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Name: People v. Superior Court (Sharkey)
Case #: B219011
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 03/25/2010
Subsequent History: rev. granted 6/16/10 (S182355)

A scheduled parole-release date may be subject to a 45-day hold if the Board of Parole Hearings finds good cause to complete a sexually violent predator (SVP) evaluation. Welfare and Institutions Code section 6601.3 provides for a hold up to 45 days for “good cause.” “Good cause” is defined in regulations as existing when there is some evidence the inmate committed a sexually violent offense by force, violence, duress, menace, or fear of immediate and unlawful bodily injury which resulted in a conviction or finding of not guilty by reason of insanity or there is some evidence that the inmate is likely to engage in sexually violent predatory criminal behavior. (Cal. Code of Regs., tit. 15, sec. 2600.1, subd. (d).) Nine months before his scheduled release from a 37-year sentence for sex offenses, Sharkey was screened to determine if he met SVP criteria. His case was reassigned, qualified for level I review and then level II review. One doctor issued a report indicating that Sharkey met the criteria for prosecution under the SVPA, but a second doctor’s report was pending at the time a stay was sought. Four days before Sharkey’s scheduled release on parole, there was a 45-day hold placed on him. A month after his scheduled release the district attorney filed the SVP petition. The trial court found Sharkey was entitled to dismissal of the petition because the regulation did not give a definition of good cause, but simply a reason why more time was needed. It meant that if there was “some evidence” then the deadline is not enforced. The People successfully sought a writ of mandate to overturn the dismissal and reinstate the SVP petition. The appellate court found the Legislature had delegated to the board the power to establish rules and regulations for when prisoners may be allowed release on parole. The judicial review of such a regulation is limited to whether it is within the scope of authority conferred and reasonably necessary to effectuate the purpose of the statute. The attributes of the regulation favor judicial deference. The board’s interpretation of the term “good cause” was found to be reasonable and the regulation was met in Sharkey’s case.