The 45-day “hold” allowed to complete a full evaluation to determine whether a defendant is a sexually violent predator (SVP) includes the prosecutor’s decision to file a petition. Hydrick was convicted a multiple sex offenses committed against more than one victim and sentenced to prison. He was scheduled to be released on September 10, 2008. The day before his scheduled release, the Board of Parole Hearings (BPH) issued a 45-day hold (Welf. & Inst. Code, § 6601.3). On October 8, the prosecution filed an SVP commitment petition. Hydrick appealed, claiming the petition was untimely. Held: Affirmed. An SVP petition may be filed while the defendant is in lawful custody. This includes the 45-day hold period (Welf. & Inst. Code, § 6601.3, subd. (a)(2)). In 2008, the 45-day hold was allowed for “good cause,” which was defined as “some evidence” the person was likely to engage in sexually violent behavior. But in In re Lucas (2012) 53 Cal.4th 839, the court held this definition was invalid because it was linked to showing the person was likely to be an SVP rather than to the reasons for the delay in filing the SVP petition. Nonetheless, the court found the reliance on the law a good faith excusable mistake of law. Hydrick claims his 45-day hold improper because, by the time it was imposed, full evaluations stating he was an SVP had already been completed. However, the 45-day hold includes within the ambit of a “full evaluation,” the district attorney’s decision to file a petition (Welf. & Inst. Code, § 6601, subd. (i)). “Because the district attorney’s evaluation had not been completed at the time the 45-day hold was imposed, the petition was timely.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B256043.PDF