Torres v. Department of Corrections & Rehabilitation

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,

1 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