People v. Superior Court (John Couthren)

          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. ...