People v. Superior Court of Los Angeles County

On December 10, 2015, petitioner filed its petition for writ of mandate. The following day, we imposed a temporary stay. On April 6, 2016, we issued an order to show cause, and directed that the stay remain in effect.

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) 213 Cal.App.4th 1241 , 1255 [ 152 Cal.Rptr.3d 878 ] (Orey); Langhorne v. Superior Court (2009) 179 Cal.App.4th 225 , 238 [ 101 Cal.Rptr.3d 560 ] (Langhorne).) To the extent the court resolved questions of law regarding the application of the statutory scheme, we review those determinations de novo. (See Orey, supra, at pp. 1251-1253; People v. Superior Court (George) (2008) 164 Cal.App.4th 183 , 192-193 [ 78 Cal.Rptr.3d 711 ].)

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.]

“If, after the full evaluation is completed, the DMH concludes that the inmate is a[] [sexually violent predator], 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 commitment is filed in the superior court. [Citations.] . . . [T]he 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.” (In re Lucas (2012) 53 Cal.4th 839 , 845-846 [ 137 Cal.Rptr.3d 595 , 269 P.3d 1160 ] (Lucas).)

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.”

In March 2009, DMH employees pressed Sheppard to submit his evaluation. In early April 2009, before transmitting a written clinical evaluation, Sheppard told the DMH that he had concluded that the matter was a “yes case.” On April 3, 2009, the DMH informed the district attorney’s office that a commitment referral would be sent “once [the] last full evaluation was received.”

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

District Attorney Karen Thorp, who was first assigned to the sexually violent predator proceedings regarding Sokolich in August 2012. Thorp stated: “At the time of the filing of the petition, it was [pjetitioner’s belief that the [release d]ate on this case was as stated in documentation from [the] DMH, namely, that [Sokolich] was not ‘due out’ to be released from [DCR] custody until April 24, 2009, based upon documentation provided by [the DCR] and [the] DMH.” (Italics omitted.) In describing that documentation, Thorp placed special emphasis on the September 4, 2008 DCR letter forwarding Sokolich’s case to the Board, which identified his release date as April 24, 2009.

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) 169 Cal.App.4th 386 , 392 [ 86 Cal.Rptr.3d 702 ] (Franklin), the appellate court determined that under section 6601(a)(2), absent application of the “ ‘good faith mistake’ ” provision, timely filing of the petition requires the presence of at least one of the enumerated circumstances. There, an individual was confined as a sexually violent predator.

(Franklin, supra, at pp. 388-389.) While so confined, he was convicted of a felony, namely, intentional damage to jail property, and sentenced to a term of 25 years to life. (Ibid.) When his term of confinement as a sexually violent predator expired, the prosecutor elected not to extend the term of confinement, in view of the term of imprisonment. (Id. at p. 390.) Later, after an appellate court decision reversed the felony conviction and reduced the offense to a misdemeanor, the prosecutor filed a new commitment petition. (Ibid.) In writ proceedings arising from that petition, the appellate court determined that it was not timely filed, stating: “[The individual] was in state prison custody at that time, but he was no longer a convicted felon serving a determinate prison sentence. He was a misdemeanant awaiting transportation to superior court for a misdemeanor probation and sentencing hearing. The absence of the statutory condition precedent to lawful [sexually violent predator] civil commitment proceedings against him is a fatal flaw.” (Id. at p. 392.)

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) 182 Cal.App.3d 439 , 442 [ 227 Cal.Rptr. 303 ].) As the record identifies no other definition applicable to the term “release date,” Sokolich was subject to release from custody pursuant to his determinate sentence at any point after midnight on April 19. The evidence submitted in connection with the motion to dismiss otherwise established that Sokolich remained in custody on April 20 because he was subject to the April 9 custodial order directing his appearance at the arraignment hearing on the sexually violent predator petition. Accordingly, the trial court reasonably concluded that Sokolich’s custody on April 20 was not “pursuant to his . . . determinate prison term.”

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).

So understood, good faith is distinct from reasonableness. “Reasonableness does not lend itself to formulary definition; in most legal contexts, it is discoverable by reference to the common experiences of mankind as perceived by the factfinder. [Citation.] . . . [¶] Good faith, in contrast, suggests a moral quality; its absence is equated with dishonesty, deceit or unfaithfulness to duty. [Citation.] The lack of synonymity between reasonableness and good faith entails a distinction between unreasonableness and bad faith.” (Guntert v. City of Stockton (1974) 43 Cal.App.3d 203 , 210-211 [ 117 Cal.Rptr. 601 ] (Guntert).)

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, 213 Cal.App.4th at p. 1255), which constitutes an “objective reasonable person standard” (Bashi v. Wodarz (1996) 45 Cal.App.4th 1314 , 1323 [ 53 Cal.Rptr.2d 635 ]). Accordingly, the existence of negligence ordinarily hinges on whether the pertinent person complied with that standard, rather than on the person’s state of mind. (See Bashi, supra, at pp. 1323-1324.)

It is thus possible to make a negligent mistake while acting in good faith. As noted in Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94 , 100 [ 265 Cal.Rptr. 681 ], “ ‘ “[b]ad faith,” is defined as “[t]he opposite of ‘good faith,’ generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake but by some interested or sinister motive [,] ... not simply bad judgment or negligence . . . ” (Quoting Pugh v. See’s Candies, Inc. (1988) 203 Cal.App.3d 743 , 764 [ 250 Cal.Rptr. 195 ].)

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, 179 Cal.App.4th at p. 238, italics omitted, quoting Knight v. City of Capitola (1992) 4 Cal.App.4th 918 , 932 [ 6 Cal.Rptr.2d 874 ], disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512 , 532, fn. 7 [ 113 Cal.Rptr.3d 327 , 235 P.3d 988 ].) In contrast, an inquiry into negligence requires “[a]pplication of the standard of care to the facts of the case.” (Orey, supra, 213 Cal.App.4th at p. 1255.)

Public Safety stated: “ ‘The issue that generated this bill arose in the context of a mistake of law about the application of psychiatric parole revocations as a means of holding an alleged [sexually violent predator] in custody at the time an SVP petition was filed. Such an error is arguably merely [a] technical error . . . . [¶] The Attorney General, the co-sponsor of the bill, notes that this bill should also address analogous mistakes of fact. For example, a simple mistake in arithmetic in the calculation of credits could result in an untimely filing of [a sexually violent predator] petition. The Attorney General argues that such a good-faith error should not result in the release of [a sexually violent predator] who presents a substantial danger to the public.’ ” (Smith, supra, at p. 1261, quoting Sen. Com. on Public Safety, Analysis of Sen. Bill No. 11 (1999-2000 Reg. Sess.) as introduced Dec. 7, 1998, pp. 5-6.) An Assembly Republican bill analysis stated: “ ‘The bill . . . makes it clear that sexually violent predators are not to be unleashed on society simply because “the constable has blundered.” ’ ” (Smith, supra, at p. 1261, quoting Assem. Com. on Public Safety, Republican Analysis of Sen. Bill No. 11 (1999-2000 Reg. Sess.) as amended Apr. 6, 1999, p. 1.)

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

when commitment petition was filed while pertinent individual was subject to legally infirm § 6601.3 hold].)

Small, supra, 159 Cal.App.4th 301 , to which Sokolich directs our attention, is not to the contrary. There, a hold under section 6601.3 was placed on the inmate the day before his release date relating to his determinate sentence term. (Small, supra, at p. 305.) On the final day of the hold, which fell on a Sunday, the DMH first delivered its sexually violent predator evaluations to the prosecutor, who filed a commitment petition on the first day possible, Monday. (Ibid.) Affirming dismissal of the petition, the appellate court noted that the trial court had found—and the People did not dispute—that the unlawfulness of the inmate’s custody resulted not from any legal or factual mistake regarding his release date, but from the unexplained failure to refer the inmate for evaluation in time to file a timely petition. (Id. at p. 310.) Evidence of increased numbers of referrals, the court concluded, did “not amount to a mistake of law or fact and [was] something that the [DCR] and [DMH] could have anticipated and prepared for.” (Ibid.) The circumstances in Small are not present here, as the record shows that the petition was filed on April 20, 2009, due to a genuine but mistaken belief regarding Sokolich’s release date. In sum, we conclude that under section 6601(a)(1), mere negligence in determining an individual’s release date does not, by itself, preclude application of the “good faith mistake” provision.

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, 179 Cal.App.4th at p. 238.) As explained below, because the evidence conclusively demonstrates a good faith mistake, the court’s finding fails for want of substantial evidence.

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

interest’s release date acquired from documents from the DCR and the DMH. The record reflects no intentional wrongdoing, subjective dishonesty, or improper motive, but rather diligent efforts by the district attorney’s office to file the petition in a timely manner. Nor does the record disclose any bad faith conduct by the DCR, the Board, or the DMH. Accordingly, because the belated filing of the petition was due to a good faith error, Sokolich’s commitment as a sexually violent predator was improperly dismissed.

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.

Epstein, P. J., and Collins, J., concurred.

The petition of real party in interest for review by the Supreme Court was denied October 12, 2016, S236271.