THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; JOHN COUTHREN, Real Party in Interest.
A155969
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 11/7/19
CERTIFIED FOR PUBLICATION; (Mendocino County Super. Ct. No. SCUK-CRCR-95-20535)
In these writ proceedings, the People seek extraordinary relief from the trial court’s dismissal order, arguing that long-settled precedent permits the People to prove probable cause through use of written expert evaluations, despite their hearsay nature, and that Sanchez does not undermine the legitimacy of this procedure. We disagree and deny the petition.
I. BACKGROUND
In March 2018, the Mendocino County District Attorney filed a petition to commit Couthren as an SVP under the SVP Act. Specifically, the petition alleged that Couthren had been convicted of felony oral copulation in 1973 (
A probable cause hearing was set for November 26, 2018. In September 2018, the People informed Couthren’s attorney that the probable cause hearing would be submitted on the reports of the three concurring psychologists (Hartley, Korpi, and Flinton), but that the report of the dissenting psychologist (Kokubun) had been provided to the court for its information. Although Couthren’s counsel initially raised no objection to this procedure,
On December 10, 2018, the trial court issued its written ruling with respect to the SVP petition. The court first reviewed the records of conviction submitted by the People and those portions of the expert evaluations discussing the details of Couthren’s qualifying convictions, which the court deemed admissible pursuant to
The People responded by filing a motion in the trial court seeking a temporary stay of the dismissal order to allow for review of the trial court’s ruling. Thereafter, on December 13, 2018, the People filed both the instant writ petition in this court and a corresponding notice of appeal in the superior court (People v. Couthren, A156088, ordered deferred Apr. 4, 2019, pending writ proceeding). We issued a temporary stay and, after receiving an informal response and reply, issued an order to show cause that requested additional briefing. Having received that briefing, the matter is now before us for decision.3
A. Pertinent Provisions of the SVP Act
The Legislature enacted the SVP Act in 1995. (Added by Stats. 1995, ch. 763, § 3; see
“The trial, however, is the last stage of a complex administrative and judicial process to determine whether an offender should be civilly committed as an SVP.” (Cooley, supra, 29 Cal.4th at p. 244.) Before a petition may be filed under the SVP Act, the inmate must first be screened by the Department of Corrections and Rehabilitation, generally at least six months before his or her scheduled release date. (
Once an SVP petition has been filed, “[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.” (
B. Use of Hearsay at Probable Cause Hearings Under the SVP Act
The instant petition presents a matter of first impression, whether psychological assessments that evaluate whether a person meets the statutory criteria for civil commitment under the SVP Act may be admitted in toto as competent evidence to establish probable cause. The answer to this question requires examining whether the rules of evidence governing the admissibility of hearsay apply at a probable cause hearing held under the SVP Act. We conclude that the rules of evidence apply in an SVP probable cause proceeding and therefore the admissibility of documentary evidence such as expert evaluations will be governed by the hearsay rule and any applicable exceptions.
Established principles guide our analysis. “Except as otherwise provided by statute,” the Evidence Code applies in all actions other than those before a grand jury. (
The parties agree that the expert evaluations at issue in this case are hearsay, as they are out-of-court statements prepared by the authoring psychologist or psychiatrist offered for the truth of the matters described therein. SVP evaluations are typically comprehensive and draw from numerous
Several courts have held that experts may not relate case-specific hearsay at an SVP civil commitment trial unless the out-of-court statement is covered under a hearsay exception or has been independently established by competent evidence. (See, e.g., People v. Yates (2018) 25 Cal.App.5th 474, 476 (Yates) [concluding it was error to allow expert testimony at an SVP trial relating case-specific hearsay that was outside the expert’s personal knowledge and not otherwise admissible under an exception]; People v. Roa (2017) 11 Cal.App.5th 428, 452–453 (Roa) [expert testimony relating case-specific hearsay from investigative reports and state hospital records in SVP trial should have been excluded].) In People v. Burroughs (2016) 6 Cal.App.5th 378 (Burroughs), the court concluded that certain documentary evidence was admissible under
Although these authorities primarily rely on changes in law announced under Sanchez, supra, 63 Cal.4th 665, several pre-Sanchez courts have similarly concluded that an expert testifying at an SVP trial may not relate incompetent hearsay under the guise of explaining his or her reasoning if such testimony is unreliable, irrelevant, or its potential for prejudice outweighs its probative value. (See People v. Dean (2009) 174 Cal.App.4th 186, 197 (Dean), citing People v. Catlin (2001) 26 Cal.4th 81, 137 (Catlin).) In Dean, experts at an SVP trial were permitted to relate secondhand details from the defendant’s state hospital and prison records, including alleged incidents with staff and “other acts of misconduct, of which there was no competent evidence.” (Dean, at pp. 198, 199.) Testimony by one expert was found to be “highly inflammatory, and, without the foundational testimony concerning the records, . . . of questionable reliability.” (Id. at p. 200.) The court concluded the trial court erred by allowing incompetent hearsay to be presented to the jury, although the error was deemed harmless because the trial court had instructed the jury not to consider the expert’s testimony for its truth. (Id. at p. 201; see People v. Landau (2016) 246 Cal.App.4th 850, 877 (Landau) [concluding expert testimony relating the contents of defendant’s state hospital records at an SVP trial should have been excluded and noting the expert was in no position to establish the foundation for, or reliability of, these records].)
The foregoing precedent makes clear that at an SVP civil commitment trial, rules of evidence do not permit experts to relate as true case-specific facts gleaned from secondhand sources about which the expert has no personal knowledge, unless these facts have been independently admitted into evidence or fall within a hearsay exception. While portions of an expert evaluation may be admissible under an applicable exception, for example details about a qualifying conviction may be introduced under
Nothing in the SVP Act suggests that the Legislature intended for the rules of evidence, including the hearsay rule, to be suspended at a probable cause hearing.
In contrast, the Legislature plainly “knows how to craft [a hearsay] exception when one is intended.” (Burroughs, supra, 6 Cal.App.5th at p. 402.) Indeed, it did so elsewhere in the SVP Act by amending the statute shortly after its enactment to add
In People v. Stevens (2015) 62 Cal.4th 325, the Supreme Court cited
Similarly, in Kirk, supra, 74 Cal.App.4th 1066, our own First District saw no reason for evaluation reports submitted at SVP probable cause hearings to be exempted from certification requirements under the Evidence Code. (Kirk, at p. 1073.) In analyzing the question, the court pointed to the Legislature’s suspension of the rules of evidence for civil commitment proceedings under the Lanterman-Petris-Short (LPS) Act. (See Kirk, at pp. 1072–1073 [citing
The People contend that
The People’s argument, moreover, is difficult to square with the hearsay exception the Legislature unambiguously enacted under the SVP Act to respond to the burden facing victims having to testify in SVP proceedings. Subdivision (a)(3) of section 6600 permits the admission of documentary evidence to prove the existence and details concerning predicate offenses
It is true that exceptions to hearsay may be found not only in statutory code but also fashioned by decisional law. (Otto, supra, 26 Cal.4th at p. 207.) Relying largely on In re Parker (1998) 60 Cal.App.4th 1453 (Parker), the People contend that decisional law has recognized such an exception at the probable cause stage for expert evaluations prepared in connection with SVP proceedings. However, it does not appear that the propriety of admitting the multiple hearsay contained in SVP evaluator reports at probable cause hearings has been squarely addressed or authorized by existing precedent.
Shortly after the SVP Act was enacted in 1995, the Parker court was called upon to “determine the nature” of the probable cause hearing required by
The Parker court found the statutory language of
In People v. Cheek (2001) 25 Cal.4th 894, the Supreme Court considered
While Parker and Cheek endorsed the use of oral and written evidence at probable cause and “show cause” hearings under the SVP Act, both decisions were concerned solely with whether something more than a facial review of the relevant petition was required, given the ambiguity in the statutory language and the liberty interest at stake in these proceedings. In the Parker court’s examination whether the prosecutor should be allowed to present the opinions of the experts through their hearsay reports, the court’s focus was on what due process required to allow potential SVPs a meaningful opportunity to contest the petition. Parker provides no analysis supporting the free admission of the evaluators’ reports as competent evidence to support a finding of probable cause and contains no discussion regarding the competency of the multiple hearsay necessarily contained within such expert evaluations. Cheek does not mention the admissibility of hearsay at all, simply concluding that
Nor does Cooley provide the decisional basis for allowing the hearsay admission of SVP expert evaluations at the probable cause stage of SVP proceedings. While Cooley recognized in a footnote that oral and written evidence may be presented at such a hearing, citing Parker, it did so in the context of describing matters which were not disputed by the parties and therefore not analyzed by the court. On the contrary, Cooley’s determination that an SVP probable case hearing is analogous to a criminal preliminary hearing suggests the court would have disallowed the use of multiple hearsay in a probable cause hearing had it reached these evidentiary matters. Cooley explained that an SVP probable cause hearing serves the same purpose as a criminal preliminary hearing, in that “both serve to ‘ “ ‘weed out groundless or unsupported charges . . . and to relieve the accused of the degradation and expense of a . . . trial.’ ” ’ ” (Cooley, supra, 29 Cal.4th at p. 247 [noting the object of both hearings is “to test the sufficiency of the evidence”].) The Cooley court thus adopted the same probable cause standard used in criminal
In light of the Supreme Court’s conclusion that the SVP probable cause hearing should be modeled after the criminal preliminary hearing (Cooley, supra, 29 Cal.4th at p. 257), we find it significant that multiple hearsay is inadmissible at a preliminary hearing in a criminal matter. (
Even if it could be said that prior precedent recognized a hearsay exception broadly allowing expert evaluations to be admitted at SVP probable cause hearings, we would conclude such an exception is no longer tenable in the wake of Sanchez, supra, 63 Cal.4th 665. In Sanchez, the California Supreme Court considered the admissibility of expert evidence and the propriety of an expert relating case-specific hearsay under the rules of evidence.
The hearsay rule has traditionally not barred testimony from an expert regarding that expert’s general knowledge in his or her field of expertise, even if such knowledge is derived from hearsay sources. (Sanchez, supra, 63 Cal.4th at p. 676.) In addition, an expert witness generally “may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based.” (
In contrast, an expert was traditionally not allowed to relate case-specific facts as true if the expert had no personal knowledge on which to base his or her hearsay testimony. (Sanchez, supra, 63 Cal.4th at p. 676.) Over time, however, the distinction between general and case-specific information became blurred, and courts attempted to resolve the problem of experts supplying case-specific hearsay by instructing juries that matters admitted through an expert should not be considered for their truth but only as the basis for the expert’s opinion. (Id. at pp. 676–679) For example, in People v. Montiel (1993) 5 Cal.4th 877, disapproved on this point by Sanchez, at page 686, footnote 13, the Supreme Court opined: “Because an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment. [Citations.] Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.” (Id. at p. 919; see Catlin, supra, 26 Cal.4th at pp. 137–138; People v. Gardeley (1996) 14 Cal.4th 605, 618–619, disapproved on this point by Sanchez, at p. 686, fn. 13.) A statement not offered for its truth is, definitionally, not hearsay. (Sanchez, at p. 674; see
Sanchez jettisoned the not-for-the-truth-of-the-matter rationale that had previously allowed for the admission of expert testimony involving otherwise inadmissible case-specific facts, stating: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 686 & fn. 13.) “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Id. at p. 676) Such statements may not be related by an expert as true “unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Id. at p. 686)
Sanchez is not limited to criminal proceedings. As discussed above, several courts have applied Sanchez’s holding in the context of SVP trials, finding error where expert testimony related case-specific facts to the jury that “were neither subject to a hearsay exception nor independently established by competent evidence.” (Yates, supra, 25 Cal.App.5th at p. 485; see People v. Flint (2018) 22 Cal.App.5th 983, 1000–1006; Roa, supra, 11 Cal.App.5th at pp. 452–453; Burroughs, supra, 6 Cal.App.5th at pp. 407–411.) In Yates, for example, “except for Yates’s own statements to the experts, which were admissible as party admissions (
Although Sanchez was concerned with expert testimony rather than documentary evidence, its holding that an expert may not relate case-specific facts as true unless they are independently proven by competent evidence or are covered by a hearsay exception applies with equal force to the admissibility of written expert evaluations. In both contexts, an SVP defendant has an interest in avoiding the substantive use of unreliable hearsay. The hearsay rule safeguards against the use of incompetent hearsay evidence, and we can
Our conclusion is further buttressed by the Second District’s recent decision in Bennett v. Superior Court (2019) 39 Cal.App.5th 862 (Bennett). Bennett was convicted of two rapes stemming from two separate incidents in August 1986 in which he broke into a house late at night and raped a woman while under the influence of alcohol. Bennett had also been convicted of a March 1986 burglary, which he later acknowledged involved an attempted rape. (Id. at p. 868) He was sentenced to 42 years four months in state prison and released in 2008. (Ibid.) In 2012, Bennett was charged with forcible rape and forcible oral copulation based on allegations he had offered a woman a ride, taken her to his home, and forced himself upon her. Bennett consistently denied the allegations of nonconsensual sex. (Id. at p. 869) The two rape-related counts were eventually dismissed after the prosecution was unable to locate the alleged victim, but Bennett was convicted of failing to register as a sex offender (ibid.) and received a seven-year sentence (id. at p. 868).
Civil proceedings were then initiated to have Bennett declared an SVP. (Bennett, supra, 39 Cal.App.5th at p. 868.) At the SVP probable cause hearing, the People’s experts introduced details related to the 2012 incident, both through their testimony and in their expert evaluations. (Id. at p. 880) The information with respect to the 2012 incident was critical to the experts’ opinion that Bennett was an SVP because it established him as a serial rapist. (Id. at pp. 871–872) Relying on Sanchez, the court concluded that, since no admissible evidence had been introduced to substantiate the 2012 allegation, it was error to permit expert testimony about it. (Id. at p. 880) In doing so, the appellate court rejected the People’s argument that the hearsay rule and Sanchez should not be applied at SVP probable cause hearings. (Id. at pp. 882–883) After discussing both Parker and Cooley, the court opined: “We believe that a challenge to the admissibility of a key piece of evidence upon which the experts relied and testified to is consistent with Parker and Cooley’s findings that a defendant may challenge the accuracy of the expert reports at the probable cause hearing. The issue in this matter is not simply whether the prosecution may present an expert’s conclusions at the probable cause hearing through the introduction of the expert’s report. Instead, the issue is whether a defendant may challenge the introduction of case-specific hearsay by an expert who has no personal knowledge of such facts and that is not subject to a hearsay exception.” (Id. at p. 883) The court further concluded that “to the extent (if any) that Parker could have been read as allowing the prosecution at a probable cause hearing to introduce otherwise inadmissible case-specific hearsay evidence solely through the testimony and reports of its experts, such a reading would not pass muster following Sanchez.” (Ibid.)
III. DISPOSITION
The petition is denied. The stay previously issued by this court will be dissolved upon the finality of this decision.8
Sanchez, J.
WE CONCUR:
Humes, P. J.
Banke, J.
A155969 People v. Superior Court (Couthren)
Trial Court: Mendocino County Superior Court
Trial Judge: Hon. Cindee Mayfield
Counsel:
Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Moona Nandi and Bridget Billeter, Deputy Attorneys General, for Petitioner.
Jeffrey A. Aaron, Public Defender, Eric O. Rennert, Chief Deputy Public Defender, Robert C. Smith, Deputy Public Defender, for Real Party in Interest.
A155969 People v. Superior Court (Couthren)