Terhune v. Superior Court

• Decision Date: 24 July 1998
• Docket Number: No. A081264,A081264
• Citation: 76 Cal.Rptr.2d 841,65 Cal.App.4th 864
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 5791, 98 Daily Journal D.A.R. 8025 C.A. TERHUNE, as Director, etc., Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent; Barry Whitley, Real Party in Interest.

Page 841

76 Cal.Rptr.2d 841

65 Cal.App.4th 864, 98 Cal. Daily Op. Serv. 5791,

98 Daily Journal D.A.R. 8025

C.A. TERHUNE, as Director, etc., Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent Barry Whitley, Real Party in Interest.

No. A081264.

Court of Appeal, First District, Division 1, California.

July 24, 1998.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Peter J. Siggins, Senior Assistant Attorney General, Morris Lenk, Supervising Deputy Attorney General, Bruce M. Slavin, Greg Mangani, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Charles H. James, Public Defender, Ron Boyer, Deputy Public Defender, for Real Party in Interest.

Rowan K. Klein, Klein & Crain, Santa Monica, Donald Specter, Arnold Erickson, San Quentin, Prison Law Office, Michael P. Judge, Public Defender, Albert J. Menaster and John J. Vacca, Deputy Public Defenders, for Amicus Curiae.

STRANKMAN, Presiding Justice.

The Board of Prison Terms (the Board) has promulgated numerous regulations relating to conditions of parole and revocation of parole, which appear in title 15 of the California Code of Regulations. Section 2616 of those regulations lists "kinds of behavior" that must be reported to the Board as a parole violation. Subdivision (a)(7) of section 2616 (hereafter section 2616(a)(7)), states:

"Psychiatric Treatment. Facts indicating the parolee is suffering from a mental disorder which substantially impairs the parolee's ability to maintain himself or herself in the community, or which makes the parolee a danger to himself/herself or others, when necessary psychiatric treatment cannot be obtained in the community." ¹

The inmate in this case served a determinate prison term. After his initial parole release date passed, but before he was released into the community, his parole was revoked twice, based solely on section 2616(a)(7). As we will explain, we conclude that under all the circumstances here, the parole revocation was an act in excess of the Board's statutory authority.

FACTUAL AND PROCEDURAL BACKGROUND

A. Introduction

An understanding of the factual and procedural background of this case requires some familiarity with the Sexually Violent Predators Act (SVP Act) (Welf. & Inst.Code, § 6600 et seq.), which was enacted in 1995. (Stats.1995, ch. 762, § 3; id., ch. 763, § 3.) Even though this case does not directly involve that act, a synopsis of its somewhat detailed provisions is a necessary preface to our explanation of the proceedings that culminated in the parole revocation at issue.

The Legislature stated its purpose in enacting the SVP Act as follows: "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. It is the intent of the Legislature 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. [p] The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing threat to society. The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats.1995, ch. 762, § 1; id., ch. 763, § 1.)

The SVP Act establishes a procedure that may result in the civil commitment of a sexually violent predator, which it defines as 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. (Welf. & Inst.Code, § 6600, subd. (a).)

Under the SVP Act, the Department of Corrections (the Department) is authorized to refer "an individual who is in custody under the jurisdiction of the Department ...and who is either serving a determinate prison sentence or whose parole has been revoked" for an initial screening and an evaluation by the Department of Mental Health to determine whether the person is a sexually violent predator. With certain exceptions, the reference for evaluation must be made at least six months before the individual's scheduled release date; the evaluation is to be conducted by two specified mental health professionals. (Welf. & Inst.Code, § 6601, subds. (a), (d).)

If both mental health professionals concur that the individual is a sexually violent predator, the Director of the Department of Mental Health must forward a request for a petition for commitment to the county in which the prisoner was last convicted. ²

                (Welf. & Inst.Code, § 6601, subd.  (d).)  If the petition is filed by the county district attorney or county counsel, the trial court must hold a "probable cause hearing."   If the court finds probable cause to believe the person is likely to engage in sexually violent predatory criminal behavior upon his release, it must order a trial.  (Welf. & Inst.Code, § 6602.)   The act affords the individual a number of procedural safeguards, including the right to trial by jury, the assistance of counsel, and the right to retain experts.  The standard of proof is beyond a reasonable doubt;  if the individual has requested a jury, the verdict must be unanimous.  (Welf. & Inst.Code, §§ 6603, 6604.)
                

A person determined at trial to be a sexually violent predator must be committed to the Department of Mental Health for appropriate treatment and confinement in a secure facility for two years, and is subject to extended commitments incident to the filing of new petitions. The act also includes provisions for an annual review of the individual's mental condition, conditional release, and discharge upon a determination at a hearing of a change in that condition. (Welf. & Inst.Code, §§ 6604, 6605.) ³

B. Revocation of Real Party's Parole for Psychiatric Treatment

With that background, we summarize the material facts in this case. Real party in interest Barry Whitley, who has a long criminal history, was serving a determinate prison term for aggravated assault, false imprisonment, battery and other offenses. His parole release date was in mid-August 1996. Sometime before that date, he was referred by the Department for evaluation under the SVP Act. Instead of being released on his parole release date, he was held in custody based on a since-repealed provision of that act, while the District Attorney of Contra Costa County filed a petition for his commitment as a sexually violent predator. (See Welf. & Inst.Code, former § 6601.3; Stats.1996, ch. 4, § 2.) The Board also placed an additional hold on Whitley to determine whether his parole should be revoked for psychiatric treatment based on section 2616(a)(7). ⁴

In late September 1996, the trial court dismissed the petition for commitment under the SVP Act, ruling that there was no probable cause within the meaning of Welfare and Institutions Code section 6602. In November 1996, Whitley's parole was revoked for 12 months for psychiatric treatment under section 2616(a)(7). That revocation would expire on September 16, 1997.

But in March 1997, the Department again referred Whitley to the Department of Mental Health for evaluation under the SVP Act and in mid-August the Board placed a hold on Whitley based on that act. In early September, however, it rescinded that hold, scheduled a parole revocation extension hearing, and placed a hold on Whitley pending that hearing. On October 15, 1997, the revocation extension hearing was held. For reasons relating to Whitley's conduct in prison that are unnecessary to explain here, his parole release date was recalculated to be September 26, 1997. As that date had passed, initially his immediate release was ordered, but the release did not occur. Instead, the Board placed new holds on Whitley based on the SVP Act and a related regulation. ⁵

At the end of October the District Attorney of Contra Costa County filed another petition for commitment of Whitley as a sexually violent predator. Whitley opposed the petition, arguing that: (1) the November 1996 revocation of his parole based on his psychiatric condition alone was unconstitutional; and (2) because he had been held beyond his parole release date, he was not subject to commitment under the SVP Act. At a hearing, the trial court deemed Whitley's opposition to be tantamount to a habeas corpus petition stating a prima facie case for relief. The district attorney informed the court that he would not oppose dismissal of the sexually violent predator petition, but he also informed the court that on December 2, 1997, the Board had placed another hold on Whitley to evaluate him yet again for parole revocation for psychiatric treatment under section 2616(a)(7).

Thereafter, Whitley filed a habeas corpus petition, challenging the legality and constitutionality of that parole hold. The trial court issued an order to show cause. On January 8, 1998, despite the pending habeas proceeding, Whitley's parole was...