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Name: People v. Superior Court (Small)
Case #: D051355
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/24/2008

Under the SVP Act, an SVP petition to civilly commit an individual as a sexually violent predator must be filed while the person is in lawful custody and is subject to dismissal if the person’s unlawful custody is not the result of a good faith mistake of fact or law. Pursuant to Penal Code section 6601, the Department of Corrections must refer an inmate for SVP evaluation six months before the release date. If the parole date will be reached before the evaluation is complete, the inmate can be held an additional 45 days. An SVP petition will not be dismissed if the individual is held beyond the 45 days because of a good faith mistake of fact or law. In this case, the department referred Small for evaluation approximately one month before his release. As the evaluations were not done by the release date, a 45-day hold was placed on him. The evaluations were completed on the Saturday after the expiration of the 45 days and on the following Monday, the petition was filed. The Department of Corrections’ explanation that the delay was the result of the increased workload caused by the recent passage of Megan’s Law did not constitute a good faith mistake of fact or law and the petition was properly dismissed. The appellate court noted, however, that appellant might still be an appropriate candidate for custodial treatment under the LPS Act.