Walker v. Superior Court

Filed 6/30/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JEFFREY WALKER,
Petitioner,
v.
THE SUPERIOR COURT OF THE A159563
CITY AND COUNTY OF SAN
FRANCISCO, (City & County of San Francisco
Super. Ct. No. 2219428)
Respondent;
THE PEOPLE,
Real Party in Interest.
Jeffrey Walker petitions for a writ of mandate that would direct the
superior court to reverse its finding of probable cause to commit Walker as a
sexually violent predator (SVP). Walker argues the superior court’s finding
was based on inadmissible hearsay contained in two statutorily mandated
psychological evaluations. We hold that the SVP statute, which requires
these psychological evaluations as the basis for an SVP petition, also requires
the court to consider the evaluations in deciding whether there is probable
cause to proceed to an SVP trial. In reviewing the evaluations, the court may
consider hearsay contained within them. Thus, we deny Walker’s writ
petition.
1
BACKGROUND
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 Pen. Code, § 261.5.) A second offense was also
an alleged rape, in 2005. A jury acquitted Walker of this charge, though it
convicted him of pandering the same victim. The experts obtained details of
the conduct underlying these two alleged offenses from a probation report
and a police inspector’s affidavit.
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
2
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 October 2019, Walker filed another motion to dismiss, this time
citing Bennett v. Superior Court (2019) 39 Cal.App.5th 862 (Bennett), which
held, relying on Sanchez, that case-specific facts conveyed by two
psychologists in their evaluations and testimony were inadmissible at an SVP
probable cause hearing. (Id. at p. 880.) The trial court denied Walker’s
motion. Walker challenged the ruling in a petition for writ of mandate filed
with this court (Walker v. Superior Court (Dec. 2, 2019, A158971) [nonpub.
opn.]), which a different panel of this court summarily denied.
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
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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) (Welf. & Inst. Code,
§ 6600 et seq.)1 “allows for the involuntary commitment of certain convicted
sex offenders, whose diagnosed mental disorders make them likely to
reoffend if released at the end of their prison terms.” (Cooley v. Superior
Court (2002) 29 Cal.4th 228, 235 (Cooley).) In order to commit a person as an
SVP, the People must show that the person has been convicted of one or more
of the sexually violent offenses listed in section 6600, subdivision (b); the
person has a diagnosed mental disorder; and the mental disorder “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).) “The civil commitment can only commence if, after a trial,
either a judge or a unanimous jury finds beyond a reasonable doubt that the
person is an SVP.” (Cooley, supra, 29 Cal.4th at p. 243.)
1 All undesignated statutory references are to this code.
4
“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. (§ 6601, subd. (a).) “If as
a result of this screening it is determined that the person is likely to be a
sexually violent predator, the [CDCR] shall refer the person to the State
Department of State Hospitals for a full evaluation of whether the person
meets the criteria in Section 6600.” (§ 6601, subd. (b).)
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.” (§ 6601, subd. (c).) The offender
is first evaluated by two mental health professionals designated by the
Director of State Hospitals. (§ 6601, subds. (c), (d).) If both evaluators concur
“that the person has a diagnosed mental disorder so that he or she is likely to
engage in acts of sexual violence without appropriate treatment and custody,”
the Director of State Hospitals forwards a request for a petition for civil
commitment to the county in which the inmate was convicted of the offense
for which he is currently incarcerated. (§ 6601, subd. (d).) If only one
5
professional concludes the offender meets the criteria stated in section 6601,
subdivision (d), then the Director of State Hospitals arranges for further
examination by two independent mental health professionals. (§ 6601,
subd. (e).) Both of these mental health professionals must agree the inmate
meets the criteria for commitment as an SVP in order for the process to
proceed. (Ibid.)
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. (§ 6601, subds. (f), (h)(1),
(i).) “Copies of the evaluation reports and any other supporting documents
shall be made available to the attorney . . . who may file a petition for
commitment.” (§ 6601, subd. (h)(1).) If the county prosecutors agree with the
recommendation, “a petition for commitment shall be filed in the superior
court.” (§ 6601, subd. (h)(1).)
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.” (§ 6601.5.) If the judge
determines the petition contains sufficient facts to establish probable cause,
“[t]he probable cause hearing provided for in Section 6602 shall commence
within 10 calendar days of the date of the order issued by the judge.” (Ibid.)
Whether or not preceded by the paper review of section 6601.5, a
person alleged to be an SVP is entitled to a probable cause hearing. (§ 6602,
subd. (a) (§ 6602(a)).) At the probable cause hearing, the judge “shall review
the petition and shall determine whether there is probable cause to believe
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that the individual named in the petition is likely to engage in sexually
violent predatory criminal behavior upon his or her release.” (Ibid.) The SVP
defendant “shall be entitled to assistance of counsel at the probable cause
hearing.” (Ibid.) If at the conclusion of the hearing “the judge determines
there is not probable cause, he or she shall dismiss the petition and any
person subject to parole shall report to parole. If the judge determines that
there is probable cause, the judge shall order that the person remain in
custody in a secure facility until a trial is completed.” (Ibid.)
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.
(§ 6604.) “If the court or jury determines that the person is a sexually violent
predator, the person shall be committed for an indeterminate term to the
custody of the State Department of State Hospitals for appropriate treatment
and confinement in a secure facility.” (Ibid.) Once a person has been found
to be an SVP, the Department of State Hospitals must conduct annual
mental health examinations, reporting to the court whether the person
continues to meet the definition of an SVP. (§ 6604.9, subd. (a).) The report
to the court must recommend whether unconditional discharge or conditional
release to a less restrictive alternative (that would adequately protect the
community) is in the person’s best interest. (§ 6604.9, subd. (b).) If the
Director of State Hospitals does not recommend either unconditional
discharge or conditional release, the SVP may still petition for conditional
release. (§ 6608, subd. (a).)
B. Precedent Addressing the Probable Cause Hearing
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
7
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.” (§ 6602(a).) However, the specific procedural requirements of a
probable cause hearing have been delineated in a series of court of appeal
and Supreme Court cases.
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 section
6602 required “a hearing,” meaning an SVP defendant should be “able to
effectively challenge the facts on which the petition was filed, i.e., the
underlying attached experts’ evaluations.” (Id. at p. 1468.) Although section
6602 does not specify “procedural requirements, other than the right to be
represented by counsel and to have a hearing,” the court concluded “common
sense and fairness dictate” a defendant be allowed to present both oral and
written evidence. (Id. at p. 1469.) Elaborating, the court explained: “While
we believe the prosecutor may present the opinions of the experts through the
hearsay reports of such persons, the prospective SVP should have the ability
to challenge the accuracy of such reports by calling such experts for cross-
examination. Further, the prospective SVP should have the ability to call
such other witness who, upon a proper showing, the superior court judge
finds to have relevant evidence.” (Id. at pp. 1469–1470.)
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 section 6605, a parallel provision
8
of the SVP Act concerning unconditional release of a person previously
committed as an SVP. The Court commented that a section 6605 show cause
hearing “resembles” a section 6602 probable cause hearing, as both hearings
are pretrial in nature and afford a defendant the right to be present and to be
represented by an attorney. (Id. at p. 899.) Reasoning by analogy from
Parker, the court concluded section 6605 “should be construed to grant a
defendant the same rights to present evidence and cross-examine witnesses
as he has under section 6602.” (Id. at p. 900.)
One year after Cheek, the Supreme Court directly addressed the “scope
and substance” of a probable cause hearing in Cooley, supra, 29 Cal.4th at
p. 235. Cooley held that the purpose of a probable cause hearing is to inform
the trial court’s decision as to “whether a reasonable person could entertain a
strong suspicion that the petitioner has satisfied all the elements required for
a civil commitment as an SVP, specifically, whether (1) the offender has been
convicted of a qualifying sexually violent offense . . .2; (2) the offender has a
diagnosable mental disorder; (3) the disorder makes it likely he or she will
engage in sexually violent criminal conduct if released; and (4) this sexually
violent criminal conduct will be predatory in nature.” (Id. at p. 236.) The
Court reached this conclusion even though section 6602(a) describes the
probable cause determination in different, and simpler, terms, requiring only
probable cause to believe a person is “ ‘likely to engage in sexually violent
predatory criminal behavior’ ” upon release. (Cooley, at p. 246.) The court
interpreted section 6602(a) based on not only its language, but also the
“purpose of the probable cause hearing within the structure of the SVP [Act],”
2When Cooley was decided, the SVP Act required proof of a qualifying
sexually violent offense against at least two victims, but the SVP act was
amended by voter initiative in 2006 to drop the requirement for a second
victim. (See Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006).)
9
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 section 6602(a). (Cooley,
supra, 29 Cal.4th at p. 254.) The Court concluded “ ‘likely’ ” meant the same
thing in defining probable cause (§ 6602(a)) as it did in explaining what the
two concurring psychological evaluations must find to initiate SVP
commitment proceedings in the first place (§ 6601, subd. (d)). The Court
reasoned, “the determination at the probable cause hearing is based on the
petition filed by designated counsel, which is, in turn, necessarily based on
the two concurring psychological evaluations required by section 6601.”
(Cooley, at pp. 255–256.)
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 allowed to ‘challenge the accuracy’ of the evaluations by experts who
found that he or she met the criteria for an SVP. (Id. at p. 1470.)” (Ibid.,
italics added.) For years, courts of appeal addressing other aspects of SVP
proceedings have recited the Parker/Cooley rule as settled law. (E.g., People
v. Hayes (2006) 137 Cal.App.4th 34, 43; People v. Superior Court (Preciado)
10
(2001) 87 Cal.App.4th 1122, 1130, fn. 2; People v. Superior Court (Howard)
(1999) 70 Cal.App.4th 136, 154.)
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 Evid. Code, § 300.) Finding no such
exception for probable cause hearings, Kirk applied the certification
requirements of Evidence Code sections 1530 and 1531.
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
11
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
probable cause hearings, as well. (Bennett, supra, 39 Cal.App.5th at pp. 878,
882.) Consistent with settled law, the court rejected the People’s argument
that the formal rules of evidence, including the hearsay rule, did not apply at
a probable cause hearing. (Id. at p. 882.) Charting a new course, the court
then concluded the information about alleged rapes was case-specific hearsay
inadmissible under Sanchez, leaving the trial court’s finding of probable
cause unsupported by substantial evidence, and requiring the SVP petition to
be dismissed. (Bennett, at pp. 881, 885.)
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 section 6602(a)’s directive for a trial court to “ ‘review the
petition’ ” establishes a hearsay exception for expert evaluations at a
probable cause hearing. (Couthren, at pp. 1014–1015.) Courthren also
endorsed Bennett’s conclusion that the evaluations were subject to Sanchez’s
rule against case-specific hearsay not supported by independent evidence or
covered by a hearsay exception. (Couthren, at pp. 1019–1021.)
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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
(Evid. Code, § 1200) may be found in statutes outside the Evidence Code, and
in judicial decisions. (In re Malinda S. (1990) 51 Cal.3d 368 (Malinda S.),
partially superseded by statute as explained in In re I.C. (2018) 4 Cal.5th
869, 884–885.) We conclude that when the SVP Act directs the superior court
to “review the petition” in determining probable cause (§ 6602(a)), the act
establishes just such an exception to the hearsay rule. This exception
allows—indeed requires—the trial court to consider the expert evaluations on
which the petition necessarily depends, including case-specific facts obtained
from hearsay sources described within the evaluations. Because these
evaluations and their contents are “covered by a hearsay exception” specific
to SVP probable cause hearings, they are not subject to exclusion under
Sanchez. (Sanchez, supra, 63 Cal.4th at p. 686.)
The starting point for our analysis is the language of section 6602(a)
governing SVP probable cause hearings. Section 6602(a) states that a
13
superior court judge “shall review the petition” to determine whether there is
probable cause to believe the defendant “is likely to engage in sexually violent
predatory criminal behavior upon his or her release.” (§ 6602(a).) The first
question we must answer is, what does “the petition” include? In some cases,
the statutorily required evaluation reports are attached to the petition (see
Couthren, supra, 41 Cal.App.5th at p. 1006); in some they are not. Does the
happenstance of a prosecutor’s choice in preparing papers for filing determine
whether the trial judge should review the expert evaluations? Or must a
trial judge review the evaluations at a probable cause hearing regardless of
whether they were attached to the petition or separately submitted? To
answer these questions, we interpret section 6602(a) “in light of the language
used and the purpose of the probable cause hearing within the structure of
the [SVP Act].” (Cooley, supra, 29 Cal.4th at p. 247.) But we need not
belabor the point, as even Walker agrees the reports may be introduced at a
probable cause hearing, except to the extent they contain case-specific double
hearsay.
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. (§ 6601, subds. (d), (e).)
Only once this pair of evaluators has agreed may the Department of State
Hospitals forward a request for a petition to be filed (§ 6601, subds. (f), (h)(1),
(i)), and “[c]opies of the evaluation reports” must accompany the request.
(§ 6601, subd. (h)(1).) As the Supreme Court in Cooley observed, “the
determination at the probable cause hearing is based on the petition . . .,
which is, in turn, necessarily based on the two concurring psychological
14
evaluations required by section 6601.” (Cooley, supra, 29 Cal.4th at p. 255,
italics added.) Because of this necessary connection between the evaluations
and the petition, one can “infer[] the report’s facts were impliedly intended to
be pleaded by averments or proper attachment to the petition.” (Parker,
supra, 60 Cal.App.4th at p. 1468, fn. 15.)
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
cover. It follows that because the evaluations are properly incorporated into
a petition, section 6602’s directive for a trial court to “review the petition” at
a probable cause hearing necessarily requires the court to review the
evaluations, as well. This is not an open-ended invitation for prosecutors to
attach just any document to the petition so that the trial court will consider it
in determining probable cause, but rather a rule that recognizes the unique
role of the statutorily mandated psychological evaluations in initiating an
SVP action.
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
section 6602(a) contains no such carve out. It requires the trial judge to
15
determine probable cause based on a review of “the petition,” which we
understand to include the evaluations, not just some portion of the petition
and evaluations whose admissibility is independently established. But even
if we conclude the language of section 6602(a) is ambiguous on this point, our
analysis of the SVP Act’s structure and purpose (Cooley, supra, 29 Cal.4th at
p. 247) confirms that section 6602(a) excepts the evaluations and any
information contained within them from the hearsay rule, allowing the trial
judge to consider the reports in their entirety.
We begin, once again, with section 6601, the provision requiring two
concurring psychological evaluations prior to the filing of an SVP petition. In
section 6601, the Legislature prescribes a “standardized assessment protocol”
for evaluators, spelling out a number of requirements: “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.” (§ 6601, subd. (c).) Much of this
broad array of historical information will be found in hearsay sources.
Indeed, the evaluations in this case reveal that both evaluators relied on a
variety of hearsay sources, including court records, probation reports,
Walker’s record of arrest and prosecutions, and Walker’s prison central file
recounting incidents during his incarceration. The Legislature clearly
intended for evaluators to rely on hearsay sources in their evaluations, as the
alternative would be to require that evaluators reinvestigate a lifetime worth
of historical information comprising the person’s “criminal and psychosexual
history,” a near-impossible task for which a psychologist is ill-suited. And
given that the evaluations necessarily contain considerable amounts of case-
16
specific hearsay, the Legislature must have intended the trial judge to review
this hearsay in reviewing the reports. Were this not the case, most of the
historical information included in the evaluations at the Legislature’s behest
would be subject to exclusion.
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, 4 Cal.5th 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.)
17
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 report of investigation
prior to” the initial conservatorship hearing. (§ 5354, subd. (a).) At the
initial hearing, the court “may receive the report in evidence and may read
and consider the contents thereof in rendering its judgment.” (Ibid.) But if
the proposed conservatee demands a subsequent jury trial, Manton held that
the investigator’s report is not admissible at trial. (Manton, at p. 652.) The
court explained: “If the report were admissible at both the initial hearing
and a subsequent court trial, the two proceedings would be essentially
identical in terms of the acceptable range of evidence to be considered. We
believe that the better interpretation is one avoiding such redundancy in the
absence of clear legislative intent to the contrary.” (Id. at p. 651.)
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.)
18
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. (§ 6602(a).) The
conservatorship and SVP statutes thus similarly differentiate the evidence
appropriate to a probable cause or initial hearing from the evidence
admissible in the subsequent trial. As in Manton, our construction of the
SVP Act recognizes a hearsay exception that applies at the initial probable
cause hearing but not at trial, while Walker’s reading of the SVP Act
contemplates two proceedings that “would be essentially identical in terms of
the acceptable range of evidence to be considered.” (Manton, supra, 39 Cal.3d
at p. 651.) Like the Manton court, we believe the “better interpretation is one
avoiding such redundancy in the absence of clear legislative intent to the
contrary,” which we have not found. (Ibid.) We find it highly unlikely the
Legislature intended for a prosecutor to procure independent evidence for the
vast amount of case-specific hearsay information contained in a psychological
evaluation—including criminal history, familial and relationship history,
medical information, and a defendant’s prison disciplinary record—at a
probable cause hearing, and then again at a 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 (Pen. Code, § 1170, subd. (b); People v. Arbuckle (1978)
22 Cal.3d 749, 754), parole and probation revocation proceedings (People v.
Maki (1985) 39 Cal.3d 707, 709; People v. O’Connell (2003) 107 Cal.App.4th
1062, 1066–1067); restitution hearings (People v. Gemelli (2008) 161
Cal.App.4th 1539, 1543); and disposition hearings in juvenile delinquency
cases (In re Vincent G. (2008) 162 Cal.App.4th 238, 244). While these
19
proceedings differ from SVP probable cause hearings in several respects, they
share the common theme that hearsay evidence may be presented in a
variety of circumstances consistent with legislative mandates and a party’s
due process rights.
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
20
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
discussion regarding the competency of the multiple hearsay necessarily
contained within such expert evaluations.” (Couthren, supra, 41 Cal.App.5th
at p. 1017). Couthren also downplays Cooley’s citation to Parker, as
“describing matters which were not disputed by the parties and therefore not
analyzed by the court.” (Couthren, at p. 1017.) We do not believe that Parker
and Cooley are so easily dismissed. The court in Parker was squarely
confronted with a hearsay challenge to the evaluations, as the defendant’s
primary contention was that the trial court’s “ ‘paper review’ ” procedure—
where it considered only the evaluations at the probable cause hearing—
impermissibly “relied upon inadmissible hearsay.” (Parker, supra, 60
Cal.App.4th at p. 1460.) And Cooley, although its citation to Parker is dicta,
is a case devoted to “the scope and substance of the probable cause
determination required by section 6602, subdivision (a).” (Cooley, supra, 29
21
Cal.4th at p. 235.) We do not believe the Supreme Court would have made
such germane pronouncements if it did not mean what it said.
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 Pen. Code, § 872, subd. (b)) does not support the
admission of hearsay in evaluators’ reports at an SVP probable cause
hearing. (Bennett, supra, 39 Cal.App.5th at p. 884, fn. 6.; Couthren, supra, 41
Cal.App.5th at pp. 1017–1018.) This is true but, we think, beside the point.
We agree that the two hearings share a similar purpose—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.) But it is apparent from the statutes governing the two hearings that
they fulfill this purpose in different ways. For SVP probable cause hearings,
section 6602 directs a trial court to “review the petition,” but makes no
mention of the prosecution’s obligation to examine witnesses or present other
types of evidence. (See § 6602(a).) The statues governing criminal
preliminary hearings, by contrast, contemplate that the prosecution will
present its case by examining witnesses in the presence of the defendant.
(See Pen. Code, § 865.) The hearsay exception added to the Penal Code by
Proposition 115 (see Pen. Code, § 872, subd. (b)) allows prosecutors to spare
crime victims and witnesses from testifying at a preliminary hearing and
serves as a powerful exception to the hearsay rule in the context of a criminal
prosecution. The Parker/Cooley rule has an analogous, but not identical,
effect in the context of an SVP probable cause hearing.3
3Accepting that Proposition 115 does not apply at an SVP probable
cause hearing, we note that the rule of Bennett and Couthren results in an
22
Finally, we are not persuaded by Walker’s argument that it would be
inappropriate to construe section 6602(a) as excepting expert evaluations
from the hearsay rule at a probable cause hearing in light of a separate, more
explicit hearsay exception in section 6600, subdivision (a)(3) (§ 6600(a)(3)).
This provision of the SVP Act allows the prosecution to rely on documentary
evidence to prove the existence of, and specific facts underlying, any
convictions for a sexually violent offense that form the predicate for the SVP
petition. (See § 6600(a)(3) [existence and details of predicate offenses may be
shown with, inter alia, “preliminary hearing transcripts, trial transcripts,
probation and sentencing reports, and evaluations by the State Department
of State Hospitals”]; accord Bennett, supra, 39 Cal.App.5th at p. 880;
Couthren, supra, 41 Cal.App.5th at p. 1016.) Section 6600(a)(3) functions as
a hearsay exception that not only applies at SVP probable cause hearings,
but also extends to SVP trials. It is “intended to relieve victims of the burden
and trauma of testifying about the details of the crimes underlying the prior
convictions,” as well as to address the concern “that victims and other
percipient witnesses would no longer be available.” (People v. Otto (2001) 26
Cal.4th 200, 208 (Otto).)
SVP probable cause hearing that is more cumbersome for the court and
disruptive for victims and witnesses than is a Proposition 115 preliminary
hearing in a felony prosecution. The Bennett and Couthren rule requires
victims and witnesses (except certain crime victims excepted under
§ 6600(a)(3), discussed infra) to testify at a probable cause hearing and at
trial, perhaps several times over if an SVP later contests his or her right to
unconditional release. (See Cheek, supra, 25 Cal.4th at p. 900.) If, to proceed
more efficiently and spare victims and witnesses from testifying repeatedly,
the prosecutor elicits from the expert at the probable cause hearing his or her
opinion but not the case-specific hearsay on which it is based (see Sanchez,
supra, 63 Cal.4th 665 at p. 685), the trial court will have less information at
its disposal than the Legislature intended in directing the trial court to
“review the petition” to determine probable cause. (§ 6602(a).)
23
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 section 6602(a) creates an exception to
the hearsay rule that permits a trial court at an SVP probable cause hearing
to accept and consider the statutorily required expert evaluations, including
case-specific facts obtained from hearsay sources contained within the
evaluations. We respectfully disagree with Bennett’s and Couthren’s holdings
to the contrary.4 Because the evaluations are covered by a hearsay exception,
4 Walker suggests that since the Supreme Court denied review in
Bennett, the court concluded that Bennett was correctly decided. He also asks
that we take judicial notice of the petition for review filed with the Supreme
Court in Bennett and the Court’s order denying review. We grant Walker’s
request for judicial notice, but reject his argument. “[A] denial of a petition
for review is not an expression of opinion of the Supreme Court on the merits
of the case.” (Camper v. Workers’ Comp. Appeals Bd. (1992) 3 Cal.4th 679,
689, fn. 8.)
24
the trial court did not err in overruling Walker’s objection to the evaluations
and relying on them in assessing probable cause.
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
(Evid. Code, § 720) and that the evaluations satisfy other admissibility
requirements. (See In re Kirk, supra, 74 Cal.App.4th at pp. 1076–1077.) As
Cooley and Parker teach, an SVP defendant at a probable cause hearing may
both cross-examine the professionals who prepared the evaluations and call
witnesses to provide relevant testimony. Where an evaluation relies on
hearsay evidence that is unreliable, the SVP defendant can expose that
vulnerability at the probable cause hearing. And where the prosecution is
unable to produce at trial necessary witnesses on whose hearsay statements
the evaluators rely, that problem, too, will be fully exposed at the appropriate
time. The hearsay exception contained in section 6602(a) is limited to
probable cause hearings, and will not relieve the People of their obligation to
call witnesses at an SVP trial. (See People v. Yates, supra, 25 Cal.App.5th at
p. 476; People v. Roa, supra, 11 Cal.App.5th at pp. 452–453.)
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.
25
_________________________
TUCHER, J.
WE CONCUR:
_________________________
STREETER, Acting P. J.
_________________________
BROWN, J.
Walker v. Superior Court (A159563)
26
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
27