suggestion that the term “good faith,” as employed in section 6601(a)(2), requires the absence of negligence. Although the rationale in Whitley relied on the absence of both negligence and intentional wrongdoing, the Legislature enacted a rule framed in terms of good faith. The legislative history supports the reasonable inference that the term “good faith mistake” was intended to encompass technical errors, custody credit miscalculations, and even “blunder[s]” manifesting no wrongful intent. Though stated in terms of good faith, the rule effectively codified the holding in Whitley, as reasonable conduct in applying a law—that is, the absence of negligence—accompanied by no manifestation of wrongful intent or motive ordinarily suffices to demonstrate good faith. Nothing in the history, however, supports the inference that the term “good faith” was intended to encompass only objectively reasonable— that is, non-negligent—mistakes.
iii. Subsequent Decisions
Our research has disclosed no published decision concluding that the existence of negligence precludes application of the “good faith mistake” provision in section 6601(a)(2). Although some courts have affirmed a finding of a good faith mistake of law under the rationale stated in
Whitley,
none examined whether the existence of a negligent mistake of law or fact, by itself, would nullify good faith.
(Lucas, supra,
53 Cal.4th at pp. 852-858 [determining the existence of a good faith mistake of law under circumstances similar to those presented in
Whitley]; Orey, supra,
213 Cal.App.4th at pp. 1246-1256 [affirming trial court’s finding of a good faith mistake of law
Small, supra,
b. Trial Court’s Determination
We turn to the trial court’s finding that the untimely filing of the petition did not reflect a good faith mistake of fact or law, which is reviewed for the existence of substantial evidence
(Langhorne, supra,
The record establishes that in March 2008, the DCR determined that Sokolich’s release date was April 20, 2009, rather than April 24, 2009. Notwithstanding the correction of that error, in September 2008, the DCR forwarded Sokolich’s case to the Board with a cover letter stating that his release date was April 24, 2009, and the Board referred the case to the DMH by means of a letter reflecting the same mistake. Thereafter, the incorrect date consistently appeared in clinical evaluations and other DMH documents, including the April 15, 2009 letter to the district attorney recommending Sokolich’s commitment, as well as the accompanying summary referral and screening documents, both of which reflected the incorrect date. The district
In finding the absence of a good faith mistake, the trial court observed that the situation before it differed from that presented when a petihon’s untimely filing is due to an error of law regarding the release date that is corrected only after the pehtion has been filed. 7 The court noted that prior to the filing of the petition regarding real party in interest, his correct release date was stated on several DCR documents, although other documents reflected the incorrect date. The court found that the belated filing of the petition reflected negligence rather than intentional misconduct, stating: “I’m not going to find that there’s any intentional wrongdoing or anything in that nature .... I think there was negligent reliance on [the DMH documents’] dates given the number of documents that had the appropriate date on [them].” Because the untimely filing was attributable to negligence in ascertaining the correct release date, the court concluded that there was no good faith mistake under section 6601(a)(2).
To the extent the trial court concluded that negligence in ascertaining the correct release date precluded the existence of good faith, it erred. There is some evidence of negligence, in view of the district attorney’s office policy directing attorneys to obtain confirmation from the DCR regarding release dates. Nonetheless, for the reasons discussed above, mere negligence in determining the release date does not establish the absence of good faith.
As for the trial court’s finding of no good faith mistake, it fails for want of substantial evidence because the record unequivocally demonstrates that a good faith error was responsible for the untimely fifing of the petition. As noted above, the “good faith mistake” provision reflects a legislative intent to encompass factual mistakes relating to the correct release date. Here, the evidence establishes only that the district attorney, in filing the petition on April 20, 2009, acted on the basis of a genuine belief regarding real party in
DISPOSITION
Let a peremptory writ of mandate issue directing that respondent trial court reinstate the petition, vacate the order for Sokolich’s release, and set the matter for further proceedings. The temporary stay shall be effective until this decision is final as to this court.
The petition of real party in interest for review by the Supreme Court was denied October 12, 2016, S236271.
Notes
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Although the petition for writ of mandate and Sokolich’s return characterize the term of imprisonment as eight years, the abstract of judgment in the record reflects the sentence described above.
Section 6601.3 provides: “(a) Upon a showing of good cause, the Board of Parole Hearings may order that a person referred to the State Department of State Hospitals 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. [¶] (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 [s]ection 6601.”
“[O]ur first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. . . . Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation. [Citation.] Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]”
(Dyna-Med. Inc.
v.
Fair Employment & Housing Com.
(1987)
In so holding, the appellate court relied on
People
v.
Dias
(1985)
The record is unclear as to when the handwritten DCR-prepared chronological history (listing the correct Apr. 20 release date) came into the district attorney’s possession. The chronology contains several release dates entered and crossed out. If the district attorney’s office had this chronology when it filed the petition, it had evidence of the correct release date. Nevertheless given the predominance of the incorrect date in the documents submitted to the district attorney, any failure to note this anomaly demonstrates no more than negligence.
The court specifically pointed to
People
v.
Wakefield
(2000)