PEOPLE v. HURTADO (1999)

Richard Hurtado appeals an order committing him to two years in Atascadero State Hospital in accordance with the Sexually Violent Predators Act (SVPA or Act;  Welf. & Inst.Code, § 6600 et seq.¹ ), entered after a jury found him to be a sexually violent predator within the meaning of section 6600.   He contends the order must be reversed because the jury was not instructed it must find he was likely to engage in sexually violent predatory criminal behavior;  the Act violates the California and federal guarantees of equal protection because it is underinclusive and infringes upon a fundamental right;  and the failure to hold a probable cause hearing within the statutory time divested the court of jurisdiction and rendered the subsequent proceedings illegal.   He further asserts the record does not support his commitment because there was no evidence he suffered from a “currently diagnosed mental disorder.”   Finally, he argues the Act violates the constitutional prohibition against double jeopardy.²  As we shall explain, we conclude the Legislature inadvertently omitted the adjective “predatory” from its definition of sexually violent predator under section 6600, subdivision (a), but that drafting error (echoed in CALJIC No. 4.19) was harmless beyond a reasonable doubt under the circumstances here.   We determine his remaining arguments are without merit and, accordingly, affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 1987, 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.

Hurtado 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 (MDSO) 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.   Hurtado 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, Hurtado 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 Hurtado was evaluated by two clinical psychologists who concurred he met the Act's criteria for commitment as a sexually violent predator, the Department of Mental Health on August 15, 1996, referred Hurtado'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 Hurtado 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 Hurtado in July 1996, testified Hurtado suffered from two diagnosed mental disorders, to wit pedophilia and antisocial personality.   During the interview, Hurtado had admitted participating in the sexual acts with the children and fantasizing about children.   Dr. Goldberg testified that his testing placed Hurtado 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, Hurtado's preference for sexual offenses with males indicated a higher risk of reoffending.   He believed Hurtado was predisposed to engage in sexually violent behavior in the future.

Dr. Dean Clair, a clinical psychologist who evaluated Hurtado in June 1996, concluded the 1987 offenses fit the criteria of section 6600, in that they were predatory and violent offenses involving children whom Hurtado sought out and were unknown to him.   Dr. Clair concluded Hurtado had a diagnosed mental disorder of pedophilia, primarily basing that determination on Hurtado's 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 Hurtado's condition, his behavioral recidivism, the nature of pedophilia and his inability to perform on parole, he was at considerable risk of reoffending.   On September 24, the jury found Hurtado was a sexually violent predator within the meaning of section 6600.   On October 2, Hurtado was ordered committed to the State Department of Mental Health for placement in a secure facility for a period not to exceed two years.   Hurtado timely appealed.

NO DRAFTING ERROR IN THE ACT REQUIRES REVERSAL OF HURTADO'S COMMITMENT

Hurtado first contends his commitment must be reversed because the jury was not instructed it must find he was likely to engage in sexually violent predatory criminal behavior.   He asserts the Act contains a serious drafting error that operates to frustrate the intent of the Act by allowing commitment without the required finding that his future behavior must be predatory.   As we shall explain, although we conclude the Legislature inadvertently omitted the adjective “predatory” from its definition of sexually violent predator under section 6600, subdivision (a), that drafting error (duplicated in CALJIC No. 4.19) is, under the circumstances here, harmless beyond a reasonable doubt.

The SVPA establishes the process for the civil commitment of sexually violent predators.³  They are defined as individuals who have been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence, and have a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely he or she will engage in sexually violent criminal behavior. (§ 6600, subd. (a).)  The Department of Corrections refers inmates for an initial evaluation by the Department of Mental Health to determine whether they are sexually violent predators. (§ 6601, subd. (a).)  The reference is to occur at least six months before the inmate's scheduled release date, and the evaluation is to be conducted by two mental health professionals. (§ 6601, subds.(a), (d).)   If they agree the individual is a sexually violent predator, the director of the Department of Mental Health must forward a request for a petition for commitment to the county in which the inmate was last convicted. (§ 6601, subds.(d), (i).)   The trial court must hold a hearing upon the filing of the petition to determine whether there is probable cause to believe the person is likely to engage in sexually violent predatory criminal behavior upon release.   If probable cause is found, the court must order a trial and the person to remain in custody in a secure facility until completion of the trial. (§ 6602.)   The Act affords the inmate several procedural safeguards, including the right to a jury trial, the assistance of counsel and the right to retain experts.   The standard of proof is beyond a reasonable doubt and the verdict must be unanimous. (§§ 6603, 6604.)   A person found after trial to be a sexually violent predator must be committed to the custody of the Department of Mental Health for appropriate treatment in confinement in a secure facility for two years, and is subject to extended commitments incident to the filing of new petitions. (§ 6604.)   The Act provides for annual review of an inmate's mental condition and for unconditional release and discharge upon a determination the person is no longer a sexually violent predator. (§ 6605.)   It also includes provisions for conditional release and discharge upon a determination at a hearing of a change in that condition.  (§§ 6605, 6607, 6608.)

 Consequently, the Act provides for commitment to a mental health facility of a defendant found to be a “sexually violent predator.”   It defines a “sexually violent predator” as one 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), italics added.)   Given the predator focus of the Act, conspicuously absent from this definition and specifically from the italicized language is the adjective “predatory”.   In contrast, the Act in its provisions governing identification of sexually violent predators, petitions and probable cause hearings, and conditional release specifically utilize the adjective “predatory” in describing predicate behavior.  (See §§ 6601, subd. (b),⁴ 6601.5,⁵ 6602,⁶ 6602.5 ⁷ & 6607, subd. (a).⁸ )  In fact, each requires a determination regarding whether the person has committed a sexually violent predatory offense or is likely to engage in sexually violent predatory criminal behavior upon release.   Indeed, the Act narrowly focuses upon the importance of the term “predatory” by specifically defining it as conduct “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).)  Presumably, given the Act specifically defines “predatory,” it would be reasonable to expect that a “sexually violent predator” is one who engages in sexually violent predatory acts, not merely one who engages in nonpredatory sexually violent conduct.   Consequently, the Act is facially inherently contradictory.   It requires the court to make a probable cause determination based on criteria that includes the likelihood the inmate will engage in sexually violent predatory criminal behavior, but subjects the defendant to commitment on less stringent and narrowly focused criteria that simply includes a finding it is likely the inmate will engage in sexually violent criminal behavior.⁹

 We are aware the Third District in People v. Torres, supra, 71 Cal.App.4th at page 720, 84 Cal.Rptr.2d 96, has interpreted the Act as if “the Legislature intended the predatory nature of the subject's prior offenses to be at issue at the stages of evaluation and probable cause determination, but not at trial.”   However, we find that interpretation to be contrary to the express legislative focus of the Act of identifying and committing for treatment incarcerated sexually violent predators before their release, and also to the role and purpose of probable cause determinations.¹⁰  Regardless of the legal context of a probable cause determination (an involuntary civil commitment or a criminal preliminary hearing), its role is to test the sufficiency of the factual basis underlying the People's pleadings.   An adequate probable cause showing is essentially a prima facie factual showing that, if proved, would persuade a rational trier of fact of the existence of every element necessary to the legal objective for the proceedings, thus warranting any resulting consequences.   It serves as a preliminary check or cautionary reevaluation of the propriety of the proceedings before continuing with them, requiring a factual showing that if established under the governing burden of proof would obtain the objectives of the proceedings.   In other words, a factual showing that would lead an individual of ordinary caution and prudence to believe or conscientiously entertain a strong suspicion the targeted individual is, in this context, a sexually violent predator in that he or she is likely to engage in sexually violent predatory behavior upon release.   It is thus illogical for the Act to be interpreted on the one hand to require at trial the trier of fact only to determine whether it is likely the inmate will engage in sexually violent criminal behavior upon release (§§ 6600, subd. (a), 6604), while on the other hand to require the Department of Corrections to utilize the criteria of whether the inmate had committed a sexually violent predatory offense for identification for screening purposes under the Act (§ 6601, subd. (b));  the court, at a hearing to determine whether there is probable cause to believe the inmate is a sexual violent predator so as to hold him or her in custody for trial, to use the standard whether it is likely the inmate will engage in sexually violent predatory criminal behavior upon release (§ 6602;  see also § 6601.5);  and, finally, the director of Mental Health to use the standard of whether the inmate's diagnosed mental disorder has so changed that it is not likely he or she will commit acts of predatory sexual violence while under supervision and treatment in the community in deciding whether to recommend the conditional release of an inmate (§ 6607, subd. (a)).

 Rather, we believe a more reasonable interpretation of the Act as a whole is that the Legislature inadvertently failed to add the term “predatory” to its definition of “sexually violent predator” in section 6600, subdivision (a) during the amendment process of Assembly Bill No. 888.¹¹  As originally introduced on February 22, 1995 (Assem. Bill No. 888 (1995-1996 Reg. Sess.)), section 6600, subdivision (a) defined “sexually violent predator” as meaning “a person who has been convicted of a sexually violent offense and who has a mental abnormality or personality 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 upon release from state prison.”   The Assembly first amended the bill to include the “predatory” language on April 17, 1995.   That amendment introduced a definition of “predatory” in section 6600, subdivision (e), as meaning conduct “directed toward a stranger or individual with whom a relationship has been established or promoted for the primary purpose of victimization.”   It also amended the probable cause hearing section 6602 by adding the word “predatory” to the phrase “sexually violent criminal behavior”, making it “sexually violent predatory criminal behavior.”   It further rewrote section 6601, subdivision (b) to provide:  “The person shall be screened by the Department of Corrections and the Board of Prison Terms 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.”   Finally, the amendment added the word “predatory” to section 6607, subdivision (a) regarding conditional releases and the director's determination the person's mental disorder “has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community․”  (Assem. Amend. to Assem. Bill No. 888 (1995-1996 Reg. Sess.) April 17, 1995.)   Although the remaining amendments to the Bill did not involve the “predatory” language within it, other changes in the first amendment support our interpretation the Legislature intended to limit the scope of the Act to those who engage in “predatory” behavior.   For example, the cited amendment added language to section 6600, subdivision (a) that provided to be found a sexual predator an inmate must have been convicted of a sexually violent offense against two or more victims.  (Ibid.)  It further shortened the list of offenses the Act deemed sexually violent, specifically removing Penal Code section 288.5, an offense that requires the perpetrator to have continuing access to the victim for at least three months.  (Ibid.)  Indeed, those who engage in “predatory” sexual behavior, as defined by the Act, would by definition not have continuing access to their victims.   Accordingly, these amendments to the original draft of the Act would be illogical unless the Legislature intended to make the identical modification to the definition of a sexual predator that appears in section 6600, subdivision (a).   To conclude otherwise would obtain the absurd result of requiring the court to make a probable cause determination based on the likelihood the inmate would engage in sexually violent predatory criminal behavior, while subjecting the inmate to confinement if he or she is likely to engage in sexually violent criminal behavior.

The Assembly Committee on Public Safety's analyses of Assembly Bill No. 888 following its amendment to include the cited “predatory” language supports our interpretation.   The Committee represented in these legislative intent documents the Bill defined “a sexually violent predator as a person who has been convicted of a sexually violent offense and who has a mental abnormality or personality 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 predatory criminal behavior.”  (Assem. Com. on Pub. Safety, Assembly Third Reading of Assem. Bill No. 888 as amended May 31, 1995, p. 1;  Assem. Com. on Pub. Safety, Bill Analysis of Assem. Bill No. 888 as amended April 17, 1995, p. 1 (italics added).)

 The jury was instructed with CALJIC No. 4.19, entitled “Commitment as Sexually Violent Predator.”   This instruction substantively mirrors the Act. Pertinently, it provides a “sexually violent predator” is a person who will likely engage in “sexually violent criminal behavior.”   Although the instruction includes the definition of “predatory”, there is no express or implied analytical nexus between the two definitions.   That is, the definition of a “sexually violent predator” does not employ the term “predatory”, thus requiring the jury to use its definition in determining whether the inmate is a sexually violent predator.   Simply stated, the instruction given to the jury did not require it to find Hurtado was likely to engage in “predatory” behavior as it is defined in the Act.

Nevertheless, instructional error regarding the omission of a single element under the circumstances presented here is analyzed under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.  (People v. Flood (1998) 18 Cal.4th 470, 503, 76 Cal.Rptr.2d 180, 957 P.2d 869.)   That is, the People must establish the error was harmless beyond a reasonable doubt.   Such is the case here.   The only evidence of Hurtado's offenses established his victims were strangers or individuals with whom a relationship was established or promoted for the primary purpose of victimization.   He admitted to Dr. Goldberg that he had fantasies about children.   There was overwhelming evidence he was likely to engage in sexually violent predatory criminal behavior.   Hurtado does not challenge the sufficiency of this evidence.   Accordingly, the cited drafting error echoed in CALJIC No. 4.19 was harmless beyond a reasonable doubt under the circumstances and did not prejudice Hurtado.

THE ACT IS NOT UNCONSTITUTIONALLY UNDERINCLUSIVE

Hurtado asserts the Act violates the Equal Protection Clauses of the California and United States Constitutions because it is underinclusive because it does not include those convicted of violating Penal Code section 288.5 ¹² (continuous sexual abuse of a child).   Hurtado reasons the Act seeks to civilly commit those who meet certain criteria, including that the defendant must be “likely to engage in sexually violent criminal behavior.”  (§ 6602.)   However, it requires the defendant to have served a determinate sentence for a “sexually violent offense” as defined by its terms. (§ 6600, subds.(a), (b).)   He asserts the delineated offenses within the Act create an arbitrary class of individuals subject to commitment, because they exclude a specific group of offenders-those convicted of violating Penal Code section 288.5.   He argues that those defendants pose a greater threat in that they have committed more serious crimes for which they were subject to more severe sentencing, than those subject to commitment for violating Penal Code section 288 (lewd or lascivious acts with a child under age 14).   His assertion lacks merit, because the two classes of offenders pose different risks to the general public and are not similarly situated.

 “The constitutional guaranty of equal protection of the laws has been judicially defined to mean that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty and property and in their pursuit of happiness.  [Citations.]   The concept recognizes that persons similarly situated with respect to the legitimate purpose of law receive like treatment, but it does not, however, require absolute equality.  [Citations.]”  (People v. Romo (1975) 14 Cal.3d 189, 196, 121 Cal.Rptr. 111, 534 P.2d 1015.)  “ ‘In ordinary equal protection cases not involving suspect classifications or the alleged infringement of a fundamental interest, the classification is upheld if it bears a rational relationship to a legitimate state purpose.  [Citations.]   But if the statutory scheme imposes a suspect classification ․ or a classification which infringes on a fundamental interest ․ the classification must be closely scrutinized and may be upheld only if it is necessary for the furtherance of a compelling state interest.  [Citations.]’ ”  (People v. Carter (1994) 30 Cal.App.4th 775, 778, 37 Cal.Rptr.2d 59, quoting Weber v. City Council (1973) 9 Cal.3d 950, 958-959, 109 Cal.Rptr. 553, 513 P.2d 601;  see also College Area Renters & Landlord Assn. v. City of San Diego (1996) 43 Cal.App.4th 677, 686, 50 Cal.Rptr.2d 515.)   Hurtado asserts we should apply strict scrutiny review.   We agree, as our Supreme Court has traditionally subjected involuntary civil commitment statutes to the most rigorous form of constitutional review.  (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1153, fn. 20, 81 Cal.Rptr.2d 492, 969 P.2d 584, and cases there cited.)

 The Act is narrowly drafted to serve the legitimate and compelling state interests of protecting the public from the danger posed by violent sex offenders and treating persons with uncontrollable mental disorders.  (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1153, fn. 20, 81 Cal.Rptr.2d 492, 969 P.2d 584;  Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171, 167 Cal.Rptr. 854, 616 P.2d 836;  People v. Saffell (1979) 25 Cal.3d 223, 232-233, 157 Cal.Rptr. 897, 599 P.2d 92.)   It focuses

“on a select group of violent criminal offenders who commit particular forms of predatory sex acts against both adults and children, and who are incarcerated at the time commitment proceedings begin.   Commitment as an SVP cannot occur unless it is proven, beyond a reasonable doubt, that the person currently suffers from a clinically diagnosed mental disorder, is dangerous and likely to continue committing such crimes if released into the community, and has been found to have sexually victimized at least two people in prior criminal proceedings.   The problem targeted by the Act is acute, and the state interests-protection of the public and mental health treatment-are compelling.”  (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1153, fn. 20, 81 Cal.Rptr.2d 492, 969 P.2d 584.)

Thus, the Act is narrowly tailored to include only those individuals who are sexually violent predators.   The predatory aspect of the offenses they have committed are defined by the Act's language as those involving victims who are strangers to or casual acquaintances of defendants with whom they have no substantial relationship or with whom a casual relationship was established for the purpose of victimization. (§ 6600, subd. (e).)  This type of offender presents a different and greater risk to the general public than those who violate Penal Code section 288.5.   Sexually violent predators are a risk to all children in society, while those convicted of violating Penal Code section 288.5 endanger a much smaller group.   That is because Penal Code section 288.5 requires the offender to either reside in the same home with the minor child or have recurring access to the victim.   Its hallmark is that the offender had continuing access to the victim for at least three months.   In comparison, the unique feature of the Act is that it narrowly restricts commitments to the class of persons who demonstrate a particular type of predatory danger, to wit those who have committed sexually violent predatory offenses and the propensity due to their mental disorder to commit further acts of predatory sexual violence.

Even Hurtado recognizes the difference between these two classes of prisoners in his first argument where he states that predatory offenders are likely to strike at any time and victimize anyone, thus posing a much greater threat to the public at large.¹³  The public is inevitably more defenseless against random acts.   Those convicted of Penal Code section 288.5 often prey on stepchildren or relatives as their victims.   Sometimes, they are trusted friends of the victimized family.   Nevertheless, once an offender is removed from the home or access to that particular victim is eliminated, the likelihood of reoffending is greatly reduced by the fact his or her status as a sex offender will be known and it would be very difficult for him or her to have access to any such victims.   While Penal Code section 288.5 defines a very serious offense with severe punishment, it poses a different type of risk to the public and those offenders are not similarly situated to Hurtado and other sexually violent predators.

 The Act is designed to protect society from the extremely dangerous group of sexually violent predators.   The degree of punishment to which an offender is subject is not the deciding factor as to who falls within the criteria or the breadth of the Act and its intended purposes.   Past behavior, current mental disorder and a prognosis for future predatory conduct are the determining criteria within the Act.   Accordingly, the Act is narrowly tailored to serve a compelling state interest of protecting society from a specific class of offenders whom due to their mental disorder randomly sexually prey upon the unknowing public.

HURTADO'S COMMITMENT WAS LEGAL

Hurtado contends his commitment was illegal because the trial court lost its jurisdiction to commit him when it dismissed the original commitment petition for failure to hold a probable cause hearing within the 10-day period proscribed by section 6601.5.¹⁴  He reasons that once the petition was dismissed, he immediately became a parolee as a matter of law and no longer subject to commitment under the Act.

On August 15, 1996, the Department of Mental Health upon completing its evaluation referred Hurtado's case to the district attorney for filing of a civil commitment petition pursuant to section 6602.   His scheduled release date was August 26, 1996.   A commitment petition filed on October 9 stated that if the court determined the petition facially supported a finding of probable cause, then the probable cause hearing pursuant to section 6602 “shall be held within 10 calendar days of the date of the order․”   Twenty days later, on October 29, Hurtado moved to dismiss the commitment petition on the ground the court lacked jurisdiction to hold a probable cause hearing.   His counsel equated the 10-day time limit to a statute of limitations, arguing the court lost jurisdiction once the 10 days had expired, except to dismiss the case.   Concluding there was nothing in the statutory scheme to preclude the district attorney from filing a new petition, the trial court dismissed the original petition without prejudice, allowing the prosecution to file a new petition that afternoon.¹⁵  That new petition, filed on October 29, resulted in Hurtado's commitment.¹⁶

 Preliminarily, former section 6601.5 by its express terms does not apply here.   It only applies to “cases where an inmate's parole or temporary parole hold pursuant to Section 6601.3 will expire before a probable cause hearing is conducted pursuant to Section 6602․”  (Former § 6601.5, subd. (a), italics added.)   Because no parole hold could have been appropriately placed on Hurtado under section 6601.3 ¹⁷ (see ante, fn. 17) and his parole was not due to expire, the provisions of section 6601.5, including the 10-day period, are inapplicable.

 Assuming, but not granting, Hurtado was under a legal 45-day parole hold pursuant to section 2600.1 of title 15 of the California Code of Regulations and thus section 6601.5 should apply as it does for a parole hold issued under section 6601.3, the 10-day period is directory rather than jurisdictional.   Whether a public official's failure to comply with a statutory procedure should invalidate a later governmental action is predicated upon whether the statute should be accorded mandatory or directory effect.   In making that determination, the court looks to the underlying purpose of the procedural requirement to determine whether invalidation is necessary to promote the statutory design.  (People v. McGee (1977) 19 Cal.3d 948, 958, 140 Cal.Rptr. 657, 568 P.2d 382;  Garcetti v. Superior Court, supra, 68 Cal.App.4th at pp. 1114-1115, 80 Cal.Rptr.2d 724;  Conservatorship of James M. (1994) 30 Cal.App.4th 293, 298, 35 Cal.Rptr.2d 567;  People v. Curtis (1986) 177 Cal.App.3d 982, 987-988, 223 Cal.Rptr. 397.)   Generally, “requirements relating to the time within which an act must be done are directory rather than mandatory or jurisdictional, unless a contrary intent is clearly expressed.”  (Garcetti v. Superior Court, supra, 68 Cal.App.4th at p. 1115, 80 Cal.Rptr.2d 724;  Conservatorship of James M., supra, 30 Cal.App.4th at p. 298, 35 Cal.Rptr.2d 567;  People v. Curtis, supra, 177 Cal.App.3d at p. 988, 223 Cal.Rptr. 397.)   Here, by placing time provisions in the Act, the Legislature intended to protect the public and allow time for evaluations and judicial proceedings to be completed before a sexually violent predator's release.  (See Garcetti v. Superior Court, supra, 68 Cal.App.4th at p. 1115, 80 Cal.Rptr.2d 724.)   By enacting section 6601.5, the Legislature provided urgency review in those situations where an inmate's parole or temporary parole hold will expire before a probable cause hearing is conducted under section 6602.   The 10-day time period is thus directory, simply facilitating timely determination of probable cause under such circumstances.   If the court determines there is probable cause under section 6602, then the inmate will be ordered to remain confined in a secure facility until a trial is completed.   The time period was designed to serve a public administrative purpose of obtaining a probable cause determination so the inmate could remain in custody and not intended to afford protection or confer a benefit on the inmate.   This interpretation of section 6601.5 is entirely consistent with the underlying legislative intent of the Act to prevent the release of sexually violent predators.  (See Garcetti v. Superior Court, supra, 68 Cal.App.4th at p. 1115, 80 Cal.Rptr.2d 724;  People v. Curtis, supra, 177 Cal.App.3d at p. 989, 223 Cal.Rptr. 397.)   Accordingly, the 10-day time period is not mandatory or jurisdictional.

 In light or the foregoing, the trial court erred in dismissing the original petition.   However, the trial court did so without prejudice and permitted the district attorney to re-file that afternoon.   No harm, no foul.   Although it is clear from the statutory scheme that the Legislature intended to have commitment petitions filed before the suspected sexually violent predators were released to potentially prey on other victims, the Act does not expressly require the petition be filed before an inmate is released on parole.   Hurtado was governed by the Act because at the time the SVP commitment process began, he was in custody under the jurisdiction of the Department of Corrections serving a determinate prison sentence. (§ 6601, subd. (a).)  Indeed, the Department of Mental Health had completed its evaluation of him before his scheduled release date.   Consequently, whether by our reinstating the original petition or approving the filing of the subsequent petition, the trial court never lost jurisdiction and Hurtado was legally committed.¹⁸

SUBSTANTIAL EVIDENCE SUPPORTS A “CURRENTLY DIAGNOSED MENTAL DISORDER FINDING”

 Hurtado next contends there is insufficient evidence in the record to commit him because there was no “currently diagnosed mental disorder.”   He explains that in order to be committed as a sexually violent predator, a jury must find that he had been convicted of a sexually violent offense against two or more victims for which he received a determinate sentence and he has a diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent criminal behavior. (§ 6600, subd. (a).)  As to the latter element, a jury “may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently 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.”  (Ibid., italics added.)   Hurtado argues that here, as a matter of law, there was no evidence of a currently diagnosed mental disorder, because more than 14 months had elapsed from his diagnoses.   He is mistaken.

Preliminarily, when the director of the Department of Corrections determines an individual may be a sexually violent predator, that person shall be referred for evaluation at least six months before his or her scheduled release date. (§ 6601, subd. (a).) ¹⁹  Hurtado was examined by Dr. Dean Clair on June 6, 1996, and Dr. Harry Goldberg on July 8, 1996.   His commitment trial began on September 18, 1997, with a verdict rendered on September 24th.   However, both experts testified at the commitment proceedings.   Dr. Clair testified Hurtado suffered from pedophilia, while Dr. Goldberg testified he suffered from pedophilia and from antisocial personality disorder.   Contrary to Hurtado's representation of the record, both experts testified as to Hurtado's currently diagnosed mental disorder.   Granted, both evaluations were conducted approximately a year before the hearing.   Nevertheless, both witnesses testified at the hearing in the present tense regarding Hurtado's mental disorder, basing their diagnoses on objective behavioral criteria the integrity of which is unaffected by the challenged lapse of time.   Dr. Clair testified that based on the length and history of Hurtado's condition, his behavioral recidivism, the nature of pedophilia and his inability to perform on parole, “I think he is at considerable risk of re-offending․”   Similarly, Dr. Goldberg testified that based on the foregoing “it doesn't take a psychologist to look at that and kind of wonder whether this man can actually make it in the community again.”   Given that Hurtado does not challenge the sufficiency of the evidence underlying the diagnoses but simply the timeliness of the evaluations, substantial evidence supports the jury's finding of a “currently” diagnosed mental disorder.²⁰

THE ACT DOES NOT VIOLATE THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY

 Hurtado finally asserts the Act violates the constitutional prohibition against double jeopardy, reasoning he is being subject to additional confinement for conduct that has already been punished.   He explains the definition of a “sexual predator” in section 6600 is entirely based on past conduct, as he is subject to commitment even though he has committed no new crimes or, indeed, any acts of any sort.

We agree with the analysis in People v. Torres, supra, 71 Cal.App.4th at page 726, 84 Cal.Rptr.2d 96, which rejected this claim as follows:

“Although this contention was not presented in Hubbart, our Supreme Court's reasoning there leaves little basis for it:  the court first declined to interpret any applicable provision of the California Constitution more broadly than its federal counterpart in construing the SVPA, then pointed out that the United States Supreme Court rejected a federal double jeopardy argument in Hendricks [Kansas v. Hendricks (1997) 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501].  (Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1152, fn. 19, 1172, fn. 32, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   So far as the question may still be open in light of Hubbart, we merely note that it is well settled that double jeopardy principles do not apply to civil commitment proceedings because they are not penal in nature.  (People v. Robinson (1998) 63 Cal.App.4th 348, 350-352, 74 Cal.Rptr.2d 52.)”

DISPOSITION

The order is affirmed.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   Hurtado also challenges the constitutionality of the Act on three additional grounds, including it violates the ex post facto, substantive due process and equal protection provisions of both the California and United States Constitutions.   Each of these contentions was rejected by our Supreme Court in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584.   Specifically, the Court rejected the ex post facto argument at pages 1152, footnote 19, 1170 through 1179, 81 Cal.Rptr.2d 492, 969 P.2d 584;  the substantive due process claim that the Act does not narrowly define “diagnosed mental disorder” or require a finding of mental illness was addressed at pages 1152 through 1161, 81 Cal.Rptr.2d 492, 969 P.2d 584;  and the equal protection challenge the Act is fatally flawed for not requiring an individual subject to commitment to be a “present danger” was discussed and rejected at pages 1168 through 1170, 81 Cal.Rptr.2d 492, 969 P.2d 584.   (Accord, People v. Torres (1999) 71 Cal.App.4th 704, 723, 726-727, 84 Cal.Rptr.2d 96;  People v. Ward (1999) 71 Cal.App.4th 368, 371, 83 Cal.Rptr.2d 828.)   Accordingly, as a matter of stare decisis, we shall not revisit these issues.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

3.   The Legislature attached the following uncodified statement to the Act:  “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.“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.)

4.   Section 6601, subdivision (b) provides:  “The person shall be screened by the Department of Corrections and the Board of Prison Terms 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.   This screening shall be conducted in accordance with a structured screening instrument developed and updated by the State Department of Mental Health in consultation with the Department of Corrections.   If as a result of the screening it is determined that the person is likely to be a sexually violent predator, the Department of Corrections shall refer the person to the State Department of Mental Health for a full evaluation of whether the person meets the criteria in Section 6600.”

5.   Section 6601.5 provides:  “Upon that request, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.”

6.   Section 6602 states:  “A judge of the superior court shall review the petition and shall determine whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.”

7.   The first paragraph of section 6602.5 provides:  “No person may be placed in any state hospital pursuant to the provisions of this article until there has been a determination pursuant to Section 6601.3 or 6602 that there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior.”

8.   Section 6607, subdivision (a) states:  “If the Director of Mental Health determines that the person's diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community, the director shall forward a report and recommendation for conditional release in accordance with Section 6608 to the county attorney designated in subdivision (i) of Section 6601, the attorney of record for the person, and the committing court.”

9.   Hurtado also cites the additional inconsistency regarding conditional releases under the Act. As noted above, when the Director of the Department of Mental Health concludes an inmate's diagnosed mental disorder has changed so that he or she is not likely to commit future acts of predatory sexual violence while under supervision and treatment in the community, the director shall forward a report and recommendation for conditional release in accordance with section 6608.   That provision, however, echoing section 6600, provides that a defendant is entitled to a conditional release if the court, after a hearing, determines it is not likely that the defendant “will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community.” (§ 6608, subd. (d).)  Hurtado asserts the Act is inherently contradictory, because it makes no sense for the director to make a recommendation to the court on one basis, only to have the court use a completely different basis in deciding whether to act on the recommendation.   He argues the structure of the Act and common sense suggest the Legislature's intent was that the hearing required by section 6608 be held to determine the accuracy of the director's finding the defendant is unlikely to commit acts of predatory sexual violence.   We agree.

10.   Where the statutory language is clear and unambiguous, there is no need for construction and the judiciary should not indulge in it.   (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.)   However, “whether a statute is ambiguous is not always readily ascertainable.”  (People v. Goodloe (1995) 37 Cal.App.4th 485, 491, 44 Cal.Rptr.2d 15.)   Where statutory language requires interpretation, it is our role to simply ascertain and declare what is in terms or in substance contained in the statute, not to insert what has been omitted or omit what has been included.   In other words, we “may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.”  (California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, 11 Cal.4th at p. 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.)   We are guided by the firmly established principles governing statutory interpretation:  “ ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of law.  [Citations.]   In order to determine this intent, we begin by examining the language of the statute.  [Citations.]  But “[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.”   [Citations.]   Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read so as to conform to the spirit of the act.”   [Citation.]   Finally, we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.”   [Citation.]’ ”  (People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310, quoting People v. Pieters (1991) 52 Cal.3d 894, 898-899, 276 Cal.Rptr. 918, 802 P.2d 420.)

11.   “A statute must be considered in the context of the relevant statutory framework.  [Citations.]   When a particular provision appears in one statute but is omitted from a related statute, the most obvious conclusion from the omission is that a different legislative intent existed.  [Citation.]   On the other hand, an examination of legislative history and the pertinent statutory scheme may suggest the omission was an oversight.  [¶] The evolution of a proposed statute after its original introduction in the Senate or Assembly can offer considerable enlightenment as to legislative intent.”  (People v. Goodloe, supra, 37 Cal.App.4th at p. 491, 44 Cal.Rptr.2d 15.)

12.   Penal Code section 288.5, subdivision (a) provides:  “Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.”

13.   In fact, Hurtado in his opening brief while discussing the first argument acknowledged that the exclusion of those who have violated Penal Code section 288.5 “makes perfect sense.”   He explained:  “While Penal Code section 288.5 is a more serious crime than Penal Code section 288, section 288.5 requires that the perpetrator have continuing access to the victim for least three months․   Those engaging in ‘predatory’ sexual behavior as defined by the Act, however, will, almost by definition, not have continuing access to their victims.   Thus, the Legislature's omission of Penal Code section 288.5 from the list of predicated acts is perfectly sensible and consistent with its intent to limit the scope of the Act to those who engage in predatory sexual behavior.”

14.   Former and current section 6601.5 provides:  “In cases where an inmate's parole or temporary parole hold pursuant to Section 6601.3 will expire before a probable cause hearing is conducted pursuant to Section 6602, the agency bringing the petition may request an urgency review pursuant to this section.   Upon that request, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.   If the judge determines that the petition, on its face, supports a finding a probable cause, the judge shall order that the person be detained in a secure facility until a hearing can be held pursuant to Section 6602.   The probable cause hearing provided for in Section 6602 shall be held within 10 calendar days of the date of the order issued by the judge pursuant to this section.”

15.   The trial court found that a transportation order was signed for Hurtado to be transported from Atascadero State Hospital to the Imperial County Jail for an appearance in the trial court on October 21, 1996;  the case was not put on calendar for that date;  and, upon contact from the county jail, the case was immediately calendared on October 28.

16.   We note Hurtado does not challenge the legality of his custody after his scheduled release date of August 26, 1996.   Apparently, he concedes that either he was in lawful custody or lawful custody is not a jurisdictional requisite to the filing of a SVPA petition (see People v. Superior Court (Whitley) (1999) 68 Cal.App.4th 1383, 1390, 81 Cal.Rptr.2d 189;  Garcetti v. Superior Court (1998) 68 Cal.App.4th 1105, 1117-1118, 80 Cal.Rptr.2d 724).   As to the former, a 45-day parole hold could not have been placed on him under section 6601.3, because the Department of Mental Health had completed its evaluation of him on August 15, 1996, 11 days before his scheduled release date.   However, a 45-day parole hold could have been placed on him so as to obtain a judicial determination of probable cause under a liberal reading of section 2600.1 of title 15 of the California Code of Regulations.   Such an interpretation of that provision would be consistent with the purpose underlying the Act to ensure potential sexually violent predators not be released into the community before a judicial evaluation of the danger they pose can be performed.

17.   Former and current section 6601.3 provides:  “The Board of Prison Terms may order that a person referred to the State Department of Mental Health pursuant to subdivision (b) of Section 6601 remain in custody for no more than 45 days for full evaluation pursuant to subdivisions (c) to (h), inclusive, of Section 6601, unless his or her scheduled date of release falls more than 45 days after referral.”

18.   Hurtado's reliance on the language in section 6602, that if the court determines there is not probable cause the petition will be dismissed and the inmate will be placed on parole, to suggest that once the petition is dismissed the inmate must be released and there can be no refiling, is misplaced.   Hurtado's petition was erroneously dismissed on procedural grounds, without prejudice, and not on the merits.

19.   The statutory scheme does not provide that the evaluation must have been conducted within one year of the scheduled trial date.   However, to recommit, the Act requires an annual review of an inmate's status. (§ 6605, subd. (a).)

20.   We note in passing that the belated commitment hearing was partially the result of several continuances requested by Hurtado.   However, we agree with Hurtado this does not lighten the prosecution's burden of proof to establish beyond a reasonable doubt he suffers from a currently diagnosed mental disorder that renders it likely he will engage in predatory sexually violent criminal behavior.

WORK, Acting P.J.

McDONALD, J., and McINTYRE, J., concur.