PEOPLE v. DONELSON

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Robert DONELSON, Real Party in Interest.

No. G023889.

Decided: January 29, 1999

Michael R. Capizzi and Tony Rackauckas, District Attorneys, and Brian N. Gurwitz, Deputy District Attorney, for Petitioner. No appearance for Respondent. Carl C. Holmes, Public Defender, Deborah A. Kwast, Assistant Chief Deputy Public Defender, Kevin J. Phillips and Alan J. Crivaro, Deputy Public Defenders, for Real Party in Interest.

OPINION

The People seek a writ of mandate to the superior court directing it to exercise its jurisdiction to determine whether Robert Donelson should be committed under the sexually violent predator (SVP) statutes in Welfare and Institutions Code sections 6600 through 6609.3.1  The superior court granted Donelson's motion to dismiss the district attorney's petition for his commitment on the ground that the court lacked jurisdiction to consider it, since Donelson was not in custody lawfully when the petition was filed.   Contrary to the trial court's ruling and the parties' positions, we find, as a matter of law, Donelson was being held in lawful custody when the petition was filed by the district attorney.   Consequently, the order dismissing the petition for want of jurisdiction was erroneous.   We therefore issue our writ, as prayed, and direct the trial court to consider the petition seeking Donelson's commitment on its merits.

On October 10, 1995, the Governor signed Senate Bill No. 1143 (Mountjoy) and Assembly Bill No. 888 (Rogan) into law (Stats.1995, chs. 762 and 763, respectively).2  These bills amended the Welfare and Institutions Code by adding statutes defining and dealing with the “sexually violent predator.”  (§§ 6600-6609.3.) The new statutory scheme was scheduled to become effective January 1, 1996.

On December 28, 1995, anticipating the requirements of the new law, the Director of the Department of Corrections identified Robert Donelson as a potential sexually violent predator as defined in section 6600, subdivision (a).3  And since Donelson was scheduled to be paroled on April 18, 1996, the director referred him to the Department of Mental Health for evaluation immediately-as section 6601, subdivisions (a) and (b) would have required (had they been effective)-to determine whether Donelson qualified for treatment under the new law or whether he should be released on his scheduled parole date.

When it received the referral from the director in January, the Department of Mental Health arranged for Donelson to be examined by two clinicians, as required by section 6601, subdivision (d),4 and on January 29, 1996, the first doctor completed his examination.   In a report dated February 1, 1996, he concluded Donelson is a pedophile who would likely repeat his previous sexually violent behavior if released.   A second clinical evaluation was performed on February 8, 1996, and on March 24, 1996, the examining doctor prepared written findings consistent with the first doctor's report-indicating Donelson suffers from pedophilia and is likely to reoffend if released.

On March 20, 1996, with Donelson's release date drawing closer, the Board of Prison Terms placed a three-day hold as authorized by Title 15, California Code of Regulations, section 2600.1, subdivision (b),5 on Donelson and directed that it take effect at the time of his scheduled release.   It also calendared a departmental probable cause hearing for April 22, 1996, as required under that same regulation.   The hearing was held as planned, and probable cause for Donelson's continued detention was found.   A 45-day hold was then placed on Donelson by the Board of Prison Terms pursuant to section 2600.1, subdivision (c),6 effective from April 23 through June 6, 1996, to ensure the Orange County District Attorney would have time to file a petition for Donelson's commitment before he could be released from custody.

On April 18, 1996, a representative of the Department of Mental Health sent a letter to the Orange County District Attorney pursuant to section 6601, subdivision (h),7 requesting that he file a petition for Donelson's commitment under the new SVP law.   Upon receipt of that correspondence, the district attorney prepared the necessary petition and arranged for Donelson to appear for a hearing.   On May 31, 1996, with Donelson present, the public defender was appointed and proceedings were finally commenced.

Nearly two years later, on May 22, 1998, after an initial hearing and a series of long delays occasioned by related proceedings directed at determining the constitutionality of the SVP law, Donelson filed a motion to dismiss the petition.   He alleged the trial court had no jurisdiction to consider the petition because it was filed 42 days after his scheduled April 18, 1996 release date, and the holds placed upon him by the Board of Prison Terms pursuant to Title 15, California Code of Regulations, section 2600.1, were invalid.   That regulation, he argued, was superseded by sections 6601.3 and 6601.5 of the Welfare and Institutions Code,8 which were added to the statutory scheme as urgency legislation, effective January 25, 1996.9

The district attorney opined that the holds appeared to be inconsistent with the provisions of sections 6601.3 and 6601.5, but he insisted the trial court retained jurisdiction to consider the petition because the SVP law specifies no time parameters within which a petition for an SVP commitment must be filed.   After extensive briefing and argument, the trial court agreed with Donelson, dismissed the petition and ordered his release.   That order was stayed, however, to permit the district attorney to seek appellate review in this court.

After receiving the district attorney's petition for a writ of mandate, we issued an order to show cause, set the matter for briefing and oral argument, and further stayed Donelson's release to allow us time to consider the matter.   Having done so, we now issue the writ.

DISCUSSION

A

Donelson's motion to dismiss the petition was predicated on the theory that the holds placed on him, which extended his custody pending filing of the petition for his commitment, were invalid as a matter of law because the regulations upon which they were based (in Title 15, Cal.Code Regs., § 2600.1) conflict with the statutory directives in sections 6601.3 and 6601.5 of the Welfare and Institutions Code. The district attorney contends that, even conceding the holds were invalid, the court retained jurisdiction to consider the petition because nothing in the SVP law specifies that a petition for commitment must be filed before the inmate's release.10

We need not decide whether the district attorney's argument is correct.   Instead, we find that the regulatory provisions in section 2600.1 of Title 15 are not inconsistent with the statutory scheme but supplementary to it.11  We further find the regulation to be a reasonable exercise of administrative discretion and conclude the three-and forty-five-day holds placed on Donelson under the authority of section 2600.1 were valid.   Donelson was therefore legally in custody at the time the district attorney filed the petition seeking his commitment under the SVP law, and his motion to dismiss the petition for want of jurisdiction should have been denied.

B

 Disposition of this case hinges on the relationship between sections 6601.3 and 6601.5 of the Welfare and Institutions Code and Title 15, section 2600.1, of the California Code of Regulations, under which Donelson was maintained in custody beyond the date initially calendared for his release.

 As we have explained before, in determining the meaning of the statutes, we apply well-established rules:  “ ‘Statutory interpretation is a question of law, which appellate courts review de novo.  [Citation.]’   (Nowlin v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1529, 1533, 62 Cal.Rptr.2d 409;  Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1045, 55 Cal.Rptr.2d 901.)   Our principal obligation, of course, is to ascertain the intent of the Legislature (Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 989, 9 Cal.Rptr.2d 102, 831 P.2d 327), a task we usually accomplish by examining the words employed by the drafters, giving them their ordinary meaning.  (People v. Fuhrman (1997) 16 Cal.4th 930, 937, 67 Cal.Rptr.2d 1, 941 P.2d 1189;  People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.)”  (Rash v. Lungren (1997) 59 Cal.App.4th 1233, 1236-1237, 69 Cal.Rptr.2d 700.)   We also recognize our duty to harmonize statutory provisions and related administrative regulations, if it is possible to do so.  (Cf. County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1179-1780, 25 Cal.Rptr.2d 681.)

Section 6601.3 provides, “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 for full evaluation pursuant to subdivisions (c) to (h), inclusive, of Section 6601, unless his or her scheduled date of release falls more than 45 days after referral.”  (Italics added.)

Subdivisions (c) through (h) of section 6601, referred to in section 6601.3, provide a chronological explication of a process which begins with an evaluation of the inmate conducted by the State Department of Mental Health, using standardized assessment protocol, and ends with the Director “forward [ing] a request for a petition to be filed for commitment under this article to the county․”   The first reference to judicial proceedings does not occur in section 6601 until subdivision (i), and the judicial probable cause hearing which Donelson was due is not discussed in section 6601 at all but, rather, in section 6602.

Therefore, it is clear, according to the plain language of the statute, the purpose of the hold provided in section 6601.3 is simply to ensure that the Department of Mental Health has at least 45 days to complete its evaluation of the inmate before the inmate is released from custody and before its recommendation is forwarded to the county's designated counsel-in this case, the Orange County District Attorney.   Such a hold was not required in Donelson's case.   When the Director of the Department of Corrections referred Donelson to the Department of Mental Health for evaluation, more than 45 days remained before he was scheduled to be released and, indeed, his evaluation was completed in timely fashion.

As for section 6601.5, its provisions only apply to “cases where an inmate's parole or temporary parole hold pursuant to Section 6601.3 will expire before a probable cause hearing is conducted pursuant to Section 6602․”  (§ 6601.5, subd. (a);  italics added.)   Since no parole hold was placed on Donelson under section 6601.3, and since no such hold would have been appropriate, the provisions of section 6601.5 are likewise inapplicable.

Donelson's release date of April 18, 1996, was just around the corner when the second doctor was writing his report providing the concurring opinion of pedophilia required by section 6601, subdivision (d).   The report was prepared on March 24, 1996, and while the record does not indicate exactly when it was received by the Department of Mental Health, we would not find it remarkable if one or two weeks passed before the report was processed.   In any event, by the time the required psychiatric reports were obtained, Donelson's original release date of April 18 was at hand, and additional tasks awaited completion before the judicial probable cause hearing contemplated by section 6602 could be held.

The information accumulated pursuant to the statutory mandate had to be gathered, organized and prepared for presentation to the district attorney.  (§ 6601, subds. (d), (h).12 )  The district attorney needed time to evaluate those materials and decide whether to file a petition as recommended by the Director of Mental Health.  (§ 6601, subd. (i).13 )  And assuming the district attorney decided to file the requested petition, he then required additional time to schedule a hearing and arrange for the inmate's transportation from the facility of confinement to the county jail and courthouse.

Nothing in the SVP statutes, including sections 6601.3 and 6601.5, provided the director or the Board of Prison Terms any specific time frame within which to act.   The only source of direction was in Title 15 of the Code of Regulations, section 2600.1.

Subdivision (b) of section 2600.1 specifically empowered the Board to place a three-day hold on the inmate to ensure he received a departmental probable cause hearing.   And subdivision (c) further authorized it to place a 45-day hold on the inmate after it found probable cause so the Mental Health Director would have the necessary time to contact the district attorney and request a petition for commitment be filed in the superior court, and so the district attorney would have time to complete his evaluation and make arrangements to secure Donelson's presence in court.

While, in this case, the required evaluation by the State Department of Mental Health was near completion when the three-day hold authorized by section 2600.1 was imposed on Donelson, and the full evaluation required by section 6601 had in fact been concluded when the 45-day hold was placed, no judicial determination of probable cause was possible prior to Donelson's initially scheduled release date.   Given this sequence of events, the Board of Prison Terms had no statutory provision to guide its actions.   Section 6601 required that Donelson be afforded a judicial hearing to determine probable cause, but it stated no time within which that hearing had to occur.   Nor did the statute expressly indicate how or whether Donelson should be maintained in custody, as the SVP law obviously contemplates,14 pending such a hearing.

Under these circumstances, the Board was entitled to rely upon its regulation, which was promulgated pursuant to the authority granted in Penal Code section 3052.   That section expressly empowers the Board “to establish and enforce rules and regulations under which prisoners committed to state prisons may be allowed to go upon parole․”

As section 2600.1, subdivision (a) explains:  “The purpose of this section is to provide a mechanism for screening parolees in revoked status and inmates under the Sexually Violent Predator Program.. . where exceptional circumstances preclude an earlier evaluation and judicial determination of probable cause ․ prior to return to custody or release on parole.”  (Cal.Code Regs., tit. 15, § 2600.1, subd. (a), italics added.)   Thus, the Board's regulation was designed to cover situations exactly like this one-where no direction is provided in the statutes.   We find this a reasonable use of the Board's power-the use of which, here, was necessary to deal with the “exceptional circumstances” which “preclude[d] an earlier ․ judicial determination of probable cause.”  (Cal.Code of Regs., tit. 15, §2600.1, subd.  (A).)

In short, nothing in section 2600.1 is in conflict with the SVP Act. Indeed, the Board's regulation addresses concerns which are not dealt with at all in the statutes.   Unquestionably, the Board has the responsibility and authority to design procedures which facilitate implementation and enforcement of the statutory scheme, and we will uphold its regulations so long as they do not conflict with the legislative purpose.  (Californians for Political Reform Foundation v. Fair Political Practices Com. (1998) 61 Cal.App.4th 472, 489, 71 Cal.Rptr.2d 606;  Consumers Union of U.S., Inc. v. California Milk Producers Advisory Bd. (1978) 82 Cal.App.3d 433, 446-447, 147 Cal.Rptr. 265.)

In this case, the holds authorized in section 2600.1 of Title 15 are consistent with the intent of the Legislature.   Without the provisions of that section, Donelson would have had to be released before a neutral judicial officer could determine whether there was probable cause to believe he is a sexually violent predator-despite the legislative intention to ensure potential sexually violent predators not be released before a judicial evaluation of the danger they pose can be performed.

Because the holds placed upon Donelson pursuant to section 2600.1 were valid and necessary to implement the purpose behind the statutory scheme, we conclude the trial court's order dismissing the petition seeking Donelson's commitment under the SVP law was erroneous.   The court incorrectly-albeit understandably, given the complexity of the new statutory and regulatory scheme-concluded Donelson had been kept in custody unlawfully and erred by deciding it lacked jurisdiction to consider the petition seeking his commitment.15

Let a peremptory writ of mandate issue to the superior court directing it to vacate its order dismissing the petition, and to enter a new and different order denying Donelson's motion to dismiss.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.*   *   *

2.   For a more detailed discussion of the legislative history of these chapters, see Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 879-880, 880, footnote 10, 76 Cal.Rptr.2d 841.

3.   That subdivision provides, “ ‘Sexually violent predator’ means a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.”

4.   Section 6601, subdivision (d) provides, “[T]he person shall be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrists and one practicing psychologist, designated by the Director of Mental Health.   If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of Mental Health shall forward a request for a petition for commitment under Section 6602․”

5.   Donelson notes that the Board of Prison Terms hearing officer cited section 6601.3 as his authority for imposing a three-day hold.   And he is quick to point out that section 6601.3 makes no provision for a three-day hold.   He is correct.   However, subdivision (b) of section 2600.1 states, “Upon notification from the Department of Corrections, Department of Mental Health, or Board of Prison Terms staff that there is some evidence to believe that an inmate or parolee in revoked status is a sexually violent predator within the meaning of Welfare and Institutions Code division 6, part 2, chapter 2, article 4 (section 6600 et seq.), the board may order imposition of a temporary hold on the inmate or parolee in revoked status for up to three (3) working days pending a probable cause hearing by the board.”   We are not distracted by the hearing officer's apparent clerical error.

6.   Section 2600.1, subdivision (c) specifies, “Board of Prison Terms probable cause hearings shall be conducted ․   If the board finds probable cause that an inmate or parolee in revoked status is a sexually violent predator as defined in Welfare and Institutions Code ․ (section 6600 et seq.), ․ the parolee shall be held up to a maximum of 45 days in a facility under the jurisdiction of the Department of Mental Health pending a superior court probable cause hearing pursuant to ․ section 6602.”

7.   Subdivision (h) directs that, “[i]f the State Department of Mental Health determines that the person is a sexually violent predator as defined in this article, the Director of Mental Health shall forward a request for a petition to be filed for commitment under this article to the county designated in subdivision (i).   Copies of the evaluation reports and any other supporting documents shall be made available to the [district] attorney designated by the county pursuant to subdivision (i) who may file a petition for commitment in the superior court.”

8.   Under section 6601.3, “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 for full evaluation pursuant to subdivisions (c) through (h), inclusive, of Section 6601, unless his or her scheduled date of release falls more than 45 days after referral.”   Section 6601.5 further provides, “In cases where an inmate's parole or temporary parole hold pursuant to Section 6601.3 will expire before a probable cause hearing is conducted pursuant to Section 6602, the agency bringing the petition may request an urgency review pursuant to this section.   Upon that request, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.   If the judge determines that the petition, on its face, supports a finding of probable cause, the judge shall order that the person be detained in a secure facility until a hearing can be held pursuant to Section 6602.․”

9.   Each contained a subdivision (b) which provided the section would “remain in effect only until January 1, 1998, and as of that date [be] repealed.”   Since that date, however, each section has been reenacted by the Legislature and signed into law by the Governor.

10.   Although he insists section 6601 does not require a petition be filed before an inmate is released on parole, the district attorney concedes Donelson's custody was unlawful.   We reject his concession, as we find it erroneous as a matter of law.  (Cf. In re Daniel K. (1998) 61 Cal.App.4th 661, 666, 71 Cal.Rptr.2d 764;  In re Meranda P. (1997) 56 Cal.App.4th 1143, 1166, fn. 17, 65 Cal.Rptr.2d 913;  and People v. Howard (1996) 47 Cal.App.4th 1526, 1539, 55 Cal.Rptr.2d 520, disapproved on an unrelated ground in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11, 67 Cal.Rptr.2d 1, 941 P.2d 1189.)

11.   We recognize that at least two recent decisions support the district attorney's position, holding that lawful custody is not a jurisdictional requisite to the filing of an SVP petition (see People v. Superior Court (Whitley) (1999) 68 Cal.App.4th 1383, 1387, 81 Cal.Rptr.2d 189;  Garcetti v. Superior Court (Lyles) (1998) 68 Cal.App.4th 1105, 1109, 80 Cal.Rptr.2d 724).   However, since we find the administrative regulations under which Donelson was maintained in custody consistent with the legislative design, and consequently find Donelson's continued custody was lawful, we have no occasion to reach the question addressed in those two cases.

12.   Both subdivisions provide that “[c]opies of the evaluation reports and any other supporting documents shall be made available to the [district] attorney ․ who may file a petition for commitment․”

13.   Subdivision (i) states, “If the [district] attorney concurs with the recommendation [made by the Director of Mental Health], a petition for commitment shall be filed in the superior court of the county in which the person was convicted of the offense for which he or she was committed to the jurisdiction of the Department of Corrections.”

14.   We need not discuss the purpose behind the legislation at great length;  however, we note the provisions of the SVP law are aimed at ensuring potential sexually violent predators not be released into the community before a judicial evaluation of the danger they pose can be performed.   As the Legislature indicated in the preamble to its amendments to the Welfare and Institutions Code, “The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated.   These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence.   The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment.”  (Stats.1995, chap. 763, § 1, italics added.)   In addition, the Legislature expressed its intention “that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society.”  (Ibid.)

15.   Even were we to have found that the regulation adopted by the Board was in conflict with or superseded by the statutory scheme, we agree with the district attorney that an order releasing Donelson, who claims to have molested at least 150 children to date, would not be consistent with the purpose of the law.   As Division Two of this court observed in a similar context, “Given the evidence showing [the inmate] continues to present a substantial danger ․ to others, neither [he] nor the public would benefit by [his] release at this time.”  (People v. Dias (1985) 170 Cal.App.3d 756, 763, 216 Cal.Rptr. 295.)

BEDSWORTH, J.

SILLS, P.J., and CROSBY, J., concur.