People v. Hedge

Page 693

65 Cal.Rptr.2d 693

Previously published at 56 Cal.App.4th 773

56 Cal.App.4th 773, 97 Cal. Daily Op. Serv. 5888,

97 Daily Journal D.A.R. 9317

The PEOPLE, Plaintiff and Appellant, v. Matthew Harvey HEDGE, Defendant and Respondent [And six other cases.] ^*

No. D026713.

Court of Appeal, Fourth District, Division 1, California.

July 22, 1997.

Review Granted Oct. 29, 1997.

Paul J. Pfingst, District Attorney; Thomas F. McArdle and Craig E. Fisher, Deputy District Attorney, for Plaintiff and Appellant.

Martin Nebrida Buchanan, San Diego, Laurel Nelson, Escondido, Melody Harris, Michael Sideman, Athena Shudde, Kerry L. Steigerwalt, San Diego, and J. Thomas Bowden, Goleta, under appointments by the Court of Appeal, for Defendants and Respondents.

HUFFMAN, Associate Justice.

In these consolidated appeals, we determine the trial court erred in ruling on demurrer that the Sexually Violent Predators Act (the Act) (Welf. & Inst.Code, § 6600 et seq.) ¹ is both unconstitutional on its face and as applied to each of the seven defendants. After careful review of the Act in light of its legislative history and the recent United States Supreme Court's decision in Kansas v. Hendricks (Hendricks ) (1997) --- U.S. ----, 117 S.Ct. 2072, 138 L.Ed.2d 501, we find the Act satisfies federal substantive due process and does not violate the constitutional guarantees of equal protection or against ex post facto laws and double jeopardy. Because we so hold, we conclude the trial court erred in sustaining without leave the defendants' demurrers to the petitions filed for their respective commitments under the Act. The judgments entered dismissing the petitions upon the sustaining of the demurrers must therefore be reversed.

SUMMARY OF THE ACT

The Act, contained in sections 6600 through 6608, was enacted October 11, 1995, effective January 1, 1996. (Stats.1995, chs.762, § 3, 763, § 3.) The Act's uncodified purpose clause states:

"The Legislature finds and declares that a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders can be identified while they are incarcerated. These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence. The Legislature further finds and declares that it is in the interest of society to identify these individuals prior to the expiration of their terms of imprisonment. It is the intent of the Legislature that once identified, these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, be confined and treated until such time that it can be determined that they no longer present a threat to society. [p] The Legislature further finds and declares that while these individuals have been duly punished for their criminal acts, they are, if adjudicated sexually violent predators, a continuing threat to society. The continuing danger posed by these individuals and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior. It is the intent of the Legislature that these individuals be committed and treated for their disorders only as long as the disorders persist and not for any punitive purposes." (Stats.1995, ch. 763, § 1.)

The Act defines a "[s]exually violent predator[ (SVP) ]" as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a).) Subdivision (b) of section 6600 lists the qualifying sexually violent offenses for purposes of the Act. ² Although a "diagnosed mental disorder" is not fully defined under the Act, such condition is stated to "include[ ] a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).)

Under section 6601, if the director of the Department of Corrections (DOC) determines that a prisoner may be an SVP, the director must refer the prisoner for an initial screening, which includes evaluation by two practicing psychiatrists or psychologists in accordance with a standardized assessment protocol, commenced at least six months before the prisoner's scheduled release date. (§ 6601, subds. (a), (b), (c) & (d).) ³ If both evaluators conclude that the prisoner "has a diagnosed mental disorder such that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the director of the Department of Mental Health (DMH) transmits a request for a petition for commitment under the Act, with copies of the evaluation reports and other supporting documents, to the county in which the prisoner was last convicted. (§ 6601, subds. (d), (h) & (i).) If the designated county's attorney concurs in the request, a petition for commitment is filed in that county's superior court. (§ 6601, subd. (i).)

Once filed, the superior court is required to hold a probable cause hearing at which the individual named in the petition is entitled to assistance of counsel. (§ 6602.) If the court determines there is probable cause to believe that the person is likely to engage in sexually violent predatory ⁴ criminal behavior upon his or her release from prison, the judge "shall" order that a trial be conducted "to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release...." (§ 6602.) If, however, the court finds no probable cause, the court must dismiss the petition and have the prisoner report to parole. (§ 6602.)

The person subject to a trial under the Act is to remain in custody in a secure facility until the trial is completed. (§ 6602.) That person is entitled to trial by jury, the assistance of counsel, the right to retain experts or professional persons to perform further evaluations, and access to relevant medical and psychological reports. (§ 6603, subd. (a).) The court, if jury is waived, or the jury, by unanimous verdict, must determine beyond a reasonable doubt whether the person named in the petition is in fact an SVP. (§ 6604.) If there is any reasonable doubt, the person is released at the expiration of his or her prison term. (§ 6604.) If the person is determined to be an SVP, he or she shall be committed to the custody of the DMH for two years "for appropriate treatment and confinement in a secure facility ...," subject to annual review and extension of commitment if the diagnosed mental disorder and the consequent danger to the community persists. (§§ 6604, 6605.)

The committed SVP is entitled to the appointment of an expert and to review all records for the annual review and, unless waived, is entitled to a show cause hearing in the superior court to determine his or her condition has so changed that he or she would not be a danger to the health and safety of others if released from confinement. (§ 6605, subds. (a) & (b).) If the court so finds, the SVP is entitled to a full trial at that time with the same rights and constitutional protections as were afforded at the initial commitment proceedings. (§ 6605, subd. (d).) If the trier of fact rules against the SVP, then the period of confinement shall run for a period of not more than two years from the date of the new ruling. (§ 6605, subd. (e).) If the ruling is in favor of the SVP, he or she is immediately unconditionally discharged. (§ 6605, subd. (e).) If at any time the DMH has reason to believe the committed person is no longer an SVP, it must seek judicial review of the commitment. (§ 6605, subd. (f).)

Further, the committed SVP can be placed on conditional release upon a finding he or she is not likely to engage in sexually violent predatory criminal acts while under community supervision and treatment. (§ 6607.) Anytime after a year from the initial commitment order, the SVP may petition for conditional relief and the director of DMH may recommend such release. (§ 6608.)

Finally, the committed SVP must be provided treatment for his or her diagnosed mental disorder, whether or not it is found the SVP is amenable to treatment. (§ 6606, subds. (a) & (b).) The right to such treatment does not mean it must be potentially successful, but that it "shall be consistent with current institutional standards for the treatment of sex offenders ...." (§ 6606, subds. (b) & (c).)

PROCEDURAL BACKGROUND AND FACTS

In each of the cases now before us, the defendant was evaluated pursuant to section 6601 as a potential SVP, and a petition for his commitment was filed in San Diego Superior Court. Each defendant demurred to the petition on the ground it failed to state a cause of action because the Act was unconstitutional on its face and as applied to him. Each specifically claimed the Act violated substantive due process, equal protection, and the guarantees against ex post facto laws and double jeopardy. The court sustained the respective demurrers, ruling the Act unconstitutional. In a "Memorandum Decision," the court set forth in detail its reasons for finding the Act "both facially and as applied to [defendants]" violative of the due process clause of the United States Constitution and of the state and federal prohibitions against ex post facto laws and double jeopardy, dismissed the respective petitions, and released each defendant on parole. The court in essence found the Act failed to constitutionally define qualifying "mental disorders" to satisfy...