California Welfare and Institutions Code (WIC) section 6601(a)(2) - Interpretation
In In re Smith (2008) 42 Cal.4th 1251, 1254-1255, the California Supreme Court interpreted Welfare and Institutions Code section 6601, subdivision (a)(2) to conclude an SVP commitment is not authorized when the felony conviction that was the basis for custody at the time the SVP proceedings were commenced has been reversed on appeal and the SVPA defendant is not retried.
Section 6601, subdivision (a)(2) provides that an SVPA petition "shall not be dismissed on the basis of a later judicial or administrative determination that the individual's custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law."
The Supreme Court construed this section "not to apply to someone . . . , whose conviction that was the basis of his prison custody at the time SVP proceedings were initiated has been reversed, and who has not been retried and reconvicted." (In re Smith, supra, 42 Cal.4th at p. 1269.)
The court held the SVP defendant's petition for writ of habeas corpus should have been granted because the SVPA petition was filed while he was in custody on a felony conviction that was reversed on appeal, and not retried and reconvicted. (Id. at pp. 1270-1271.)