JEFFREY WALKER, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.
A159563
(City & County of San Francisco Super. Ct. No. 2219428)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 6/30/20
CERTIFIED FOR PUBLICATION
In June 2015, as Walker neared the end of a state prison commitment, the People filed a petition to commit him civilly as an SVP. The petition was supported by the evaluations of two psychologists appointed by the Director of State Hospitals, Thomas MacSpeiden and Roger Karlsson. Both psychologists concluded Walker satisfied the criteria to be considered an SVP. Their evaluations noted that Walker had previously been convicted of a sexually violent offense—a 1990 conviction for rape. The evaluations also described offenses charged against Walker that did not result in a conviction for a sexually violent offense.
The trial court held a probable cause hearing spanning five sessions in February and March of 2016. At the beginning of the hearing, Walker objected to the admission of the MacSpeiden and Karlsson evaluations on the ground they contained inadmissible hearsay. In particular, Walker objected to portions of the evaluations describing details of two sexually violent offenses for which Walker was charged but not convicted. One of these offenses was a rape charge from 1989 that was dismissed prior to trial, though Walker was convicted of unlawful sexual intercourse with a minor against the same victim. (See
The trial court overruled Walker‘s objection to the psychologists’ evaluations. During the probable cause hearing, Walker‘s attorney cross-examined the psychologists at length about their evaluations, including their reliance on the alleged rapes from 1989 and 2005 that did not result in convictions. Walker also testified on his own behalf and called a number of his own witnesses, including a third psychologist appointed by the Director of State Hospitals who concluded Walker did not meet the criteria to be considered an SVP. Following the hearing, the trial court found there was probable cause to believe Walker should be committed as an SVP.
In September 2016, Walker moved to dismiss the SVP petition. He argued that the psychological evaluations contained case-specific hearsay statements submitted for their truth, in contravention of the Supreme Court‘s then-recent decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). The trial court denied the motion. In March of 2017, Walker moved to have the court reconsider the denial of his prior motion to dismiss based on new case law applying Sanchez to SVP trials. The trial court again denied the motion.
In January 2020, Walker filed another motion to dismiss, this time citing Bennett as well as a second appellate opinion, People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001 (Couthren). Once again, the trial court denied the motion. Walker challenged the ruling by filing the instant petition for writ of mandate in our court. In response, we issued an order to show cause that directed the parties to address whether Bennett was correctly decided. The matter is now before us for decision.
DISCUSSION
Walker contends the trial court impermissibly relied on case-specific hearsay contained in the psychological evaluations to find probable cause. Absent the inadmissible hearsay, he contends there was insufficient evidence to commit him as an SVP. As we explain, we conclude the statute governing SVP probable cause hearings permitted the trial court to consider the evaluations and any hearsay contained within them. At the probable cause hearing, but not at Walker‘s SVP trial still to occur, hearsay statements in the reports may be considered even where they are not independently proven by competent evidence or covered by another hearsay exception.
A. The Sexually Violent Predator Act
The Sexually Violent Predator Act (SVP Act) (
“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 the People may file a petition to commit an inmate as an SVP, the Department of Corrections and Rehabilitation (CDCR) must first screen the inmate, generally at least six months before his or her scheduled release date. (
When the CDCR refers an inmate to the Department of State Hospitals, the Department of State Hospitals “shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the State Department of State Hospitals, to determine whether the person is a sexually violent predator as defined in this article. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (
If, after conducting this evaluation process, the evaluators agree that the inmate is an SVP, the Department of State Hospitals forwards a request to county prosecutors to file a commitment petition. (
Once a petition has been filed, the trial court must review it. As an interim step if a request is made, “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.” (
Whether or not preceded by the paper review of
When a case advances to trial, the People have the burden of proving beyond a reasonable doubt that the defendant is a sexually violent predator. (
The SVP Act is sparse in its description of the procedural requirements for a probable cause hearing, saying little more than this: “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.” (
The first of these cases was In re Parker (1998) 60 Cal.App.4th 1453 (Parker), which established an SVP defendant‘s right to more than mere “paper review” of the petition and psychological evaluations. (Id. at p. 1460.) The People took the position in Parker that a paper review sufficed for a probable cause hearing, despite the hearsay nature of the evaluations. (Id. at p. 1461.) The court rejected this view, explaining that the language of
The Supreme Court endorsed Parker‘s approach to probable cause hearings in People v. Cheek (2001) 25 Cal.4th 894. Cheek addressed the parameters of a “show cause hearing” under
concluding that a probable cause determination must encompass all of the elements required for the ultimate determination at trial. (Cooley, at p. 247.)
The Cooley Court likewise looked to the purpose and structure of the SVP Act in interpreting the meaning of ” ‘likely’ ” in
In dicta, the Court in Cooley observed that the SVP Act “does not provide any specific procedural requirements for the probable cause hearing,” but it again endorsed Parker‘s interpretation of the statutory requirements. (Cooley, supra, 9 Cal.4th at p. 245, fn. 8.) The Court explained: “Although the petitioner is allowed, despite their hearsay nature, to present the contents of any reports that form the basis of the petition as evidence, the alleged sexual predator is allowed to cross-examine the expert concerning the evaluation and can call the expert to the stand for that purpose. ([Parker, supra, 60 Cal.App.4th] at pp. 1469–1470.) The person named in the petition is thus
Appellate case law has also established that the rules of evidence apply at an SVP probable cause hearing. Indeed, “the Evidence Code applies in all actions, ‘[e]xcept as otherwise provided by statute.’ ” (In re Kirk (1999) 74 Cal.App.4th 1066, 1072 (Kirk), quoting
Such was the settled state of the law until last year, when two appellate cases took issue with the Parker/Cooley rule allowing prosecutors to prove probable cause through the two statutorily mandated psychological evaluations, as long as the evaluators were subject to cross-examination. In Bennett, a Second District panel addressed whether criminal background information contained in the psychological evaluations should be excluded as hearsay at an SVP probable cause hearing. Similar to this case, the evaluations discussed two rape-related offenses that were charged against the defendant but dismissed before trial. (Bennett, supra, 39 Cal.App.5th at p. 869.) The psychologists relied on a police report and a probation report for descriptions of the alleged offenses. (Ibid.) The court held this was case-specific hearsay not separately shown by independent evidence nor covered by a hearsay exception, and that it was therefore inadmissible at the probable cause hearing. (Id. at pp. 880–881.)
Underlying the Bennett court‘s decision was Sanchez, where our Supreme Court clarified the circumstances under which an expert may testify to case-specific hearsay at a criminal trial. (Sanchez, supra, 63 Cal.4th at p. 670.) The Supreme Court explained: “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.” (Id. at p. 686.) Case-specific hearsay facts may not be related by an expert “unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Ibid.)
The court in Bennett noted that Sanchez had “repeatedly” been held to apply in SVP trials, and concluded Sanchez should be extended to SVP
A similar result was reached in Couthren, supra, 41 Cal.App.5th 1001, where another First District panel upheld on hearsay grounds a trial court‘s exclusion of expert evaluations, in their entirety, at a probable cause hearing. (Id. at p. 1006.) In reaching this conclusion, Couthren rejected the People‘s argument that
C. Reconciling Sanchez With Cooley
We agree with Bennett and Couthren that the rules of evidence, including the holding of Sanchez, apply at an SVP probable cause hearing. (See, e.g., Bennett, supra, 39 Cal.App.5th at pp. 882–883; Couthren, supra, 41 Cal.App.5th at p. 1012.) We see no basis for, and reject, the Attorney General‘s contrary argument. But unlike Bennett and Couthren, we also agree with the dicta in Cooley, that “the petitioner is allowed, despite their hearsay nature, to present the contents of any reports that form the basis of the petition as evidence.” (Cooley, supra, 29 Cal.4th at p. 245, fn. 8, citing Parker, supra, 60 Cal.App.4th at pp. 1469–1470.)
The key to reconciling these two legal principles lies in a careful examination of the SVP Act‘s provision for probable cause hearings. As has long been understood, exceptions to the Evidence Code‘s rule against hearsay (
The starting point for our analysis is the language of
The SVP Act does not expressly address what a petition must include, but it does elaborately describe the necessary role of the psychological evaluations in initiating an SVP proceeding. No petition may be filed unless a potential SVP has been evaluated by two professionals who agree the person meets the statutory definition of an SVP. (
In light of the integral role the evaluations play in initiating an SVP petition, we conclude the evaluations must be deemed incorporated into the petition, regardless of whether the People physically attach them to the petition at the time of filing or provide them to the court under separate
Having concluded a trial judge must, in reviewing an SVP petition, review the expert evaluations on which it depends, we turn to the issue Walker presses—whether the judge may review and consider the entirety of an evaluation or only such portions as do not contain otherwise inadmissible double hearsay. Walker concedes the admissibility of certain portions of the evaluations as a substitute for the direct testimony of their authors, but contends that Sanchez precludes admission of case-specific hearsay contained within the evaluations unless the hearsay statements are independently proven or covered by a hearsay exception. We note that the language of
We begin, once again, with
The fact that the evaluations are prepared by neutral evaluators applying a standardized assessment protocol supports their full admissibility at a probable cause hearing. The evaluations are similar in this regard to the social studies the Supreme Court deemed admissible in juvenile dependency proceedings in Malinda S., supra, 51 Cal.3d 368. There, the Supreme Court construed a statute directing juvenile courts to ” ‘receive and consider’ ” social studies prepared by probation officers or social workers as creating a hearsay exception reaching multiple-level hearsay contained in these reports. (Malinda S., at pp. 375–376, 385.) The court explained that the social studies are “prepared by disinterested parties in the regular course of their professional duties,” and that “[t]hese elements of objectivity and expertise lend them a degree of reliability and trustworthiness.” (Id. at p. 377.) The Court distinguished Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532 (Daniels), where an accident report filed by a private individual was not admissible, although the Vehicle Code allowed the Department of Motor Vehicles to consider ” ‘its official records’ ” at a hearing to suspend a person‘s driver‘s license. (Malinda S., at pp. 377–378.) Unlike a social study in a dependency proceeding, a private accident report “did not reflect the competency, reliability and trustworthiness necessary to exempt it from the hearsay rule.” (Id. at p. 377.) The Court also emphasized that hearsay in “a social study is admissible only if, on request of the parent or guardian, the social worker is made available for cross-examination.” (Id. at p. 378.)
Like the social studies in Malinda S. and unlike the accident reports in Daniels, the SVP Act evaluations are prepared by disinterested professionals who must follow a standardized assessment protocol, and who may be cross-examined at the probable cause hearings on the accuracy of their reports. These hallmarks of reliability support the admissibility at a probable cause hearing of the evaluations, including any hearsay within them.
We are also guided by a commonsense consideration that influenced our Supreme Court in Conservatorship of Manton (1985) 39 Cal.3d 645 (Manton), namely the wisdom of avoiding duplication in the evidence at an initial hearing and a subsequent trial. Manton addressed the statutory scheme for conservatorship proceedings for gravely disabled persons. Applicable statutes direct a county officer to investigate alternatives to conservatorship and “render to the court a written
Manton‘s preference for avoiding redundancy applies with the same force here, where all agree the psychologists’ evaluations and multiple-level hearsay in them are inadmissible at an SVP trial. (See People v. Yates (2018) 25 Cal.App.5th 474, 476; People v. Roa (2017) 11 Cal.App.5th 428, 452–453.)
Similar to the directive in the conservatorship statutes, the SVP Act directs courts to “review the petition” at a probable cause hearing, but does not repeat this directive for the subsequent trial. (
Malinda S. and Manton are far from the only examples where courts may consider certain hearsay evidence at a specialized proceeding. It is well-settled that certain types of hearsay may be considered at criminal sentencing hearings (
In reaching a result contrary to the one we reach, the courts in Bennett and Couthren acknowledge many of the authorities we have cited, but attempt—unpersuasively in our view—to harmonize their holdings with those authorities. For example, the court in Bennett believes that excluding on hearsay grounds “a key piece of evidence upon which the experts relied . . . is consistent with Parker and Cooley‘s findings that a defendant may challenge the accuracy of the expert reports at the probable cause hearing.” (Bennett, supra, 39 Cal.App.5th at p. 883.) We believe this is a misreading of Parker and Cooley. When those cases discuss a defendant‘s ability to challenge the accuracy of the evaluations, they refer specifically to the defendant‘s right to cross-examine the experts on their findings, and follow up by noting the defendant‘s right to present conflicting evidence. (See Parker, supra, 60 Cal.App.4th at p. 1470 [“the prospective SVP should have the ability to challenge the accuracy of such reports by calling such experts for cross-examination“]; Cooley, supra, 29 Cal.4th at p. 245, fn. 8 [same].) The courts never equate questioning experts about the accuracy of their evaluations with an objection to the admissibility of the evaluations on hearsay grounds. Rather, both courts conclude that evaluations are admissible despite containing hearsay.
We likewise disagree with the suggestion that the rule of Parker and Cooley is no longer good law in light of Sanchez. (See Bennett, supra, 39 Cal.App.5th at p. 883.) Sanchez abolished a practice whereby courts would admit hearsay facts into evidence through expert testimony under the guise that such facts were not being admitted for their truth, but rather to show the basis of an expert‘s opinion. (Sanchez, supra, 63 Cal.4th at pp. 680–681.) But Sanchez affirmed the well-settled rule that hearsay, including case-specific facts related by experts, is admissible if it is covered by an exception to the hearsay rule. (Id. at p. 686 [“What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception“].) We read Parker and Cooley as recognizing such an exception to the hearsay rule for psychological evaluations at an SVP probable cause hearing. Parker and Cooley thus remain entirely consistent with Sanchez.
Couthren observes, with some justification, that Parker and Cooley did not squarely confront the issue we decide today. Couthren notes that 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
Bennett and Couthren also analogize an SVP probable cause hearing to a criminal preliminary hearing, and note that the hearsay exception which allows qualified peace officers to relate out-of-court statements at a preliminary hearing (see
The hearsay exception for expert evaluations that we are concerned with in this case is different in both function and purpose. The exception here is limited to probable cause hearings and allows the People to make an initial showing, through the evaluations of experts, that an SVP defendant has a diagnosed mental disorder and is likely to engage in sexually violent criminal behavior that is predatory in nature. The exception is designed to streamline the People‘s ability to make this initial showing without having to duplicate the evidence they will need to put forth at trial, while preserving the SVP defendant‘s ability to challenge the soundness of the evaluators’ opinions. The exception here may also “relieve victims of the burden and trauma of testifying about the details” of certain crimes (Otto, supra, 26 Cal.4th at p. 208.), but only at the probable cause hearing. An alleged victim of crimes other than the predicate crimes of conviction must testify at an SVP trial, unless other admissible evidence establishes the facts on which the evaluators rely.
In summary, we conclude that
We conclude by noting that an SVP defendant is not at the mercy of a psychologist‘s evaluation at a probable cause hearing. A defendant may assure himself that an evaluator is qualified to provide a medical opinion (
DISPOSITION
The petition for writ of mandate is denied.
Walker separately requests judicial notice of the written objections he filed in this case to the admissibility of the Karlsson and MacSpeiden evaluations. We deem the objections a part of the trial court record, and therefore need not separately take judicial notice of them.
TUCHER, J.
WE CONCUR:
STREETER, Acting P. J.
BROWN, J.
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Hon. Charles Crompton
Counsel for Petitioner: Erwin F. Fredrich
Counsel for Respondents: Xavier Becerra, Attorney General; Lance E Winters, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Rene A. Chacon, Supervising Deputy Attorney General; Moona Nandi, Deputy Attorney General