People v. Hedge, D031243

CourtCalifornia Court of Appeals
Citation86 Cal.Rptr.2d 52,72 Cal.App.4th 1466
Docket NumberNo. D031243,D031243
Parties, 99 Cal. Daily Op. Serv. 5040, 1999 Daily Journal D.A.R. 6431 The PEOPLE, Plaintiff and Respondent, v. Matthew Harvey HEDGE, Defendant and Appellant.
Decision Date23 June 1999

Page 52

86 Cal.Rptr.2d 52
72 Cal.App.4th 1466, 99 Cal. Daily Op. Serv. 5040,
1999 Daily Journal D.A.R. 6431
The PEOPLE, Plaintiff and Respondent,
Matthew Harvey HEDGE, Defendant and Appellant.
No. D031243.
Court of Appeal, Fourth District, Division 1, California.
June 23, 1999.
Certified for Partial Publication. 1

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Bill Lockyer, Attorney General, Robert Anderson, Acting Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney

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General, Rhonda L. Cartwright-Ladendorf and Bradley A. Weinreb, Deputy Attorneys General, for Plaintiff and Respondent.

Patrick M. Ford, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.


Matthew Harvey Hedge appeals from a judgment ordering his two-year commitment to the custody of the State Department of Mental Health (DMH) following a jury finding he is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (the Act) (Welf. & Inst.Code, § 6600 et seq.). 2 He contends the trial court lacked jurisdiction to proceed on a second petition filed in 1998 to determine whether he is a person the Act defines as an SVP because the proceeding involving his first petition filed in 1996 is still pending review before our Supreme Court (People v. Hedge (1997) 56 Cal.App.4th 773, 65 Cal.Rptr.2d 693, review granted Oct. 29, 1997 (S063954) (Hedge I )) and because he was not serving a valid parole revocation term at the time these current proceedings were instituted against him. Hedge also claims various instructional and evidentiary errors require reversal of his commitment and the SVP finding. 3

In the published portion of this opinion, we shall conclude the trial court had jurisdiction to proceed on Hedge's second filed petition due to the nature of the commitment proceedings described by the Act which focus on the current mental condition and dangerousness of a potential SVP, permitting the initiation of such proceedings "whenever" the potential SVP is scheduled to be released from the custody of the State Department of Corrections (DOC). (§ 6601, subd. (a).) In the unpublished portions, we reject Hedge's remaining contentions of error. Accordingly, we affirm the judgment.


Summary of the Act

The Act, contained in sections 6600 et seq., provides for the continued confinement in the custody of the DMH of those persons identified as SVPs before they have completed their prison or parole revocation terms. 4 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

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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." (See Historical Note, 73D West's Ann. Welf & Inst.Code (1998 ed.) § 6600, p. 250.)

The Act defines an 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[ 5] and who has a diagnosed mental disorder[ 6] 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).)

Under section 6601, if the director of the DOC determines that an inmate may be an SVP, the director must refer the inmate 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 inmate's scheduled release date. 7 (§ 6601, subds. (a),

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(b), (c) & (d).) If both evaluators conclude that the inmate "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 DMH transmits a request for a petition for commitment under the Act to the county in which the alleged SVP was last convicted, with copies of the evaluation reports and other supporting documents. (§ 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 hearing to determine whether there is "probable cause" to believe that the individual named in the petition is likely to engage in sexually violent predatory 8 criminal behavior upon his or her release. 9 (§ 6602, as amended by Stats.1996, ch. 4, § 4 & by Stats.1998, ch. 19, § 3.) If probable cause is found, 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. (§ 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 trier of fact 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 if the person's 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) & (c).) If the court so finds, the SVP is entitled to a full trial with the same rights and constitutional protections afforded at the initial commitment proceedings. (§ 6605, subd. (d).) If the ruling is in favor of the SVP, he or she is immediately unconditionally discharged. 10 (§ 6605, subd. (e).) Additionally,

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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).) 11

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).)


On October 25, 1989, Hedge pleaded guilty to two counts of committing forcible lewd acts on a child (Pen.Code, § 288, subd. (b)) and to two counts of committing a lewd act on a child (Pen.Code, § 288, subd. (a)). For these sex crimes which involved more than one victim, Hedge was sentenced to prison on December 14, 1989, for a total determinate term of 12 years. In anticipation of his pending release on parole, 12 the DMH wrote the San Diego District Attorney's Office (D.A.'s Office) that Hedge had been identified as an SVP and attached to its letter the reports of two psychiatric professionals who concurred, after separate evaluations, that Hedge fit the Act's statutory qualifications.

Subsequently, on June 25, 1996, the People filed the first petition, which included the above-referenced psychiatric reports, requesting the superior court to commence proceedings under the Act to determine whether Hedge should be committed as an SVP. Hedge 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. The trial court agreed and sustained the demurrer without leave to amend, dismissing the petition. The People appealed the dismissal, which was consolidated for review with six other SVP petitions dismissed on the same constitutional grounds. After considering the Act in light of its legislative history and the recent United States Supreme Court decision in Kansas v. Hendricks (1997) 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (Hendricks ), we reversed that consolidated action in Hedge...

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