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California Supreme Court Announces Hearsay Regarding Nonpredicate Offenses in Psychological Evaluation Reports Inadmissible in SVP Probable Cause Hearings

by Douglas Ankney

The Supreme Court of California held that Welfare and Institution Code § 6602, subd. (a) does not create an exception permitting hearsay regarding nonpredicate offenses to be introduced via psychological evaluation reports. (All statutory references are to the Welfare and Institution Code.)

In June 2015, the District Attorney for the City and County of San Francisco filed a petition to commit Jeffrey Walker as a sexually violent predator (“SVP”) under the Sexually Violent Predator Act, § 6600 et seq. (“SVPA”). Prior to the filing of the SVPA petition, the Director of the State Department of State Hospitals (“DSH”) appointed psychologists Thomas MacSpeiden and Roger Karlsson to evaluate Walker.

In their psychological evaluation reports, the psychologists discussed two rape allegations against Walker that did not result in convictions for a qualifying predicate offense under the SVPA. A rape charged in 1989 was discussed in a probation officer’s report and a rape charged in 2005 was described in a police officer’s affidavit seeking an arrest warrant. The contents of the probation officer’s report and the police officer’s affidavit concerning these two nonpredicate convictions informed the psychologists’ determination that Walker was an SVP. (Walker was convicted of sex with a minor in the 1989 rape allegation, and it was discovered that the girl who made the 2005 allegation had lied. Neither qualified as a predicate offense for SVPA commitment purposes.)

At the probable cause hearing on the SVPA petition, the prosecutor moved to admit the psychologists’ evaluation reports into evidence. Walker objected, arguing the reports contained inadmissible hearsay. The trial court overruled the objections and admitted the reports. At the conclusion of the hearing, the trial court found probable cause existed to commit Walker as an SVP. Walker ultimately filed a petition for writ of mandate in the Court of Appeal (“COA”) to have the SVPA petition dismissed. Walker relied on Bennett v. Superior Court, 39 Cal.App.5th 862 (2019), and People v. Superior Court (Couthren), 41 Cal.App.5th 1001 (2019)—both of which held that hearsay in psychological evaluations regarding nonpredicate offenses is inadmissible at probable cause hearings. The COA stated it disagreed with Bennett and Couthren and denied Walker’s petition. Walker v. Superior Court, 51 Cal.App.5th 682 (2020). Because the COA’s decision created a split, the California Supreme Court granted review.

The Court observed “[t]he SVPA provides for involuntary civil commitment of certain sex offenders before the end of their prison or parole revocation terms.” § 6601. The SVPA targets a select 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, 969 P.2d 584 (Cal. 1999). To the extent such persons are currently incarcerated and readily identifiable, commitment under the SVPA is warranted. Id. SVPs are committed for an indeterminate term to the custody of the DSH for appropriate treatment and confinement in a secure facility. § 6604.

Six months prior to a prisoner’s release, the Department of Correction and Rehabilitation refers a potential SVP to the DSH for an evaluation. § 6601, subd. (a) and (b). DSH designates two mental health professionals to evaluate the prisoner to determine the risk of reoffending. § 6601, subd. (c). If the mental health professionals agree that the prisoner qualifies as an SVP, the DSH director forwards a request for commitment petition, along with copies of the psychological evaluation reports, to the county in which the prisoner was last convicted. § 6601, subd. (d). If that county’s designated counsel agrees, the petition is filed in superior court. § 6601, subd. (i).

The potential SVP is then entitled to a probable cause hearing for determination of “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.” § 6602, subd. (a). At the hearing, the parties must comply with the rules of evidence. In re Kirk, 74 Cal.App.4th 1066 (1999). If probable cause to believe the prisoner is an SVP is found, a trial is scheduled. § 6602, subd. (a).

The Court observed that although the evaluation reports are often attached to the SVPA petitions, the statutory provisions governing the evaluations do not dictate how the county’s counsel should present the report to the court or even require the attorney to do so. And even when the evaluation reports are incorporated into the SVPA petitions, nothing in § 6602, subd. (a) grants the court reviewing the petitions the authority to admit and consider any hearsay evidence the experts include. Couthren.

Finally, the Court found the hearsay exception of § 6600, subd. (a)(3) highly persuasive in concluding that hearsay is not permitted under § 6602, subd. (a). Section 6600, subd. (a)(3) permits hearsay when establishing the prisoner’s prior predicate SVPA offenses. The Court explained that the purpose of the hearsay exception is to keep victims from having to testify at the hearings about their victimization. The Legislature specified the predicate conviction or convictions could be established via “documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the [DSH].” § 6600, subd. (a)(3). But the Legislature carefully crafted the scope of this hearsay exception to one category of proof: establishing predicate convictions, the Court stated. Bennett. Any hearsay offered to prove the details of nonpredicate convictions—like Walker’s 1989 and 2005 convictions—would be inadmissible under the hearsay exception of § 6600, subd. (a)(3). Couthren. Had the Legislature intended a hearsay exception for nonpredicate convictions, it certainly knew how to craft one, the Court stated.

The Court noted: “When the Legislature enacted the SVPA, it provided safeguards to ensure that only a select group of dangerous sex offenders may be involuntarily committed—safeguards reflecting the Legislature’s judgment with regard to balancing the risks to community safety and the liberty interests of individuals facing the prospect of long term confinement. The probable cause hearing serves as a critical safeguard in this scheme. [§ 6602, subd. (a)] provides for an adversarial hearing and clearly establishes that the superior court must review the petition to determine if the state has met its burden to proceed to trial. What it does not provide, however, is a hearsay exception allowing the prosecution to introduce hearsay regarding nonpredicate offenses via expert evaluations.”

After having concluded that there is no hearsay exception for hearsay in expert evaluations, the Court ruled that the “introduction of this hearsay prejudicially affected Walker’s ability to challenge the basis of the state’s petition and sufficient of the evidence to proceed to trial.”
Accordingly, the Court reversed and remanded with instruction to the COA to remand to the superior court for a new probable cause hearing consistent with the Court’s opinion. See: Walker v. Superior Court, 494 P.3d 2 (Cal. 2021). 

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