Weighing in on an appellate split currently before the California Supreme Court, the Fourth District Court of Appeal held Tuesday that courts can consider hearsay in experts’ evaluations when making a probable cause determination under the Sexually Violent Predators Act (SVPA).

The SVPA 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).

For the offender to be committed under the Act, a trier of fact must find beyond a reasonable doubt that the offender is a sexually violent predator, which the SVPA defines as “a person who has been convicted of a sexually violent offense against 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” (Welf. & Inst. Code, § 6600, subd. (a)(1)).

In 2020, the El Centro District Attorney filed a petition to commit the offender in this case under the SVPA, supported by two experts’ psychological evaluations of the offender. The court held a probable cause hearing under section 6602 of the Act, at which no witnesses were called.

Relying on People v. Sanchez (2016) 63 Cal.4th 665, the offender objected to the expert evaluations submitted at the hearing on the grounds that they presented facts based on case-specific hearsay. The court sustained the objection, but then found that there was sufficient admissible evidence to support a finding that the petitioner could be committed under the SVPA.

California appeals courts are split on whether a sexually violent predator designation can rest on written psychological evaluations. For example, the First District held in a 2019 case similar to this one that because such evaluations contain case-specific hearsay, they don’t overcome the hearsay bar at SVPA probable cause hearings. The California Supreme Court recently agreed to review the issue. (Walker v. Superior Court (2020) 51 Cal.App.5th 682 , review granted Sept. 9, 2020, S263588.)

In this case, the Fourth District held that section 6602 is an implied exception to the hearsay rule, finding support for its holding in Walker. The court held that section 6602’s requirement that a trial court review the petition and supporting evaluations in making a probable cause finding “is indicative of legislative intent that this statute, when viewed in light of the SVPA as a whole,” creates such an exception.

Requiring independent proof of historical information from the evaluations’ “myriad sources,” the court held, “would place an enormous burden on experts in performing their standardized assessment protocol of a person” as well as on the prosecution “in having to proffer competent evidence at what amounts to an interim hearing before an SVP trial can be set.”

The court further concluded that Sanchez is inapplicable at a section 6602 probable cause hearing. It also emphasized that prosecutors may not satisfy their evidentiary burden at an SVP trial by relying on hearsay, “unless independently proven by competent evidence or covered by a hearsay exception.”

Counsel for the parties could not be immediately reached for comment on the decision.

The case is In re Morse, case number D077483, in the Fourth District Court of Appeal for the state of California.

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