Sex offender wins a round in court
SAN DIEGO ---- Jessica's Law was meant to make it possible for sex offenders like Charles Thomas Small to be kept behind bars longer, but it inadvertently contributed to him being ordered released on parole last year.
Small, 62, who molested a 9-year-old girl 10 years ago in Pacific Beach, has remained in custody pending an appeal the district attorney's office filed in his case, but a state appeals court ruled in his favor last week.
Appeals court justices decided a Superior Court judge was correct to dismiss the case in which the district attorney's office sought to have a judge or jury declare Small a sexually violent predator and commit him to a state mental hospital indefinitely.
The reason? Prosecutors were unable to file the case until one day after prison officials were supposed to have released Small on parole. As a result, Small was in "unlawful custody" when the petition was filed, so it had to be dismissed, the appeals court ruled.
State and local officials said Tuesday that they do not anticipate problems similar to what happened in Small's case occurring in other sex offender cases.
In court documents, prosecutors cited a spike in the number of inmates referred to the state Department of Mental Health for sexually violent predator evaluations after Jessica's Law as a factor that contributed to the delay.
California voters passed the Jessica's Law initiative in 2006 with 70 percent approval. In addition to the evaluations, the law prohibits registered sex offenders from living within 2,000 feet of a school or park.
Nancy Kincaid, a spokeswoman for the mental health department, said Tuesday that with Jessica's Law, mental health officials went from handling about 50 referrals a month to more than 700 a month at the start of 2007.
The appeals court ruled, however, that the mental health department's increased workload was not "a mistake of law or fact" that would have excused the late filing of the petition to keep Small in custody.
Small pleaded guilty in 1999 to a charge that he molested a 9-year-old girl Dec. 31, 1997, at the Banana Bungalow Hostel in Pacific Beach. A police detective alleged in court documents that Small stayed in the same room as the girl and her father, who were there on vacation. Small was sentenced to six years in state prison.
Before Jessica's Law, state law required that a sex offender have more than one victim to be evaluated as a possible sexually violent predator; the law was changed to say one victim was enough to force an evaluation.
Small had been released on parole at one point, but was back in prison at the start of 2007 because his parole had been revoked, court documents stated.
After voters approved Jessica's Law, sex offenders were eligible for predator status if they had only one victim, and Small was referred to the Department of Mental Health for psychological evaluations before he could be paroled again early last year, court documents stated.
To be declared a predator, an inmate must have committed a violent offense against at least one victim and have a diagnosed mental disorder that makes him a danger to others and likely to engage in sexually violent predatory behavior, court documents stated.
The evaluations of Small were not completed until March 24, 2007, a Saturday and just one day before he had to be released on parole by law. However, Small was kept in prison through Monday, March 26, 2007, when the district attorney's office filed the petition seeking to have him declared a sexually violent predator based on the evaluations, the appeals court ruling stated.
A Superior Court judge later dismissed the district attorney's petition because Small should already have been paroled.
Deputy District Attorney John Rice, assistant chief of the district attorney's sex crimes and stalking unit, said Small's case was the only one of its kind in which prosecutors have not been able to file a petition to keep an inmate in custody before he was supposed to have been paroled.
Since September 2006, the district attorney's office has filed 17 new sexually violent predator cases in San Diego County. Three of those involved inmates who were prosecuted originally in North County, Rice said.
State lawmakers passed emergency legislation last year that provided $12.5 million to mental health officials to perform the psychological evaluations that the law requires.
Kincaid said the changes that Jessica's Law produced left state prison and parole officials initially erring on the side of caution and referring many cases to the mental health department for evaluation that did not fit the criteria for sexually violent predators. Over time, officials have developed a better understanding of what cases should be referred and the number of cases has started "to level off" at a manageable amount of about 450 to 550 per month, Kincaid said.
Small remains in jail at the George Bailey Detention Facility in the Otay Mesa area of south San Diego County until the appeals process is complete. Even if he is released, he will be on high-risk sex offender parole, and "you can't get closer to being incarcerated than that," said Laura Arnold, Small's attorney.
Restrictions on high-risk sex offenders on parole include monitoring with an active global positioning satellite system that tracks their movements through a transmitter the parolees must wear, said Bill Sessa, a spokesman for the state Department of Corrections and Rehabilitation.
If a parolee goes to a location he is not supposed to, the system immediately activates an alarm to notify parole agents. High-risk sex offender parolees also have closer supervision from a parole agent, are given lie detector tests when they meet with their agents, and face other restrictions, Sessa said.
Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.