Needham v. Super. Ct. ( 2022 )

Filed 8/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
NICHOLAS NEEDHAM,
Petitioner,
v. G060670
THE SUPERIOR COURT OF ORANGE (Super. Ct. No. M-16870)
COUNTY,
OPINION
Respondent;
THE PEOPLE,
Real Party in Interest.
Petition for a writ of mandate/prohibition to challenge an order of the
Superior Court of Orange County, Elizabeth G. Macias, Judge. Petition granted.
Martin Schwarz, Public Defender, and Elizabeth Khan, Deputy Public
Defender, for Petitioner.
Todd Spitzer, District Attorney, and Yvette Patko, Deputy District
Attorney, for Real Party in Interest.
* * *
The People filed a petition against Nicholas Needham seeking to commit
1
him under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq. )
(SVPA), which authorizes the involuntary civil commitment and treatment of sexually
violent predators (SVP) at the conclusion of their prison term. Preparing for trial on the
petition, the district attorney retained a psychological expert to evaluate Needham and
testify at trial that he qualifies as an SVP. Needham moved to exclude the expert’s
testimony at trial, but the trial court denied his motion.
Needham asks this court for a writ of mandate/prohibition declaring that the
SVPA does not permit the People to call a privately retained expert to testify at trial. We
grant his petition.
The SVPA represents an extraordinary deprivation of a person’s liberty: it
enables the state to indefinitely detain a person, not for a crime actually committed, but
for a crime that may be committed in the future. To be sure, the clear and present danger
posed by sexually violent predators warrants such a scheme. But given the obvious
dangers to essential liberty interests inherent in the SVPA, it must be carefully
implemented and applied only where there is a high degree of certainty that it is
warranted. Balancing these competing interests, the Legislature has prescribed a detailed
process that centers around multiple evaluations by independent experts—as many as
eight of them. The statutory scheme deliberately limits when an SVP petition may be
filed and brought to trial, as well as the evidence available to the prosecution. In light of
this system, we conclude that the expert-witness provisions of the Civil Discovery Act do
not apply and that the People have no right to retain an expert witness to testify at trial.
1
All further undesignated statutory references are to this code.
2
STATUTORY OVERVIEW
Before discussing the proceedings below or the merits of Needham’s
petition, we begin with the overall context and structure of the SVPA. The purpose of the
SVPA is to confine and treat a limited group of convicted sex offenders who, if released,
represent a danger to the health and safety of others in that they are likely to engage in
acts of sexual violence. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 919.)
The SVPA sets forth a multistage procedure for pursuing the involuntary
commitment of a potential SVP. (See § 6600 et seq.; Reilly v. Superior Court (2013)
57 Cal.4th 641, 646-647 (Reilly); Moore v. Superior Court (2010) 50 Cal.4th 802, 815
(Moore).) As set forth below, that procedure includes an initial screening process of
potential SVP’s, a full evaluation of targeted individuals by multiple mental health
professionals, the filing of the petition in cases deemed appropriate, a probable cause
hearing, additional evaluations as needed, and finally, a jury trial.
1. Initial Screening and Full Evaluation
First, if the Secretary of the Department of Corrections and Rehabilitation
determines an inmate might qualify as an SVP, the inmate is referred for an initial
screening based on his or her social, criminal, and institutional history and whether he or
she committed a sexually violent predatory offense. (§ 6601, subds. (a)(1) & (b).) If, as
a result of that screening, it is determined that the inmate is likely an SVP, the inmate is
referred to the State Department of State Hospitals (DSH) for a full evaluation. (Id.,
subd. (b).)
The evaluation is conducted by two mental health professionals, either
psychologists or psychiatrists, designated by the Director of the DSH (the Director).
(§ 6601, subd. (d).) Each mental health professional must evaluate the inmate in
accordance with a standardized assessment protocol to determine whether the inmate is
an SVP—that is, someone “who has been convicted of a sexually violent offense against
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one or more victims 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)(1); 6601, subds. (c) & (d).)
If the two evaluators agree the inmate has a diagnosed mental disorder and
is likely to engage in acts of sexual violence without appropriate treatment and custody,
the Director forwards a request to the county that imposed the inmate’s sentence to file a
petition for commitment in superior court. (§ 6601, subd. (d), (h)(1).)
If, however, the two evaluators disagree on whether the inmate qualifies as
an SVP, the Director facilitates further examination of the inmate by two “independent
professionals” who are not state employees and who have at least five years of experience
diagnosing and treating mental disorders. (§ 6601, subds. (e), (g).) A petition for
commitment may only be filed if both of those independent professionals agree the
inmate meets the criteria for commitment. (Id., subd. (f).)
2. The Petition and Probable Cause Hearing
If the county’s designated counsel (in this case, the district attorney)
concurs with the Director’s recommendation to file a petition for commitment, counsel
then files such a petition in superior court. (§ 6601, subd. (i).) The superior court must
then 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.”
(§ 6601.5.) If the court determines the petition on its face supports a finding of probable
cause, it orders the inmate to be kept in a secure facility until a probable cause hearing is
conducted. (Ibid.)
Within the next 10 days (§ 6601.5), the trial court is directed to hold a
hearing to determine whether there is probable cause to believe the inmate is likely to
engage in sexually violent predatory criminal behavior upon his or her release. (Ibid.;
4
§ 6602, subd. (a).) If the judge finds there is not probable cause, the commitment petition
is dismissed. (Ibid.) If the judge finds there is probable cause, the matter is set for trial.
(Ibid.)
3. Additional Evaluations
Resolution of the SVP petition often stretches over months or years. (See
People v. Superior Court (Smith) (2018) 6 Cal.5th 457, 462 (Smith).) Commitment under
the SVPA must nonetheless be based on a “‘current’ mental disorder.” (Reilly, supra,
57 Cal.4th at p. 647, italics added.) Thus, if the district attorney determines updated
evaluations are necessary to properly present the case for commitment, he or she may ask
the DSH to perform updated evaluations. (§ 6603, subd. (d)(1).) Additionally, if either
of the original evaluators is no longer available to testify, the district attorney may ask the
DSH to appoint a different expert to perform a replacement evaluation. (Ibid.)
If an updated or replacement evaluation results in a split of opinion as to
whether the inmate meets the criteria for commitment, the petition need not be dismissed,
as the new evaluations are intended primarily for evidentiary and informational purposes.
(Reilly, supra, 57 Cal.4th at p. 648; Gray v. Superior Court (2002) 95 Cal.App.4th 322,
328 (Gray).) However, in the event of a split of opinion, the DSH must obtain two
additional evaluations by independent professionals. (§ 6603, subd. (d)(1); see § 6601,
subd. (e), (f).)
Those additional evaluations are not binding; if one or both of the
independent professionals conclude the inmate does not meet the SVPA’s criteria for
commitment, the district attorney may nevertheless elect to proceed to trial. (Gray,
supra, 95 Cal.App.4th at p. 329.) “[O]nce a petition has been properly filed and the court
has obtained jurisdiction, the question of whether a person is a sexually violent predator
should be left to the trier of fact unless the prosecuting attorney is satisfied that
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proceedings should be abandoned.” (Ibid.) “[I]t is not the number of opinions that
matters, but their persuasiveness.” (Ibid.)
4. Trial
At trial on a commitment petition under the SVPA, the People must prove
three elements beyond a reasonable doubt: (1) the defendant has suffered a conviction of
at least one qualifying “sexually violent offense”; (2) the defendant has “a diagnosed
mental disorder that makes the person a danger to the health and safety of others”; and (3)
the mental disorder makes it likely the defendant will engage in future predatory acts of
sexually violent criminal behavior if released from custody. (§§ 6600, 6604.)
SVPA trials are special proceedings of a civil nature and are not punitive in
purpose or effect. (Moore, supra, 50 Cal.4th at p. 815.) Although, generally speaking,
the Civil Discovery Act applies to such proceedings (People v. Angulo (2005)
129 Cal.App.4th 1349, 1368), in light of the unique nature of such proceedings it “must
be applied in each SVPA proceeding on a case-by-case basis.” (People v. Superior Court
(Cheek) (2001) 94 Cal.App.4th 980, 994.) Further distinguishing itself from a standard
civil trial, the SVPA “contains a number of procedural safeguards commonly associated
with criminal trials, including the alleged SVP’s right to a jury trial (§ 6603, subd. (a)), to
assistance of counsel (ibid.), and to a unanimous jury finding that he or she is an SVP
beyond a reasonable doubt before he or she may be committed (§ 6604).” (Reilly, supra,
57 Cal.4th at p. 648.) A defendant in an SVPA proceeding is also entitled to certain due
process protections because civil commitment involves a significant restraint on liberty.
(Moore, supra, 50 Cal.4th at p. 818.)
“The bulk of the evidence at trial [in an SVPA commitment proceeding]
typically focuses on whether the person has a diagnosed mental disorder that makes it
likely he or she will engage in sexually violent behavior. [Citation.] Accordingly, the
civil commitment trial usually turns on the quality and credibility of the expert witnesses
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and the extent to which their evaluations are persuasive.” (Smith, supra, 6 Cal.5th at pp.
470-471.)
If the jury or court finds the defendant is an SVP, the defendant is
committed for an indeterminate term to the custody of the DSH. (§ 6604.) Following
commitment, the SVP is subject to annual mental examinations to determine whether he
or she continues to meet the definition of an SVP. (§ 6604.9.) The SVP may also file a
petition for unconditional discharge. (See § 6605.)
FACTS
This brings us to the present case. In 2016, two DSH evaluators, Dr. Coles
and Dr. Musacco, evaluated Needham and opined he qualified as an SVP. Based on their
evaluations, in November 2016, the district attorney filed a petition to commit Needham
as an SVP.
In January 2018, Dr. Coles changed his opinion and found Needham no
longer met the legal criteria to be an SVP. Since the two DSH evaluators now disagreed
regarding Needham’s status as an SVP, two additional independent evaluators were asked
to evaluate Needham—Dr. Korpi and Dr. Yanofsky. Dr. Korpi opined Needham did not
meet the criteria for commitment; Dr. Yanofsky opined he did.
All four evaluators testified at Needham’s probable cause hearing. The trial
court found there was probable cause to believe Needham was likely to engage in
sexually violent predatory criminal behavior upon his release. After the probable cause
hearing, however, Dr. Yanofsky changed his opinion and found Needham no longer met
the criteria of an SVP.
Rather than obtaining an updated or replacement evaluation from the DSH
independent experts, in July 2019, the People informed the trial court they had privately
retained Dr. King as an expert witness and requested a protective order so the People
could provide Dr. King with Needham’s confidential records. At the People’s request
7
and over Needham’s objection, the court issued a protective order allowing the People to
provide Needham’s records to Dr. King and allowing Dr. King to interview Needham at
the jail.
Between July 2019 and June 2021, Needham filed three motions to exclude
Dr. King from testifying as an expert witness at trial, asserting the SVPA does not permit
the People to privately retain an expert witness to testify at trial. The trial court denied
Needham’s motions in July 2021, finding the People may privately retain their own
expert in SVPA commitment proceedings which would including testifying at trial.
In September 2021, several months before the trial date, Needham filed the
instant petition for writ of mandate/prohibition, asking this court to order that Dr. King
may neither perform a supplemental evaluation of Needham nor testify at trial. The
petition posed the issue for review as follows: “When multiple doctors, who were chosen
by the [DSH] under the [SVPA] including the doctors who have performed the most
recent evaluations, have examined Defendant and opined he is not a [SVP], can the
People privately retain evaluators to perform a non-DSH SVP supplemental ‘evaluation’
and testify at trial to their opinion that Defendant is an SVP despite never being
sanctioned by the DSH to do so?”
This court initially denied Needham’s petition. Needham then filed a
petition for review in the California Supreme Court, which granted the petition and
transferred the matter back to this court. The Supreme Court directed us to vacate our
previous order denying mandate and to issue an order directing the trial court to show
why the requested relief should not be granted. We now reach the merits of Needham’s
petition.
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DISCUSSION
Needham contends the SVPA does not permit a district attorney to retain a
mental health expert to testify at trial. He contends the SVPA only allows a district
attorney to use the DSH evaluators appointed under section 6601 and 6603 to testify at
trial, not privately retained experts. In light of the detailed statutory scheme for the
provision and testimony of independent experts in an SVPA proceeding, we agree.
The SVPA’s statutory scheme focuses on independent experts. Once the
Secretary of the Department of Corrections and Rehabilitation determines that an SVP
petition may be necessary, no petition may be filed until two independent experts agree
that the defendant is a sexually violent predator. (§ 6601, subd. (d).) In conducting that
assessment, the experts must evaluate the person in accordance with a standardized
assessment protocol developed by the DSH. (§ 6601, subd. (c).) That protocol, which
comprises 10 pages of singled-spaced text, is very detailed in how the independent
2
experts are to conduct their evaluations.
If the two independent experts do not agree, the DSH must arrange for a
further examination by two more independent experts. (§ 6601, subd. (e).) Those experts
cannot be employees of the state, must have at least five years’ experience in treating
mental disorders, and must be either a psychologist or psychiatrist. (§ 6601, subd. (g).)
A petition may not be filed unless both of those experts agree that the person qualifies as
a sexually violent predator. (§ 6601, subd. (f).)
Once a petition is filed, the SVPA expressly addresses the retaining of
experts: it says the defendant may hire an expert to participate in the trial. (§ 6603, subd.
(a).) There is no similar provision for the prosecutor. This provision invokes the
“principle, commonly known under the Latin name of expressio unius est exclusio
2
The protocol is available at
https://www.dsh.ca.gov/Publications/docs/Regulations/2019_01_17/protocoltext.pdf
(accessed August 2, 2022).
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alterius, . . . that the expression of one thing in a statute ordinarily implies the exclusion
of other things.” (In re J.W. (2002) 29 Cal.4th 200, 209.) Although this principle does
not apply invariably (Ibid.), here it supports a common sense reading of the statute. If the
Legislature envisioned both parties retaining testifying experts, why only say defendant?
The clear inference is that this is a one-sided right.
Two further provisions reinforce this reading. First, the very next
subdivision says, “The attorney petitioning for commitment under this article has the
right to demand that the trial be before a jury.” (§ 6603, subd. (b).) Thus, immediately
after specifying what the defendant’s rights at trial are, the statute addresses the People’s
rights at trial and makes no mention at all of retaining an expert. Second, at a much later
stage of the proceeding, in the context of a petition by the defendant for conditional
release from custody, the SVPA provides that the “[t]he [district] attorney . . . shall
represent the state and may have the committed person evaluated by experts chosen by
the state.” (§ 6608, subd. (g), italics added.) The fact that the Legislature expressly
authorized the People to retain an expert at a later stage of the proceeding demonstrates
that the omission of that right earlier in the proceeding was intentional.
But that is not all. Returning to the initial trial, the SVPA expressly
addresses what the prosecutor is to do if the prosecutor deems the original expert reports
inadequate: “request the [DSH] to perform updated evaluations.” (§ 6603, subd. (d)(1).)
If one of the original evaluators is not available, the People may request “replacement
evaluations,” “[h]owever, updated or replacement evaluations shall not be performed
except as necessary to update one or more of the original evaluations or to replace the
evaluation of an evaluator who is no longer available to testify for the petitioner in court
proceedings. These updated or replacement evaluations shall include review of available
medical and psychological records, including treatment records, consultation with current
treating clinicians, and interviews of the person being evaluated, either voluntarily or by
court order. If an updated or replacement evaluation results in a split opinion as to
10
whether the person subject to this article meets the criteria for commitment, the State
Department of State Hospitals shall conduct two additional evaluations in accordance
with subdivision (f) of Section 6601.” (Ibid., italics added.) The language “shall not be
performed” is mandatory language that prohibits any replacement evaluations except on
the terms specified in the statute. (Ibid.) If the People could retain their own expert at
that stage, they would essentially be providing a replacement evaluation free of the
restrictions the Legislature imposed in subdivision (d)(1).
Yet two more provisions support the proposition that the People are not
entitled to retain their own experts to testify at trial.
First, section 6603, subdivision (e), states, “This section does not prevent
the defense from presenting otherwise relevant and admissible evidence.” (Italics added.)
There is no similar provision for the state’s case. Under the principle of expression unius
est exclusio alterius, this provision undermines the dissent’s rationale. The dissent’s
rationale is, essentially, the SVPA does not prohibit the state from retaining experts, and
thus anything otherwise available in the Civil Discovery Act is permitted. But the statute
expressly addresses that very rationale and applies it only to a defendant. This strongly
suggests that the People, by contrast, are confined to the evidence that the SVPA
carefully designates.
Finally, section 6603, subdivision (k)(3), provides, “This subdivision does
not affect any right of a party to seek to obtain other records regarding the person subject
to this article.” Two aspects of this are noteworthy. First, the Legislature applies this
provision to “a party,” meaning either party, which demonstrates that its prior delegations
specifically to the defendant were intentional. Second, the provision entitles either party
to “obtain other records,” not to retain other witnesses.
The Legislature, therefore, has carefully circumscribed the options
available to the People in retaining experts for trial. And it was generous in the
possibilities: by this point in the proceeding, as many as eight independent experts may
11
have weighed in (the two original experts, two more if they disagreed, two more for
updated/replacement reports, and two more if the updated reports disagree). Importantly,
all eight of those experts are independent experts.
Taken as a whole, the above provisions evince a carefully calibrated and
limited procedure to ensure that an extraordinary deprivation of liberty has as many
safeguards as possible. Virtually the entire scheme revolves around the independent
experts who evaluate the defendant and testify concerning defendant’s mental state. It
would largely undermine those safeguards if the People could bypass them by presenting
testimony from their own retained expert who had to do no more than satisfy the basic
expert witness requirements of the Civil Discovery Act. To permit the People to retain a
testifying expert would create the possibility that an expert with a clear bias—an expert
hired to support the People’s view, rather than provide an independent analysis—could
lead to the deprivation of a person’s liberty even where some independent experts find it
unwarranted, or for reasons independent experts find unconvincing. That result is
inconsistent with the design of the SVPA procedure.
Beyond the statutory scheme, case law has not directly addressed the issue
before us, though the dissent contends Smith, supra, 6 Cal.5th 457 provides it some
support. Although the dissent acknowledges that Smith did not directly address the issue
before us, the dissent contends the entire Smith opinion would become “mere dictum” if
the Supreme Court did not at least implicitly agree that a district attorney may privately
retain experts. We disagree.
In Smith the issue was whether the People could share the mental health
records of a defendant with a consulting expert, subject to an appropriate protective
order. The court concluded the People may do so. The court’s rationale was that a
district attorney will need the assistance of an expert to understand and effectively cross-
examine a hostile expert witness: “Cross-examination may assist the trier of fact in
determining whether the evaluator has ‘accurately understood the statutory criteria.’
12
[Citation.] But that opportunity would be a hollow one if the district attorney does not
have the assistance of an expert to interpret and explain the significance of the specialized
information at issue.” (Smith, supra, 6 Cal.5th at p. 471.) “Without an expert’s
assistance in preparing the cross-examination of adverse witnesses, ‘the risk of an
inaccurate resolution . . . is extremely high.’” (Ibid.) “So it is not surprising to find that
nothing in the text of the SVPA bars the government from sharing otherwise confidential
information in its possession with the expert it has retained for the purpose of assisting in
an SVP proceeding.” (Id. at p. 472 (italics added).)
Amidst the court’s heavy focus on the need for the People to retain an
expert to assist in trial preparation, we acknowledge the Smith opinion contains a single
line that could be interpreted to support the dissent. The court stated, “An expert would
also need to examine the relevant records to offer an opinion about the potential SVP’s
mental health.” (Smith, supra, 6 Cal.5th at pp. 471-472.) In context, we do not interpret
this single line as an endorsement of the notion that the People may call a privately
retained testifying expert. Instead, we view this simply as an acknowledgement that, in
order to properly assist a prosecutor in preparing for trial, a retained expert would need
sufficient information to form an opinion of his or her own. Indeed, if the Smith court
had envisioned the People calling a testifying expert, the court’s rationale should have
been that the expert needs to see the reports in order to testify. But the court never said
that; in fact, it seems to have studiously avoided saying that.
In the absence of any clear guidance from our high court, and given the
detailed and carefully calibrated scheme of independent experts set forth in the SVPA, we
hold that the People may not call a privately retained expert witness to testify at trial.
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DISPOSITION
The petition for a writ of mandate is granted. Let a peremptory writ of
mandate issue directing the Superior Court of Orange County to vacate its ruling denying
Needham’s motions to exclude the testimony of the People’s expert witness, and instead
to issue a new order excluding the testimony of the People’s privately retained expert
witness.
MARKS, J.*
I CONCUR:
O’LEARY, P. J.
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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GOETHALS, J., dissenting:
I dissent. Although I believe the legal question presented here is a close
one, and I am sympathetic with many of the concerns expressed by my colleagues
(e.g., “[t]he SVPA represents an extraordinary deprivation of a person’s liberty”), I
disagree with the majority’s conclusion that the Sexually Violent Predator Act (Welf.
& Inst. Code, § 6600 et seq.) (SVPA), which authorizes the involuntary civil commitment
and treatment of sexually violent predators (SVP) at the conclusion of their prison term,
prevents the People from calling an expert privately retained by them to testify at trial.
The SVPA specifically provides that a defendant in a commitment
proceeding may “retain experts or professional persons to perform an examination on the
person’s behalf.” (Welf. & Inst. Code, § 6603, subd. (a).) It says nothing about the
People’s right to do so.
Several courts, however, including this one, seem to have assumed that
such a right exists. In People v. Landau (2013) 214 Cal.App.4th 1, 25-26 (Landau), for
example, we found the trial court did not abuse its discretion when it permitted an expert
retained by the prosecution to conduct a pretrial evaluation of the defendant. That expert
later testified at trial.
It is also well settled that, since SVPA proceedings are civil in nature
(People v. Roa (2017) 11 Cal.App.5th 428, 443), the Civil Discovery Act of 1986 (Code
Civ. Proc., § 2016.010 et seq.) (CDA) applies to them. (See, e.g., Landau, supra, 214
Cal.App.4th at p. 25; Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1686;
People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 983, 988.) Since the CDA
permits parties to retain and designate expert trial witnesses (Code Civ. Proc.,
§§ 2034.210-2034.250, 2034.270, 2034.290), it follows logically and legally that both
sides in an SVPA action have such a right. No published opinion has held to the
contrary.
1
I agree with the majority that “case law has not directly addressed the issue
before us.” But not long ago the Supreme Court came close in People v. Superior Court
(Smith) (2018) 6 Cal.5th 457 (Smith). In Smith, after reviewing the history of the SVPA,
the Supreme Court ruled that the People could share the defendant’s mental health
records with a mental health expert retained by them as a pretrial consultant. (Id. at
p. 462.) The court then added that “[a]n expert would also need to examine the relevant
records to offer an opinion about the potential SVP’s mental health.” (Id. at
pp. 471-472.) To me the court’s implication seems clear: a testifying expert may also
access such records.
My colleagues acknowledge this language before dismissing its
importance. “In context, we do not interpret this single line as an endorsement of the
notion that the People may call a privately retained testifying expert.” On this issue we
may agree to disagree. But if their position is well taken, much of the Smith opinion
becomes mere dictum.
My colleagues advocate for “a common sense reading of the statue.” So
do I. In Smith, the Supreme Court discussed at some length the realities of an SVP trial:
“The primary mechanism for identifying an SVP is assessment of the person by
psychiatrists or psychologists using a standardized protocol.” (Smith, supra, 6 Cal.5th at
p. 470.) “Accordingly, the civil commitment trial usually turns on the quality and
credibility of the expert witnesses and the extent to which their evaluations are
persuasive.” “A key way in which one party counters an opposing expert’s opinion is to
uncover and challenge the expert about the bases for his or her opinion. [Citations.] This
is particularly true for a mental health professional’s assessment of whether an individual
qualifies as an SVP.” “Cross-examination may assist the trier of fact in determining
whether the evaluator has ‘accurately understood the statutory criteria.”’
(Id. at p. 471.)
2
Today, many civil trials evolve into battles of expert witnesses. The
designation and use of such experts are controlled by the CDA. The parties have the
opportunity to challenge pretrial the admissibility of their opponent’s proposed expert
testimony via motions filed pursuant to Evidence Code sections 402 and 405. If the
testimony is admitted, the experts are subjected to the crucible of cross-examination.
And then the trier of fact decides who to believe. I am not convinced that proceeding in
this well-established manner threatens the fairness of future SVP proceedings.
I would affirm.
GOETHALS, J.
3