
    The PEOPLE, Plaintiff and Respondent v. James Allen HYDRICK, Defendant and Appellant.
    2d Crim. No. B256043
    Court of Appeal, Second District, Division 6, California.
    Filed July 21, 2016
    Certified for Partial Publication.
    Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Blythe J. Leszkay, Deputy Attorney General, for Plaintiff and Respondent.
    
      
      Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]].
    
   GILBERT, P.J.

The Welfare and Institutions Code provides procedures the state must follow before a prisoner may be committed as a sexually violent predator (SVP). For "good cause" a prisoner may be held beyond the prisoner's release date for 45 days to complete a full evaluation to determine whether the prisoner qualifies as an SVP.

We conclude that "a full evaluation" includes the prosecuting attorney's decision to file a petition.

A jury found James Allen Hydrick to be an SVP. (§ 6600 et seq.) We affirm.

FACTS

Hydrick was convicted of various sexual offenses.

[[/]]

PROCEDURAL FACTS AND DISCUSSION

I

Hydrick contends the SVP commitment petition was not timely.

Hydrick's scheduled release date from his prison sentence was September 10, 2008.

On March 5, 2008, the California Department of Corrections and Rehabilitation (CDCR) sent a memorandum to the Board of Parole Hearings (Board)

requesting further documentation because it did not have sufficient information to determine whether Hydrick qualified as an SVP. On August 11, 2008, the Board responded with a letter to the Department of Mental Health (DMH), stating that Hydrick met the first level SVP criteria. On August 20, a level 2 evaluation was completed, finding that a level 3 evaluation was required. On August 26, Hydrick was interviewed by Doctors Jesus Padilla and Robert Owen as part of the level 3 SVP evaluation. By September 3, Padilla and Owen had submitted lengthy reports concluding that Hydrick met the SVP criteria.

On September 9, 2008, the day before Hydrick's scheduled release date from prison, the Board issued a 45-day hold pursuant to section 6601.3.

On September 10, 2008, the DMH sent a letter to the San Luis Obispo County District Attorney, referring Hydrick for SVP commitment proceedings. On October 8, the district attorney filed an SVP commitment petition.

An SVP petition may be filed while the defendant is in lawful custody, including a 45-day hold placed pursuant to section 6601.3. (§ 6601, subd. (a)(2).) In 2008, section 6601.3 provided that, upon a "showing of good cause," the Board may order a person determined by the CDCR to be an SVP to "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."

In 2008, the "good cause" required to satisfy a 45-day hold was defined in the California Code of Regulations as "[s]ome evidence" that the person has a qualifying conviction and is "likely to engage in sexually violent predatory criminal behavior." (Former Cal. Code Regs, tit. 15, § 2600.1, subd. (d)(2).)

This "good cause" requirement was short-lived. In 2012, our Supreme Court decided In re Lucas (2012) 53 Cal.4th 839, 137 Cal.Rptr.3d 595, 269 P.3d 1160. The court held the definition of "good cause" in the Code of Regulations was invalid because it linked good cause to showing that the person is likely to be an SVP, rather than showing justification for the delay in filing the petition. (Id. at pp. 849-851, 137 Cal.Rptr.3d 595, 269 P.3d 1160.) Nevertheless, the court found reliance on the regulation was excusable as a good faith mistake of law. (Id. at p. 852, 137 Cal.Rptr.3d 595, 269 P.3d 1160.)

Hydrick argues that the 45-day hold was not permitted in this case because by the time the 45-day hold was imposed, full evaluations had already been completed. Section 6601.3, however, allows a 45-day hold for full evaluations "pursuant to subdivision (c) to (i) inclusive, of section 6601." Section 6601, subdivision (i) includes, within the ambit of a full evaluation, the district attorney's decision to file a petition. Because the district attorney's evaluation had not been completed at the time the 45-day hold was imposed, the petition was timely. Hydrick attempts to distinguish Lucas. There, the hold was imposed before the evaluations by two psychologists were completed. But nothing in Lucas suggests that its decision was based on whether the hold was imposed during or after the evaluations were completed.

Hydrick's reliance on People v. Superior Court (Small ) (2008) 159 Cal.App.4th 301, 71 Cal.Rptr.3d 462 is misplaced. There the SVP petition was not filed until one day after the 45-day hold period had expired. The court held that the untimely filing was not due to a good faith mistake of law, and upheld the trial court's dismissal of the petition. Here the petition was filed within the 45-day hold period. The trial court properly refused to dismiss the petition.

II

[[/]]

The judgment is affirmed.

We concur:

YEGAN, J.

PERREN, J. 
      
      All statutory references are to the Welfare and Institutions Code unless otherwise stated.
     
      
      See footnote *, ante .
     
      
      We grant Hydrick's motion for judicial notice filed April 7, 2015, concerning various levels of screening for SVP's.
     
      
      Section 6601, subdivision (i) provides: "If the county's designated counsel concurs with the recommendation, 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 and Rehabilitation. The petition shall be filed, and the proceedings shall be handled, by either the district attorney or the county counsel of that county. The county board of supervisors shall designate either the district attorney or the county counsel to assume responsibility for proceeding under this article."
     
      
      See footnote *, ante .
     