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Name: People v. Superior Court (Gilbert)
Case #: B230886
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/28/2011
Subsequent History: Rev. granted 9/28/11 (S195336)

Where delay in referring defendant for a SVP evaluation is an honest mistake, it was improper for the trial court to dismiss the petition. The prosecution filed a petition for writ of prohibition to challenge the trial court’s dismissal of an SVP petition against defendant (Welf. & Inst. Code, § 6600, et seq.). Defendant, who has a history of sex offenses, suffered a Penal Code section 289, subdivision (a) conviction and was sentenced to eight years. He was released but violated parole and was re-incarcerated. On August 6, 2009, he was scheduled for discharge from parole. That afternoon a correctional counselor realized defendant had not been screened and reported this to the Board of Parole Hearings (BPH). The BPH issued an emergency three-day hold on defendant’s release. After initial screenings were conducted, the BPH issued a 45-day hold. Thereafter a SVP petition was filed, which defendant moved to dismiss based on unlawful detention. The trial court dismissed the petition. The Court of Appeal found the dismissal error. “Nothing in the record supports the conclusion that the delay in referring defendant for evaluation was the result of systemic negligence rather than honest mistake.”