California Court of Appeals, First District, First Division
Superior Court Mendocino County No. SCUK-CRCR-95-20535 Hon.
Cindee Mayfield Judge
Xavier
Becerra, Attorney General, Gerald A. Engler and Jeffrey M.
Laurence, Assistant Attorneys General, Moona Nandi and
Bridget Billeter, Deputy Attorneys General, for Petitioner.
Jeffrey A. Aaron, Public Defender, Eric O. Rennert, Chief
Deputy Public Defender, Robert C. Smith, Deputy Public
Defender, for Real Party in Interest.
Sanchez, J.
Following
a probable cause hearing, respondent court dismissed the
People's petition for civil commitment of real party in
interest John Couthren as a sexually violent predator (SVP)
under the Sexually Violent Predators Act (Welf. & Inst.
Code, [1] § 6600 et seq. (SVP Act)) and
referred him for release on parole. At the hearing, the
People relied solely on documentary submissions-including the
SVP petition and attached expert psychological evaluations-to
establish probable cause. The trial court, after construing
relevant precedent and considering the Supreme Court's
decision in People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez), concluded that the psychological
evaluations were case-specific hearsay statements submitted
for their truth, rendering them inadequate to meet the
People's evidentiary burden at a probable cause hearing
once an objection had been lodged. In the absence of other
competent evidence, the trial court dismissed the petition.
In
these writ proceedings, the People seek extraordinary relief
from the trial court's dismissal order, arguing that
long-settled precedent permits the People to prove probable
cause through use of written expert evaluations, despite
their hearsay nature, and that Sanchez does not
undermine the legitimacy of this procedure. We disagree and
deny the petition.
I.
BACKGROUND
In
March 2018, the Mendocino County District Attorney filed a
petition to commit Couthren as an SVP under the SVP Act.
Specifically, the petition alleged that Couthren had been
convicted of felony oral copulation in 1973 (Pen. Code,
§ 288, subd. (a)) and felony kidnapping (id.,
§ 207, subd. (a)) in each of 1979 and 1999, all sexually
violent offences pursuant to section 6600, subdivision (b).
The petition further alleged that Couthren's most recent
term of incarceration was expiring and that he represented a
current danger to others. Attached to the petition was a
letter from a deputy director of the Department of State
Hospitals recommending Couthren's commitment as an SVP,
as well as four certified copies of expert evaluation reports
from psychologists who examined Couthren. Drs. Hartley,
Korpi, and Flinton all opined that Couthren met the statutory
criteria for designation as an SVP. Dr. Kokubun disagreed,
asserting that Couthren did not currently have a diagnosable
mental disorder that predisposed him to the commission of
criminal sexual acts.
A
probable cause hearing was set for November 26, 2018. In
September 2018, the People informed Couthren's attorney
that the probable cause hearing would be submitted on the
reports of the three concurring psychologists (Hartley,
Korpi, and Flinton), but that the report of the dissenting
psychologist (Kokubun) had been provided to the court for its
information. Although Couthren's counsel initially raised
no objection to this procedure, on the date set for hearing
he filed a motion in limine, seeking to exclude the expert
evaluations on hearsay grounds in light of the Supreme
Court's decision in Sanchez, supra, 63 Cal.4th
665. Neither the People nor Couthren presented any live
testimony at the probable cause hearing. Instead, the People
submitted the matter on the certified expert evaluations
attached to the petition and certain additional conviction
documentation regarding Couthren's prior offenses. After
argument regarding the impact of Sanchez on this
procedure, the court took the matter under submission.
On
December 10, 2018, the trial court issued its written ruling
with respect to the SVP petition. The court first reviewed
the records of conviction submitted by the People and those
portions of the expert evaluations discussing the details of
Couthren's qualifying convictions, which the court deemed
admissible pursuant to section 6600, subdivision
(a)(3).[2] It found that the People had
sufficiently established the first element under the SVP Act,
that Couthren had committed qualifying sexually violent
offenses against multiple victims. The court concluded,
however, that the remaining elements necessary to support the
designation of Couthren as an SVP could not be established
solely on the basis of hearsay written evaluations once
Couthren's counsel had objected to the admissibility of
these reports. Consequently, it found that the People had
“failed to present admissible evidence from which a
reasonable person could form a strong suspicion that Mr.
Couthren suffers from a mental disorder that creates a
likelihood that he would engage in sexually violent predatory
criminal conduct if released from prison.” It dismissed
the SVP petition and ordered Couthren referred for release on
parole.
The
People responded by filing a motion in the trial court
seeking a temporary stay of the dismissal order to allow for
review of the trial court's ruling. Thereafter, on
December 13, 2018, the People filed both the instant writ
petition in this court and a corresponding notice of appeal
in the superior court (People v. Couthren, A156088,
ordered deferred Apr. 4, 2019, pending writ proceeding). We
issued a temporary stay and, after receiving an informal
response and reply, issued an order to show cause that
requested additional briefing. Having received that briefing,
the matter is now before us for decision.[3]
II.
DISCUSSION
A.
Pertinent Provisions of the SVP Act
The
Legislature enacted the SVP Act in 1995. (Added by Stats.
1995, ch. 763, § 3; see § 6600 et seq.;
Howard, supra, 70 Cal.App.4th at p. 148.)
In doing so, it “ ‘expressed concern over 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. The
Legislature indicated that to the extent such persons are
currently incarcerated and readily identifiable, commitment
under the [SVP Act] is warranted immediately upon their
release from prison. The [SVP] Act provides treatment for
mental disorders from which they currently suffer and reduces
the threat of harm otherwise posed to the public. No punitive
purpose was intended.' ” (People v. Otto
(2001) 26 Cal.4th 200, 205 (Otto).) Civil commitment
under the SVP Act “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 v.
Superior Court (2002) 29 Cal.4th 228, 243
(Cooley))-that is, an individual who has been
convicted of a sexually violent offense against one or more
victims and who has a diagnosable mental disorder that makes
it likely that he or she will engage in sexually violent
criminal conduct of a predatory nature if released.
(Id. at p. 236; see § 6600, subd. (a)(1).)
“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 a petition may
be filed under the SVP Act, the inmate must first be screened
by the Department of Corrections and Rehabilitation,
generally at least six months before his or her scheduled
release date. (§ 6601, subd. (a).) This screening is
conducted in accordance with a structured screening
instrument and is “based on whether the person has
committed a sexually violent predatory offense and on a
review of the person's social, criminal, and
institutional history.” (Id., subd. (b).) If
the Department of Corrections and Rehabilitation determines
that the inmate is likely to be an SVP, it refers the matter
to the Department of State Hospitals for a “full
evaluation” regarding whether the inmate meets the
criteria in section 6600. (§ 6601, subd. (b).)
The
Department of State Hospitals then designates two
psychiatrists or psychologists (§ 6601, subd. (d)) to
examine the inmate in accordance with a standardized
assessment protocol which requires an “assessment of
diagnosable mental disorders, as well as various factors
known to be associated with the risk of reoffense among sex
offenders.” (§ 6601, subd. (c).) If only one
evaluator concludes that the inmate meets the criteria for
designation as an SVP (as occurred in this case), a further
examination of the inmate must be conducted by two
independent professionals. (Id., subd. (e).) If both
independent professionals concur that the inmate meets the
criteria for commitment as an SVP, the director of the
Department of State Hospitals forwards a request that a
commitment petition be filed to the county in which the
inmate was convicted of the offense for which he or she is
currently incarcerated. (Id., subds. (f), (h)(1)
& (i).) Pursuant to statute, “[c]opies of the
evaluation reports and any other supporting documents”
shall be made available to the attorney designated by this
county (id., subd. (h)(1)), who, if he or she
concurs with the recommendation, shall file a commitment
petition in superior court (id., subd. (i)). Given
this statutory structure and its multiple stages of expert
evaluation, our Supreme Court has recognized that the
opinions of the mental health professionals designated to
examine and evaluate the alleged SVP are “key” to
the ultimate determination of whether someone qualifies for
commitment under the SVP Act. (People v. Superior Court
(Smith) (2018) 6 Cal.5th 457, 461; see People v.
McKee (2010) 47 Cal.4th 1172, 1192 [“expert
testimony is critical in an SVP commitment proceeding, in
which the primary issue is not, as in a criminal trial,
whether the individual committed certain acts, but rather
involves a prediction about the individual's future
behavior”].)
Once an
SVP petition has been filed, “[a] judge of the superior
court shall review the petition and shall determine 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).) The probable cause hearing is not a
determination of the merits of the petition. Rather-as in
preliminary proceedings under the criminal law-the sole
purpose of the probable cause hearing is to test the
sufficiency of the evidence supporting the petition.
(Cooley, supra, 29 Cal.4th at p. 247.)
Thus, the trial court at a probable cause hearing under the
SVP Act must determine “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.” (Cooley, at p.
236; see id., pp. 251-252.) A failure to find
probable cause leads to dismissal of the petition. (§
6602, subd. (a).) On the other hand, a probable cause
determination is followed by a trial on the merits of the SVP
petition. (Ibid.)
Either
party may demand a jury trial in an SVP commitment
proceeding. (§ 6603, subds. (a) & (b).) The SVP
defendant has the right to the assistance of counsel, to
retain experts, and to access relevant psychological and
medical reports. (Id., subds. (a) & (j).) The
People must prove beyond a reasonable doubt that each of the
statutory elements under the SVP Act have been met (§
6604), that is, the defendant has been convicted of a
qualifying sexually violent offense and suffers from a
diagnosable mental disorder that makes it likely he or she
will engage in sexually violent criminal conduct of a
predatory nature if released from prison. (See
Cooley, supra, 29 Cal.4th at p. 236.) A
jury verdict must be unanimous. ...