People v. Sloan ( 2023 )

Filed 7/17/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095622
Plaintiff and Respondent, (Super. Ct. No. 03F00743)
v.
MARVIN SLOAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Allen H.
Sumner, Judge. Reversed with directions.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Dina Petrushenko and Julie
Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
Marvin Sloan appeals from the trial court’s order finding he qualified as a sexually
violent predator (SVP) and committing him to the State Department of State Hospitals
1
(Department of State Hospitals). His sole argument on appeal is that the trial court erred
in allowing the People to use a privately retained expert to testify at trial. To support this
position, Sloan cites Needham v. Superior Court (2022) 82 Cal.App.5th 114, review
granted October 26, 2022, S276395 (Needham), which held that the People have no right
to privately retain an expert under the Sexually Violent Predators Act (SVPA).
(Needham, at p. 128.) Our Supreme Court has recently granted review in Needham and
will decide whether Needham’s interpretation of the SVPA was correct. In the meantime,
we join Needham in concluding that the People cannot retain an expert to testify at an
SVP trial.
We therefore reverse the order declaring Sloan to be an SVP and committing him
to the Department of State Hospitals. We remand to the trial court to issue an order
excluding the testimony of the People’s privately retained expert and to conduct a new
trial. We express no opinion as to the People’s ability to obtain a replacement evaluator.
FACTUAL AND PROCEDURAL BACKGROUND
The Sacramento County District Attorney filed a petition to commit Sloan as an
SVP (Welf. & Inst. Code, 1 § 6600 et seq.) in November 2018. The People supported this
petition with evaluations of Sloan prepared by Dr. Jocelyn Chen and Dr. Roudabeh
Rahbar. Both Dr. Chen and Dr. Rahbar testified at Sloan’s probable cause hearing
(§ 6602) in 2019.
In April 2021, the People told the trial court that Dr. Rahbar was no longer
available as an expert due to private medical and personal matters. The People disclosed
Dr. Craig King as a replacement evaluator in July 2021. Dr. King had started working on
Sloan’s case in February 2021 and completed an evaluation report of Sloan in March
2021. In preparing the report, Dr. King did not interview Sloan, but he did review
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
documents from the Department of Corrections and Rehabilitation, prior SVP evaluations
of Sloan, documents relating to Sloan’s offenses, and Sloan’s Department of State
Hospitals records.
Sloan filed a motion to strike Dr. King’s evaluation, arguing that Dr. King’s
appointment was improper because the People failed to establish Dr. Rahbar was
unavailable, the People prejudiced the defense case by disclosing Dr. King as a
replacement on the eve of trial, and Dr. King produced a deficient report because he
failed to interview Sloan. The trial court found that the Department of State Hospitals
had not met its burden to show that Dr. Rahbar was unavailable, so Dr. King could not be
appointed as a replacement evaluator.
The People then subpoenaed Dr. Rahbar. In August 2021, the trial court granted
the Department of State Hospitals’s motion to quash the People’s subpoena of
Dr. Rahbar. Arguing the trial court’s ruling confirmed Dr. Rahbar’s unavailability, the
People asked the trial court to reconsider allowing Dr. King to testify in the People’s
case-in-chief as Dr. Rahbar’s replacement. The trial court responded that its prior ruling
precluded Dr. King from testifying only as a replacement evaluator, but it did not
“preclude him from testifying in some other capacity.” Thus, the People could retain
Dr. King as a “third expert” to review the evaluations prepared by evaluators appointed
by the Department of State Hospitals “and come in here and testify.” Defense counsel
objected, arguing that Dr. King was an unauthorized replacement evaluator, Dr. King’s
evaluation contained material legal error because Dr. King did not interview Sloan, and
the late disclosure of Dr. King’s retainment prejudiced the defense. Defense counsel
added that the People could not use Dr. King as a retained expert because they failed to
comply with the procedures set forth in the Code of Civil Procedure.
The trial court acknowledged that the People could “initiate the full replacement
evaluation” or offer Dr. King “simply as a retained expert.” But considering Sloan’s
“competing interest in a speedy trial” and the importance of expert reports in SVP cases,
3
the trial court preferred to “get the case on track for trial with the most complete expert
reports available.” It ultimately permitted the People to retain Dr. King as an expert.
Sloan’s SVP court trial began in October 2021, and Dr. King testified. Following
the parties’ posttrial briefings, the trial court issued an order effective on January 25,
2022, finding that Sloan qualified as an SVP and ordered him committed to the
Department of State Hospitals. Sloan timely appealed. 2
DISCUSSION
Citing Needham, Sloan contends the People have no right under the SVPA to
retain a testifying expert, so he argues the trial court erred in permitting Dr. King to
testify at his trial. On our de novo review, we agree. (See Gilbert v. Superior Court
(2014) 224 Cal.App.4th 376, 380 [review is de novo].)
The SVPA provides a civil commitment scheme to confine and treat a limited
group of criminal offenders who are “extremely dangerous as the result of mental
impairment, and who are likely to continue committing acts of sexual violence even after
they have been punished for such crimes.” (Hubbart v. Superior Court (1999) 19 Cal.4th
1138, 1143-1144.) We recognize, as did the Needham court, that “the clear and present
danger posed by sexually violent predators warrants such a scheme.” (Needham, supra,
82 Cal.App.5th at p. 120, rev. granted.) But at the same time, this is “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.”
(Ibid.) Therefore, the scheme “must be carefully implemented and applied only where
there is a high degree of certainty that it is warranted.” (Ibid.)
2We received defendant’s notice of appeal on February 1, 2022. The briefing schedule
was delayed due to defendant’s motion to augment record and the parties’ requests for
extension of time. The case was fully briefed on April 3, 2023.
4
The Legislature prescribed a detailed process for an SVP commitment that
“centers around multiple evaluations by independent experts.” (Needham, supra,
82 Cal.App.5th at p. 120, rev. granted.) This process expressly provides that a person
subject to an SVP petition may retain an expert to testify at trial (§ 6603, subd. (a)), but it
makes no mention of the district attorney’s right to do the same. (Needham, at pp. 125-
127.) This invokes the statutory principle 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 is not “applied invariably and without regard to other indicia of
legislative intent,” (ibid.) the carefully crafted SVPA demonstrates that the Legislature
intended to provide a “one-sided right” to retain a testifying expert. (Needham, at
p. 126.)
The Civil Discovery Act also does not give the People the right to retain a
testifying expert. An SVPA proceeding is civil in nature, to which the Civil Discovery
Act generally applies. (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980,
988.) But due to the unique nature of the SVPA proceedings, “[t]he Civil Discovery Act
must be applied in each SVPA proceeding on a case-by-case basis.” (Id. at p. 994.) The
SVPA scheme was drafted carefully to “ensure that an extraordinary deprivation of
liberty has as many safeguards as possible” and “revolves around the independent
experts.” (Needham, supra, 82 Cal.App.5th at p. 127, rev. granted.) These safeguards
include the procedures for retaining independent experts and specific assessment
protocols that the independent experts must follow in their evaluations. (§§ 6601, subds.
(c)-(g), 6603, subd. (d); Needham, at pp. 125-126.) Allowing the People to bypass these
safeguards by presenting testimony from their own experts who need to meet only the
basic requirements of the Civil Discovery Act would seriously undermine these
safeguards. (Needham, at p. 127.) Thus, the expert witness provisions of the Civil
Discovery Act do not apply in SVPA proceedings. (Needham, at p. 120.)
5
For these reasons, the trial court erred in allowing the People to use Dr. King as
their retained expert to testify at trial.
DISPOSITION
The order finding Sloan qualified as an SVP and committing him to the
Department of State Hospitals is reversed. The matter is remanded to the trial court to
issue an order excluding the testimony of the People’s privately retained expert and to
conduct a new trial.
MESIWALA, J.
We concur:
DUARTE, Acting P. J.
BOULWARE EURIE, J.
6