Filed 7/3/13

                                CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                          DIVISION SIX


NICHOLAS TORRES,                                             2d Civil No. B242586
                                                    (Super. Ct. No. 56-2011-00405258-CU-
     Plaintiff and Appellant,                                      PO-VTA)
                                                                (Ventura County)
v.
DEPARTMENT OF CORRECTIONS
AND REHABILITATION,
     Defendant and Respondent.


                The traditional function of a petition for writ of habeas corpus is to test the
legality of actual governmental restraint of the person. Formerly, there was a requirement of
actually physical confinement. Our California Supreme Court "relaxed" this rule and
designed the concept of "constructive custody" to allow a parolee, who was not actually
physically confined to prosecute the writ. (In re Marzec (1945) 25 Cal.2d 794; see also 3
Witkin & Epstein Cal. Criminal Law (3d ed. 2000) Criminal Writs, § 14, pp. 533-534.) The
"constructive custody" concept was not designed to afford a person the tolling of the time to
file a tort claim and it would take a herculean leap in logic to "stretch" this concept to so
hold. We decline the invitation.
`               Nicholas Torres appeals from a judgment on demurrer, dismissing his civil
complaint for false imprisonment against the California Department of Corrections and
Rehabilitation (CDCR). Appellant claims he was falsely imprisoned when he was detained
on an alleged parole violation after his parole expired by operation of law. The trial court
concluded that the action was barred by the Government Claims Act (Gov. Code, § 911.2,
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subd. (a)) and section 845.8 which immunizes CDCR from damages arising from the
erroneous revocation of parole. We affirm.
                                 Factual & Procedural History
                On October 16, 2003, appellant was convicted by plea of lewd act on a child
under the age of 14 (Pen. Code, § 288, subd. (a)) and sentenced to three years state prison.
He was released on parole on November 22, 2005.
                In October 2007, appellant was charged with failure to register as a sex
offender and returned to custody. The Board of Parole Hearings (BPH) found that appellant
failed to register as a sex offender, revoked parole on November 6, 2007, and ordered
appellant to serve seven months. He was again released on parole April 29, 2008.
                On July 7, 2008, appellant filed a petition for writ of habeas corpus
challenging the November 6, 2007 parole revocation. The superior court granted the
petition because appellant was not permitted to call a witness at the BPH hearing. Vacating
the November 6, 2007 decision, the superior court directed BPH to conduct a new
revocation hearing. It did so on January 6, 2009 and concluded there was insufficient
evidence that appellant failed to register as a sex offender.
                Appellant was released from custody pending review of a new charge that he
was not participating in sex offender counseling at a parole outpatient clinic. On February
25, 2009, BPH determined that appellant violated the parole condition, revoked parole, and
ordered appellant to serve five months. On March 2, 2009, while appellant was still in
custody, BPH determined there was good cause to retain appellant on parole. Appellant was
released on parole four months later on July 9, 2009.
                On June 2, 2009, appellant filed a new petition for writ of habeas corpus
alleging that his parole expired in 2008 and that BPH lacked jurisdiction to revoke parole in
February 2009 or retain appellant on parole. (In re Nicholas Torres, Super. Ct. Los Angeles
County, Case No. PV000319.) After the superior court denied the petition, appellant refiled
the habeas petition in the Court of Appeal. (B221187.) On July 15, 2010, the Court of


1
    All statutory references are to the Government Code unless otherwise stated.


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Appeal granted habeas relief on the theory that appellant's parole expired by operation of
law in December 2008. (In re Torres (2010) 186 Cal.App.4th 909, 912.) The court
concluded that BPH lost jurisdiction to revoke parole because appellant "was continuously
on parole for three years since release from confinement" and no decision was made to
retain appellant on parole during the 30-day review period described in Penal Code section
                         2
3001, subdivision (a).       (Ibid.)
              Thereafter, on October 4, 2010, appellant filed a tort claim which was denied.
He then filed a lawsuit alleging false imprisonment, negligence per se, negligence, and
negligent and intentional infliction of emotional distress. CDCR filed a demurrer which was
sustained without leave to amend. The trial court ruled that the action was barred by the
failure to file a timely government claim (§ 911.2, subd. (a)) and by the discretionary
immunity provisions of section 845.8.
                                       Timely Claim Requirement
              On appeal, we examine the complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory. (Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1126.) Appellant concedes that a civil claim for damages
must be presented to the California Victim Compensation and Government Claims Board no
later than six months after the cause of action accrues. (§ 945,4; Castaneda v. Department
of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1061.) It is settled that a
cause of action for false imprisonment accrues on the person's release from incarceration.
(Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 606 [false imprisonment does
not continue after release on bail].)
              It is uncontroverted that appellant was released from physical custody on July
2, 2009, and filed a $5 million government claim over a year later on October 4, 2010.
Appellant asserts that notwithstanding his release from physical custody, he was in

2
 Former Penal Code section 3001, subdivision (a) provided that a felon who has been
imprisoned for committing a violent felony and "has been released on parole continuously
for three years since release from confinement" must be discharged within 30 days from the
three-year anniversary, unless CDCR recommends to the BPH "that the person be retained
on parole and the board, for good cause, determines that the person will be retained."


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"constructive custody" until October 15, 2010, when he was released from parole
supervision and his GPS tracking bracelet was removed. This imaginative theory has no
support in the decisional law and there is no good reason to append this theory to the
California Tort Claims Act. Our courts have rejected similar arguments, holding that a false
imprisonment cause of action accrues upon the plaintiff's release from physical
confinement. (Collins v. County of Los Angeles (1966) 241 Cal.App.2d 451, 456-457;
Scannell v. County of Riverside, supra, 152 Cal.App.3d at p. 606.) "[Appellant's] cause of
action, if any, for false imprisonment was complete upon his release from custody even
though additional damages may have occurred later." (Ibid.)
              The premise to this "constructive custody" theory is that parole supervision
and/or the wearing of GPS tracking bracelet is tantamount to actual custody. We believe
that no person, in or out of physical custody, would agree to this premise. The difference is
dramatic. Incarceration at the local, state, or federal level is a deprivation of physical
freedom. Release on parole supervision even with a GPS tracking bracelet is not a
deprivation of physical freedom.
              The "constructive custody" concept, for purposes of habeas corpus law, serves
the laudatory purpose of allowing a criminal defendant access to the courts and to have a
declaration of the rights and liabilities attendant to conviction and sentence. This concept
has no application to proposed civil lawsuits against the government. First, sovereign
immunity is the rule. The Legislature has created the exclusive manner as to when and how
the state may be sued. The appellate courts should be loathe to tinker with the statutory
scheme in a way not reasonably contemplated by the Legislature. Second, the time
limitation for the filing of a claim against the state is designed to thwart the filing of stale
claims. Under appellant's construction of the Tort Claims Act, a cause of action for false
imprisonment is tolled until the entire parole period has expired.
              The causes of action for negligence and infliction of emotional distress
accrued when appellant " 'has reason at least to suspect a factual basis for . . . [the cause of
action.' " (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) That was June 2,
2009, when appellant filed the habeas petition alleging that he was wrongfully detained after


                                                 4
his parole expired. (In re Nicholas Torres, Super. Ct. Los Angeles County, Case No.
PV000319.) Appellant did not present the government claim until October 4, 2010, more
than a year later. The failure to file a timely claim precludes the filing of the lawsuit. (§
945.4; State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237.)
                                    Section 845.8 Immunity
               The trial court sustained the demurrer on the alternative ground that the
complaint was barred by section 845.8 which provides: "Neither a public entity nor a public
employee is liable for: [¶] (a) Any injury resulting from determining whether to parole or
release a prisoner or from determining the terms and conditions of his parole or release or
from determining whether to revoke his parole or release." The trial court found that
appellant "was returned to custody based on a decision (an admittedly erroneous decision) to
revoke his parole."
               Penal Code section 3001, which specifies rules for discharge from parole,
does not create civil liability for "failure" to timely discharge a prisoner from parole, and it
does not trump section 845.8 immunity. Even if we were to assume that Penal Code section
3001 creates a statutory liability, Government Code section 815, subdivision (b) requires
that statutory liabilities be subordinated to statutory immunities. (Harshbarger v. City of
Colton (1988) 197 Cal.App.3d 1335, 1340-1341.)
               Section 845.8 has been broadly construed to immunize state officers who, in
exercise of their discretion; detain, arrest, or re-incarcerate a person on the mistaken belief
the person is actively on parole. (Perez-Torres v. State of California (2007) 42 Cal.4th 136,
142.) The decision to re-incarcerate appellant was not "ministerial" for which there may be
no immunity. (Id. at pp. 143-144.) "In Swift v. Department of Corrections (2004) 116
Cal.App.4th 1365, plaintiff was arrested for a parole violation even though his parole
expired four years earlier. Plaintiff sued CDCR for false imprisonment and negligence. The
Court of Appeal held that the action was barred by section 845.8 because plaintiff was
incarcerated before any determination was made that his parole had expired. (Id., at
p. 1372, disapproved on other grounds in Perez-Torres v. State of California, supra, 42
Cal.4th at p. 145, fn. 4.)


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               Like Swift, appellant's complaint is based on a parole re-incarceration that
occurred before it was determined, in a habeas corpus proceeding, that his parole had
expired. Section 845.8 immunity applies. No facts are alleged that CDCR detained
appellant after the Court of Appeal determined that BPH no longer had jurisdiction to retain
appellant on parole. (See Perez-Torres v. State of California, supra, 42 Cal.4th at p. 145.)
               Although the complaint sounds in negligence, there is no common law tort
liability for public entities in California. (In re Groundwater Cases (2007) 154 Cal.App.4th
659, 688.) Sovereign immunity is the rule and a public entity may be held liable only if
there is a statute subjecting it to civil liability. (Ibid.) To hold otherwise would contradict
the Legislature's mandate that "except as otherwise provided by statute [¶] . . . [a] public
entity is not liable for an injury, whether such injury arises out of an act or omission of the
public entity. . . ." (§ 815, subd. (a).)
               Where, as here, there is no liability as a matter of law, the demurrer should be
sustained without leave to amend. (Haskins v. San Diego County Dept. of Welfare (1980)
100 Cal.App.3d 961, 965.) Appellant makes no showing that the complaint can be amended
to overcome the Tort Claims Act bar (§ 945.4) or section 845.8 statutory immunity. (Blank
v. Kirwan (1985) 39 Cal. 3d 311, 318.)
               The judgment (order sustaining demurrer) is affirmed. CDCR is awarded costs
on appeal.
               CERTIFIED FOR PUBLICATION.



                                                          YEGAN, J.

We concur:


               GILBERT, P.J.


               PERREN, J.




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                                     Henry J. Walsh, Judge

                                Superior Court County of Ventura

                           ______________________________


             John E. Sweeney & Associates, for Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Vickie P. Whitney,
Supervising Deputy Attorney General, Jose A. Zelidon-Zepeda, Deputy Attorney General,
for Plaintiff and Respondent.




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