On August 22, 2002, the California Supreme Court decided People v. Hurtado, (S082112),1 resolving essentially three questions for Sexually Violent Predator Act (“SVPA”) cases when the court held that: (1) The trier of fact must determine the victim characteristics and whether the behavior is predatory; (2) The trial court error is to be evaluated under the harmless error standard where the jury was not instructed on the predatory act requirement; (3) The standard of prejudice for error in involuntary commitment cases is reversible unless the error is shown to be harmless beyond a reasonable doubt.  The Court states this case resolves questions left open in People v. Torres, (2001) 25 Cal.4th 680, 686, fn.2.  It appears this also resolves what had become a split in the different state appellate districts. 

The State Supreme Court now holds that the trier of fact (the jury) must decide “whether sexually violent 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)).”2

Previously the Department of Mental Health (“DMH”) Psychologist (“Evaluators”) determined these victim characteristics because the SVPA does not define a sexually violent predator (“SVP”) by reference to victim characteristics.  (See discussion. Slip Opin. p.p. 2-3). 

It should be noted that the DMH Evaluators almost always found the victims to be strangers, or cultivated for the purpose of victimization.  This was then always accepted as fact by the judge, due to the inflammatory nature of the allegations, at the probable cause hearing based on mere suspicion.  Now this element must be proven beyond a reasonable doubt at a jury trial. 

In discussing this the Court states: “Nothing in section 6604 expressly requires the trier of fact to determine whether the sexually violent criminal behavior is ‘predatory’ behavior—. . .”  “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).”  (Slip Opin. p.p. 3-4) 

The Supreme Court then concludes, “that section 6604 contains an implied requirement that a trier of fact must find beyond a reasonable doubt that the defendant is likely to commit sexually violent predatory criminal acts before the defendant can be committed as a sexually violent predator.”  (Slip Opin. p. 7). 

The Court explains this conclusion is based on the structure of the SVPA, and the Legislative history: “The apparent purpose—indeed, the only purpose we can discern—of these amendments is to limit the class of persons subject to commitment to those who are likely to commit predatory acts.”  (Slip Opin. p. 9). 

The Supreme Court further explains this as including “the most dangerous offenders.  Because predatory offenders could strike at any time and victimize anyone, they pose a much greater threat to the public at large.  In contrast, a defendant likely to commit crimes only against family members or close acquaintances is less likely to reoffend because potential victims will be aware of the defendant’s status as a sex offender.  The public at large, however, is inevitably more defenseless against acts committed by strangers.”  (Slip Opin. p. 9). 

The Court rejected the Attorney General’s argument that a judge is better able to evaluate psychiatric testimony and records than a jury.  That the judge should decide this issue at the preliminary hearing in order to spare the jurors the moral anguish of having to reject commitment of a defendant simply because the likely victims were family members or close acquaintances.  In rejecting the Attorney General’s argument, the Court explains that jurors “are often called upon to make morally troubling decisions.”  (Slip Opin. p. 10).  The Opinion further states the principal difficulty with the Attorney General’s argument is that the judge makes this decision at a probable cause hearing instead of the trial.  Footnote 4 states: “The definition of probable cause and other issues relating to the second §6602 hearing are before this court in Cooley v. Superior Court (S094676).” 

Next the Court discusses the term “probably cause,” then defines it as “a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused.”  (Slip Opin. p. 11).  Stating this is well settled law. 

The Court then explains that a reasonable suspicion standard is appropriate at a probably cause hearing as to issues that will ultimately be submitted for trail under a beyond a reasonable doubt standard.  That, however, under the Attorney General’s proposed construction, “the second issue—whether the defendant is likely to engage in future predatory acts—does not become an issue for trial but is resolved by a finding of probable cause.  Thus a defendant could be committed if there were no more than a reasonable suspicion that the defendant was likely to commit future predatory acts, even if that suspicion was against the preponderance of evidence.”  (Slip Opin. p. 11).  (Emphasis added). 

It should be noted that this is an express condemnation of the present method for committing defendants, whereas the DMH Evaluators simply label the person a predator with no proof, and the probable cause judge accepts this without question. 

The Court further explains: “The Legislative purpose of limiting commitment under the SVPA to only those person’s who present a ‘substantial danger’ (People v. Superior Court (Ghilotti) (2002) 27 Cal. 4th 888, 922) of committing future predatory acts would be subverted if defendants could be committed when there is no more than a reasonable suspicion they would commit such acts.”  (Slip Opin. p. 12). 

The Court also discusses the problems that determinations made at the probable cause hearing creates with judicial review.  Next comes the summation of this issue: 
 
 

Thus having concluded that the trial court erred in not instructing the jury on the predatory act requirement, the Court next addresses whether the error was prejudicial, and the standard of prejudice for error in involuntary commitment cases.  The Court states that the U.S. Supreme Court has not spoken on these issues, leaving the parties free to argue alternative theories. 

After discussion, the Court concludes that the trial court’s failure to instruct on predatory acts is subject to harmless error analysis, and determines that for defendant Hurtado this error was harmless.  This appears to be based on his extensive history and ongoing pattern of reoffending, along with self admissions to the DMH Evaluators of continuing sexual fantasies about children. 

The state’s high court now turns to the problem of discerning the applicable test of prejudice for constitutional error.  After some discussion the Court states: “The California courts have in turn relied on the burden or proof decisions to hold that federal constitutional error in civil commitment proceedings is reversible unless shown to be harmful beyond a reasonable doubt.”  (Slip Opin. p. 16). 

It appears the defendant in Hurtado argued for a ‘per se reversal’ standard.  It is also interesting to note Justice Baxter’s concurring opinion, which on this issue seems to dissent, argues for the much lower standard of ‘reasonable probability.’ 

The Court concluded this issue stating: “Because the Chapman test (California v. Chapman, supra 368 U.S. 18)—that federal constitutional error is reversible unless shown to be harmless beyond a reasonable doubt—is used for the review of federal constitutional error in civil commitment cases in California generally, that test necessarily governs review under the SVPA.”  (Slip Opin. p. 18). 

Additional Comments: Although not cited in Hurtado, it is apparent the Court is addressing the warnings in Kansas v. Crane, (2002) 534 U.S. 407, about separating the truly dangerous persons from the typical recidivist; and, the warnings in Foucha v. Lousiana, (1992) 504 U.S. 71, which was incorporated into the Crane decision.  Foucha warned against treating SVPA defendants differently than other types of civil commitments.  The Hurtado decision does justify the beyond a reasonable doubt standard by citing Addision v. Texas, (1979) 441 U.S. 418, where the U.S. Supreme Court held that the preponderance of evidence standard was constitutionally inadequate in civil commitment proceedings.  This appears to open up other SVPA procedural methods to challenge. 

1. All references by page are to the Slip Opinion issued in this case.
2.  All statutory references are to the California Welfare and Institutions Code.