Filed 10/29/13 Hull v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



TIMM DEE HULL,

         Petitioner,                                                     E057256
v.
THE SUPERIOR COURT OF                                                    (Super.Ct.No. FELSS1103911)
SAN BERNARDINO COUNTY,
     Respondent;                                                         OPINION
THE PEOPLE,
     Real Party in Interest.

In re TIMM DEE HULL,
                                                                        E057680
    on Habeas Corpus.

GARRETT AMMON,
     Petitioner,
v.                                                                       E057257
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,                                                   (Super.Ct.No. FELSS1103527)
     Respondent;
THE PEOPLE,
     Real Party in Interest.

In re GARRETT AMMON,

    on Habeas Corpus.                                                    E057681




                                                             1
       ORIGINAL PROCEEDINGS; petitions for writ of mandate and petitions for writ

of habeas corpus. Katrina West, Judge. Petitions for writ of mandate and petitions for

writ of habeas corpus are denied.

       Phyllis K. Morris, Public Defender, and Jeffrey Lowry, Deputy Public Defender,

for Petitioners.

       No appearance for Respondent.

       Michael A. Ramos, District Attorney, and Grace B. Parsons, Deputy District

Attorney, for Real Parties in Interest.

                                     INTRODUCTION

       In these matters, the inmate petitioners were retained in custody past their

scheduled release dates in order to enable the California Department of Mental Health

(Department) to complete evaluations under the “Sexually Violent Predator Act”

(SVPA). (Welf. & Inst. Code,1 §§ 6600 et seq.) The question raised is whether such

continued custody was “unlawful” within the meaning of section 6601,

subdivision (a)(2), so that the trial court lacked jurisdiction to proceed with the SVPA

cases. We conclude that petitioners were not lawfully in custody at the time the




       1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.




                                             2
commitment petitions were filed, and that petitioners were entitled to have those petitions

dismissed.2

                                STATEMENT OF FACTS

       Because the relevant facts are not disputed, we can quickly sketch the factual

framework on which we decide these cases. Both petitioner Timm Dee Hull and

petitioner Garrett Ammon were incarcerated following convictions for offenses that

qualified them for evaluation under the SVPA. (See § 6600, subd. (b), for the list of

“sexually violent offenses.”) Petitioner Hull was due to be released on July 23, 2011;

petitioner Ammon on July 3, 2011. The People filed a petition to commit Hull as a

sexually violent predator (SVP) on August 24; the Ammon petition was filed on August

4.




       2  Petitioners Hull and Ammon first filed petitions for writ of mandate. As they
involved the identical legal issue on virtually identical facts, we issued an order to show
cause and consolidated the petitions. After we had completed the tentative opinion,
petitioners filed petitions for writ of habeas corpus, apparently for the purpose of placing
new information and documentary evidence before this court. We also consolidated
those proceedings with the pending cases.
       In connection with the habeas corpus petitions, petitioners asked this court to take
judicial notice of the mandate files and exhibits. The People have objected to exhibits 14
and 15, which were not submitted to the trial court. We see no reason why these
exhibits—legislative history materials relating to amendments to the SVPA in 1996 and
2000—could not simply have been presented as exhibits to the habeas corpus petitions,
which arise as original matters in this court. Hence, the request for judicial notice is
granted. We do note, however, that our decision does not depend on these exhibits.




                                             3
       Because section 6601, subdivision (a)(2), generally requires that an inmate have

been in lawful custody at the time the SVPA petition is filed,3 petitioners filed motions to

dismiss. The People‟s responses relied on section 6601.3, which allows an inmate to be

held past his or her scheduled release date for up to 45 days “[u]pon a showing of good

cause” in order to complete the necessary evaluations. Such “holds” had in fact been

placed upon petitioners, and both petitions were filed within 45 days following the

inmates‟ scheduled release dates.

       In both cases, a declaration was filed by Sherry Barandas, who identified herself

as the person in charge of “overall management” of the “Sex Offender Commitment

Program.” She stated that Hull‟s case was referred for evaluation on April 21, 2011, and

Ammon‟s on April 19.4 She stated that the initial screenings were delayed until July 1

and June 21, respectively, “due to the unavailability of clinicians and the number of cases

on backlog . . . .” She also stated that the Department is staffed and funded to process 500

referrals a month, although it typically received an average of 729 referrals a month. She

also stated that in April 2011 the Department received 1,593 referrals, with 1,466



       3 “A petition may be filed under this section 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. 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.” (§ 6601, subd. (a)(2).)

       4 Both Hull and Ammon were therefore referred for evaluation well over 45 days
before their respective release dates.


                                             4
following in May. At that point, according to Barandas, an emergency contract process

was begun, but it was not approved until nearly the end of the year.

       In both cases, a declaration was also filed by an employee of the Board of Parole

Hearings (BPH), who was responsible for determining whether there was good cause to

place a 45-day hold on an inmate under section 6601.3. In identical language, these

persons disclaimed any specific recollection of the subject cases, but stated that their

custom and practice was “to review the Controlling Release Date Query printout from the

Offender Based Information System (OBIS) and DMH‟s Level II Clinical Screen before

placing a 45-day hold.” Their custom and practice before finding good cause was “to

ensure that [¶] a. there was a qualifying offense under the SVP statutes. [¶] b. DMH‟s

Level II Clinical Screen indicated that the inmate should be referred for another set of

SVP evaluations. [¶] c. BPH had jurisdiction to place the hold.” In other words, as long

as the inmate had committed a qualifying offense and the initial screening did not

eliminate him from consideration as a potential SVP, a hold would be placed. The

declaration in the Hull case referred to the increase in referrals as being “good cause” as

“exigent circumstances beyond DMH‟s control”; the Ammon declaration was silent on

the point.

       As a fallback position, the People also argued that any mistake with respect to

petitioners‟ continued custody had been made in good faith. We will set out the

additional evidence presented in connection with the habeas corpus petitions when we

reach the “good faith” issue.



                                              5
       Hull and Ammon responded by arguing that the Department had actually been

handling well over its supposed “staffing” level of 500 cases a month for most of 2010

and early 2011.5 Petitioners also expressed skepticism about the possibility that the

Department of Corrections and Rehabilitation had changed its policy concerning referrals

without giving the Department advance warning.6 Finally, petitioners asserted that the

increase in referrals did not, as a matter of law, constitute “good cause” for the 45-day

hold placed on them.

       At the hearing, the trial court took the matter under submission, and in a written

ruling found that petitioners had not established that the “spike” in cases could have been

anticipated, that the “spike” constituted “equivalent exigent circumstances” within the

meaning of section 6601.3, subdivision (b), (see infra) and that in any event the holds had

been placed in good faith.

                                      DISCUSSION

                                             A.

       The first question we decide is the interpretation of the statute. We will then turn

to the question of “good faith.”



       5The chart filed by the People showed that for the last six months of 2010, there
were 896, 785, 941, 706, 599, and 837 referrals; 655 followed in January 2011, 681 in
February, and 773 in March, before the rate doubled from that in April and May.

       6 Petitioners simply asserted that “[y]ou don‟t have to be Einstein to conclude
there was a change in policy regarding referrals . . . .” There was no actual evidence of
such a policy shift.


                                             6
       At the heart of the matter is the 2010 amendment to section 6601.3, which added

subdivision (b). (Text of amendment, infra.) Prior to that time, the statute simply

allowed the 45-day hold if there was “good cause,” but did not attempt to define the term.

       Some background is provided by In re Lucas (2012) 53 Cal.4th 839 (Lucas). That

case involved a regulation adopted to guide the interpretation of section 6601.3 prior to

the 2010 amendment. At the time Lucas arose,7 Code of Regulations, title 15, section

2600.1, subdivision (d), defined “good cause” as the existence of some evidence that the

person had a qualifying conviction and that he or she was “likely to engage in sexually

violent predatory criminal behavior.” The petitioner in Lucas was placed under a hold

justified by this authority.

       The Supreme Court pointed out in Lucas that this was merely a formulation of

“good cause” to believe the inmate might be a sexually violent predator, not “good

cause” justifying the inability to process the evaluation in a timely manner. It also noted

that under the interpretation urged by the People, “good cause” for the 45-day extension

would exist in every case because the initial screening would have already limited the

pool of affected inmates to those with a qualifying conviction and a negative initial

report. (Lucas, supra, 53 Cal.4th at pp. 850-851.) As a result, the court held that the

petitioner‟s continued custody was not lawful, but it also found the authorities‟ reliance



       7 The Lucas court commented that by March 2012, when Lucas was decided, the
regulation had not been revised to reflect the 2010 amendments defining “good cause.”
(Lucas, supra, 53 Cal.4th at p. 844, at fn. 3.) It still hasn‟t.


                                             7
on the regulation to have been in good faith so that the SVP petition had been properly

heard. In this context, the court relied on legislative history to support the conclusion that

“good faith” meant that the mistake was not due to intentional wrongdoing or even

negligence by correctional authorities. (Id. at p. 852; see also People v. Superior Court

(Whitley) (1999) 68 Cal.App.4th 1383, 1389-1390.)

       As has been noted, by the time Lucas was decided the Legislature had amended

the statute to define “good cause” for the purpose of retaining the inmate in custody past

his or her release date. It did so by adding subdivision (b) to section 6601.3, which

provides that “[f]or purposes of this section, good cause means circumstances where

there is a recalculation of credits or a restoration of denied or lost credits, a resentencing

by a court, the receipt of the prisoner into custody, or equivalent exigent circumstances

which result in there being less than 45 days prior to the person’s scheduled release date

for the full evaluation described in subdivisions (c) to (i), inclusive, of Section 6601.”

(Italics added.) The simple question presented by these petitions is whether the sudden

“spike” in referrals to the Department was an “equivalent exigent circumstance.” The

answer is “no.”

       It is apparent that the intent of the amendment was to deal with situations in

which, for reasons beyond the control of the Department, it had fewer than 45 days in

which to complete the evaluations. This might be the case, as the statute sets out, if an

inmate‟s release date was suddenly advanced because he qualified for a restoration of lost

credits. The same problem could occur if a court corrected a sentencing error and



                                               8
reduced the inmate‟s term, or if an inmate were returned to custody for a parole violation,

which resulted in a minimal term.

       With all due respect to the People (see infra), we agree with their argument that

the statutory language is unambiguous, and therefore needs no construction. If there is no

ambiguity in the language, the court presumes the Legislature meant what it said, and the

plain meaning of the statute governs. “ „If the statutory language is clear and

unambiguous our inquiry ends.‟ ” (Kirby v. Immoos Fire Protection, Inc. (2012) 53

Cal.4th 1244, 1250.) The amendment ensures that where the Department does not have

the presumptively sufficient time in which to complete the evaluation, an inmate may be

retained in custody beyond the scheduled release date. The exigent circumstances that

will justify a continued “hold” must be “equivalent” to those set out in the statute and

must result in “there being less than 45 days prior to the person‟s scheduled release date

for the full evaluation . . . .”8 (§ 6601.3, subd. (b).)

       The Legislature certainly knows how to leave the determination of “good cause”

up to the courts, as it did with the original version of Welfare and Institutions Code

section 6601.3 and has done to a large extent in Penal Code section 1382, which deals

with dismissals when statutory time limits for trial are not met. In that context, the courts


       8 We have used the phrase “fewer than 45 days” above because “fewer” should be
used when the things being described may be counted; “less” is used when the quantity in
question is abstract or imprecise. (E.g., “less money, fewer dollars,” or “less time, fewer
hours”; see <http://languagerules.wordpress.com/2006/09/08/fewer-vs-less/> [as of Dec.
14, 2012].) However, in quoting the statute, we are of course bound by the Legislature‟s
choice.


                                                9
have held that an unexpected increase in a court‟s workload that prevents it from

affording a defendant his trial within the statutory time period may constitute “good

cause” to prevent dismissal. (See generally discussion in People v. Engram (2010) 50

Cal.4th 1131, 1162-1165.) But in our case, the Legislature has not left it up to the courts

to determine “good cause” on a case by case basis. It has explicitly limited the courts‟

power to find “good cause” by adding the qualification that the proffered excuse must

“result in there being less than 45 days prior to the person‟s scheduled release date for the

full evaluation . . . .” (§ 6601.3, subd. (b).) Whether this limited definition of “good

cause” was wise is not for us to decide. The language could hardly be more clear, and we

cannot expand a definition that the Legislature has expressly chosen to limit.9

       9  We have not found it necessary to rely on a case cited by petitioners, People v.
Superior Court (Small) (2008) 159 Cal.App.4th 301 (Small). That case decided that an
“increased workload” (not shown to be unusual or unpredictable) did not constitute a
“good faith mistake of law or fact.” (Id. at pp. 309-310.) Because the inmate in that case
had been held beyond the 45-day period allowed by section 6601.3, “good cause” was no
longer an issue and, in fact, the 45-day extension was not challenged.
        Nor do we feel it necessary to argue the maxim noscitur a sociis (a thing is known
by its associates, or the things with which it is associated). The Legislature did not leave
us only the “sociis” to assist in our analysis; it made the limited category into which all
“sociis” must fit explicit. Still less do we find it necessary to address the People‟s
assertion that any noscitur a sociis argument was waived either because petitioners did
not cite the maxim in the trial court or did not properly present all relevant legislative
materials through judicial notice. We do note that petitioners did urge not only that none
of the specific circumstances stated in section 6601.3, subdivision (b), existed, but that
there was no showing of “any exigent circumstances that resulted in there being any good
cause for implementation of the hold as required by 6601.3(b).” This adequately asserted
that the statutory requirements had not been met, and it is certainly not uncommon for
arguments to be made in more detail and with more scholarship in appellate briefs. For
example, the People certainly did not favor the trial court with the multiple dictionary
definitions for “equivalent,” “exigent,” and “circumstances” with which it has attempted
to persuade this court.


                                             10
        However, insofar as we have not already done so, we will address the People‟s

arguments at least briefly.

        The People argue both that section 6601.3, subdivision (b), is unambiguous and

that, if it is ambiguous, it should be construed to confirm the ruling of the trial court—and

that in either event “[p]rinciples of statutory construction unquestionably lead to the

conclusion that a [spike] is an „equivalent exigent circumstance‟ establishing „good

cause‟ . . . .” In an effort to establish unambiguity, they provide us with complete sets of

Merriam-Webster10 definitions for the words “equivalent,” “exigent,” and

“circumstance”11 and, by picking and choosing, conclude that the phrase as used by the

Legislature “means an equally important event calling for immediate aid or action.” We

do not consider this at all useful because whatever synonyms or rephrasing are employed,

construction of the phrase “equivalent exigent circumstances” remains subject to the

limitation that the “equally important event calling for immediate aid or action” 12 must

result in “less than 45 days in which to complete the evaluation . . . .” The People‟s

[footnote continued from previous page]

       Finally, we have not found it necessary to consider any legislative history other
than that set out in the published cases, e.g., Lucas, supra, 53 Cal.4th 839.

        10   Cited as <http://www.merriam-webster.com/dictionary> (as of Dec. 14, 2012).

         One of the definitions for “circumstance” is “3: attendant formalities and
        11
ceremonial,” with the example given “pride, pomp, and circumstance of glorious war—
Shakespeare.” This is not in the least germane to the case.

        12   The People also describe this as a “severely homeostasis-changing event.”




                                              11
analysis simply and persistently ignores this limiting clause. The question is not whether

an unanticipated “spike” in referrals constitutes good cause to impose a 45-day hold;

quite arguably it would, if the Legislature had left the term unadorned. But it did not.

       The People also argue that if we do not accept their flexible interpretation of

“equivalent exigent circumstances,” the term will become meaningless because “no other

exigent circumstances could ever exist.” We agree with the People that this phrase was

probably included as a safeguard in case the Legislature had forgotten or just not thought

of other situations that should permit the 45-day hold to be imposed. But we disagree

that there are “no other” circumstances that would also satisfy the condition of reducing

the 45 days in which to complete an evaluation. An inmate might be pardoned, or his

sentence commuted; records might be destroyed or become temporarily unavailable due

to a natural disaster; operations might be affected for a similar reason. (See Cal. Rules of

Court, rule 8.66, authorizing the Judicial Council to extend deadlines where operations

affected by public emergency.)13 Given the express conditioning of “equivalent exigent

circumstances,” it is far more likely that the Legislature was just being careful rather than

that it intended to vastly expand the scope of further exceptions.

       The People also rely generally on the policy, presumably part of the legislative

decision-making process, “to preserve the government‟s ability to commit dangerous


       13   We do not, of course, hold that any or all of these circumstances is an
“equivalent exigent circumstance”; we only wish to rebut the People‟s argument that the
statute‟s list is “entirely exhaustive of that class of events”—that is, events that would
reduce the 45-day period.


                                             12
SVPs,” citing inter alia People v. Paniagua (2012) 209 Cal.App.4th 499, 506-507

(Paniagua).14 The quick answer to this is that in Lucas, the court pointed out in

responding to a similar argument that there are two public policies at stake—the public‟s

interest in being protected from a potential SVP, and the inmate‟s liberty interest in being

freed once all legal bases for confinement have expired. It also noted the stigma attached

to an SVP finding and the likelihood that an inmate may be subjected to “unwanted

treatment consequent upon an SVP finding.” (Lucas, supra, 53 Cal.4th at p. 851.) In

drafting subdivision (b) of section 6601.3, the Legislature clearly balanced these interests,

and the fact that the People disagree with the plain result of the Legislature‟s balancing

does not influence our analysis.

                                             B.

       We now turn to the People‟s fallback position—that the officials at the

Department made a “good faith mistake of fact or law.” This time, we agree.

       In Lucas, the court noted previous decisions holding that a “good faith mistake of

law” was one that did not involve either negligent or intentional wrongdoing by

correctional authorities. (Lucas, supra, 53 Cal.4th at p. 852; see also In re Smith (2008)



       14  Paniagua, supra, 209 Cal.App.4th 499, legally is similar to Small, supra, 159
Cal.App.4th 301, in that the section 6601.3 hold was not challenged, but the petition was
not filed until the hold had expired and the inmate should have been released. The court
rejected the inmate‟s contention that the failure to meet the statutory time limits
automatically deprived the court of jurisdiction. As the inmate conceded that the
authorities had acted in good faith, the petition was upheld. There is no discussion of the
“good faith” issue.


                                             13
42 Cal.4th 1251, 1260.) It then held that the authorities acted in good faith in relying on

the definition in the regulation, “given that no previous judicial decision questioned its

validity and that the Courts of Appeal in these very cases [that is, the consolidated similar

cases decided under the heading In re Lucas] split on the question.” (Lucas, supra, 53

Cal.4th at p. 853.) Similar is People v. Superior Court (Whitley) (1999) 68 Cal.App.4th

1383, in which the inmate‟s parole had been revoked and he had been returned to custody

under a regulation subsequently held invalid. That court also found merely a “mistake of

law” concerning the scope of the Department of Corrections‟ (as it was then) power to

establish regulations governing parole. Also recently, the Court of Appeal found an

excusable mistake on the part of the People in Langhorne v. Superior Court (2009) 179

Cal.App.4th 225 (Langhorne). There, following the amendment of the SVPA to provide

for indeterminate rather than two-year commitments, the People filed motions in several

cases to “convert” the commitments to indeterminate, and these trial court motions were

granted. Shortly thereafter, however, an appellate court ruled that inmates were entitled

to full new hearings before the commitments were converted. (Id. at p. 235; People v.

Whaley (2008) 160 Cal.App.4th 779, 803.) Hence, the “converted” terms of the inmates

in Langhorne were illegal, and by the time the People filed appropriate conversion

petitions any “legal” custody had expired. The appellate court agreed that the People‟s

decision to proceed by way of motion in the first place was reasonable, given that the




                                             14
statutes did not provide for an explicit procedure and no appellate court had held

otherwise. (Langhorne, supra, 179 Cal.App.4th at pp. 239-241.)15

       We now turn to this case and the decisions that led to the retention of petitioners in

custody past their scheduled release dates. We first note that there is no evidence

whatsoever of intentional wrongdoing or willful disregard of the law. Rather, in our

view, the record supports the conclusion that Department personnel made good faith

decisions in an attempt to balance the statutory requirements against the unexpected

accumulation of referred cases.

       The declarations filed by the People in opposition to the motions to dismiss set out

the facts relating to the “spike” in filings, and both of the Department employees

responsible for the decisions to place essentially declared that they had apparently applied

the regulatory standards, which would shortly be held invalid in Lucas.16 That is,

because petitioners had each suffered a qualifying conviction and there was reason to

believe that each was an SVP, a hold was considered proper. This initially suggested that

Department personnel were ignorant of the changes to section 6601.3. However,

materials submitted in connection with the petitions for writ of habeas corpus show that


       15 The Langhorne court also relied upon the fact that the trial courts had agreed
with the People‟s position when they filed the (improper) conversion motions as evidence
that the matter was not clear and that reasonable minds could differ. (Langhorne, supra,
179 Cal.App.4th at p. 239.)

       16 We may agree, arguendo, that if section 6601.3 had not been amended, these
declarations would show “good faith,” as the Lucas court acknowledged that the
regulation was not clearly invalid.


                                             15
the Department was in fact aware of the changes and was grappling with how to apply

them.

        On June 27, 2011, Brian Kelley of the Department sent an email to Rhonda

Skipper-Dotta, also of the Department, noting the changes to section 6601.3 and

commenting that the Department might have to change its practice of routinely placing

the holds “at the request of DMH.” Dan Moeller—who filed the declaration in petitioner

Ammon‟s case—had apparently first raised questions, and was copied with the email.

        Skipper-Dotta responded the same day, as follows: “Agreed. Unless the reason

for the requested 45 day hold is in the law, BPH cannot place the hold. However, if there

is an exigent circumstance that is not specifically enumerated in the statute BPH can

place the hold, BUT those circumstances need to be identified and explained clearly in

the request to BPH. If not, then there is not good cause to place the hold.”

        The next day, June 28, 2011, Moeller sent an email to over 20 persons, all

apparently deputy commissioners with BPH. The purpose was to inform and remind the

deputies “on the required criteria for granting a request for a 45 day hold on a parolee

pending an SVP evaluation. As noted in the memo [which was attached] any request for

an SVP hold has to be for good cause, and the definition of good cause is clearly listed in

WI 6601.3(b).” The attached memo set out section 6601.3 in full, and after discussing

the listed “exigent circumstances,” noted another possible situation which would qualify.

Tellingly, the memo goes on to express the view that “The following circumstances are

not considered good cause to place a 45 day hold: [¶] . . . [¶] Late evaluations due to a



                                             16
shortage of clinicians. [¶] Additional time needed awaiting results of evaluations from

clinicians.” (Emphasis in original.)

       Thus, initially someone—at least the author of the memo, whether it was Moeller

or another—interpreted section 6601.3, subdivision (b), just as we have—that having too

few clinicians to handle the workload (“spiked” or not) was not “good cause.”

Furthermore, this view was disseminated to the decision-makers.

       Nevertheless, the matter was evidently not considered settled, because on July 5,

2011, a new email was sent by Jennifer Shaffer, identified as the “Executive Officer

Board of Parole Hearings.” She informed the recipients that “BPH has determined that

the recent dramatic increase in CDCR referrals to DMH for SVP screening and

evaluation to be an exigent circumstance for which 45-day holds may be issued.” Shaffer

went on to inform the recipients that “BPH staff have estimated that this exigent

circumstance will last through the end of July. Therefore, I am putting everyone on

notice, that absent additional unforeseen circumstances, effective August 1, 2011, BPH

will consider the current exigent circumstance to have ended . . . . BPH will [after that

date] issue 45-day holds only upon a showing of good cause, as defined in statute:

Circumstances where there is a recalculation of credits, restoration of denied or lost

credits, resentencing by a court, receipt of the prisoner into custody, or equivalent exigent

circumstances which result in there being less than 45 days prior to the person‟s

scheduled release date for the full evaluation. BPH will not, as a general rule, consider




                                             17
staffing shortages or routine delays to be an exigent circumstance.” (Emphasis in

original.)

       This communication, sent by a person with supervisory decision-making authority,

recognized the limited nature of “good cause” as defined by the Legislature, but at the

same time stressed the unprecedented nature of the “spike” in referrals, which

indisputably created an exigent circumstance affecting the timely processing of referrals.

Shaffer no doubt recognized the serious threat to public safety, and the contravention of

the entire public policy and concern that resulted in the enactment of the SVPA in the

first place. From other documents, it is clear that the Department was not indifferent to

the problem, as the declaration of Sherry Barandas, to which we have referred ante, also

indicated that efforts were being made to hire or contract with additional qualified

evaluators. Furthermore, the directive was carefully time-limited, again acknowledging

that the limitations of the statute should not be loosely interpreted. The procedure

mandated by BPH‟s executive officer was carefully structured to protect the public while

restricting the effect of the directive and thereby effectively encouraging the Department

to address the “spike.”

       It is true, of course, that in the first part of this opinion we somewhat forcefully

expressed our disagreement with the People‟s interpretation of section 6601.3. But what

seems clear to us, from a position in which we have had ample time to study and analyze

the statutory language and existing law, may well not have seemed so clear to Ms.

Shaffer and other policy-making employees seeking an immediate solution to what we



                                              18
agree was an emergency. In this respect, we note that the trial court also adopted the

People‟s interpretation, another sign that reasonable minds might reach different

conclusions as to the legislative intent. (See fn. 15, ante.)

                                       DISPOSITION

       Accordingly, petitioners win one battle, but lose the crucial one. Although the

“spike” did not constitute an “equivalent exigent circumstance” under section 6601.3, the

Department could in good faith have believed that it was and there is no evidence that

their conclusion to that effect was meretricious. The petitions for writ of mandate and

petitions for habeas corpus are denied.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                CODRINGTON
                                                                                          J.

We concur:


RAMIREZ
                        P. J.


HOLLENHORST
                           J.




                                              19
