by Douglas Ankney

The Court of Appeal of California, Fourth Appellate District, held that the Sexually Violent Predator Act, Welf. & Inst. Code § 6600 et seq. (“SVPA”), does not authorize the People to retain a private expert witness to testify at trial in connection with an SVPA petition. (Note: All further statutory references are to the Welf. & Inst. Code.)

In 2016, Drs. Coles and Musacco evaluated Nicholas Needham as instructed by the director of the State Department of State Hospitals (“DSH”) and opined that he qualified as a sexually violent predator (“SVP”). The district attorney filed a petition to have Needham committed as an SVP.

But in 2018, Coles changed his opinion, finding Needham no longer met the statutory criteria to be classified as an SVP. Thereafter, Drs. Korpi and Yanofsky evaluated Needham. Korpi opined that Needham did not meet the criteria for commitment, but Yanofsky reached the opposite conclusion. At an ensuing probable cause hearing, all four evaluators testified, and the judge found probable cause to believe Needham was likely to engage in sexually violent predatory criminal behavior upon release. But after the hearing, Yanofsky changed his opinion and determined Needham no longer met the statutory criteria of an SVP.

In 2019, the People informed the trial court they had privately obtained Dr. King as an expert witness. Needham moved to have King excluded from testifying as an expert witness at trial, arguing that the SVPA doesn’t permit the People to privately retain an expert witness at trial. The trial court ruled that the People may retain their own expert to testify in SVPA commitment proceedings and denied Needham’s motion.

Needham subsequently filed a petition for writ of mandate, requesting the Court of Appeal to order that King neither be permitted to perform a supplemental evaluation of Needham nor testify at trial. The Court of Appeal denied Needham’s petition. The California Supreme Court then ordered the Court of Appeal to vacate its denial and to issue an order directing the trial court to show why the requested relief should not be granted.

The case ripened for disposition, and the Court of Appeal observed “if the Secretary of the Department of Corrections and Rehabilitation determines an inmate might qualify as an SVP, the inmate is referred for an initial screening based on his or her social, criminal, and institutional history and whether he or she committed a sexually violent predatory offense.” § 6601(a)(1) and (b). If the screening determines that the inmate is likely an SVP, the prisoner is referred to the DSH for a full evaluation. § 6601(b).

The evaluation is conducted by two mental health professionals — psychologists or psychiatrists — in accordance with a standardized assessment protocol to determine whether the prisoner is an SVP, i.e., someone “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.” § 6600(a)(1); § 6601(c) and (d). If the two evaluators agree that the defendant has a diagnosed mental disorder and will likely engage in acts of sexual violence without treatment and custody, the DSH forwards a request to the county that imposed the defendant’s sentence to file a petition for commitment in superior court. § 6601(d), (h)(1).

If the evaluators disagree, the DSH facilitates further examination of the defendant by two “independent professionals” who are not state employees and who have at least five years’ experience diagnosing and treating mental disorders. § 6601(e) and (g). A petition to commit may be filed only if both of those independent experts agree the defendant meets the criteria for commitment. § 6601(f).

If the county’s designated counsel concurs with the DSH that commitment is necessary, counsel files a petition in superior court. § 6601(i). If the superior court determines that the petition contains sufficient facts that, if true, would constitute probable cause to believe the person named in the petition is an SVP, the court orders the person be detained in a “secure facility” until a probable cause hearing is conducted within the next ten days. Id. If at that hearing the judge determines no probable cause exists, the petition is dismissed, but if probable cause is found, the case is set for trial. Id.

Because resolution of an SVP petition often stretches over months or years, additional evaluations become necessary because commitment under the SVPA must be based on a “current mental disorder.” Reilly v. Superior Court, 57 Cal. 4th 641 (2013). If the district attorney determines updated evaluations are necessary, he may request the DSH to perform updated evaluations. § 6603(d)(1). While a split of opinion in updated evaluations as to whether the defendant meets the SVP criteria does not require dismissal of the petition, the DSH must obtain two additional opinions by independent experts if the updated evaluations result in a split of opinion. Gray v. Superior Court, 95 Cal. App. 4th 322 (2002); § 6603(d)(1); § 6701(e) and (f). Those additional opinions are not binding: “once a petition has been properly filed and the court has obtained jurisdiction, the question of whether a person is a sexually violent predator should be left to the trier of fact unless the prosecuting attorney is satisfied that proceedings should be abandoned.” Gray.

At trial on the SVPA petition, the People must prove beyond a reasonable doubt: (1) the defendant suffered a conviction of at least one qualifying “sexually violent offense;” (2) the defendant has “a diagnosed mental disorder that makes the person a danger to the health and safety of others;” and (3) the mental disorder makes it likely the defendant will engage in future predatory acts of sexually violent criminal behavior if released from custody. § 6600; § 6604.

 SVPA trials are special proceedings of a civil nature and are not punitive in purpose or effect. Moore v. Superior Court, 50 Cal. 4th 802 (2010). A number of procedural safeguards commonly associated with criminal trials — e.g., the alleged SVP’s right to assistance of counsel, right to a jury trial with a unanimous verdict, and proof beyond a reasonable doubt — distinguish SVPA proceedings from standard civil trials because if a jury finds the defendant to be an SVP, he or she may be indefinitely committed to the custody of the DSH, which is a significant restraint on liberty, the Court explained. Reilly.

Following commitment, the SVP is subjected to annual mental examinations to determine whether he or she continues to meet the definition of an SVP. § 6604.9. The SVP may also petition for unconditional discharge. § 6605.

Of particular relevance to the instant opinion, the SVPA expressly addresses the retaining of experts. It states that the DEFENDANT may hire an expert to participate in the trial. § 6603(a). Because there is no similar provision for the prosecution, the principle of expressio unius est exclusio alterius (“that the expression of one thing in a statute ordinarily implies the exclusion of other things”) applies, the Court reasoned. In re J.W., 29 Cal. 4th 200 (2002).

Further, the very next subdivision of the statute states that “[t]he attorney petitioning for commitment under this article has the right to demand the trial before a jury.” § 6603(b). While stating the People may demand a jury trial, the statute mentions nothing about the People’s right to retain a private expert to testify at that trial. Additionally, the SVPA provides that when an SVP petitions for unconditional discharge, then the prosecution may have the SVP “evaluated by experts chosen by the state.” § 6608(g). By expressly authorizing the People to retain an expert at a later stage of the SVP proceeding, the Court concluded that the Legislature demonstrated its omission of that right earlier in the proceeding was intentional. Thus, the Court held that “the People may not call a privately retained expert witness to testify at trial” in an SVP proceeding.

Accordingly, the Court granted the petition for mandate and issued a peremptory writ of mandate directing the Superior Court of Orange County to vacate its ruling denying Needham’s motion and to issue a new order excluding the testimony of the People’s expert witness. See: Needham v. Superior Court, 82 Cal. App. 5th 114 (2022). 

Editor’s note: The Court discusses the involuntary civil commitment procedures for alleged SVPs in great detail, so anyone who is interested in this topic is encouraged to read the full opinion. 

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