Needham v. Superior Court

IN THE SUPREME COURT OF

CALIFORNIA

NICHOLAS NEEDHAM,

Petitioner,

v.

THE SUPERIOR COURT OF ORANGE COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

S276395

Fourth Appellate District, Division Three

G060670

Orange County Superior Court

M-16870

July 1, 2024

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Kruger, Jenkins, and Evans

concurred.

Justice Groban filed a concurring and dissenting opinion, in

which Justice Liu concurred.

NEEDHAM v. SUPERIOR COURT

S276395

Opinion of the Court by Corrigan, J.

Under the Sexually Violent Predator Act (SVPA or the Act)

(Welf. & Inst. Code,1 § 6600 et seq.), a person convicted and

imprisoned for certain sex offenses may be civilly committed for

treatment in a secure facility following completion of a prison term.

The Act sets out the procedures for formally evaluating a defendant

as a potential sexually violent predator (SVP), as well as for initiating

and litigating a commitment petition. In People v. Superior Court

(Smith) (2018) 6 Cal.5th 457 (Smith), we concluded the People 2 may

share discovery of the defendant’s treatment records with their

retained expert. (Id. at pp. 469–472.) Here we resolve two additional

questions regarding the People’s retained expert. We hold that,

although the People may call their retained expert to testify at trial,

both to contest the testimony of other witnesses and to offer an

independent opinion as to whether the defendant qualifies as an SVP,

the People’s retained expert may not compel a defendant to be

interviewed or participate in testing before trial. We reverse the

Court of Appeal’s contrary judgment and remand the case for trial.

1

Subsequent unspecified statutory provisions will refer to the

Welfare and Institutions Code.

2

The Act provides that the county board of supervisors shall

designate either the district attorney or county counsel to assume

responsibility for pursuing SVP proceedings. (§ 6601, subd. (i).) For

ease of reference, we refer to the county’s designated counsel as the

district attorney, the People, or the prosecution.

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I. BACKGROUND

In 2016, the Department of Corrections and Rehabilitation

referred defendant Nicholas Needham for evaluation as a possible

SVP. (§ 6601, subd. (a)(1).) The State Department of State Hospitals

(DSH) appointed two evaluators, Dr. Jeremy Coles and Dr. Michael

Musacco, who each determined that defendant had a mental disorder

making him likely to engage in sexual violence unless civilly

committed and treated as provided by the SVPA. (§ 6601, subds. (c),

(d).) The Orange County District Attorney’s Office then petitioned to

commit defendant as an SVP. (§ 6601, subd. (i).)

Before the probable cause hearing, Dr. Coles submitted an

updated evaluation, changing his opinion and concluding that

defendant did not qualify for commitment. As required by statute, the

DSH appointed two other evaluators, Dr. Yanofsky and Dr. Korpi.

(§ 6601, subds. (e), (g).) Dr. Yanofsky concluded defendant qualified

as an SVP, while Dr. Korpi opined he did not. Doctors Coles, Musacco,

and Korpi testified at the probable cause hearing. The trial court

concluded there was probable cause to believe defendant was an SVP

and ordered a trial. (§ 6602, subd. (a).) Subsequently, however, Dr.

Yanofsky submitted an updated evaluation indicating he, too, had

changed his opinion and no longer believed defendant qualified as an

SVP.

The People retained Dr. Craig King as an expert and sought

discovery of defendant’s evaluations and records. Following a hearing

and over defense objection, the trial court granted the request, relying

on Smith, supra, 6 Cal.5th 457. The court later ruled that Dr. King

could interview “and/or . . . test” defendant as well as obtain

defendant’s additional medical records. Dr. King interviewed

defendant for three to four hours, covering various aspects of

defendant’s treatment, sexual behavior, and coping skills. The

interview was audiotaped.

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Defendant filed three motions to preclude Dr. King from

testifying at trial. He argued, inter alia, that 1. Dr. King should not

have been granted access to defendant’s treatment records, 2. the Act

did not authorize Dr. King to interview or test defendant, and 3.

Dr. King should not be allowed to testify that, in his opinion,

defendant qualifies as an SVP. The court denied these motions.

Defendant sought a writ of mandate/prohibition to prevent

Dr. King from conducting any further interviewing or testing of

defendant and from testifying at trial. The writ petition characterized

the court’s order as having permitted Dr. King to do an “evaluation”

of the defendant, although the court’s order did not use that term. In

resolving defendant’s petition, the Court of Appeal accepted that

nomenclature. This characterization is not precisely accurate,

however. As we explain, the Act and accompanying regulations set

out in great detail all that is encompassed in a formal precommitment

evaluation and provide it is to be done by DSH evaluators. What the

court order permitted was an independent interview and testing by

Dr. King, which, as discussed post, is not authorized under the Act.

The Court of Appeal summarily denied defendant’s writ petition. We

granted defendant’s petition for review and transferred the matter to

the Court of Appeal with direction to issue an order to show cause. A

divided Court of Appeal thereafter granted defendant’s writ petition

and directed the trial court to exclude Dr. King’s testimony.

(Needham v. Superior Court (2022) 82 Cal.App.5th 114, 125–129.) We

granted the People’s petition for review from that ruling.

II. DISCUSSION

A. The SVPA, Updated/Replacement Evaluations, and

the Civil Discovery Act

The SVPA “provides for the involuntary civil commitment of

certain sex offenders before the end of their prison or parole revocation

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Opinion of the Court by Corrigan, J.

terms.” (Walker v. Superior Court (2021) 12 Cal.5th 177, 190 (Walker);

see § 6600 et seq., eff. Jan. 1, 1996.) The Act sets out with specificity

how the SVP process is to be initiated, who may evaluate a person for

possible SVP treatment, and how that formal evaluation is to be

conducted. “[T]he Legislature 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 SVPA is warranted immediately upon their release from prison.

The 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.” (Hubbart v. Superior

Court (1999) 19 Cal.4th 1138, 1143–1144 (Hubbart).) An SVP action

is a special civil proceeding. (Reilly v. Superior Court (2013) 57

Cal.4th 641, 648 (Reilly); Moore v. Superior Court (2010) 50 Cal.4th

802, 815 (Moore).)

“The trial represents the final step in the ‘complex

administrative and judicial process’ required to civilly commit an

individual as an SVP. [Citation.] The process leading up to a trial

begins when the Department of Corrections and Rehabilitation

screens inmates at least six months before their release date (§ 6601,

subd. (a)), and refers any potential SVP to DSH for a ‘full evaluation’

(id., subd. (b)). DSH then designates two practicing psychologists or

psychiatrists to evaluate the inmate in accordance with a

‘standardized assessment protocol,’ which requires ‘assessment of

diagnosable mental disorders, as well as various factors known to be

associated with the risk of reoffense among sex offenders.’ (Id., subd.

(c).) If the two mental health professionals agree that the inmate

qualifies as an SVP (or if only one reaches this conclusion and two

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Opinion of the Court by Corrigan, J.

subsequently appointed professionals concur), the DSH Director

forwards a request for a commitment petition, along with . . .

supporting documents, to the county in which the inmate was last

convicted. (Id., subds. (d)–(f), (h).) If the county’s designated counsel

agrees, the petition for commitment is filed in superior court. (Id.,

subd. (i).)” (Walker, supra, 12 Cal.5th at pp. 190–191.) If the court

finds probable cause that “the individual named in the petition is

likely to engage in sexually violent predatory criminal behavior upon

his or her release,” the case proceeds to trial. (§ 6602, subd. (a).)

Among the protections afforded to the defendant are the rights

to counsel, discovery of reports and evaluation materials, retention of

experts, trial by jury and proof of his status beyond a reasonable

doubt. (§§ 6603, subd. (a); 6604.) The statutory provisions are

augmented by title 9, chapter 15 of the California Code of Regulations,

which particularizes the “standardized assessment protocol” called for

by the Act. (§ 6601, subd. (c); see Cal. Code Regs., tit. 9, §§ 4000–

4020.1.) The protocol describes, among other things, the

qualifications required of evaluators; the questions they are to address

in their evaluation report; the extensive records they are to review; a

face-to-face clinical interview of the defendant, with directions as to

what the interview should include; the items required for inclusion in

the evaluator’s forensic report; detailed citations to all documents and

other sources relied upon; notation of the evaluation procedures

employed; and detailed requirements for the evaluator’s findings. The

protocol also contains express provisions for how the evaluator is to

interact with the subject. (See Cal. Code Regs., tit. 9, §§ 4011–4013.)

The evaluator must write a forensic report, which the DSH certifies

as the “official evaluation” before providing a copy to the court and

parties. (Cal. Code Regs., tit. 9, § 4014.1; see id., § 4014.)

An SVP commitment requires a finding that the person suffers

from “a currently diagnosed mental disorder that makes the person a

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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, subd.

(a)(3), italics added.) We have rejected due process and equal

protection challenges against the SVPA due in part to the Act’s

requirement that a currently diagnosed mental disorder has been

proved. (See Hubbart, supra, 19 Cal.4th at pp. 1158, 1162, 1169–

1170.)

Sporich v. Superior Court (2000) 77 Cal.App.4th 422 addressed

whether the People were entitled to updated DSH evaluations of the

defendant before trial and held that, at the time of its decision, “[a]n

order for additional precommitment mental examinations to establish

currency is simply not authorized by the SVP Act.” (Id. at p. 427.) As

a result, it rejected a claim that the SVPA implicitly countenanced

such exams. The People alternatively argued that, even if the SVPA

did not authorize updated evaluations, the mental examination

provisions of the Civil Discovery Act (Code Civ. Proc., § 2016.010 et

seq.; CDA) independently entitled them to examine the defendant.

Code of Civil Procedure section 2032.020, subdivision (a) provides in

part that “[a]ny party may obtain discovery . . . by means of a physical

or mental examination of . . . a party to the action . . . in any action in

which the mental or physical condition (including the blood group) of

that party or other person is in controversy in the action.” A party

seeking such examination must seek leave of the court. (Code Civ.

Proc., § 2032.310, subd. (a).) The court may grant a motion for a

mental exam “only for good cause shown” (Code Civ. Proc., § 2032.320,

subd. (a)). Recognizing an SVP proceeding is civil in nature, Sporich

assumed the CDA applied but concluded the People failed to show

good cause for additional examinations. (See Sporich, at pp. 427–428.)

After Sporich, the Legislature added what is now section 6603,

subdivision (d). (See Sen. Bill No. 2018 (1999–2000 Reg. Sess.) § 2;

Stats. 2000, ch. 420, § 2, p. 3139.) The provision expressly grants the

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People the right to seek updated or replacement evaluations under

certain circumstances: “If the attorney petitioning for commitment

under this article determines that updated evaluations are necessary

in order to properly present the case for commitment, the attorney

may request the State Department of State Hospitals to perform

updated evaluations. If one or more of the original evaluators is no

longer available to testify . . . [the People, as petitioner] may request

the State Department of State Hospitals to perform replacement

evaluations. When a request is made for updated or replacement

evaluations, the State Department of State Hospitals shall perform the

requested evaluations and forward them to the petitioning attorney

and to the counsel for the person subject to this article. However,

updated or replacement evaluations shall not be performed except as

necessary to update one or more of the original evaluations or to

replace the evaluation of an evaluator who is no longer available to

testify for the petitioner in court proceedings. These updated or

replacement evaluations shall include review of available medical and

psychological records, including treatment records, consultation with

current treating clinicians, and interviews of the person being

evaluated, either voluntarily or by court order. If an updated or

replacement evaluation results in a split opinion as to whether the

person subject to this article meets the criteria for commitment, the

State Department of State Hospitals shall conduct two additional

evaluations in accordance with subdivision (f) of Section 6601.”

(§ 6603, subd. (d)(1), italics added.) Evaluators are “no longer

available to testify” if they failed to adhere to department protocol,

had their licenses suspended or revoked, are unavailable to testify, or

have resigned or retired.3 (§ 6603, subd. (d)(1); see 6603, subd. (d)(2).)

3

The statute excludes from the definition of “no longer available

to testify” those evaluators who have resigned or retired who, in the

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The accompanying regulations also provide that DSH has the “sole

authority to designate evaluators for” updated or replacement

evaluations. (Cal. Code Regs., tit. 9, § 4020.1, subd. (c).)

As noted in the bill analysis by the Assembly Committee on

Public Safety, the author asserted the new law “ ‘would permit the

prosecuting attorney to request DMH [4] to prepare updated

evaluations to support the filing of a[n] SVP commitment or

recommitment petition. These updates are occasionally necessary, for

instance, where an evaluation has become stale with the passage of

time or because the treating doctor is no longer available to testify in

court. Without the update, the petition could be denied, or at least

delayed until a new evaluation is obtained. In such instances, SB

2018 would avoid foreseeable delays by allowing the state’s attorney

to request updated evaluations in needed cases. . . . These updated

evaluations will help ensure that those who are still dangerous will be

committed, and those who do not meet the SVP criteria will not be

committed inappropriately.” (Assem. Com. on Public Safety, Analysis

of Sen. Bill No. 2018 (1999–2000 Reg Sess.) as amended May 1, 2000,

p. 3.) Both this analysis and a similar one by the Senate Public Safety

Committee discussed the impact of the Sporich decision. (See id. at

p. 6; Sen. Com. on Public Safety, Analysis of Sen. Bill No. 2018 (1999–

2000 Reg. Sess.) as amended April 11, 2000, p. 6.) Albertson v.

Superior Court (2001) 25 Cal.4th 796 (Albertson), observed: “The

district attorney has an interest in obtaining information concerning

the individual’s current mental state for two reasons: to avoid

“most recent evaluation of the person subject to this article, opined

that the person subject to this article does not meet the criteria for

commitment.” (§ 6603, subd. (d)(2)(D).)

4

The State Department of Mental Health was the precursor to

the State Department of State Hospitals. (See Reilly, supra, 57

Cal.4th at p. 647.)

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committing a person who does not currently suffer from a qualifying

mental disorder, and to support the commitment of a person who does

suffer from a qualifying mental disorder.” (Id. at p. 802.) We went on

to hold that “[i]t is evident from its language and history that section

6603[(d)] was intended by the Legislature . . . [to clarify] the trial

court’s authority to order updated mental interviews and evaluations,

as well as the district attorney’s right of access to treatment

information.” (Albertson, at p. 804; see also Cal. Code Regs., tit. 9,

§ 4020.1.)

As this review demonstrates, the Act aims to balance the rights

of a proposed conservatee, the need to protect public safety and

provide treatment, and the goal of properly litigating a commitment

proceeding. It makes clear that, while the prosecutor can request that

updated or replacement evaluations be conducted, the evaluations

themselves must be done by DSH. The structure and language of the

Act make clear that the terms “evaluation” and “evaluator” are terms

of art. (See §§ 6601, subds. (a)–(h), 6603, subds. (d), (j), (k)(1).) A

precommitment evaluation is a particularly defined process, engaged

in only by a DSH-appointed evaluator. For the reasons discussed

below, the Act does not give the People’s expert the authority to

conduct a precommitment evaluation, nor does it authorize

independent interviews or tests of the defendant at that stage of the

process.

B. Smith and Experts Retained by the People

Albertson explained that, in light of section 6603, subdivision

(d), the prosecution “may obtain access to otherwise confidential

treatment information concerning an alleged SVP to the extent such

information is contained in an updated mental evaluation.”

(Albertson, supra, 25 Cal.4th at p. 807.) The Legislature later added

what is now section 6603, subdivision (k), which provides:

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“Notwithstanding any other law, the evaluator performing an updated

evaluation shall include with the evaluation a statement listing all

records reviewed by the evaluator pursuant to subdivision (d). The

court shall issue a subpoena, upon the request of either party, for a

certified copy of these records. The records shall be provided to the

attorney petitioning for commitment and the counsel for the person

subject to this article. The attorneys may use the records in

proceedings under this article and shall not disclose them for any

other purpose.” (§ 6603, subd. (k)(1); see Smith, supra, 6 Cal.5th at

pp. 464–468.) Smith reasoned “updated evaluation” in this provision

included replacement evaluations. (Id. at pp. 467–468.) Evaluations

and supporting materials are released to counsel subject to a

protective order to ensure they are used only in connection with

commitment proceedings. (See id. at pp. 464, 472.)

Although section 6603, subdivision (k)(1) authorized disclosure

of treatment records relied upon by evaluators in performing an

updated or replacement evaluation, the Smith defendant argued that

confidentiality laws precluded “the government from sharing those

records with its retained expert.” (Smith, supra, 6 Cal.5th at p. 469.)

Smith rejected the claim: “So long as attorneys do not disclose the

confidential records for any other purpose, subdivision [(k)](1) at the

very least suggests that attorneys may disclose them ‘in proceedings

under this article.’ [Citation.] Given the ‘critical’ importance of expert

testimony in an SVP proceeding [citation] — and the likelihood that

counsel will need expert assistance to grasp the scientific nuances

underlying another expert’s opinion — the disclosure most needed by

each party ‘in proceedings under this article’ [citation] would almost

certainly be to its retained expert.” (Ibid.) Smith observed that

“[a]lthough the SVP determination requires proof that the person has

been convicted of a sexually violent offense, the bulk of the evidence

at trial typically focuses on whether the person has a diagnosed

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mental disorder that makes it likely he or she will engage in sexually

violent behavior. [Citation.] Accordingly, the civil commitment trial

usually turns on the quality and credibility of the expert witnesses

and the extent to which their evaluations are persuasive.” (Id. at pp.

470–471.) “A key way in which one party counters an opposing

expert’s opinion is to uncover and challenge the expert about the bases

for his or her opinion. [Citations.] This is particularly true for a

mental health professional’s assessment of whether an individual

qualifies as an SVP. Because an evaluator exercises professional

judgment within the legal framework specified by the SVPA, the

evaluator’s ‘legally accurate understanding of the statutory criteria is

crucial to the Act’s proper operation.’ ” (Id. at p. 471.) Smith also

reasoned the opportunity to cross-examine evaluators “would be a

hollow one if the district attorney does not have the assistance of an

expert to interpret and explain the significance of the specialized

information at issue. [Citations.] Without an expert’s assistance in

preparing the cross-examination of adverse witnesses, ‘the risk of an

inaccurate resolution . . . is extremely high.’ [Citation.] An expert

would also need to examine the relevant records to offer an opinion

about the potential SVP’s mental health.” (Id. at pp. 471–472.) Smith

concluded: “Our society uses trials to advance the search for truth.

That search generally works best when each side — and each side’s

experts — have access to the records and information on which the

opposing side’s experts rely. The Legislature adopted this reciprocal

model in the current version of the SVPA.” (Id. at p. 473.) While

Smith established that the People’s retained experts may review all

the available discovery, here we consider whether those retained

experts may testify at trial and, if so, whether they may offer their

own opinion as to a defendant’s status as an SVP.

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C. The People’s Retained Expert May Not Compel a

Defendant to Participate in an Interview or Testing

The People first contend the prosecuting agency in an SVP

proceeding may retain an expert, not only to assist in trial preparation

and presentation, but also to independently examine a defendant.

They assert that nothing in the SVPA precludes the practice. SVP

trials are, as noted, “ ‘ “special proceedings of a civil nature,” ’ wholly

unrelated to any criminal case.” (Moore, supra, 50 Cal.4th at p. 815.)

At such trials, the rules of evidence apply. (Walker, supra, 12 Cal.5th

at p. 191; see Evid. Code, § 300.)

Initially, we reject the People’s reliance on the CDA, rather than

the SVPA, to answer the question here. The People suggest the CDA

“supports the People’s right to retain private experts, the right to have

those experts examine an alleged SVP, and the right to call that expert

to render an opinion at trial” based on that examination. Only the

first assertion is correct. The CDA generally applies to SVP trials,

which are special civil proceedings. (See People v. Jackson (2022) 75

Cal.App.5th 1, 8 (Jackson).) However, as the title of the act suggests,

the CDA primarily concerns discovery between parties. Although the

CDA regulates the exchange of information between the parties with

regard to experts (see Code Civ. Proc., §§ 2034.210–2034.730) and

provides for the exclusion of expert testimony as a sanction if a party

fails to comply with its provisions (see, e.g., Code Civ. Proc.,

§§ 2034.300, 2034.310), the admission of expert testimony is governed

by the Evidence Code, not the CDA.

Indeed, even if the CDA contains terms that may generally be

applicable in a civil proceeding, such provisions must yield to more

specific requirements of the SVPA. On this point, Jackson is

instructive. In that case, the trial court excluded the defendant’s

expert as a sanction for failing to comply with the CDA’s reciprocal

discovery provisions. (See Jackson, supra, 75 Cal.App.5th at pp. 16–

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18.) Jackson reasoned that SVP defendants had both a statutory (see

§ 6603, subd. (a)) and due process right to defense experts. In light of

those protections, exclusion of such experts would only be

countenanced “ ‘for the most egregious discovery abuse . . . in which

the record demonstrates a willful and deliberat[e] violation which was

motivated by a desire to obtain a tactical advantage at trial such as

the plan to present fabricated testimony.’ ” (Jackson, at p. 24.)

Jackson went on to conclude the discovery violation at issue there did

not rise to that level and exclusion of the defense expert was improper

notwithstanding that the CDA appeared to authorize such exclusion.

(Id. at pp. 24–27.)

Similarly here, although the CDA generally allows one party,

upon a proper showing, to conduct a mental examination of another

party (see Code Civ. Proc., §§ 2032.020, subd. (a); 2032.310, subd. (a),

2032.320, subd. (a)), those provisions conflict with the SVPA’s express

mandates concerning the conduct of updated or replacement

evaluations and the dissemination of a defendant’s confidential

records. As discussed, the Legislature added what is now section

6603, subdivision (d)(1), allowing the People to request updated

evaluations from the DSH as “necessary in order to properly present

the case for commitment,” or replacement evaluations if “one or more

of the original evaluators is no longer available to testify for the

petitioner in court proceedings . . . .” We have recognized “the

updated evaluations’ primary purpose is evidentiary or

informational.” (Reilly, supra, 57 Cal.4th at p. 648.) The statutory

scheme expressly authorizes release to the People of all evaluations

and supporting documents. But the right is limited to evaluations

conducted by DSH.

The materials to be consulted and relied upon by DSH

evaluators are quite extensive and all of them are discoverable by the

People. But nowhere does the Act authorize independent interviewing

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or testing by a People’s retained expert before a civil commitment has

been imposed after a jury trial. Allowing such independent

precommitment interviews and testing would permit an end run

around the Act’s careful and particularized balancing of the competing

interests at play. As the Court of Appeal majority below observed,

permitting an independent examination would permit a People’s

expert to interact with the defendant “free of the restrictions the

Legislature imposed in [section 6603,] subdivision (d)(1).” (Needham

v. Superior Court, supra, 82 Cal.App.5th at p. 126.)

The Act limits how formal evaluations are conducted and by

whom. An initial “full evaluation” of defendant must be conducted by

DSH “in accordance with a standardized assessment protocol . . . .”

(§ 6601, subds. (a)(2), (b), (c).) The initial evaluations must be

conducted by “two practicing psychiatrists or psychologists, or one

practicing psychiatrist and one practicing psychologist, designated by

the Director of State Hospitals.” (§ 6601, subd. (d).) If one of those

evaluators does not concur that a defendant qualifies as an SVP, the

DSH must appoint two additional independent evaluators, who “shall

not be a state government employee, shall have at least five years of

experience in the diagnosis and treatment of mental disorders, and

shall include psychiatrists and licensed psychologists who have a

doctoral degree in psychology.” (§ 6601, subd. (g); see § 6601, subds.

(e), (f).) As noted, evaluators must also follow the detailed DSH

assessment protocol (see Cal. Code Regs., tit. 9, § 4000 et seq.;

Needham v. Superior Court, supra, 82 Cal.App.5th at p. 125, fn. 2),

and any updated or replacement evaluation must also be performed

in accordance with the statute. The DSH has the “sole authority to

designate evaluators” for updated or replacement evaluations. (Cal.

Code Regs., tit. 9, § 4020.1, subd. (c).) Section 6603 expressly provides

that an evaluator who “has failed to adhere to the protocol of the

[DSH]” constitutes one who is no longer available to testify so as to

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permit the People to request a replacement evaluation. (§ 6603, subd.

(d)(2)(A); see generally Reilly, supra, 57 Cal.4th at pp. 651–657.) By

contrast, no provision of the Act mentions interviews or testing by a

People’s expert before commitment. Thus, it contains no regulation of

the qualifications that would be required of a People’s expert nor does

it control how such independent interviewing or testing would be

conducted. The protocol also expressly regulates the manner in which

the evaluator may interact with the defendant. 5 Allowing

independent examination and testing by a People’s expert could

potentially undermine these safeguards.6

5

For example, the protocol requires an evaluator to “assess the

Individual’s ability to” communicate, comprehend, and retain verbal

communication and make accommodations to conduct the interview.

(Cal. Code Regs., tit. 9, § 4013, subd. (a).) An evaluator must attempt

to obtain informed consent when possible, “maintain a position of

neutrality with regard to the SVP law,” explain “the limits of

confidentiality and the Evaluator’s professional and legal obligation

as a mandated reporter” (id., subd. (c)(1)), and give no legal advice or

feedback to the individual as to the evaluator’s “professional opinion

about whether the Individual meets” the criteria for certification (id.,

subd. (c)(2)). The protocol also provides that an evaluator should

employ only those tests, instruments and risk factors that have

“gained professional recognition or acceptance in the field . . . .” (Cal.

Code Regs., tit. 9, § 4005.)

6

The People’s reliance on People v. Landau (2013) 214

Cal.App.4th 1 is misplaced. We note that Landau largely assumed

the People could retain an expert to testify and concluded the expert

could properly examine the defendant under general CDA provisions.

We disapprove Landau to the extent it so concluded. The People also

suggest they “have not requested a compelled mental health

evaluation pursuant to [the CDA]. [We note that the people in their

briefing continue to use the term “evaluation.” As explained above the

use of that term in this context is misplaced.] They selected a less

intrusive means of obtaining an evaluation. Needham had a choice as

to whether he wished to participate in an evaluation. He chose to

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Other provisions of the SVPA expressly allow the People’s

expert to examine a defendant after commitment. If a committed

person later petitions for conditional release or discharge, the People

“shall represent the state and may have the committed person

evaluated by experts chosen by the state.” (§ 6608, subd. (g); see

§ 6605, subd. (a)(3).) Further, after a commitment, the DSH “shall

have a current examination of [the person’s] mental condition made

at least once every year” and prepare an annual report regarding

whether the person still qualifies as an SVP or whether conditional

release or unconditional discharge “is in the best interest of the person

and conditions can be imposed that would adequately protect the

community.” (§ 6604.9, subds. (a), (b); see People v. McKee (2010) 47

Cal.4th 1172, 1192–1193 (McKee).) These different provisions support

the conclusion that, although the Legislature contemplated

examinations by both DSH and the People’s expert after commitment,

it did not intend to authorize independent examinations by a

prosecution’s retained expert before a commitment has been ordered.7

participate in the process and provided his written consent to

Dr. King. [Citation.] An order compelling a mental health

examination was therefore unnecessary.” This assertion is somewhat

misleading. Although it is true that defendant signed a consent form

upon Dr. King’s arrival at the jail to interview him, he did so only after

the court had ordered, over defense objection, that Dr. King could

conduct an interview and test him. Indeed, large portions of

defendant’s three motions to exclude Dr. King’s testimony were

devoted to arguing the interview was improper and should not have

been allowed. (See discussion, ante.)

7

In light of our conclusion based on statutory interpretation of

the SVPA, we need not address defendant’s constitutional claim that

compelling him to be interviewed by the People’s retained expert

would deny him due process. (See Facebook, Inc. v. Superior Court

(Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31; People v. Williams (1976)

16 Cal.3d 663, 667.)

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D. The People’s Retained Expert May Testify at Trial

and Offer an Opinion on the Subject of SVP

Qualification

Having concluded that a People’s expert may not, under the Act,

interview or test a defendant before a commitment has been ordered,

we turn to the question of whether such an expert may nonetheless

offer an opinion at trial as to whether the defendant qualifies as an

SVP. Generally, an expert may testify in the form of an opinion if it

is “[r]elated to a subject that is sufficiently beyond common experience

that the opinion of an expert would assist the trier of fact” and is based

on matter “of a type that reasonably may be relied upon by an expert

in forming an opinion upon the subject to which his testimony

relates . . . .” (Evid. Code, § 801, subds. (a), (b).) However, “[t]he court

may, and upon objection shall, exclude testimony in the form of an

opinion that is based in whole or in significant part on matter that is

not a proper basis for such an opinion. In such case, the witness may,

if there remains a proper basis for his opinion, then state his opinion

after excluding from consideration the matter determined to be

improper.” (Evid. Code, § 803.)

We have recognized that “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.”

(McKee, supra, 47 Cal.4th at p. 1192.) That inquiry is a subject beyond

common experience, and a jury would be aided by expert testimony on

the matter. Indeed, Smith affirmed that an SVP trial “usually turns

on the quality and credibility of the expert witnesses and the extent

to which their evaluations are persuasive.” (Smith, supra, 6 Cal.5th

at p. 471.) An expert’s testimony may “assist the trier of fact in

determining whether the evaluator has ‘accurately understood the

statutory criteria.’ ” (Ibid.) Understanding the methods and

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Opinion of the Court by Corrigan, J.

reliability of diagnostic testing and evaluation undergirding an

assessment of whether a person is an SVP constitutes “a subject that

is sufficiently beyond common experience that the opinion of an expert

would assist the trier of fact . . . .” (Evid. Code, § 801, subd. (a); see

Smith, supra, 6 Cal.5th at p. 469; McKee, supra, 47 Cal.4th at p. 1192.)

So long as an expert’s opinion is not based on improper matter, the

Evidence Code would not preclude the relevant testimony of any

expert, including one presented by the People.

Mirroring the reasoning of the Court of Appeal majority below,

defendant argues the SVPA contemplates only evaluators appointed

by DSH be allowed to testify at trial and that allowing the People to

retain experts to testify undermines the nonpunitive nature of the Act.

The majority below reasoned in part: “Virtually the entire scheme

revolves around the independent experts who evaluate the defendant

and testify concerning defendant’s mental state. . . . To permit the

People to retain a testifying expert would create the possibility that

an expert with a clear bias — an expert hired to support the People’s

view, rather than provide an independent analysis — could lead to the

deprivation of a person’s liberty even where some independent experts

find it unwarranted, or for reasons independent experts find

unconvincing. That result is inconsistent with the design of the SVPA

procedure.” (Needham v. Superior Court, supra, 82 Cal.App.5th at p.

127.)

Initially, the Court of Appeal majority’s suggestion that any

expert presented by the People must, of necessity, be biased,

misconstrues the nature of expert testimony. Not every professional

disagreement signifies an impermissible bias. Even among experts,

reasonable minds may simply differ. As with any compensated expert

or, indeed, any witness, the opposing party is free to pursue the

question of bias and the trier of fact is permitted to consider whether

its presence undermines witness credibility. Yet the mere fact that a

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party has called the expert to testify, or that the expert has previously

testified for one side or the other, standing alone, would not establish

disqualifying bias (see People v. Buffington (2007) 152 Cal.App.4th

446, 454–456), and nothing in the SVPA suggests an intent to exclude

the People’s expert from trial because such expert would be inherently

biased.8 Indeed, although Smith did not decide the issue here, Smith

reasoned, in part, the People may share discovery of a defendant’s

confidential treatment records with their expert because it was

necessary for the People to adequately challenge the testimony of DSH

evaluators. Smith observed: “Unfortunately, as the legislative

history suggests, the [DSH] ‘ “has not ensured that it conducts these

evaluations in a consistent manner” ’ and sometimes ‘ “evaluators did

not demonstrate that they considered all relevant information.” ’

[Citations.] A key way in which one party counters an opposing

expert’s opinion is to uncover and challenge the expert about the bases

for his or her opinion. [Citations.] This is particularly true for a

mental health professional’s assessment of whether an individual

qualifies as an SVP. Because an evaluator exercises professional

judgment within the legal framework specified by the SVPA, the

evaluator’s ‘legally accurate understanding of the statutory criteria is

crucial to the Act’s proper operation.’ ” (Smith, supra, 6 Cal.5th at p.

471.) As Smith observed, there are legitimate reasons the People may

wish to call its own expert to challenge the conclusions of the DSH

evaluators.

Nor is permitting the expert to testify — rather than merely

consult behind the scenes — inconsistent with the design of the SVPA

8

As noted by the district attorney, Dr. King has not only worked

as a People’s expert but has previously “contracted with the DSH to

conduct sexually violent predator evaluations.” (See, e.g., Jackson,

supra, 75 Cal.App.5th at pp. 11–14; People v. Presley (2021) 65

Cal.App.5th 1131, 1137.)

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procedure. Although the SVPA’s detailed provisions for the conduct

of evaluations precludes additional evaluations not provided for by

statute, nothing in the Act limits the presentation of relevant,

otherwise admissible expert testimony. (See Smith, supra, 6 Cal.5th

at p. 472 [“nothing in the text of the SVPA bars the government from

sharing otherwise confidential information in its possession with the

expert”]; People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,

909, fn. 7 [“nothing in the SVPA appears to preclude the use of

Department employees, including staff psychologists and

psychiatrists directly involved in the treatment of an already

committed person, as the initial designated evaluators”].)

In suggesting we have “reache[d] a compromise” outcome that

creates an “end run” around the statute (conc. & dis. opn. of Groban,

J., post, at pp. 5, 10), the dissenting opinion asserts we have provided

“no explanation for why the Legislature would give the People a right

the majority believes to be critical to the SVP proceeding (a testifying

expert) but then simultaneously hamstring the People by barring the

expert from interviewing the defendant, even though DSH evaluators

are allowed to . . . interview the defendant.” (Id. at p. 5) Similarly,

the dissenting opinion reasons that “[i]f the Legislature believed the

People already had the authority under the Evidence Code to hire

their own testifying expert to opine on a person’s status as an SVP,

then it is unclear why it believed that, without giving the People the

authority to seek updated or replacement evaluations, the People

might fail to prove their case at trial and ‘the petition could be

denied.’ ” (Id. at pp. 9–10.)

We take the second point first. Contrary to the dissenting

opinion’s suggestion, the People’s ability to call its own expert does not

obviate the need for current information acquired through an updated

or replacement evaluation as to whether a defendant currently suffers

from a mental disorder that makes him or her a danger to others or

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Opinion of the Court by Corrigan, J.

likely to engage in sexual violence. (See § 6600, subd. (a)(1)). The

ability to present expert testimony is not a replacement for updated

information concerning defendant’s current mental status. As a

result, the statutory scheme permits the People to seek updated or

replacement evaluations from the DSH when appropriate. At the

same time, the Legislature could reasonably conclude that access to

such an evaluation, along with the ability to subpoena records

reviewed by the evaluator (see § 6603, subd. (k)(1)), properly balances

the People’s need for information with the state’s interest in

controlling how evaluations are conducted, and by whom.

Nor does the provision governing the conduct of updated or

replacement evaluations indicate that other expert testimony

relevant to the proceedings is barred. That section 6603, subdivision

(d)(2) permits the People to request updated or replacement DSH

evaluations only in certain circumstances thus says nothing about the

People’s ability to retain and call on a non-evaluating expert to

provide testimony relevant to the issues in the proceeding.

The Court of Appeal majority’s analysis also misconstrues the

role of DSH evaluations in the statutory scheme. As noted, DSH may

forward a case for the filing of a commitment petition only if two

evaluators, either the initially appointed evaluators or the later

appointed independent evaluators, both “concur that the person has a

diagnosed mental disorder so that the person is likely to engage in

acts of sexual violence without appropriate treatment and

custody . . . .” (§ 6601, subd. (d); see id., subd. (f).) “[T]he requirement

for evaluations is not one affecting disposition of the merits; rather, it

is a collateral procedural condition plainly designed to ensure that

SVP proceedings are initiated only when there is a substantial factual

basis for doing so.” (People v. Superior Court (Preciado) (2001) 87

Cal.App.4th 1122, 1130.) Combined with the requirement that a court

find “probable cause to believe that the individual named in the

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Opinion of the Court by Corrigan, J.

petition is likely to engage in sexually violent predatory criminal

behavior upon his or her release” (§ 6602, subd. (a)), “[t]he Legislature

has imposed procedural safeguards to prevent meritless petitions

from reaching trial.” (People v. Scott (2002) 100 Cal.App.4th 1060,

1063.) Once these procedural safeguards have been met, “rather than

demonstrating the existence of the two evaluations, the People are

required to show the more essential fact that the alleged SVP is a

person likely to engage in sexually violent predatory criminal

behavior.” (People v. Superior Court (Preciado), at p. 1130.) As we

observed in Reilly, “the Legislature did not intend that courts

interpret section 6601’s procedural requirements with unnecessary

strictness to prevent the trier of fact from ultimately determining each

individual’s SVP status,” and the Legislature has “clearly expressed

[a] preference that SVPA commitment petitions be adjudicated on

their merits” (Reilly, supra, 57 Cal.4th at p. 656), with the People

bearing the burden of proof beyond a reasonable doubt (see § 6604).

If, despite such preference for adjudication on the merits, the

Legislature wishes to limit the People’s evidence at trial to DSH

evaluations, they remain free to articulate such a limitation. To date

they have not done so.9

9

The different roles played by the initial DSH evaluations and a

later opinion by an expert, whether called by the People or the

defense, undermines the dissenting opinion’s suggestion that there is

no distinction between “a DSH-designated expert’s evaluation under

the SVPA” and “an expert’s opinion regarding whether a person

qualifies as an SVP.” (Conc. & dis. opn. of Groban, J., post, at p. 4.)

As explained, the detailed provisions of the SVPA regarding who

conducts formal evaluations, and how they must do so, ensures that

an SVP petition will only be filed in limited and specifically controlled

circumstances. Once that procedural safeguard has been met, the

scheme permits an adjudication on the merits based on relevant and

admissible evidence, including expert testimony.

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The Court of Appeal majority’s view further ignores the extent

of prosecutorial discretion built into the SVPA scheme. As discussed,

the statute requires DSH to forward a request to file a commitment

petition if either both of its evaluators concur a defendant qualifies as

an SVP or, if they disagree, two subsequently appointed independent

evaluators so concur. (§ 6601, subds. (d)–(f).) However, upon

receiving such request, the People are required to file a commitment

petition only “[i]f the county’s designated counsel concurs with the

recommendation . . . .” (§ 6601, subd. (i).) The SVPA thus empowers

the People to disagree with initial evaluations that a defendant is an

SVP by declining to file a commitment petition.

We have also acknowledged the People retain discretion to

disagree with evaluators after the filing of such petition. As Reilly

observed, “although initial evaluations conducted under section 6601

must agree, a lack of concurrence between updated or replacement

evaluations does not require dismissal of the petition. [Citation.]

Rather, the updated evaluations’ primary purpose is evidentiary or

informational. [Citation.] Mandatory dismissal is not required where

one or both of the later evaluators conclude the individual does not

meet the criteria for commitment.” (Reilly, supra, 57 Cal.4th at p.

648.)10 The People may thus disagree with postfiling evaluations that

10

The dissent suggests our reliance on Reilly is “inapt” because

“we specifically identified in Reilly the remedy the People should take

if they want to challenge DSH evaluations: request updated

evaluations from the DSH, not hire a testifying expert.” (Conc. & dis.

opn. of Groban, J., post, at p. 13.) As we have explained, the

Legislature amended the SVPA to allow the People to obtain updated

evaluations for the purpose of giving them access to the latest

information regarding a defendant’s current mental condition. (See,

ante, at pp. 6–9.) Contrary to the dissent’s assertion, nothing in Reilly

nor the SVPA suggests an updated evaluation should be used as a

vehicle to challenge a prior evaluation or that the People may seek an

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Opinion of the Court by Corrigan, J.

a defendant does not qualify as an SVP by presenting the case for the

jury’s consideration. As discussed, Smith reasoned the People’s

opportunity to cross-examine DSH evaluators at trial “would be a

hollow one if the district attorney does not have the assistance of an

expert to interpret and explain the significance of the specialized

information at issue.” (Smith, supra, 6 Cal.5th at p. 471.) Smith thus

recognized the People may challenge at trial the evaluators’

conclusions and to argue a contrary viewpoint.

The SVPA fully contemplates the People may disagree with the

evaluators assigned to a particular case and exercise their discretion,

either in refusing to file a commitment petition as an initial matter or

to continue with a properly filed petition notwithstanding evaluators’

subsequently changed opinions. Although the SVPA circumscribes

who may conduct formal evaluations of a defendant, it is silent as to

the type of evidence that may be presented at trial. Nothing in the

Act suggests a legislative intent to allow the People to continue with

a commitment proceeding notwithstanding evaluators’ changed

opinions but simultaneously to hamstring them by not allowing them

to present expert testimony to counter the new opinions and bolster

its contrary view of the case. Indeed, the Legislature could have

required dismissal of the petition if the evaluators no longer agreed

defendant qualified as an SVP. It did not do so. It would seem

incongruous that the SVPA contemplated the People may retain an

expert to assist in the prosecution of its case, as Smith acknowledged,

yet bar the testimony of that same expert to assist the trier of fact.

Contrary to the Court of Appeal majority’s suggestion, the SVPA

allows a finding that a defendant qualifies as an SVP even if the

evidence is in conflict, and the People may present admissible

update simply because they disagree with an evaluator’s initial

conclusions. For the reasons discussed, updated evaluations cannot

adequately replace the role of a retained expert.

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Opinion of the Court by Corrigan, J.

evidence to support its case, including the testimony of an expert. As

Smith observed, it is ultimately for the fact finder to evaluate the

credibility of any witness, whether they be evaluators or experts

retained by either side.

The dissenting opinion acknowledges that dismissal of an SVP

petition is not required even if evaluators have changed their minds

regarding defendant’s qualification for commitment. (Conc. & dis.

opn., post, at pp. 12–13.) However, the dissent suggests that “in a case

where every neutral DSH evaluator agrees at the time of the

commitment trial that the defendant should not be committed, it may

well be quite difficult for the People to convince a jury that they should

nonetheless commit the defendant as an SVP, and the People may well

wish to dismiss the case in such circumstances.” (Id. at p. 13.)

That may sometimes be the case but it may not be so in every

case. If the Legislature intended that petitions should always be

dismissed under such circumstances, it could simply have said so.

Instead, the Legislature has taken care to articulate a highly

structured process with the exercise of both medical and legal

judgment and discretion at several points in that process. Experience

teaches that experts are not infallible and serious consideration

should accompany final resolution of the merits of an SVP petition,

which has such significance for both the alleged SVP and society as a

whole. For us to adopt a rule that hamstrings a balanced

consideration runs counter to “the Legislature’s clearly expressed

preference that SVPA commitment petitions be adjudicated on their

merits.” (Reilly, supra, 57 Cal.4th at p. 656.) Allowing the People to

present expert testimony challenging the bases for the evaluators’

changed opinions ensures that the jury will be fairly and fully

informed as they consider the case.

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The Court of Appeal majority below reached a contrary

conclusion, reasoning that various provisions of the SVPA implicitly

barred the People from calling an expert witness other than

evaluators from DSH. Its statutory analysis misses the mark. First,

the majority noted that, in describing a defendant’s trial rights,

section 6603, subdivision (a) stated a defendant had “the right to

retain experts . . . .” The majority asked rhetorically: “If the

Legislature envisioned both parties retaining testifying experts, why

only say defendant?” (Needham v. Superior Court, supra, 82

Cal.App.5th at p. 126.) The structure of section 6603 provides the

answer. Subdivision (a) enumerates various rights to which a

defendant facing an SVP trial is entitled. These include not only the

right to a jury trial, but to the assistance of counsel, retention of

experts, and the right to request DNA testing. In addition, it

authorizes the appointment of counsel or experts for indigent

defendants. (See Welf. & Inst. Code, § 6603, subd. (a); Pen. Code,

§ 1405.) This provision simply does not address the rights of the

People.

The Court of Appeal majority pointed to section 6603,

subdivision (b), which provides that the People have “the right to

demand that the trial be before a jury.” The majority suggested “the

statute addresses the People’s rights at trial and makes no mention

at all of retaining an expert.” (Needham v. Superior Court, supra, 82

Cal.App.5th at p. 126.) But nothing in subdivision (b) suggested it

was meant to be an exhaustive list of rights granted to the People at

an SVP trial. As noted, “an SVPA civil commitment proceeding is a

special proceeding of a civil nature” (People v. Yartz (2005) 37 Cal.4th

529, 532) as to which “the Legislature may provide for a jury trial”

(Corder v. Corder (2007) 41 Cal.4th 644, 656, fn. 7). Subdivision (b)

specifically enumerates the People’s right to a jury trial because, as a

special proceeding of a civil nature, they would otherwise not have

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such a right at an SVP trial. (See People v. Rowell (2005) 133

Cal.App.4th 447, 451–452; see also In Re De La O (1963) 59 Cal.2d

128, 150–151.)

A similar observation applies to the Court of Appeal majority’s

reliance on section 6603, subdivision (k)(3), which provides: “This

subdivision does not affect any right of a party to seek to obtain other

records regarding the person subject to this article.” The court below

suggested this was significant because the use of the term “party”

demonstrated that “prior delegations specifically to the defendant

were intentional,” and “the provision entitles either party to ‘obtain

other records,’ not to retain other witnesses.” (Needham v. Superior

Court, supra, 82 Cal.App.5th at p. 127.) This construction ignores the

import of subdivision (k). That subdivision provides that an evaluator

“performing an updated evaluation shall include with the evaluation

a statement listing all records reviewed by the evaluator,” and “[t]he

court shall issue a subpoena, upon the request of either party, for a

certified copy of these records.” In this context, subdivision (k)(3)

states that nothing in this subdivision affects any right to obtain other

records pertaining to defendant. Subdivision (k)(2) provides it does

not affect any right to object to introduction of subpoenaed evidence

as more prejudicial than probative, immaterial or otherwise

inadmissible. While subdivision (k)(2) preserves the standard

application of the rules of evidence to the admissibility of information

obtained during discovery, it does not regulate what trial witness may

be called or by whom.

Neither does section 6603, subdivision (e), cited by the Court of

Appeal majority below, support its reasoning. That provision states:

“This section does not prevent the defense from presenting otherwise

relevant and admissible evidence.” Applying the principle of expressio

unius est exclusio alterius, i.e., “the expression of one thing in a statute

ordinarily implies the exclusion of other things” (In re J.W. (2002)

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Opinion of the Court by Corrigan, J.

29 Cal.4th 200, 209), the court below asserted section 6603,

subdivision (e) “strongly suggests that the People, by contrast, are

confined to the evidence that the SVPA carefully designates.”

(Needham v. Superior Court, supra, 82 Cal.App.5th at p. 127.) This

reasoning is not persuasive. Even if one reads subdivision (e) in the

manner the Court of Appeal majority does, that “[t]his section”

prevents the People from admitting certain relevant and admissible

evidence, subdivision (e) itself does not describe that evidence, nor

does section 6603 enumerate what evidence may or may not be

admitted at trial. As such, subdivision (e) would only have the effect

described by the majority below if one already understood section

6603, subdivision (d), the provision regarding when an updated or

replacement evaluation may be obtained, as a substantive limit on the

admissibility of expert testimony. We have already rejected that view

and subdivision (e) adds little to the analysis.

Further, even assuming there exists ambiguity in the

application of section 6603, subdivision (e), the legislative history of

that provision belies the Court of Appeal majority’s conclusion.

Current subdivision (e) was added in 2001 in the same bill that also

added current subdivision (d)(2), which defines what it means for an

evaluator to be “no longer available to testify” for purposes of

obtaining a replacement evaluation under subdivision (d)(1). (See

Stats. 2001, ch. 323, § 2, pp. 2454−2455.) According to the bill author,

a problem arose from the initial failure of the Act to define that phrase

because courts instead used Evidence Code section 240’s definition of

witness unavailability, which “does not cover cases in which an

evaluator has been replaced by the DMH.” (Sen. Com. on Public

Safety, Analysis of Assem. Bill No. 1142 (2001–2002 Reg. Sess.) as

amended July 5, 2001, p. F.) Thus, the definition of “no longer

available to testify” was added in section 6603, subdivision (d)(2) to

expand the People’s ability to seek a replacement evaluation. In this

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context, the Legislature also added current subdivision (e) “to state

that a determination that an evaluator is unavailable to testify for the

petitioner (DMH and the district attorney) shall not prevent the

defense from present[ing] relevant evidence. This amendment was

taken to clarify that a former evaluator can be called as a witness for

the defense in an SVP matter.” (Sen. Com. on Public Safety, Analysis

of Assem. Bill No. 1142, supra, at pp. K–L.) This legislative history

confirms that, rather than restricting the admissibility of evidence

presented by the People, the bill was intended to assure they could

request replacement evaluations when an evaluator has been replaced

by DSH, even if the evaluator would not technically be “unavailable”

as the Evidence Code generally uses that term, and to clarify that this

provision did not preclude the defense from calling the former

evaluator to testify.

We find unpersuasive defendant’s argument that allowing the

People’s expert to testify would deny him due process because it would

deprive him of a fair trial. Initially, that the People’s retained expert

may testify notwithstanding that the expert may not have interviewed

or tested a defendant does not undermine the fairness of the

proceedings. Indeed, even as to a DSH evaluator, although the

relevant protocol requires “a reasonable attempt to conduct a face-to-

face interview with” a defendant, the protocol acknowledges that a

defendant may refuse to participate, at which point the evaluator

“shall document the refusal and inform the [defendant] that even

without an interview, a[n] SVP forensic report shall be written and

submitted.” (Cal. Code Regs., tit. 9, § 4013, subds. (b), (c).) Cases have

noted that defendants may refuse to meet with evaluators, in which

case an evaluator’s opinion is “based on documentary evidence such

as state hospital records, police reports, probation reports, and prison

records.” (People v. Roa (2017) 11 Cal.App.5th 428, 445; see also

People v. Hoffman (2021) 61 Cal.App.5th 976, 978; People v.

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Burroughs (2016) 6 Cal.App.5th 378, 404; People v. Angulo (2005) 129

Cal.App.4th 1349, 1354–1356.) None of these cases suggested that an

opinion based on evidence other than an interview or testing was

fundamentally unfair. Ultimately, whether an expert has or has not

examined a defendant, and why, would go to the weight to be accorded

to the expert’s conclusions by the fact finder, not the admissibility of

the expert’s testimony. (See People v. Rodriguez (2014) 58 Cal.4th

587, 638; see also People v. Jackson (2016) 1 Cal.5th 269, 327–328.)

Further, as discussed, we reject the premise of defendant’s

argument that such testimony contravenes the SVPA. As the

dissenting justice below reasoned: “The parties have the opportunity

to challenge pretrial the admissibility of their opponent’s proposed

expert testimony via motions filed pursuant to Evidence Code sections

402 and 405. If the testimony is admitted, the experts are subjected

to the crucible of cross-examination. And then the trier of fact decides

[whom] to believe. I am not convinced that proceeding in this well-

established manner threatens the fairness of future SVP

proceedings.” (Needham v. Superior Court, supra, 82 Cal.App.5th at

p. 130 (dis. opn. of Goethals, J.).) We agree. 11

We emphasize that, although the People’s retained expert is not

precluded from testifying at trial, the defense may challenge the

admissibility of such testimony in a particular case under the

Evidence Code like any other expert, including, e.g., whether the

person qualifies as an expert (Evid. Code, § 720, subd. (a)) or would

present an opinion based on improper matter (see Evid. Code, §§ 801,

subd. (b), 803). Further, in light of an SVP defendant’s “due process

right to a timely trial,” the People may not unduly delay the

proceedings for the purpose of retaining an expert, and “the trial court

11

We disapprove People v. Sloan (2023) 93 Cal.App.5th 698, 702–

703, which held to the contrary.

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must take due account of the individual’s interests in prompt

adjudication and take decisive steps to guard against unjustified

delay.” (Camacho v. Superior Court (2023) 15 Cal.5th 354, 368.)

E. Conclusion

In summary and as relevant here, the SVPA provides a highly

structured process under which a convicted sex offender may be civilly

committed after completion of a sentence. A formal evaluation of the

defendant is a central part of that process. As discussed, such a

formal, precommitment evaluation may only be conducted by

evaluators appointed by DSH using the procedures and assessment

protocol specified by the SVPA and relevant regulations. Independent

interviews and testing by outside experts are distinct from the highly

regulated evaluation process and the Act makes no provision for them.

Updated and replacement evaluations may be conducted before or

after a commitment petition is filed. Both a defendant and the People

are entitled to a jury trial, which is civil in nature and at which the

People bear the burden of proof. Both parties are entitled to discovery

as the Act provides. While the CDA generally applies to civil

proceedings, contrary provisions of the Act take precedence over the

CDA. Except where the Act provides otherwise, the trial is conducted

under the Code of Civil Procedure and the Evidence Code. The People

may discover, subject to a protective order, all the reports and relied-

upon information compiled during an evaluation. (See §§ 6601, subds.

(d), (h)(1), 6603, subd. (k); Smith, supra, 6 Cal.5th at pp. 464–468.)

They may retain independent experts and reveal to their expert

otherwise privileged information about the defendant contained in the

evaluations and supporting materials. (See Smith, at pp. 469–472.)

Under the Act, a People’s retained expert is not authorized to compel

a defendant to participate in interviews and testing before the

defendant is committed as an SVP. Either party may call a DSH

evaluator to testify at the commitment trial. The People’s qualified

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NEEDHAM v. SUPERIOR COURT

Opinion of the Court by Corrigan, J.

expert may testify and give an opinion as to whether the defendant

meets the statutory definition of an SVP. The Act also sets out

different procedures that apply after a defendant has been committed.

Ultimately, if the Legislature disagrees with our interpretation of the

SVPA, it may revisit this area to clarify its intent regarding the

testimony of the People’s expert or to provide additional safeguards or

clarifications.

For guidance on remand, we observe the following. If the

district attorney chooses to call Dr. King, he may not rely in any way

on his interview with defendant as a basis for his opinion, which must

conform to Evidence Code section 803. This conclusion does not

conflict with the rule from People v. Sanchez (2016) 63 Cal.4th 665,

which affirmed that, in forming an opinion, an expert may rely on

information inadmissible as evidence and describe such matter to the

fact finder in general terms. (Id. at pp. 679, 685–686.) While the

Evidence Code permits an expert to base an opinion on inadmissible

matter, it does not permit the expert to rely on matter that is

“precluded by law.” (Evid. Code, § 801, subd. (b); see also id., §§ 802,

803.) Because the SVPA does not authorize an independent expert to

interview a defendant before commitment, Dr. King’s interview of

defendant would constitute matter precluded by law within the

meaning of the Evidence Code. Should the district attorney choose to

call a different or additional expert, any new expert would not be able

to interview defendant nor rely on Dr. King’s interview in forming an

opinion.

32

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Opinion of the Court by Corrigan, J.

III. DISPOSITION

The judgment of the Court of Appeal is reversed. The matter is

remanded with directions to return the matter to the superior court

for trial.

CORRIGAN, J.

We Concur:

GUERRERO, C. J.

KRUGER, J.

JENKINS, J.

EVANS, J.

33

NEEDHAM v. SUPERIOR COURT

S276395

Concurring and Dissenting Opinion by Justice Groban

The Sexually Violent Predator Act (SVPA or Act) (Welf. &

Inst. Code, § 6600 et seq.)1 allows for indefinite civil

commitment of a person, not for a crime he or she has previously

committed, but for a crime which he or she might commit in the

future. Recognizing this as an extraordinary deprivation of

liberty, the Legislature set forth multiple procedural safeguards

designed to ensure that a person is committed as a sexually

violent predator (SVP) only where a jury finds, beyond a

reasonable doubt, that he or she suffers from a “currently

diagnosed mental disorder” that makes him or her likely to

recommit after having been punished for prior sexually violent

crimes. (§ 6600, subd. (a)(3).) The SVPA’s detailed statutory

provisions and its implementing regulations set forth in

meticulous detail who may conduct expert evaluations

regarding a person’s SVP status (psychiatrists and licensed

psychologists designated by the State Department of State

Hospitals (DSH) (§ 6601, subd. (d))); when those evaluations

must be conducted (§ 6601, subd. (a), § 6603, subd. (d)); how

those evaluations must be conducted (§ 6601, subd. (c)); and the

criteria to be used in conducting the evaluations and

determining whether a person qualifies as an SVP (§ 6600; see

also Cal. Code Regs., tit. 9, §§ 4000–4020.1). As the majority

rightly concludes, it would conflict with these statutory

1

All further statutory references are to the Welfare and

Institutions Code unless otherwise indicated.

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

provisions and regulations to allow the People to retain an

expert to interview or test the SVPA defendant. (Maj. opn., ante,

at pp. 12–16.) But it is precisely this reasoning that leads me to

a contrary conclusion from the majority with respect to the

question of whether the People can retain their own expert to

testify at trial on whether a person should be civilly committed.

Because the SVPA provides in painstaking detail who should

assess the defendant and how that assessment should be done,

and because the statute says nothing about permitting the

People to retain their own testifying expert, I believe the answer

to this question is “no.”

The majority’s decision undermines the SVPA’s carefully

calibrated procedural safeguards by allowing the People to

simply retain their own expert who may testify free from the

constraints of the statutory scheme. Under the majority’s

holding, a retained expert for hire will be able to opine at trial

that an SVPA defendant should be civilly committed as an SVP,

even though that expert has not conducted the evaluation per

the statute’s “standardized assessment protocol” (§ 6601, subd.

(c)) and has not even interviewed, met with, or tested the

defendant. The majority’s holding frustrates the SVPA’s “clear

intent that the state exercise maximum caution before depriving

persons of their liberty on the basis of potential future crimes.”

(People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 932

(conc. opn. of Werdegar, J.) (Ghilotti).)

I dissent from the majority’s holding that the People may

retain their own expert to testify at an SVPA trial.

I. DISCUSSION

The SVPA contemplates that as many as eight evaluators

designated or appointed by the DSH will evaluate the defendant

and testify on whether he or she should be civilly committed as

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

an SVP: two initial evaluators; two more evaluators if the first

two disagree; two more if the initial evaluators are no longer

available to testify at trial such that the appointment of

replacement evaluators is necessary; and two more if the

replacement evaluators disagree. (§§ 6601, subds. (d)–(g), 6603,

subd. (d)(1).) The SVPA not only designates who must conduct

the SVP evaluations, it also details every possible scenario

regarding what should be done if the evaluators disagree, or if

the evaluations become stale due to the passage of time, or if the

evaluators become unavailable to testify at trial. (§§ 6601, subd.

(e), 6603, subd. (d).)

The SVPA also provides extensive detail on how these

evaluations are to be performed. Evaluators must conduct their

evaluations “ ‘in accordance with a standardized assessment

protocol’ [developed by the DSH] that considers ‘diagnosable

mental disorders, as well as various factors,’ including ‘criminal

and psychosexual history, type, degree, and duration of sexual

deviance, and severity of mental disorder.’ ” (Ghilotti, supra,

27 Cal.4th at p. 910, quoting § 6601, subd. (c).) As the majority

acknowledges, the assessment protocol describes everything

from the qualifications required of evaluators; the questions

they are to address in their evaluations; the test or instruments

the evaluators should use in making their assessment of the

defendant; which records they are to review; how to conduct a

face-to-face clinical interview of the defendant; and the items

and citations required for inclusion in the evaluators’ forensic

reports. (Maj. opn., ante, at p. 5; see also Cal. Code Regs., tit. 9,

§§ 4000–4020.1.)

The majority shows fidelity to these provisions in correctly

concluding that, because the SVPA “limits how formal

evaluations are conducted and by whom,” the People do not have

3

NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

the right to independently examine or test the defendant. (Maj.

opn., ante, at p. 14.) The majority persuasively explains that

“independent precommitment interviews and testing would

permit an end run around the Act’s careful and particularized

balancing of the competing interests at play” (ibid.) as shown by

the Act’s “express mandates” concerning evaluations (id. at

p. 13). The majority goes on to conclude, however, that though

“the SVPA circumscribes who may conduct formal evaluations”

of the defendant, it is purportedly “silent” as to who might testify

at trial. (Id. at p. 24.) I disagree. If we believe that the

elaborate statutory scheme enunciated by the Legislature

precludes importing an unstated right to examine the

defendant, then the scheme should similarly foreclose the

People from having an unstated right to call a testifying expert.

The majority would have the SVPA’s detailed structure

delineating precisely how and by whom an SVPA defendant

must be evaluated disappear based upon its apparent conclusion

that the statute’s tight control over evaluations means only that

the People cannot hire an expert to conduct a “formal,

precommitment evaluation,” but they may still hire an expert to

give an “opinion” at trial. (Maj. opn., ante, at p. 31.) In other

words, the majority believes that a DSH-designated expert’s

evaluation under the SVPA is somehow separate and distinct

from an expert’s opinion regarding whether a person qualifies

as an SVP. This is a distinction without a difference. Both a

privately retained expert’s “opinion” and a DSH-designated

“evaluation” perform exactly the same function: They offer an

expert’s view on the ultimate question of whether the defendant

should be civilly committed. By requiring a formal evaluation,

the SVPA simply provides the process for how a DSH expert’s

opinion regarding whether someone qualifies as an SVP must

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

be reached. The majority misreads the statute when it

concludes that the People can retain their own expert who will

simply bypass all of the procedural requirements imposed on the

DSH experts in forming his or her opinion. Contrary to the

majority’s belief, the statute’s detailed structure setting forth

precisely how and by whom an evaluation must be conducted

tells us that the People cannot simply retain an expert who

testifies without having adhered to any of these procedural

safeguards.

The majority also provides no explanation for why the

Legislature would give the People a right the majority believes

to be critical to the SVP proceeding (a testifying expert) but then

simultaneously hamstring the People by barring the expert from

interviewing the defendant, even though DSH evaluators are

allowed to — and, in fact, must “make a reasonable attempt to”

(Cal. Code Regs., tit. 9, § 4013, subd. (b)) — interview the

defendant. The People do not ask for this curious result, I

suspect because the People and I have reached the same

conclusion: The question of whether the People should be

allowed to examine the defendant must be answered in the same

way as the question of whether the People may retain an expert

to testify at trial as to a person’s SVP status. While the majority

reaches a compromise — the People may retain a testifying

expert, but that expert may not interview or test the

defendant — this outcome only ensures that the People’s expert

is necessarily deprived of the most useful data point for drawing

a conclusion on whether the defendant qualifies as an SVP; i.e.,

talking to and examining the defendant. The better read of the

statute’s elaborate expert evaluation provisions is that the

Legislature did not intend for the People to call their own

testifying expert at trial.

5

NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

On their own, the SVPA’s directives regarding who must

conduct SVP evaluations and how those evaluations must be

conducted evince the Legislature’s intent to limit the types of

expert opinions on which the People may rely at trial. But there

is more: The SVPA expressly provides that only one party —

the defendant — has “the right to retain experts” to “perform an

examination or participate in the trial on the [defendant’s]

behalf.” (§ 6603, subd. (a), italics added.) Contrary to the

majority’s view that the SVPA “is silent as to the type of

evidence that may be presented at trial” (maj. opn., ante, at

p. 24), this provision clearly states that the defendant, and only

the defendant, has the right to present a testifying expert at

trial. The SVPA contains no similar provision granting the

People the right to retain an expert to perform an examination

of the defendant or to testify at trial as to whether the defendant

qualifies as an SVP. In fact, immediately below the subdivision

providing the defendant with the right to retain a testifying

expert, the SVPA describes the rights afforded the People, and

it gives the People only “the right to demand that the trial be

before a jury.” (§ 6603, subd. (b).) As the Court of Appeal

majority queried, “[i]f the Legislature envisioned both parties

retaining testifying experts, why only say the defendant?”

(Needham v. Superior Court (2022) 82 Cal.App.5th 114, 126

(Needham).)

The majority responds to the Court of Appeal’s question

by observing that section 6603, subdivision (a) pertains only to

the defendant’s rights at trial. (Maj. opn., ante, at p. 26.) The

majority further observes that nothing in section 6603,

subdivision (b) suggests “it was meant to be an exhaustive list

of rights granted to the People at an SVP trial.” (Maj. opn., ante,

at p. 26.) These observations fail to answer why the Legislature

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

chose to expressly give the defendant, but not the People, a

statutory right to a testifying expert at trial. A more

straightforward interpretation is the one the Court of Appeal

majority supplied: The principle of expressio unius est exclusio

alterius — “ ‘the expression of one thing in a statute ordinarily

implies the exclusion of other things’ ” — applies and shows a

clear legislative intent that only the defendant may retain a

testifying expert to opine at trial on the ultimate issue of

whether the defendant meets the statutory criteria for

commitment as an SVP. (Needham, supra, 82 Cal.App.5th at

p. 126, quoting In re J.W. (2002) 29 Cal.4th 200, 209.) The

People are limited to relying on the DSH evaluators’ expert

opinions at trial.

Additional support for this interpretation is found in

sections 6605 and 6608, which govern the procedures for

obtaining either unconditional or conditional release after the

defendant has already been committed. Unlike at the initial

commitment trial, the People are expressly allowed to “have the

committed person evaluated by experts chosen by the state” for

the purpose of an unconditional or conditional release hearing.

(§§ 6605, subd. (a)(3), 6608, subd. (g).) Thus, while the People

are allowed to choose their own experts after commitment for

the purpose of evaluating and determining whether the

committed person still qualifies as an SVP, the statute affords

the People with no similar right prior to commitment. These

provisions also afford the defendant with the right to “appoint[]”

experts (§ 6608, subd. (g)) or be “evaluated by experts” (§ 6605,

subd. (a)(3)), illustrating that the Legislature knows how to

expressly afford both parties a right to testifying experts when

it wishes to do so. They also show that the Legislature’s choice

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

to not expressly afford the People with the right to retain a

testifying expert for the commitment trial was purposeful.

The majority contends that, because the SVPA is silent on

whether the People may retain a testifying expert, the People

may do so under the general provisions of the Evidence Code.

(Maj. opn., ante, at pp. 17–18, 24.) Again, I read the statutory

language differently. Section 6603, subdivision (e) states “[t]his

section does not prevent the defense from presenting otherwise

relevant and admissible evidence” at trial. (Italics added.)

Though the majority is correct that the statute is noticeably

silent as to the People’s right to broadly present evidence,

including expert testimony, at trial, that silence was

intentional. The Legislature originally contemplated adding

section 6603, subdivision (e) to clarify that “a former evaluator

who is unavailable pursuant to this bill for reasons other than

those set out in Evidence Code section 240 can be called as a

witness for the state or the defense in an SVP matter.” (Sen.

Com. on Public Safety, Analysis of Assem. Bill No. 1142 (2001–

2002 Reg. Sess.) as amended May 25, 2001, p. L, italics added.)

The amendment the Legislature adopted, however, specifies

that only the defense may present “otherwise relevant and

admissible evidence.” (§ 6603, subd. (e).) The majority counters

that section 6603, subdivision (e) was added only to clarify that

a former evaluator who has been deemed unavailable to testify

under section 6603, subdivision (d)(2) can nevertheless “ ‘be

called as a witness for the defense in an SVP matter.’ ” (Maj.

opn., ante, at p. 29, quoting Sen. Com. on Public Safety, Analysis

of Assem. Bill No. 1142, supra, at pp. K–L.) While this may be

true, the language the Legislature elected to use is quite broad.

The Legislature could have specified that the defense may call

as a witness a former evaluator who has been deemed

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

unavailable to testify under subdivision (d)(2), but it instead

chose to more expansively state that the defense may present

“otherwise relevant and admissible evidence.” (§ 6603, subd.

(e).)

The statute’s provision for updated and replacement

evaluations provides yet another indication that the People may

not retain testifying experts to opine on a person’s SVP status

at the commitment trial. Section 6603, subdivision (d)(1) states

that, if the People determine that updated or replacement

evaluations “are necessary in order to properly present the case

for commitment [at trial], the [People] may request the [DSH] to

perform updated evaluations” or “to perform replacement

evaluations.” The Legislature added this provision in response

to Sporich v. Superior Court (2000) 77 Cal.App.4th 422, which

held that the People had no statutory authority to obtain

updated evaluations. (Maj. opn., ante, at pp. 7–9.) By adding

this provision, the Legislature addressed a problem raised by

Sporich: If the People were not able to obtain updated or

replacement evaluations, they might not be able to prove at trial

that the defendant suffers from “a currently diagnosed mental

disorder that makes the person a danger to the health and safety

of others.” (§ 6600, subd. (a)(3), italics added.) Notably,

however, the Legislature did not authorize the People to hire

their own expert to conduct an independent evaluation or to

provide an independent opinion regarding whether the

defendant qualifies as an SVP. Instead, the Legislature

provided a means for the People to obtain updated or

replacement evaluations from the DSH. If the Legislature

believed the People already had the authority under the

Evidence Code to hire their own testifying expert to opine on a

person’s status as an SVP, then it is unclear why it believed

9

NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

that, without giving the People the authority to seek updated or

replacement evaluations, the People might fail to prove their

case at trial and “the petition could be denied.” (Sen. Com. on

Public Safety, Analysis of Sen. Bill No. 2018 (1999–2000 Reg.

Sess.) as amended April 11, 2000, p. 5; see also maj. opn., ante,

at p. 8.)

Importantly, the People may not seek updated or

replacement evaluations from the DSH simply because they

disagree with the DSH evaluators’ opinions. Instead, the

evaluations must be stale (i.e., more than a year old) and, thus,

in need of updating (Cal. Code Regs., tit. 9, § 4020; see also id.,

§ 4020.1), or the evaluator who conducted the initial evaluation

must be “no longer available to testify” (§ 6603, subd. (d)(1)).

And while a retired evaluator is generally considered to be

unavailable to testify, the statute prohibits the People from

replacing a retired evaluator who previously determined that

the defendant did not meet the criteria for commitment.

(§ 6603, subd. (d)(2)(D).) That is, the People may not replace an

evaluation that concludes the defendant is not an SVP with a

new evaluation that concludes the alleged SVP is an SVP.

(Ibid.) The Act thereby deliberately limits the circumstances by

which the People may seek updated or replacement evaluations.

The majority’s holding, however, creates an end run around

these provisions: Even where an evaluator cannot be replaced

because his or her “most recent evaluation” found that the

defendant “does not meet the criteria for commitment” (§ 6603,

subd. (d)(2)(D), italics added), the People can now simply hire

their own expert to testify that the defendant does meet the

criteria for commitment. Essentially, the majority’s holding

allows the People to obtain a replacement expert opinion “free of

the restrictions” of section 6603, subdivision (d)(1). (Needham,

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

supra, 82 Cal.App.5th at p. 126.) The majority does not explain

why the Legislature would impose a set of constraints on the

People’s ability to obtain updated or replacement evaluations

from the DSH but would, at the same time, impose zero

constraints on the People’s ability to seek a separately retained

expert’s opinion as to whether someone qualifies as an SVP.

Indeed, it is not clear why the People would ever seek an

updated or replacement DSH evaluation — the opinion of which

is unknown at the time of the People’s request — when, under

the majority’s holding, the People may simply hire their own

expert who they can control, have unfettered access to, and

know what his or her intended testimony will be prior to trial.

The majority rejects the “Court of Appeal majority’s suggestion

that any expert presented by the People must, of necessity, be

biased” since “[n]ot every professional disagreement signifies an

impermissible bias.” (Maj. opn., ante, at p. 18.) The majority

fails to acknowledge, however, that evaluators are designated

by the DHS without regard to what their eventual opinion might

be. In contrast, testifying experts are retained to support the

party’s position at trial, and it seems unlikely that the People

would retain and pay an expert for the purpose of giving an

opinion that is adverse to the People’s position at the

commitment trial. This is not a function of “bias” (ibid.); it is

instead a function of how our trial system works. Lawyers seek

to present trial witnesses that support their own position and

not the position of their adversary.

Moreover, pursuant to the majority’s holding, even where

none of the updated or replacement evaluations conclude that

the person being tried currently suffers from a mental disorder

that makes him or her presently dangerous and likely to

reoffend, the People could nevertheless retain their own expert

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NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

to contrarily opine that the person does, in fact, qualify as an

SVP. It is not difficult to envision a scenario in which two initial

DSH evaluators agree that the defendant qualifies as an SVP,

allowing the People to file an initial commitment petition under

section 6601, subdivision (i), but then the initial evaluators

change their minds, or the replacement evaluators disagree

with the initial evaluators’ opinions. As we recently

acknowledged in our decision in Camacho v. Superior Court

(2023) 15 Cal.5th 354, years-long delays between the probable

cause hearing and trial occur with some frequency. (Id. at p. 376

& fn. 2.) During such delays, SVPA defendants are “placed in a

state hospital” (§ 6602.5, subd. (a)) and receive “mental health

treatment while they await trial” (Camacho, at p. 393). This is

how the statute is supposed to operate: “Pretrial treatment of

the underlying mental disorder that caused the state to seek

commitment in the first place may ultimately facilitate the

individual’s release before trial.” (Ibid.) Simply put, treatment

might work. Under the majority’s holding, however, a scenario

could arise in which several years pass between the probable

cause hearing and trial and, during that time, the DSH

evaluators all submit updated evaluations opining that the

defendant has been successfully treated and no longer qualifies

as an SVP. And yet the People could retain their own expert to

opine — without having conducted the evaluation contemplated

by the SVPA or even meeting with the alleged SVP — that the

person still qualifies as an SVP. As long as a jury agrees with

the People’s expert’s view, the defendant would be committed

even though the People’s expert did not follow the SVPA’s

detailed evaluation protocols.

The majority emphasizes the “prosecutorial discretion

built into the SVPA scheme.” (Maj. opn., ante, at p. 23.) Quoting

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Groban, J., concurring and dissenting

Reilly v. Superior Court (2013) 57 Cal.4th 641, 648, the majority

observes that “ ‘[m]andatory dismissal is not required where one

or both of the later evaluators conclude the individual does not

meet the criteria for commitment.’ ” (Maj. opn., ante, at p. 23.)

The issue in Reilly was whether dismissal of an SVP petition

was mandatory based on legal errors in the initial DSH

evaluations; we held that dismissal was only mandatory if the

errors were material. (Reilly, at p. 646.) The majority reads

statements we made in Reilly, such as a need to avoid

“ ‘unnecessary strictness’ ” in interpreting the statute and a

desire for “ ‘commitment petitions be adjudicated on their

merits’ ” (maj. opn., ante, at p. 22, quoting Reilly, at p. 656), as

support for the conclusion that the People have the right to

present their own testifying expert. But Reilly says nothing

about the People’s right to retain a testifying expert and reading

it to provide guidance on this issue seems especially inapt since

we specifically identified in Reilly the remedy the People should

take if they want to challenge DSH evaluations: request

updated evaluations from the DSH, not hire a testifying

expert. (Reilly, at p. 657.)

Moreover, no one is contending that mandatory dismissal

is required, even in a case where the updated or replacement

evaluations agree that the person no longer meets the statutory

criteria for commitment as an SVP. The point is that, in a case

where every neutral DSH evaluator agrees at the time of the

commitment trial that the defendant should not be committed,

it may well be quite difficult for the People to convince a jury

that they should nonetheless commit the defendant as an SVP,

and the People may well wish to dismiss the case in such

circumstances. (Gray v. Superior Court (2002) 95 Cal.App.4th

322, 329 [if the new evaluations agree “that the subject person

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Groban, J., concurring and dissenting

does not at the present time meet the criteria of the Act, the

prosecuting attorney might well elect to dismiss the proceeding”

(fn. omitted)].) Given the significant impairment of liberty

occasioned by commitment, my view is that this is exactly the

balance the Legislature intended to strike. The Legislature did

not intend for the People to be able to circumvent the scheme by

hiring their own expert to contradict the DSH evaluators’

opinions that the defendant no longer qualifies as an SVP.

The majority additionally suggests that the DSH

evaluations are just screening tools used to determine whether

a petition for commitment should be filed, and that the

evaluations are not relevant to the question of what evidence

should be presented at trial. (Maj. opn., ante, at p. 21 [the “role

of DSH evaluations” is “ ‘to ensure that SVP proceedings are

initiated only when there is a substantial factual basis for doing

so’ ”].) But while the initial evaluations performed under section

6601, subdivision (d) are indeed used to determine whether SVP

proceedings should be initiated, the majority ignores section

6603 which, as explained above, clearly contemplates that the

evaluators will present their opinions at trial. (See, e.g., § 6603,

subd. (d)(1) [“If one or more of the original evaluators is no

longer available to testify” for the People at trial, the People may

request the DSH “to perform replacement evaluations” (italics

added)].) Thus, section 6603 makes clear that the evaluation

process is not just an initial screening process because the

section lays out a procedure for DHS evaluators to testify at

trial. The majority’s reading of section 6601 as merely relating

to “screening” fails to interpret the statutory scheme as a whole.

Lastly, the majority relies on our decision in People v.

Superior Court (Smith) (2018) 6 Cal.5th 457, wherein we held

that the People are entitled to a consulting expert. The majority

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Groban, J., concurring and dissenting

posits that it would be “incongruous” to find, as we did in Smith,

that the People may retain a consulting expert to help them

understand the DSH evaluations and to cross-examine DSH

evaluators at trial, and “yet bar the testimony of that same

expert to assist the trier of fact.” (Maj. opn., ante, at p. 24.) I

disagree. In Smith we recognized that consulting experts can

provide valuable assistance to the People — short of

testifying — such as helping the People to “grasp the scientific

nuances underlying another expert’s opinion” (Smith, at p. 469)

and assisting with cross-examination of the defendant’s experts

or the DSH evaluators (id. at p. 471). In addition, consulting

experts can identify legal errors made by the defendant’s experts

or the DSH evaluators and assist the People in raising those

errors with the court. They can also help the People to assess

whether to proceed with the case at all, especially if updated

evaluations determine that the defendant no longer meets the

statutory criteria for commitment as an SVP. I believe it is

perfectly consistent with the SVPA’s statutory scheme to permit

the People to retain a consulting expert to advise the People and

help them understand the strength of their case while also

prohibiting the People from presenting a testifying expert at

trial — an expert who has not adhered to any of the detailed

requirements set forth in the statute.

II. CONCLUSION

In sum, the SVPA lays out in meticulous detail who may

evaluate SVPA defendants and how they must go about

determining whether a defendant should be civilly committed.

Such details include what to do if an evaluator retires or if an

evaluation becomes stale, the assessment protocol evaluators

must use, and how evaluators should conduct a face-to-face

interview with the alleged SVP. (Maj. opn., ante, at p. 5; see also

15

NEEDHAM v. SUPERIOR COURT

Groban, J., concurring and dissenting

Cal. Code Regs., tit. 9, §§ 4000–4020.1.) The statute also

expressly gives the defendant the right to call his or her own

testifying expert but provides no such right to the People.

(§ 6603, subds. (a) & (b).) Given the important liberty interests

at stake, we should not import into the statute a right that is

not described in the statute itself. The majority not only grants

the People a right that the Legislature expressly omitted — i.e.,

the right to call a testifying expert at trial to opine on whether

the defendant qualifies as an SVP — it hamstrings that right by

forbidding the People’s expert from interviewing or testing the

defendant. If the Legislature wishes to afford the People with

the authority to retain and call a testifying expert, it can —

consistent with due process requirements — enshrine such a

right in the statute via future legislation. But this court should

not write such authority into a carefully calibrated statutory

scheme that does not permit it.

I dissent from the majority’s holding that the People may

retain a testifying expert under the SVPA.

GROBAN, J.

I Concur:

LIU, J.

16

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Needham v. Superior Court

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 82 Cal.App.5th 114

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S276395

Date Filed: July 1, 2024

__________________________________________________________

Court: Superior

County: Orange

Judge: Elizabeth G. Macias

__________________________________________________________

Counsel:

Martin Schwarz, Public Defender, Laura Jose, Chief Deputy Public

Defender, Adam Vining, Assistant Public Defender, and Elizabeth

Khan, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Todd Spitzer, District Attorney, and Yvette Patko, Deputy District

Attorney, for Real Party in Interest.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Elizabeth Khan

Deputy Public Defender

801 Civic Center Drive West, Suite 400

Santa Ana, CA 92701

(657) 251-6090

Yvette Patko

Deputy District Attorney

300 North Flower Street

Santa Ana, CA 92703

(714) 347-8780