People v. Hurtado

124 Cal.Rptr.2d 186

28 Cal.4th 1179

52 P.3d 116

The PEOPLE, Plaintiff and Respondent, v. Richard HURTADO, Defendant and Appellant.

No. S082112.

Supreme Court of California.

August 22, 2002.

Rehearing Denied October 30, 2002.

Certiorari Denied April 7, 2003.

Chris M. Truax, under appointment by the Supreme Court, La Mesa; and Randall B. Bookout, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and Robert R. Anderson, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Meagan, J. Beale, Crystal L. Bradley, Steven T. Oetting, Robert M. Foster and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Resolving a question we left open in People v. Torres (2001) 25 Cal.4th 680, 686, footnote 2, 106 Cal.Rptr.2d 824, 22 P.3d 871, We hold that before a defendant can be committed or recommitted under the Sexually Violent Predators Act (Welf. & Inst.Code, § 6600 et seq. (SVPA)),¹ the trier of fact must find, beyond a reasonable doubt, that the defendant is likely to commit sexually violent predatory behavior upon release. Thus, the judge or jury trying the case must determine not only whether the defendant is likely to "engage in sexually violent criminal behavior" (§ 6600, subd. (a)), but also whether that behavior is likely to be directed "toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e).)

The Court of Appeal here reached the same conclusion, and held that the trial court erred in failing to instruct the jury to determine whether defendant was likely to commit future predatory acts. The Court of Appeal also concluded, however, that under the facts of this case the error was harmless beyond a reasonable doubt. We agree with the Court of Appeal opinion in all respects, and affirm its judgment.

I

As in People v. Torres, supra, 25 Cal.4th 680, 106 Cal.Rptr.2d 824, 22 P.3d 871 (Torres), the issue raised here stems from the SVPA's use of dissimilar language to define a "predatory act" and a "sexually violent predator." We observed in Torres: "A predatory act is one directed `toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.' (§ 6600, subd. (e).) In contrast, the [SVPA] does not define a sexually violent predator by reference to victim characteristics. Rather, a sexually violent predator is `a person who has been convicted of a sexually violent offense against two or more victims 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).) In turn, a `[s]exually violent offense' under the [SVPA] includes forcible rape, forcible spousal rape, rape in concert, lewd act against a person under 14 years of age, forcible penetration, forcible sodomy, and forcible oral copulation. (§ 6600, subd. (b).)

"Under section 6601, whenever the Director of Corrections determines that a defendant serving a prison term may be a sexually violent predator, the Department of Corrections and the Board of Prison Terms undertake an initial screening `based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history.' (§ 6601, subd. (b).) The screening is conducted in accord with a protocol developed by the state Department of Mental Health. (Ibid.) If that screening leads to a determination that the defendant is likely to be a sexually violent predator, the defendant is referred to the Department of Mental Health for an evaluation by two psychiatrists or psychologists. (§ 6601, subds.(b) & (c).) If both find that the defendant 'has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody' (§ 6601, subd. (d)), the department forwards a petition for commitment to the county of the defendant's last conviction (ibid.). If the county's designated counsel concurs with the recommendation, he or she files a petition for commitment in the superior court. (§ 6601, subd. (i).)" (Torres, supra, 25 Cal.4th at pp. 682-683, 106 Cal.Rptr.2d 824, 22 P.3d 871.)

The statute's definition of "predatory act" comes into play at the next stage, the probable cause hearing. There, the superior court must "determine whether there is probable cause to believe that the [defendant] is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a), italics added.) If the court finds probable cause, the matter is set for trial.

Section 6604 provides that at trial "[t]he court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator." The phrase "sexually violent predator" is defined in section 6600, subdivision (a), as a person likely to "engage in sexually violent criminal behavior." Nothing in section 6604 expressly requires the trier of fact to determine whether the sexually violent criminal behavior is "predatory" behavior—that is, behavior directed at a stranger, a casual acquaintance, or someone cultivated for victimization as defined in section 6600, subdivision (e). Thus, as we noted in Torres, the SVPA is "unusual in that its language requires the court at a probable cause hearing to decide whether the defendant `is likely to engage in sexually violent predatory criminal behavior upon his or her release' (§ 6602, subd. (a)), but it does not expressly provide for such an issue to be decided by the trier of fact at the trial." (Torres, supra, 25 Cal.4th at p. 686, 106 Cal.Rptr.2d 824, 22 P.3d 871.)

II

We take the facts from the Court of Appeal opinion:

"In 1987, [defendant] Hurtado sodomized and committed lascivious acts on three minor boys (ages 14, 13 and 12). (Pen. Code, 288, subd. (a),286, subd. (c).) He approached the minors at a Pizza Hut while they were playing video games, took them to his residence where he and the victims engaged in various sex acts and threatened to kill them if they told anyone. He was sentenced to 17 years in prison with a scheduled parole release date of August 26,1996.

"[Defendant] had earlier prior convictions for sexual misconduct. In 1979, he was convicted of lewd or lascivious conduct upon a child under the age of 14. He was adjudicated as a mentally disordered sex offender and sent to Atascadero State Hospital. After one year, he was deemed unamenable to treatment and returned to the trial court for the resumption of criminal proceedings. He received a sentence of seven years and was paroled on June 1, 1984. [Defendant] violated that parole and returned to prison for another year. In 1985, he again violated parole and was convicted of annoying and molesting children. He was sentenced to prison for another two years. Less than a week after being released, [defendant] violated his parole when he was found in the presence of a minor without adult supervision. He was sent back to prison until August 1987. Less than two months later, he was arrested for the offenses with three minor boys summarized above.

"After [defendant] was evaluated by two clinical psychologists who concurred he met the [SVPA]'s criteria for commitment as a sexually violent predator, the Department of Mental Health on August 15, 1996, referred [defendant's case to the district attorney for filing of a civil commitment petition pursuant to section 6602. A commitment petition was filed on October 9. That petition was dismissed without prejudice and a new one was filed on October 29, alleging [defendant] was a sexually violent predator who was likely to engage in sexually violent criminal behavior upon his release as a result of his diagnosed mental disorder. A probable cause hearing began on December 18, 1996, and a finding of probable cause was returned in January 3, 1997.

"A jury trial began on September 16. Dr. Harry Goldberg, a clinical psychologist who had evaluated [defendant] in July 1996, testified [defendant] suffered from two diagnosed mental disorders, to wit, pedophilia and antisocial personality. During the interview, [defendant] had admitted participating in the sexual acts with the children and fantasizing about children. Dr. Goldberg testified that his testing placed [defendant] within the severe range of psychopathy, explaining that a high score is predictive of violence and poor parole adjustment in the future. He also stated that because those inmates who focus on males rather than females have a higher recidivism rate, [defendant]'s preference for sexual offenses with males indicated a higher risk of reoffending. He believed [defendant] was predisposed to engage in sexually violent behavior in the future.

"Dr. Dean Clair, a clinical psychologist who evaluated [defendant] in June 1996, concluded the 1987 offenses fit the criteria of section 6600, in that they were predatory and violent offenses involving children whom [defendant] sought out and who were unknown to him. Dr. Clair concluded [defendant] had a diagnosed mental disorder of pedophilia, primarily basing that determination on [defendant] history of aggressive sexuality toward victims 13 years of age and younger and recidivism. Dr. Clair concluded that based on the length and history of [defendant's condition, his behavioral recidivism, the nature of pedophilia and his inability to perform on parole, he was at considerable risk of reoffending."

The trial court instructed the jury under CALJIC No. 4.19, as it read before the 2002 revision.² The instruction...