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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.                                                            G046031

THE SUPERIOR COURT OF ORANGE                                           (Super. Ct. No. M11699)
COUNTY,
                                                                       OPINION
     Respondent;

THE PEOPLE,

     Real Party in Interest.



                   Original proceedings; petition for a writ of mandate and/or prohibition to
challenge an order of the Superior Court of Orange 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.
         1
(SVPA). By this petition for writ of mandate or prohibition, Esper challenges the
respondent court‟s order denying his motion to dismiss the SVPA commitment 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.


 1
    Further code references are to the Welfare and Institutions Code unless otherwise
indicated.

                                                 2
                           FACTS AND PROCEDURAL HISTORY

                                             I.

                       Esper’s Arrest and Parole Revocation and
                            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.

                                             3
               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.
                                               II.
                                The Preliminary Hearing
               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[]” 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.”
During the telephone conversation, Comer could hear Orange Police Captain Anderson
saying, “Esper is not coming into our city.”

                                               4
              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.”
              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.”



                                             5
              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].”
                                             III.
                        The Motion to Dismiss the SVPA Petition
              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

                                              6
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.”
                                             IV.
                                     Appellate History
              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.”
              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

                                               7
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.”
              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.
                          RELEVANT 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

                                               8
violent criminal behavior.” (§ 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.‟” (People v. Yartz, supra, at p. 536.)
              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.” (Ibid.) 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).)


                                        DISCUSSION
                                              I.
                              Scope of Issues Under Review
              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

                                              9
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.]” (Id. at p. 1240.) “If the court issues an alternative writ or 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‟” 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.” (Ibid.)
              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.



                                              10
                                               II.

                  Whether Esper Was in Lawful Custody Based 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]


                                               11
power, or employing it as an instrument of oppression.‟”‟ [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.]” (Id. at pp. 846-847.)
              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 court”; 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

                                              12
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.”
              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; Morrow v. Superior Court (1994) 30 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,



                                             13
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
conscience” (County of Sacramento v. Lewis, supra, 523 U.S. at p. 847, 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
            2
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

 2
    We disagree with the district attorney‟s 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.

                                               14
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 proceeding”].) 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.



                                             15
                                 DISPOSITION 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.




                                             16
