People v. Hayes

• Decision Date: 28 February 2006
• Docket Number: No. A109299.,A109299.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Dexter HAYES, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

39 Cal.Rptr.3d 747

137 Cal.App.4th 34

The PEOPLE, Plaintiff and Respondent, v. Dexter HAYES, Defendant and Appellant.

No. A109299.

Court of Appeal, First District, Division 1.

February 28, 2006.

First District Appellate Project, Julia J. Spikes, Esq., for Defendant/Appellant — Dexter Hayes.

Office of the Attorney General, Bill Lockyer, Attorney General, Moona Nandi, Supervising Deputy General, Joan Killeen, Deputy Attorney General, for Plaintiff/Respondent — The People of the State of California.

MARCHIANO, P.J.

This is an appeal from an order, following a jury verdict, recommitting defendant Dexter Hayes as a sexually violent predator (SVP). It arises out of the procedural entanglement of conducting a probable cause hearing simultaneously with trial.

In the fall of 2000, a jury found defendant to be an SVP within the meaning of Welfare and Institutions Code section 6600.¹ As a result, the trial court civilly committed him to a treatment facility of the Department of Mental Health for two years. (§§ 6600, 6604.) We affirmed the SVP commitment in a prior proceeding. (People v. Hayes, 2002 WL 462277 (Mar. 26, 2002, A093285) [nonpub. opn.].)

As we shall explain further below, the People petitioned to recommit defendant as an SVP. This required a pretrial probable cause hearing on the recommitment petition. Instead of conducting a probable cause hearing within a reasonable time of the filing of the petition to recommit, the trial court conducted the hearing at the conclusion of, instead of before and as a prerequisite to, the trial on that petition. The deviation from statutory requirements amounts to procedural error which affected defendant's due process. But on the facts of this case, we must conclude the error is not prejudicial under the rationale of People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530, 165 Cal.Rptr. 851, 612 P.2d 941 (Pompa-Ortiz). Defendant was not prejudiced by the absence of a pretrial probable cause determination in light of the evidence and the trial jury's verdict based on a standard of beyond a reasonable doubt.

I. THE SVP LAW

The Sexually Violent Predators Act (SVPA) (§ 6600 et seq.) provides for a two-year civil commitment at the end of a defendant's prison term if the defendant is found to be an SVP. (§§ 6600, 6601, 6604; see Cooley v. Superior Court (2002) 29 Cal.4th 228, 235, 243, 127 Cal.Rptr.2d 177, 57 P.3d 654 (Cooley).) In general, an SVP determination requires findings that (1) the defendant has been convicted of sexually violent offenses against two or more victims and (2) suffers from a diagnosed mental disorder making him likely to engage in sexually violent criminal behavior, and thus a danger to the health and safety of others. (§ 6600, subd. (a)(1).) A civil commitment can only be imposed if, after a trial, a judge or a unanimous jury finds beyond a reasonable doubt that a defendant is an SVP. (§§ 6603, 6604; see Cooley, supra, at p. 243, 127 Cal.Rptr.2d 177, 57 P.3d 654.)

But an SVP trial is "the last stage of a complex administrative and judicial process. . . ." (Cooley, supra, 29 Cal.4th at p. 244, 127 Cal.Rptr.2d 177, 57 P.3d 654.) Indeed, "[t]he process necessary for initially declaring a prisoner an SVP is an involved and demanding one." (People v. Munoz (2005) 129 Cal.App.4th 421, 429, 28 Cal.Rptr.3d 295 (Munoz).)

Administrative Proceedings

First, the Department of Corrections screens the defendant at least six months before his release date for the likelihood of his being an SVP. If the Department of Corrections makes a determination of likelihood, the defendant is referred to the Department of Mental Health for a full evaluation of whether the defendant is an SVP as defined by section 6600. (§ 6601, subds.(a), (b); see Cooley, supra, 29 Cal.4th at p. 244, 127 Cal.Rptr.2d 177, 57 P.3d 654.)

The Department of Mental Health then has the defendant evaluated by two mental health professionals. (§ 6601, subds.(c), (d); see Cooley, supra, 29 Cal.4th at p. 244, 127 Cal.Rptr.2d 177, 57 P.3d 654; Munoz, supra, 129 Cal.App.4th at p. 429, 28 Cal.Rptr.3d 295.) If—and only if—the two mental health professionals agree 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," the Director of Mental Health (Director) forwards a request for a petition for civil commitment to the county in which the defendant was convicted. (§ 6601, subd. (d); see Cooley, supra, 29 Cal.4th at p. 244, 127 Cal.Rptr.2d 177, 57 P.3d 654.)

The designated counsel in that county — typically the district attorney or county counsel—then reviews the Director's request. If the designated counsel concurs, counsel will file a petition for civil commitment under section 6601, thereby initiating the judicial component of SVP proceedings. (§ 6601, subds.(d), (i); see Cooley, supra, 29 Cal.4th at p. 244, 127 Cal. Rptr.2d 177, 57 P.3d 654; Munoz, supra, 129 Cal.App.4th at p. 429, 28 Cal.Rptr.3d 295.)

Judicial Proceedings

The first stage of SVP judicial proceedings is a facial review of the petition. Once the petition is filed, a superior court judge must "review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that [the defendant] is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6601.5.) If the judge makes that determination from this facial review, the judge orders the defendant detained in a secure facility pending a probable cause hearing under section 6602. The probable cause hearing is mandatory (§ 6602, subd. (a)) and must begin within 10 calendar days from the detention order. (§ 6601.5; see Cooley, supra, 29 Cal.4th at pp. 244-245, 127 Cal.Rptr.2d 177, 57 P.3d 654.)

"The probable cause hearing shall not be continued except upon a showing of good cause by the party requesting the continuance." (§ 6602, subd. (b).) But as we see from this case, a defendant can waive the right to have the probable cause hearing begin within 10 days of the section 6601.5 detention order. And there is no statutory outside time limit within which a probable cause hearing must be held after the filing of the petition: "Unfortunately, the [SVPA] does not specify a time frame . . . for conducting the probable cause hearing. . . . [Citation.]." (Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 181, 11 Cal.Rptr.3d 573 (conc. opn. of Klein, P.J.) (Orozco).)

The conceptual nature of the probable cause hearing has evolved. It is now clear the probable cause hearing is "a full, adversarial preliminary hearing. . . ." (Munoz, supra, 129 Cal.App.4th at p. 429, 28 Cal.Rptr.3d 295.) The defendant has the right to the assistance of counsel. (§ 6602, subd. (a).) The hearing "allow[s] the admission of both oral and written evidence" on the issue of probable cause. (In re Parker (1998) 60 Cal.App.4th 1453, 1469, 71 Cal.Rptr.2d 167 (Parker); see Cooley, supra, 29 Cal.4th at p. 245, fn. 8, 127 Cal.Rptr.2d 177, 57 P.3d 654.) Despite their hearsay nature, the reports of the mental health professionals may be admitted—but the defendant may challenge the reports by calling the professionals to the stand and cross-examining them. (Cooley, supra, 29 Cal.4th at p. 245, fn. 8, 127 Cal.Rptr.2d 177, 57 P.3d 654; Parker, supra, 60 Cal.App.4th at pp. 1469-1470, 71 Cal.Rptr.2d 167.) "[The defendant] should have the ability to call such other witness[es] who, upon a proper showing, the superior court judge finds to have relevant evidence to give bearing on the issue of probable cause." (Parker, supra, at p. 1470, 71 Cal.Rptr.2d 167.)²

Cooley makes clear that the scope of the probable cause hearing is the same as the scope of the trial. That is, the judge conducting the probable cause hearing must review all necessary elements of an SVP determination and conclude there is probable cause as to each element. (Cooley, supra, 29 Cal.4th at pp. 246-247, 127 Cal.Rptr.2d 177, 57 P.3d 654.) "For this reason, based on the structure of the SVPA, a [probable cause] hearing is analogous to a preliminary hearing in a criminal case; both serve to `"`weed out groundless or unsupported charges . . . and to relieve the accused of the degradation and expense of a . . . trial.'"' (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 91, 49 Cal.Rptr.2d 573 [citation].) Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition. [Citation.]" (Cooley, supra, 29 Cal.4th at p. 247, 127 Cal.Rptr.2d 177, 57 P.3d 654, italics added.)

If the trial court determines there is probable cause, the SVP petition proceeds to trial. (Cooley, supra, 29 Cal.4th at p. 245, 127 Cal.Rptr.2d 177, 57 P.3d 654.) Either party may demand a jury trial. The defendant has the right to the assistance of counsel, to retain experts, and of access to relevant psychological and medical reports. He can only be found to be an SVP by a standard of beyond a reasonable doubt, and any jury verdict must be unanimous. (§§ 6603, subds.(a), (b), (e), (f), 6604; see Munoz, supra, 129 Cal.App.4th at p. 429, 28 Cal.Rptr.3d 295.)

An SVP commitment may be extended by a process known as recommitment. Following the original SVP commitment of two years, a defendant may be recommitted for one or more additional terms of two years each. (§§ 6604, 6604.1, subd. (a); see Cooley, supra, 29 Cal.4th at p. 243, fn. 5, 127 Cal.Rptr.2d 177, 57 P.3d 654.) But "[the] same demanding procedures" we have outlined above, "including new evaluations preliminary [i.e., facial] review by the trial court, preliminary hearing and trial, must be complied [with in] extending an SVP commitment. [Citations.]" (Munoz, supra, 129 Cal.App.4th at p. 429, 28 Cal.Rptr.3d 295.)

"This requirement for what is essentially a new determination of SVP status every two years arises from the logical and...