Esper v. Superior Court
Filed 6/10/13 Esper v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
LAWRENCE
ESPER,
Petitioner,
v.
THE SUPERIOR COURT
OF ORANGE COUNTY,
Respondent;
THE PEOPLE,
Real Party in
Interest.
G046031
(Super. Ct.
No. M11699)
O P I N I O
N
Original proceedings;
petition for a writ of mandate and/or prohibition to challenge an order of the Superior
Court of
County, W. Michael Hayes, Judge. Petition granted.
Frank Ospino, Public
Defender, Jean Wilkinson, Chief Deputy Public Defender, Sharon Petrosino and
Mark S. Brown, Assistant Public Defenders, for Petitioner.
No appearance for
Respondent.
Tony Rackauckas,
District Attorney, and Elizabeth Molfetta, Deputy District Attorney, for Real
Party in Interest.
*
* *
Introduction
Lawrence
Esper is the subject of a commitment petition filed pursuant to the Sexually
Violent Predator Act, Welfare and Institutions Code section 6600 et seq.
(SVPA).
By this petition for writ of mandate or
prohibition, Esper challenges the respondent court’s order denying his
petition. He argues that when the
commitment petition was filed, he was not in lawful custody as required under
section 6601, subdivision (a)(2) (section 6601(a)(2)) because
his arrest in October 2007, which led to his custody on revocation of his
parole, was made in violation of his due process rights.
We
conclude a full evidentiary hearing,
with oral testimony permitted, is necessary to determine whether Esper’s arrest
in October 2007 violated his due process rights and, if so, whether that arrest
was the result of a good faith mistake of fact or law by law enforcement
officials. We therefore grant the
petition and issue a writ of mandate directing the respondent court to vacate
its orders denying Esper’s motion to dismiss the SVPA commitment petition,
conduct an evidentiary hearing on the motion with oral testimony if requested,
prepare written findings, and, based on those findings, reconsider Esper’s
motion.
and Procedural History
the SVPA Commitment Petition
In
July 2007, a jury convicted Esper in Orange County Superior Court case
No. 06CF3801 of violating Penal Code section 290 for failing to
register as a sex offender. The court
sentenced Esper to a two‑year prison sentence with 916 days of custody
credits.
On
October 3, 2007, Esper
was arrested by a parole agent for allegedly violating the terms of his parole
by failing to register as a sex offender under Penal Code
section 290. Esper had been paroled
from his sentence imposed in case No. 06CF3801. On October 16, the district attorney
filed a felony complaint, Orange County Superior Court case No. 07CF3431,
alleging Esper violated section 290.
On
October 19, 2007, the
Board of Parole Hearings (BPH) conducted a parole revocation hearing for
Esper. The hearing officer concluded
that Esper had violated his parole for failing to register under Penal Code
section 290. In its summary of
revocation hearing and decision, the BPH revoked Esper’s parole on the ground
Esper had failed to comply with sex offender registration requirements by not
registering at all addresses where he regularly resided. The BPH ordered that Esper be returned to
custody for seven months.
Esper
was the subject of an SVPA commitment petition (the SVPA Petition), filed on February 28, 2008. The next day, Judge Thomas James Borris
reviewed the SVPA Petition and found it stated sufficient facts which, if true,
would constitute probable cause to believe Esper was likely to engage in
sexually violent predatory criminal behavior on his release from prison. As a consequence, Judge Borris ordered Esper
to be detained pursuant to section 6601.5 in a secured facility until the
probable cause hearing.
On
March 26, 2008, the
district attorney dismissed the felony complaint against Esper in case
No. 07CF3431 and filed a new felony complaint, case No. 08CF0860,
alleging Esper committed three separate violations of Penal Code
section 290.
On
April 8 and 9, 2008, Judge John S. Adams conducted a preliminary hearing
in case No. 08CF0860. The only live
testimony came from parole agent Jenina Comer.
Comer
testified that on September 28,
2007, she searched for Esper to tell him to report to his parole
officer for GPS monitoring. Comer found
Esper at an address on North Broadway Street
in Santa Ana. On October 1, Esper reported to Comer at
the Irvine parole office. Comer informed Esper of his parole terms,
among which were that Esper could not ride the buses at night to sleep and had
to stay within a 50‑mile radius of Orange
County. Comer also informed Esper that a Howard
Johnson Hotel in the City of Orange
was inside an area in which he could reside.
During the evening of October 1, Esper telephoned Comer and told
her he had checked into that Howard Johnson Hotel. Comer told Esper to “de‑register[]â€
from Costa Mesa and to register
with the City of Orange.
On
October 3, 2007, Esper
contacted Detective Diaz at the Costa Mesa Police Department and told him he
intended to register with the City of Orange. On the same day, Esper telephoned the Orange
Police Department, spoke with Detective Franco, and tried to schedule an
appointment to register as a sex offender.
Franco did not give Esper an appointment and telephoned Comer. Franco told Comer that Esper was not wanted
in the City of Orange, and stated,
“why would you dare put [Esper] in their city.â€
During the telephone conversation, Comer could hear Orange Police
Captain Anderson saying, “Esper is not coming into our city.â€
Later
the same day, Anderson telephoned Comer, and yelled at her that “Esper is not
coming into our city.†Anderson asked,
“why don’t you arrest him, or can’t you put him in under [section] 5150?†In response, Comer stated that Esper had done
nothing wrong, there was no basis for arresting him, and he had been evaluated
by a doctor who concluded Esper was not a danger to the community.
Anderson
told Comer that if she did not move Esper out of the City of Orange, fliers
would be printed and distributed in the surrounding area to notify people that
a high‑risk sex offender was living at a particular location. Anderson said that if Comer did not move
Esper out of the City of Orange, her face and that of her supervisor would be
placed on the fliers and the fliers would state that Comer was allowing this
sex offender into the community even though she knows he is going to grab a
child.
Comer
decided to arrest Esper. She had a sense
from being a parole officer that Esper might still be living at the location on
North Broadway Street in Santa Ana. On
October 3, 2007, Comer went to the Howard Johnson Hotel in the City of
Orange and there arrested Esper under Penal Code section 290 for failing
to register the Santa Ana address as a residence.
On
October 9, 2007, Comer telephoned Detective Kirchmeyer of the Santa Ana
Police Department. She told him that
Anderson had told her the Orange Police Department would not register Esper,
and she ended up arresting him. Comer
also told Kirchmeyer she was trying to get Esper’s arrest for failure to
register “to stick†because she “need[ed] to get him screened for S.V.P.â€
At
the end of the preliminary hearing on April 9, 2008, Judge Adams, finding
the evidence presented to be of “such scant weight,†dismissed all of the
charges against Esper. Judge Adams
stated, “[i]t is abundantly clear from simply a cursory review of the [Penal
Code section] 290 [registration] forms . . . what appears to be
a good faith effort to comply with the registration requirements.â€
Judge
Adams stated he was “deeply troubled†by the conduct of law enforcement
officers. He explained: “[I]t would seem to this court and it comes
very close to just simply shocking the conscience of this court that parole
agent Comer was buffaloed by a police captain in Orange to make an arrest and
to fill out whatever form she needed to do to comport to the fact that Mr.
Esper was a resident at [the Santa Ana address].â€
In
June 2011, Esper filed a motion to dismiss the SVPA Petition on two
grounds: (1) he was not in lawful
custody at the time the SVPA Petition was filed, and (2) the individual
and collective actions of Comer, Anderson, Franco, and Kirchmeyer constituted
outrageous government conduct that “shocks the contemporary conscience.†The district attorney opposed the
motion. A hearing on the motion was
conducted on September 6, 2011, at which the respondent court received in
evidence, without objection from the district attorney, the reporter’s
transcript of the preliminary hearing in case No. 08CF0860. The respondent court also received in
evidence a copy of the BPH’s summary of revocation hearing and decision. At the conclusion of the hearing, the
respondent court took the matter under submission.
By
minute order entered on September 8, 2011, the respondent court denied
Esper’s motion to dismiss the SVPA Petition.
The minute order recited these reasons:
“The evidence before the Court indicates that Respondent’s parole
revocation was valid, in that after the hearing on same, he was sentenced to
seven months time. It was while
Respondent was in custody pursuant to his parole violation and the subsequent
45[-]day hold issued pursuant to . . . Section 6601.3 that the
[SVPA] Petition was filed. While the
criminal charges that were based on the same conduct as the parole revocation
were subsequently dismissed, that finding does not affect the parole
revocation, which is conducted by the executive branch. ‘The power to grant and revoke parole is
vested in the Department of Corrections, not the courts.’ In re P[ra]ther, 50 Cal. 4th 238, 254 (2010)
. . . ; [citation]. If
Respondent believed there was error in the result of his parole revocation
hearing, he could have sought habeas relief, id., but apparently did not, since
there is nothing in the record to indicate that he did. Because the parole revocation was valid and
that was the basis of Respondent[’]s custody, the motion is DENIED.â€
Esper
filed this petition for writ of mandate or prohibition to challenge the
respondent court’s order denying his motion to dismiss the SVPA Petition. On April 5, 2012, we issued an order
summarily denying Esper’s writ petition.
Esper petitioned the California Supreme Court for review of our
order. By order filed June 13,
2012, the California Supreme Court granted Esper’s petition for review and
transferred the matter back to this court with directions to “vacate its order
denying mandate/prohibition and to issue an alternative writ to be heard before
that court when the proceeding is ordered on calendar.â€
After
receiving the Supreme Court’s order, a majority of this panel issued an order
to show cause directed to the respondent court.
In July 2012, Esper petitioned the California Supreme Court for review
of the order to show cause. By order
filed August 15, 2012, the California Supreme Court granted Esper’s
petition for review and transferred the matter back to us with directions to
vacate the order to show cause and to issue an alternative writ. Thereafter, we issued an alternative writ to
the respondent court directing it to grant Esper’s motion to dismiss the SVPA
Petition or to show cause why the motion should not be granted.
Meanwhile,
on July 24, 2012, the district attorney filed a return to Esper’s petition
for writ of mandate or prohibition. The
return includes a verified answer.
After
receiving the alternative writ, the respondent court, by minute order entered
September 7, 2012, confirmed its denial of Esper’s motion to dismiss the
SVPA Petition. The minute order stated: “The Court has re‑reviewed the record
in this matter and reconfirms its denial of [Esper’s] Motion. [¶]
While the Orange Police Department declined to register Mr. Esper, his
arrest and parole violation were based on Mr. Esper’s failure to register at an
address located in Santa Ana. (Motion at
4:16, 6:3‑4.) (The Court accepts
these hearsay facts as true for purposes of this motion although the transcript
relied on was not lodged with the Court, nor did [Esper] present any other
evidence.) [¶] [Esper] had a parole revocation hearing on
October 19, 2007, where he was found to be in violation and sentenced to a
seven[-]month term. (People’s
Ex. 1.) Mr. Esper did not challenge
the ruling of the parole revocation.
After Mr. Esper was in custody, BPH issued a 45[-]day hold on
January 6, 2008. The SVP[A
P]etition was filed before the expiration of the hold. Further, Mr. Esper was held to answer on the
initial filing of the section 290 charge, and that ruling was made prior
to the SVP[A P]etition being filed.
[¶] For all of these reasons, the
Court finds that [Esper] has not met his burden to demonstrate that his custody
was unlawful (Welf. & Inst. Code, section 6601, subd. (a)(2)),
and declines to change its ruling on [Esper]’s Motion to Dismiss.â€
In
an order filed on October 3, 2012, we invited Esper to file a reply to the
district attorney’s return and invited both parties to submit briefs addressing
whether the respondent court showed cause for not complying with the
alternative writ. Esper filed a reply to
the return and a supplemental brief; the district attorney did not file a
supplemental brief. We subsequently
entertained oral argument.
Provisions of the SVPA
The
SVPA provides for involuntary civil commitment of an offender immediately upon
release from prison if the offender is found to be a sexually violent
predator. (People v. Yartz (2005) 37 Cal.4th 529, 534.) A sexually violent predator is defined as “a
person who has been convicted of a sexually violent offense against one or more
victims 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.â€
(§ 6600, subd. (a)(1).)
“‘[A]n SVPA commitment proceeding is a special proceeding of a civil
nature, because it is neither an action at law nor a suit in equity, but
instead is a civil commitment proceeding commenced by petition independently of
a pending action.’†(
An
SVPA commitment petition may be filed “if the individual was in custody
pursuant to his or her determinate prison term, parole revocation term, or a
hold placed pursuant to Section 6601.3, at the time the petition is
filed.†(§ 6601(a)(2).) However, “[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.†(
Upon a showing of good cause, the BPH may order that the inmate remain
in custody for up to 45 days beyond the inmate’s scheduled release date to
complete a full evaluation pursuant to section 6601, subdivisions (c)
to (i). (§ 6601.3, subd. (a).)
The
Supreme Court order directing us to issue an alternative writ, and the
respondent court’s failure to comply with the writ or to show cause, lead us
first to address the scope of issues for our review. In his supplemental brief, Esper argues the
respondent court’s failure to grant his motion to dismiss the SVPA Petition or
to show cause means we should grant his petition and issue a writ directing the
respondent court to grant his motion to dismiss the SVPA Petition. We disagree.
A
Supreme Court order directing the Court of Appeal to issue an alternative writ
constitutes a determination only that the petitioner is without an adequate
legal remedy. (Borg‑Warner Protective Services Corp. v. Superior Court (1999)
75 Cal.App.4th 1203, 1207; Bridgestone/Firestone,
Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1389, fn. 4.) “It does not stand for the proposition that
the Supreme Court has determined that petitioner was correct on the merits, or
justified, but merely that extraordinary relief is the only adequate avenue for
review.†(Bridgestone/Firestone, Inc. v. Superior Court, supra, at p. 1389, fn. 4.)
The
alternative writ directed the respondent court to grant Esper’s motion to
dismiss the SVPA Petition or to show cause why the motion should not be
granted. (See Code Civ. Proc.,
§ 1087.) When an appellate court
issues an alternative writ, the respondent court may grant the requested
relief, in which case the writ petition becomes moot. (Lewis
v. Superior Court (1999) 19 Cal.4th 1232, 1239‑1240.) “‘[O]therwise, the respondent and/or the real
party in interest may file a written return setting forth the factual and legal
bases which justify the respondent’s refusal to do so. [Citations.]’
[Citation.]†(
order to show cause, the respondent or any real party in interest
. . . may serve and file a return by demurrer, verified answer, or
both.†(Cal. Rules of Court,
rule 8.487(b)(1).)
The
respondent court denied Esper’s motion to dismiss the SVPA Petition and in
response to the alternative writ confirmed that decision. As Esper argues, the respondent court did not
show cause by filing a return; however, the district attorney did file a return
with a verified answer and legal argument.
Although the return was filed before we issued the alternative writ, the
effect of the return nonetheless was to join the issues and create a “‘cause’â€
to be decided in writing with reasons stated as required by article VI,
section 14 of the California Constitution.
(Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
“The issues joined by the petition and return must therefore be decided
. . . in a written opinion.†(
Accordingly,
only the adequacy of Esper’s legal remedy has been determined. We must address and decide the issues joined
by the petition and the return. We turn
to those issues.
on the BPH’s Decision to Revoke His Parole
When
the SVPA Petition was filed, Esper was being held in custody under a hold
placed pursuant to section 6601.3.
At the time the hold was granted, and at the time the SVPA Petition was
filed, Esper was in custody pursuant to the BPH decision revoking his parole for
failure to register under Penal Code section 290; that is, he was in
custody “pursuant to his . . . parole revocation term.†(§ 6601(a)(2).) On October 19, 2007, the BPH had revoked
Esper’s parole and ordered that he be returned to custody for seven months. The SVPA Petition was filed on
February 28, 2008, during the period in which Esper had been returned to
custody.
Esper
contends that parole revocation was unlawful—he was not in lawful custody when
the SVPA Petition was filed—because Judge Adams later determined, following the
preliminary hearing, that Esper’s arrest and incarceration for parole violation
were unlawful. Esper argues that Judge
Adams found that Esper’s arrest for parole violation was the product of a due
process violation, and the respondent court erred by ignoring Judge Adams’s
findings and concluding instead it was bound by the BPH’s decision to revoke
Esper’s parole.
Executive
action, including the actions of law enforcements officials, violates
substantive due process when it so outrageous that is can be said to shock the
conscience. (County of Sacramento v. Lewis (1998) 523 U.S. 833, 847.) In County
of Sacramento v. Lewis, the United States Supreme explained: “Our cases dealing with abusive executive
action have repeatedly emphasized that only the most
egregious official conduct can be said to be ‘arbitrary in the constitutional
sense,’ [citation] . . . .
Thus, in Collins v. Harker Heights[
(1992) 503 U.S. 115], for example, we said that the Due Process Clause was
intended to prevent government officials ‘“‘from abusing [their] power, or
employing it as an instrument of oppression.Չۉ۪
[Citation.] [¶] To this end, for half a century now we have
spoken of the cognizable level of executive abuse of power as that which shocks
the conscience. We first put the test
this way in Rochin v. California
[(1952) 342 U.S. 165,] 172‑173 . . . , where we found the
forced pumping of a suspect’s stomach enough to offend due process as conduct
‘that shocks the conscience’ and violates the ‘decencies of civilized
conduct.’ In the intervening years we
have repeatedly adhered to Rochin’s
benchmark. [Citations.] Most recently, in Collins v. Harker Heights, supra,
at 128 . . . , we said again that the substantive component of
the Due Process Clause is violated by executive action only when it ‘can
properly be characterized as arbitrary, or conscience shocking, in a
constitutional sense.’ While the measure
of what is conscience shocking is no calibrated yard stick, it does, as
Judge Friendly put it, ‘poin[t] the way.’
[Citation.]†(
In
support of his motion to dismiss the SVPA Petition, Esper offered into evidence
the reporter’s transcript of the preliminary hearing in case
No. 08CF0860. The district attorney
did not object to the reporter’s transcript, and the respondent court received
it in evidence. Comer’s testimony at the
preliminary hearing would support a finding that law enforcement officials,
including Comer, Franco, Anderson, and Kirchmeyer, secured Esper’s arrest by
means of outrageous conduct that shocked the conscience and violated due
process.
Judge
Adams commented that the actions of those law enforcement officials was “simply
shocking the conscience of this courtâ€; however, that comment does not amount
to a finding of fact or a determination that Esper’s arrest was unlawful. The only finding, express or implied, to be
drawn from Judge Adam’s decision to dismiss the felony charges against Esper
was the evidence was insufficient to establish sufficient cause to hold him to
answer. The role of the magistrate in a
preliminary hearing is limited to determining whether there is “sufficient
cause†to believe an offense has been committed. (Pen. Code, § 872, subd. (a).) The issue whether Esper suffered a due process
violation therefore was not tried and fully adjudicated at the preliminary
hearing. As the district attorney
asserts, “[t]he court only made a probable cause determination as to the
sufficiency of evidence to support the criminal charges alleged in th[e] felony
complaint.â€
Although
the comments of Judge Adams do not amount to an adjudication that Esper’s
arrest and parole revocation were unlawful, we share his concerns over what
appears, based on the reporter’s transcript of the preliminary hearing, to be a
gross violation of Esper’s due process rights.
Reversal of a conviction or dismissal of criminal charges may be an
appropriate remedy under certain circumstances for due process violations. (Rochin
v. California (1952) 342 U.S. 165, 174; Barber
v. Municipal Court (1979) 24 Cal.3d 742, 759‑760;
Cal.App.4th 1252, 1259‑1260, 1263.)
In this case, if Esper’s arrest in October 2007 were the result of
outrageous government conduct amounting to a due process violation, then he
would not have been in lawful custody under section 6601(a)(2) when the
SVPA Petition against him was filed.
Another
evidentiary hearing on Esper’s motion to dismiss the SVPA Petition, with oral
testimony permitted, is necessary and just to determine whether Esper was the
victim of conduct by law enforcement officials that was shocking to the
conscience. Were this a proceeding in
habeas corpus, an evidentiary hearing would be required because our
consideration of the petition, the district attorney’s return, and the
supporting evidence leads us to find “a reasonable likelihood that [Esper] may
be entitled to relief and [Esper]’s entitlement to relief depends on the
resolution of an issue of fact.†(Cal.
Rules of Court, rule 8.386(f)(1).)
We see no reason to treat Esper’s petition for writ of mandate or
prohibition differently. In addition,
SVPA commitment proceedings are civil in nature (People v. Yartz, supra,
37 Cal.4th at p. 536), and, at civil law and motion hearings, the court
may permit oral testimony for good cause shown (Cal. Rules of Court,
rule 3.1306(a)). We find good cause
for permitting oral testimony at a hearing on Esper’s motion to dismiss the
SVPA Petition.
The
evidentiary hearing should be directed to these issues: (1) whether Esper’s arrest for parole
violation in October 2007 resulted from or constituted a due process violation,
that is, whether the actions of law enforcement officials were “so egregious,
so outrageous, that it may fairly be said to shock the contemporary conscienceâ€
(County of Sacramento v. Lewis,
fn. 8); (2) if so, whether the actions of law enforcement officials
in arresting Esper and placing him in custody for parole violation in October
2007 were the result of a good faith mistake of fact or law;
and (3) any other issues necessary to determine (a) whether Esper’s
arrest for parole violation in October 2007 was lawful and (b) whether
Esper was in lawful custody within the meaning of section 6601(a)(2) when
the SVPA Petition was filed. Following
the evidentiary hearing, the respondent court must prepare written findings
and, based on those findings, reconsider Esper’s motion to dismiss the SVPA
Petition under section 6601(a)(2).
To
guide the respondent court on remand, if the evidence on remand is consistent
with Comer’s testimony at the preliminary hearing, and the court finds that
evidence credible, then there would be no “good faith†mistake.
At
oral argument, the district attorney argued an evidentiary hearing would serve
no purpose because, whatever the result of that hearing, the respondent court
cannot invalidate or reverse the BPH decision to revoke Esper’s parole without
violating the doctrine of separation of powers.
(Cal. Const., art. III, § 3.)
It is true, as the district attorney contends, the decision to revoke
parole is committed entirely to the BPH’s judgment and discretion with a
constitutionally based veto power vested in the Governor. (In re
Prather (2010) 50 Cal.4th 238, 251.)
An evidentiary hearing into and determination of the legality of Esper’s
arrest for parole violation in October 2007 would not intrude into the BPH’s
powers because Esper long ago completed the seven-month parole revocation term
ordered by the BPH. Without violating
separation of powers, the respondent court can inquire into the legality of the
police conduct and arrest that placed Esper in the position in which the BPH
could revoke his parole, and, ultimately, placed him in custody for purposes of
filing an SVPA commitment petition.
Esper
did not challenge the BPH’s decision to revoke his parole by petition for writ
of habeas corpus. (In re Prather, supra, 50
Cal.4th at pp. 251‑252; In re
Bowers (1974) 40 Cal.App.3d 359, 362.)
But the only factual issues resolved by the BPH at the parole revocation
hearing were “whether [Esper] is required to register under Penal Code
section 290 and whether [Esper] failed to register.†(Cal. Code Regs., tit. 15, § 2645,
subd. (a).) Nothing in the BPH
order revoking Esper’s parole indicates the BPH considered whether Esper’s
October 2007 arrest for parole violation was unlawful.
Esper
could not have raised his potential due process claim at the BPH hearing
because he would not have learned of that claim at least until Comer testified
at the preliminary hearing in April 2008.
Since the BPH did not address any claim of a due process violation, and
Esper could not have raised it during the parole revocation hearing, the BPH’s
decision to revoke parole does not collaterally estop Esper from making that due
process claim in support of his motion to dismiss the SVPA Petition. (See Lucido
v. Superior Court (1990) 51 Cal.3d 335, 341 [“the issue sought to be
precluded from relitigation must be identical to that decided in a former
proceedingâ€].) If law enforcement
officials arrested Esper in October 2007 and placed him in custody in violation
of his due process rights, then his custody was unlawful for purposes of
section 6601(a)(2), notwithstanding the later BPH determination to revoke
his parole.
and Order
The petition for writ of
mandate is granted. Let a writ of
mandate issue directing the respondent court to do the following:
1. Vacate its September 8, 2011 order and
September 7, 2012 order denying Esper’s motion to dismiss the SVPA
Petition;
2. Conduct another evidentiary hearing, with
oral testimony permitted, on Esper’s motion to dismiss the SVPA Petition. The evidentiary hearing should be directed to
these issues: (1) whether Esper’s
arrest for parole violation in October 2007 was the result of or constituted a
due process violation; (2) if so, whether the actions of law enforcement
officials in arresting Esper and placing him in custody for parole violation in
October 2007 were the result of a good faith mistake of fact or law; and (3) any
other issues necessary to determine (a) whether Esper’s arrest for parole
violation in October 2007 was lawful and (b) whether Esper was in lawful
custody within the meaning of section 6601(a)(2) when the SVPA Petition
was filed.
3. Prepare written findings and, based on them,
reconsider and decide Esper’s motion to dismiss the SVPA Petition.
FYBEL,
J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.
and Institutions Code unless otherwise indicated.
contention that the relevant inquiry is whether the BPH’s parole revocation
decision was the result of a good faith mistake of fact or law. In this case, the proper inquiry under
section 6601(a)(2) is whether Esper’s custody, if unlawful, was the result
of a good faith mistake of fact or law by the law enforcement officials in
arresting Esper, not by the BPH in deciding to revoke his parole.
