The opinion
Filed 1/5/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
D077483
In re WILLIAM JIM MORSE on
(Super. Ct. No. EMH-000347)
Habeas Corpus.
Petition for Writ of Habeas Corpus. Jeffrey Bruce Jones, Judge.
Petition denied.
Benjamin Salorio, Public Defender, Darren Bean, Deputy Public
Defendant for Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos and Joy Utomi, Deputy Attorneys General, for Real Party in Interest.
William Jim Morse petitions for a writ directing the superior court to
reverse its finding under the Sexually Violent Predators Act (Welf. & Inst.
Code,1 § 6600 et seq.) (SVPA) that there is probable cause to believe
petitioner is likely to engage in sexually violent predatory behavior without
treatment or custody. The court during the section 6602 probable cause
hearing sustained petitioner’s objection based on People v. Sanchez (2016) 63
Cal.4th 665 (Sanchez) to portions of the experts’ psychological evaluations,
1 Unless noted otherwise, all further statutory references are to the
Welfare and Institutions Code.
but nonetheless found the remaining evidence was sufficient to support a
finding that petitioner met the criteria of a sexually violent predator (SVP).2
At the probable cause hearing, a court must “review” the SVP petition.
(See § 6602, subd. (a).) The petition, in turn, must be supported by
statutorily mandated evaluations that in some, if not most, cases rely on a
broad array of sources dating back years, if not decades, that an evaluator
must consider under the SVPA as part of his or her standardized assessment
of a person.
Petitioner argues that the court correctly found Sanchez applied at the
probable cause hearing; that, after sustaining his hearsay objection to the
experts’ evaluations, there was insufficient evidence to support the court’s
probable cause finding; and that the People “waived” their right to assert
section 6602 is an implied exception to the hearsay rule by failing to raise
this specific ground at the hearing. Petitioner therefore argues the petition
must be dismissed.
As we explain, we conclude the court erred in sustaining petitioner’s
hearsay objection at the section 6602 hearing. We find the SVPA as a whole,
and section 6602 in particular, evince a legislative intent to allow a court to
consider hearsay in the experts’ evaluations when making a probable cause
determination. In our view, requiring an evaluator to rely on nonhearsay
only in preparing his or her evaluation of a person, or requiring the People to
produce at an interim probable cause hearing independent foundational
2 A “ ‘Sexually violent predator’ means a person who has been convicted
of a sexually violent offense against one or more victims and who has a
diagnosed mental disorder that makes the person a danger to the health and
safety of others in that it is likely that he or she will engage in sexually
violent criminal behavior.” (§ 6600, subd. (a)(1).)
2
evidence to support the historical information relied on by evaluators, would
undermine the purpose of such a hearing and the SVPA in general.
Our decision finds further support in that a person at a section 6602
hearing is afforded various procedural safeguards, including the assistance of
counsel, the right to cross-examine the evaluators and challenge their
findings, and the ability to call witnesses.
We note, however, that our decision is limited to a section 6602
probable cause hearing. At an SVP trial, the People must still proffer
nonhearsay evidence in proving beyond a reasonable doubt that a person is
an SVP subject to civil commitment.
In light of our decision, we conclude there is ample evidence in the
record to support the court’s probable cause finding. We thus deny
petitioner’s writ petition.
OVERVIEW
On February 20, 2020, the El Centro District Attorney filed a petition
to commit petitioner as an SVP. The petition was supported by the
evaluations of psychologists Erik Fox and G. Preston Sims. In connection
with their evaluations, the doctors reviewed petitioner’s background,
criminal, prison, and mental health records, and records of the qualifying
sexual offense. Petitioner refused to be interviewed by Dr. Fox; he thus
completed his evaluation by relying on about 39 sets of documents, which he
identified, including dates, in his evaluation.
Petitioner did agree to an interview with Dr. Sims, who also reviewed
voluminous records identified in his evaluation. The doctors in their
evaluations concurred that petitioner met the definition of an SVP as
provided under the SVPA.
3
Qualifying Sexually Violent Offense
As described in the doctors’ evaluations,3 petitioner’s February 2012
Imperial County Probation Report (sometimes, probation report) noted
deputies on January 24, 2010, responded to a physical altercation in a trailer
park where petitioner was then living. Deputies contacted petitioner and
discovered he had been hiding in the bedroom closet of seven-year-old4 Jane
Doe. Petitioner claimed while hiding he heard Jane Doe’s 16-year-old cousin
asking to be orally copulated by Jane Doe, and saw him exposing his penis to
his cousin. Petitioner further claimed he confronted the cousin and a fight
ensued.
Deputies searched petitioner’s RV positioned adjacent to the victim’s
residence. Inside the RV deputies found “images of child erotica, notebooks
with handwritten text discussing child sex and an intention to engage in sex
with children, literature discussing sex with children in foreign countries,
and baby dolls with red paint on their vaginal areas.”
According to the probation report, deputies on February 10, 2010,
interviewed Jane Doe’s mother. She disclosed she had met petitioner about
two months earlier, he was the caretaker of the trailer park, and an
acquittance of her boyfriend. She also disclosed petitioner had given her
daughter “underwear and toys”; he had “frequently followed her daughter
around”; and her daughter had reported petitioner “touched or tickled her in
the underwear area.”
3 The documents relied on by the evaluators are not included in the
appellate record. We thus cite to the evaluations in summarizing the facts of
petitioner’s qualifying sexual offense and the other information relied on by
the experts in determining petitioner met the criteria of an SVP.
4 Dr. Fox in his report stated Jane Doe was seven years old, whereas Dr.
Sims stated she was six years of age.
4
On February 23, Jane Doe was taken to the Chadwick’s Children
Center for a forensic interview. The probation report notes the following
statements were then taken: “Jane Doe said she was watching Strawberry
Shortcake when the defendant entered her room. He sat next to her on the
bed and placed his hands on her upper/inner thigh. Jane Doe said she was
scared and told her mother. On a separate occasion, Jane Doe said she was
taking out the trash when the defendant began chasing after her. Jane Doe
said she was very scared. Jane Doe further said that the defendant had
given her a doll that had a hole on the ‘private parts’ area. On one occasion,
he kissed the victim’s doll on the vaginal area. The victim said the defendant
repeatedly attempted to take her to the beach and had given her underwear
and a Sea World towel. The victim lastly said that the defendant had
attempted to kiss her. Jane Doe reiterated that she was afraid and did not
like him at her house.”
Although charged with multiple counts, petitioner pleaded guilty to a
single count of committing lewd acts upon Jane Doe, a child under the age of
14. (Pen. Code, § 288, subd. (a).) The court sentenced petitioner to 12 years
in prison.
Dr. Fox’s Evaluation
Dr. Fox opined that petitioner’s conviction under Penal Code section
288, subdivision (a) qualified as “sexually violent offense” under section 6600,
5
subdivision (b).5 Dr. Fox also opined that petitioner has a diagnosed mental
disorder that predisposes him to the commission of criminal sexual acts.
(§ 6600, subd. (a)(1).)
With respect to his latter finding, Dr. Fox reviewed petitioner’s
psychological history. Dr. Fox noted there was limited information on this
subject matter. Dr. Fox cited to a Clearwater, Florida supplemental police
report from 1995 in which petitioner had been arrested for kidnapping and
false imprisonment of a nine-year-old child. Subsequent to his arrest,
petitioner’s mother was interviewed by an investigating officer. She stated
petitioner had a “long history of drug related problems” that led her to “kick”
petitioner out of the house on several occasions.
Dr. Fox also addressed petitioner’s educational, employment,
relationship, and psychosexual history, as set out in the probation report.
This history shows petitioner completed the ninth grade; served in the United
States Army for three years6; and had at least four children. Dr. Fox noted
the probation report provided some background information regarding
petitioner, including about his father who died in combat while serving in the
United States Army, and about his mother, who died in 2010.
5 As relevant here, a “ ‘sexually violent offense’ means the following acts
when committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or threatening to
retaliate in the future against the victim or any other person, and that are
committed on, before, or after the effective date of this article and result in a
conviction or a finding of not guilty by reason of insanity, as defined in
subdivision (a): a felony violation of Section . . . 288 . . . of the Penal
Code . . . .” (§ 6600, subd. (b).)
6 Petitioner stated during his interview with Dr. Sims that he served one
year in the Army and then left because his mother had health problems.
6
Regarding petitioner’s psychosexual history, Dr. Fox in his evaluation
noted there also was a dearth of information on this subject matter,
particularly as a result of petitioner’s refusal to submit to a clinical interview.
Dr. Fox noted the probation report provides evidence that in the qualifying
crime petitioner attempted to “groom” Jane Doe; that Jane Doe’s mother was
often intoxicated, making the victim “particularly vulnerable”; and that the
Facts of Offense Sheet dated February 14, 2012 listed the titles of videos
petitioner had in his possession at the time of the qualifying crime. These
titles included: “ ‘6-9 years. Girls Fuck. Little Cunts. Fucked by big daddy.
Rape little girl.’ ‘5 mins. Russia. 7 yo Fucked by Daddy.’ ‘Hot little vaginas
from Germanyu. 4-6 yrs—raped by 2 daddies.’ Thailand-Bankok babes—
pretens 5 yrs, 6yrs. Hot 8 yrs old getting pussy fucked by old dude.[ ] etc. . . .”
Dr. Fox described an incident from the probation report that took place
after petitioner had been arrested for the qualifying crime. An undercover
agent from Immigration and Custom Enforcement was placed in petitioner’s
Imperial County Jail cell because authorities were concerned by petitioner’s
“intent to access child pornography and have sex with children in foreign
countries.” The agent befriended petitioner; they had a number of
conversations about child pornography and sex with children; and petitioner
agreed to purchase child pornography videos from the agent on petitioner’s
release.
After making bail, petitioner went to the agent’s motel room to
purchase the videos. The probation report, relied on by Dr. Fox, noted a
hidden camera and microphone in the motel room recorded the following:
“ ‘. . . [T]he pornographic videos contained images of a “ten-year-old getting
fucked by a dog,” a five year-old “Brazilian bitch being raped by a man with a
cock the size of fuckin Great Dane” and a little girl getting her “cherry
7
popped.” [The undercover agent] said he would sell the videos to him for
$100. The defendant said $100 was a significant amount and that he needed
a preview before purchasing them. He then told [the undercover agent] he
would purchase his toiletries from [a department store] in exchange for the
videos. On February 1, 2012, he eventually paid [the undercover agent] $50
for the videos.’
“The defendant made several alarming statements such as . . . ‘I fucked
my own mother,’ ‘My daughter sucked my dick when she was like eight years
old,’ and ‘I will protect fucking people that are like me. All my fucking life I
knew I wasn’t the only one, the only so-called fuckin molester or the only
fuckin pervert.’ The defendant added a pimp in Ciudad Juarez, Mexico had
given him a child and that children commonly went for $400. [The
undercover agent] suggested that they travel to Mexico to have sex with
children. Enthused by the idea, the defendant invited himself and began to
plan the trip. He said they needed to have a ‘business plan.’ The defendant
said he was seeking more than sex and wanted a ‘real relationship’ with a[n]
11 year-old. Once he would ‘fuck’ her, nobody could touch her, he said. The
defendant said he needed to give the children’s mother[ ] money to calm down
the children. Therefore, they drove to [a location] to access a [bank’s]
automatic [teller] machine; the defendant withdrew $800. Officers
subsequently arrested him in the parking lot.”
Dr. Fox noted petitioner was accused of molesting another victim, who
came forward on April 8, 2010. Dr. Fox’s evaluation referenced an April 8 El
Centro Police Department Narrative regarding this incident, which was
summarized in the probation report. The probation report noted criminal
charges from this incident, involving a six-year-old girl in which petitioner
8
was accused of molesting and grooming the victim, were dropped as part of
petitioner’s guilty plea to the qualifying crime involving Jane Doe.
The probation report nonetheless provided details regarding this
separate incident.7 The victim reported to her father that petitioner
“touched her vagina, that his penis entered her vagina[ ] and that it hurt her.
The victim confirmed it was Mr. Morse who molested her and remarked that
he bought her toys. An El Centro Police Department Investigation Report
dated 5-9-11 also indicates the victim stated Mr. Morse placed his mouth on
her ‘peepee’ for a long time while inside Mr. Morse’s recreational vehicle.”
Dr. Fox noted that while petitioner was incarcerated in 2011 at the
Imperial County Regional Adult Detention Facility, deputies during a routine
inspection found papers in petitioner’s cell that “contained writing and
drawings that appeared to be of female children in various states of undress
and provocative poses.” Dr. Fox reviewed the drawings and reported one of
the drawings “displays a female with her legs spread open and a caption of
her saying, ‘Fuck me hard daddy!’ Underneath the image is the quote,
‘Seems he has a daughter that just loves to fuck.’ ” Other writings on the
papers included, “ ‘Little girls inside of blacked out minivans in Lost Angelles
Cal. Arcade Fun.’ ”
In 2012, while in prison for the qualifying crime, deputies discovered a
number of contraband pictures while searching petitioner’s bed area. Dr. Fox
noted there were seven small pictures depicting “various dolls and very young
girls who looked between the ages of 4 and 7.”
Dr. Fox described an incident in 2015 when an inmate complained
petitioner was creating “ ‘[d]isgusting drawings of children and cartoon
7 As discussed post, Dr. Sims questioned petitioner about this incident
during the forensic interview.
9
characters showing their private parts.’ ” The source of the report is not
given by Dr. Fox. Dr. Fox went on to note that shortly after the inmate
complained, there was a physical altercation between petitioner and other
inmates. Dr. Fox added, “I found no other mention of the child sexual
material but given the history of such, it seems plausible Mr. Morse was
creating it again.”
Dr. Fox also addressed an incident in February 2019 when petitioner
walked across the prison yard “completely naked.” Dr. Fox did not provide a
source of this information. Dr. Fox in his evaluation noted petitioner claimed
to have done so for attention because he was fearful as a result of being a
convicted sex offender.
Dr. Fox listed petitioner’s adult criminal history, which is extensive
dating back to 1982, and includes petitioner’s 1995 conviction in Florida for
false imprisonment of a nine-year-old child, as briefly noted ante. The
criminal history also includes a section on petitioner’s “Institutional
Behavior,” which recounted more than 10 violations while petitioner was
incarcerated for the qualifying crime, including the February 2019 incident
when petitioner walked across the prison yard naked.
The evaluation also includes petitioner’s substance abuse, medical, and
psychiatric history. Regarding the latter, among other details Dr. Fox stated
the probation report noted petitioner admitted to being diagnosed with
schizophrenia at the age of 10. According to Dr. Fox, petitioner’s medical
records, including an IEX report dated March 4, 2019, “reveal Mr. Morse is
diagnosed with a number of mental disorders including Bipolar Disorder,
Antisocial Personality Disorder, and Pedophilic Disorder.”
When Dr. Fox briefly met with petitioner and attempted to conduct a
forensic examination, petitioner then was in custody in the Mental Health
10
Crisis Bed level of care, which Dr. Fox opined was “similar to an acute
inpatient psychiatric hospitalization.” Shortly thereafter, petitioner was
transferred to an “Intermediate Care Facility” because, Dr. Fox further
opined, petitioner needed a “higher level of care . . . than that which the
prison can provide.”
Dr. Fox reviewed petitioner’s Clinical Summary and Case Formulation
dated August 21, 2019, which described petitioner’s psychiatric treatment
history, most of which was from his incarceration for the qualifying offense.
From this information, and other records summarized ante, Dr. Fox
concluded that petitioner “has not been stable psychiatrically for some time”;
that he is “court ordered to take psychiatric medication involuntarily which
highlights his lack of treatment compliance”; that petitioner’s antipsychotic
mediation therefore was being “administered intramuscularly”; and that he
suffers from auditory hallucinations and paranoid thoughts, as also
documented in progress notes from 2018 by the Mental Health Services
Delivery System, where petitioner again admitted to being schizophrenic.
Based on his review of these extensive records, Dr. Fox opined under
the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
(DSM-5), that petitioner’s has the following diagnostic profile: “302.2
Pedophilic Disorder, Non-Exclusive Type, Sexually Attracted to Females”;
“305.00 Alcohol Use Disorder, Mild”; “305.20 Cannabis Use Disorder, Mild”;
“305.60 Stimulant Use Disorder, Cocaine, Mild”; and “298.8, Other Specified
Schizophrenia Spectrum and Psychotic Disorder.”
Regarding his diagnosis of pedophilic disorder, Dr. Fox noted the DSM-
5 lists the criteria of this disorder as follows: “A. Over a period of at least six
months, recurrent, intense sexually arousing fantasies, sexual urges, or
behaviors involving sexual activity with a prepubescent child or children
11
(generally age 13 years or younger). [¶] B. The individual has acted on these
sexual urges, or the sexual urges or fantasies cause marked distress or
interpersonal difficulty. [¶] C. The individual is at least age 16 years and at
least five years older than the child or children in Criterion A.”
Dr. Fox opined that petitioner met the above criteria, noting his
prepubescent victims, including Jane Doe, were only six or seven years of age.
Dr. Fox continued, “The evidence shows he groomed each of these vulnerable
children and had written about his desire to have sex [with] children.
Further evidence of his sexual interest in children is noted by officers who
confiscated child pornography from his vehicle after his arrest in 2010. Then,
after detection for molesting the 7-year-old victim [Jane Doe], Mr. Morse
befriended a cellmate who he later purchased child pornography from. He
then made arrangements to have sex with children in Mexico. Mr. Morse
also disclosed he had forced his 8-year-old daughter to orally copulate him.
The cellmate was actually an undercover agent. Later in 2011, 2012, and
2015 while in custody, Mr. Morse was in possession of images and writings he
created regarding sexual interest in children. Consequently the timeline for
the disorder is met. Mr. Morse has obviously acted upon his urges and the
age requirements are established. Mr. Morse’s incarceration has caused him
obvious marked distress and interpersonal difficulty. The criteria for
Pedophilic Disorder are met.” Dr. Fox then went on to address the remaining
disorders discussed ante.
Dr. Fox opined petitioner suffers from a “diagnosed mental disorder” as
defined in subdivision (c)8 of section 6600, as Dr. Fox found there was a
8 “ ‘Diagnosed mental disorder’ includes a congenital or acquired
condition affecting the emotional or volitional capacity that predisposes the
person to the commission of criminal sexual acts in a degree constituting the
person a menace to the health and safety of others.” (§ 6600, subd. (c).)
12
“direct nexus between [petitioner’s] pedophilic disorder and his lack of
volitional control.” Dr. Fox added: “First, despite detection and sanction, Mr.
Morse immediately sought out child pornography to replace what had been
confiscated. He then made plans and took steps to engage in sex with a child
in Mexico. Thereafter, while incarcerated, he created images and writings to
support his deviant sexual interests despite the fact that possession of such
material imposed a significant danger to his safety. It is therefore clear his
behavior is not deterred by actual consequences. In Mr. Morse’s case, he is
also emotionally impaired as a result of his pedophilic disorder. His
statements and actions establish that he fails to recognize the significant
psychological consequences to his victims.”
Dr. Fox further opined that without appropriate treatment and
custody, petitioner was likely to engage in sexually violent criminal behavior
as a result of his mental disorder. In reaching this conclusion, Dr. Fox relied
on the Static-99R, scoring it “in the most conservative manner” by not
including any incident involving a stranger or any male victims. Dr. Fox
found petitioner was in the above average risk category for being charged or
convicted of another sexual offense. Dr. Fox’s evaluation discussed at length
absolute recidivism rates, as well as the structured risk assessment known as
the violence risk scale—sexual offense version (VRS-SO), and a variety of
dynamic factors under this assessment tool.
Dr. Fox went through 17 different factors relative to the VRS-SO. He
found petitioner’s overall lifestyle is characterized by sexual deviance,
including grooming at least two of his victims; possessing child pornography;
discussing his sexual history with children with an undercover agent;
acquiring more sexually deviant material from that agent; and making plans
to travel abroad to have sex with children. Dr. Fox also found that petitioner
13
in 2010 planned his sexual crime, another factor, by grooming Jane Doe and
the other young victim.
Other factors present in the VRS-SO included petitioner suffers from
some “cognitive distortions”; he “extensively or consistently” uses aggressive
behaviors “in interpersonal interactions”; he lacks community support if
released; if released, he will be at risk even on parole given his “thought
disorder, poor medication compliance, substance abuse history, and limited
resources”; he is unwilling to comply with community supervision, as he was
on such supervision when he sexually assaulted Jane Doe, purchased child
pornography, and made arrangements to have sex with children in Mexico;
and he exhibits deviant sexual preference, as he showed a consistent and
marked interest in children and was diagnosed with a paraphilia.
Dr. Fox found various case-specific factors also supported his
conclusion that if untreated, petitioner was likely to engage in sexually
violent criminal behavior as a result of his mental disorder. Dr. Fox noted
the depth and persistence of petitioner’s paraphilic disorder was “quite
significant,” as petitioner’s victims were vulnerable and he was willing to
travel outside of the country to serve his sexual deviance. Dr. Fox thus found
these factors set petitioner apart “from the typical, average, or routine
pedophile” who, according to Dr. Fox, tend not recidivate, unlike petitioner
who sought to do so while out on bail for the qualifying crime.
Dr. Fox next reviewed various factors that may mitigate the risk of
sexual recidivism by petitioner. Dr. Fox found none applied.
14
Dr. Fox also concluded petitioner’s qualifying crime was “predatory,” as
defined in section (e)9 of section 6600. Dr. Fox noted Jane Doe was at most a
casual acquaintance, and petitioner only briefly knew his other victim. Dr.
Fox also noted both relationships were promoted for the primary purpose of
sexual victimization. As such, he concluded any future sexual offenses
committed by petitioner were likely to be predatory in nature.
Dr. Fox also discussed alternate sex offender treatment programs
available to petitioner. After assessing various factors, Dr. Fox concluded
that if paroled, community-based voluntary treatment for petitioner would be
“insufficient.” Dr. Fox therefore concluded petitioner met the criteria of an
SVP under section 6600, subdivision (a)(1).
Dr. Sims’s Evaluation
Dr. Sims’s interviewed petitioner for one hour and 20 minutes in
connection with his November 5, 2019 evaluation. Dr. Sims also reviewed 41
sets of documents from the Department of State Hospitals (DSH); myriad
rules violation reports from petitioner’s medical file generated by the R.J.
Donovan Correction Facility; and petitioner’s mental health documents dated
May 3 to October 30, 2019. Dr. Sims concurred with Dr. Fox that petitioner’s
2012 conviction involving Jane Doe, case No. JCF25010, was a “sexually
violent offense” under section 6600, subdivision (b). Dr. Sims noted the case
information showed petitioner had been charged with five counts and he had
pleaded guilty to count 1, with the remaining counts being dismissed under
the plea.
9 “ ‘Predatory’ means an act is directed toward a stranger, a person of
casual acquaintance with whom no substantial relationship exists, or an
individual with whom a relationship has been established or promoted for the
primary purpose of victimization.” (§ 6600, subd. (e).)
15
Dr. Sims’s evaluation, like Dr. Fox’s, relied extensively on petitioner’s
February 2012 probation report. Dr. Sims’s factual summary of the
qualifying sexual offense is thus similar to Dr. Fox’s summary, described
ante. Dr. Sims’s evaluation, however, included additional information as
follows: “On February 14, 2012, the undersigned (probation officer)
interviewed the defendant at Imperial County Jail. Upon introducing myself,
the defendant immediately asserted, ‘I didn’t do these crimes’ and that he
had pled to the instant offense since he had to two prior strikes. He added, ‘I
got railroaded into taking a guilty plea.’ The defendant said the incident
report had numerous inconsistencies and he referred to police officers as
‘dirty mother fuckers.’ When asked to explain his relationship to the victim,
he asked which one of the two victims. The defendant said he was a friend to
both victims. When referring to Jane Doe, he said he cared for her when the
mother was sick drunk [sic]. The defendant said he often had dinner at Jane
Doe’s house and would have a few beers with her mother. He said he was
living with the other victim’s mother, who was pregnant, and that he had
helped care for her children. Later, he was accused of molesting her seven-
year-old daughter. He denied engaging in sexual contact with either
victim.”
Dr. Sims during the clinical interview asked petitioner about the
incident involving Jane Doe. Petitioner responded he did not remember.
When Dr. Sims reminded petitioner he was sentenced to 12 years in state
prison for this offense, petitioner stated the incident was “ ‘erroneous,’ ” and
added he had “[o]ral copulation with a Child Under 13 years.”
During the interview, petitioner was also asked about the incident
involving the six-year-old girl, in which charges were brought then dropped
in return for his guilty plea to the qualifying offense. Petitioner responded,
16
“I was intoxicated and high on medication.” When Dr. Sims’s questioned
petitioner what effect the sex offense may have had on the little girl,
petitioner replied, “I doubt it. It was something she was used to.”
Dr. Sims concurred with Dr. Fox that petitioner’s conviction under
Penal Code section 288, subdivision (a) for the offense on Jane Doe met the
definition of a “sexually violent offense” under section 6600, subdivision (b).
Dr. Sims also concurred with Dr. Fox that petitioner has a diagnosed mental
disorder affecting his emotional or volitional capacity that predisposes him to
the commission of criminal sexual acts. Similar to Dr. Fox’s evaluation, Dr.
Sims reviewed petitioner’s background, educational, employment,
relationship, and sexual history.
In the interview, petitioner told Dr. Sims that both his parents were
deceased; that he had three brothers; that he was physically and emotionally
abused by his step-father from age 11 to 13; that he joined the Army when he
was 18 years old, but left after one year because his mother had health
problems; that while in the Army he was sexually abused by two soldiers; and
that also while in the military he was in a coma for 28 days after being “hit in
the chest by a cannon shell.”
After discussing his relationship history in which petitioner claimed he
had five children living in Arizona and one in Ohio, all living with women
other than the two he had previously been married to, he talked about his
sexual history. When asked how often he thinks about children in a sexual
way, petitioner initially responded, “[O]nce in a blue moon. I don’t know,”
then contradicted himself and said, “No.” Petitioner also denied having any
other type of “sexual problems” or “sexual deviancy.”
Petitioner also discussed his alcohol and drug use during his interview
with Dr. Sims. When asked if he had any problems with alcohol or drugs,
17
petitioner stated, “Currently, no. If I get out, I’ll have to join a treatment
program because I still have ‘stinking thinking.’ I can drink a 12-pack or
smoke marijuana—it’s legal, but I want to be more functional.”
Dr. Sims also referenced the 1995 incident in Florida in which
petitioner was convicted of kidnapping. Dr. Sims wrote: “According to the
police report, the defendant contacted a nine-year-old girl walking on the
street (he reports he thought the girl victim was a boy) and coerced her to
stay with him when she was to return home. When contacted by police, he
lied and stated that ‘he’ was with him (the defendant). The child confirmed
the lie. When the police searched for them later, the defendant forced the
child into a dumpster to avoid contact. They were found and the child was
returned home the same day of the abduction.”
Dr. Sims also discussed the qualifying crime. Dr. Sims noted after
deputies contacted petitioner on January 25, 2010, they searched his RV and
found “[s]everal alarming items” that were “confiscated,” as summarized ante
in connection with Dr. Fox’s evaluation.
Regarding the incident in the Imperial County Jail when authorities
placed an undercover agent in petitioner’s jail cell, discussed ante in Dr. Fox’s
evaluation, Dr. Sims further noted the probation report described the
following interview after petitioner’s arrest with respect to his purchase of
child pornography from the agent: “[T]he defendant said that while in jail, he
had met with [an individual allegedly named] Don Ramon, a man interested
in child pornography and child sex. He said he wanted to entrap Don Ramon
and thus posed as a pedophile. Since he wanted Don Ramon arrested, he
purchased child pornography from him for $50. He further said he had led
Don Ramon to believe that he would travel to Mexico in order to witness
more of Ramon’s criminal acts. In reference to the journals in his RV, he said
18
he knew a few child molesters in Ocotillo and was planning to infiltrate by
pretending to be one of them. The defendant denied having sex or sexual
desires towards children. Agents made inquiries as to his initial arrest [on
the qualifying crime]. The defendant said he was hiding from a biker in the
child’s room and [he] witnessed a 16-year-old attempt to molest a child. He
said the child’s mother was asleep, leaving the child unprotected in her
bedroom.”
Dr. Sims asked petitioner about the incident involving “Don Ramon.”
Petitioner responded, “An undercover cop tried to sell me child porn. I told
him, ‘I don’t know you. I don’t know what the DVDs are about, but I could
use a ride to Ocotillo.’ All they were trying to do was hook me on a case.”
Petitioner during the forensic interview also made a “vague reference to
another sex offense against a separate victim.” Petitioner told Dr. Sims,
“There is one they didn’t indicate. It was nothing to do except me being
drunk. . . . It was a friend I was babysitting. Her mom would get drunk. It
was in Ocotillo, California.”
Dr. Sims, as did Dr. Fox, also reviewed petitioner’s rule violation
reports during petitioner’s incarceration on the qualifying offense. Dr. Sims
asked petitioner about an incident that occurred in February 2019, when
petitioner was arrested and taken to the mental health delivery system
building after walking naked across the prison yard. Petitioner stated, “They
wouldn’t listen.”
Dr. Sims reviewed petitioner’s extensive psychiatric history dating back
to 1981. Although petitioner claimed to have left the Army due to his
mother’s health, Dr. Sims noted while petitioner was serving in the military
he had a nervous breakdown and was discharged. Dr. Sims also noted that
petitioner in December 2002 was admitted to Patton State Hospital after
19
being found incompetent to stand trial. The Discharge Summary dated
February 23, 2005 relied on by Dr. Sims showed petitioner previously had
been diagnosed as schizophrenic. An August 20, 2010 Patton State Discharge
Summary noted petitioner attempted to “lure” one of his female peers into
the mail bathroom, but was stopped by staff. He also was observed holding
hands with female peers and “appeared to engage in many behaviors
indicating he was looking for some erotic satisfaction on the unit.”
Dr. Sims also included in his evaluation Mental Health Documentation
dated October 26, 2019. Dr. Sims noted these records showed petitioner had
attempted suicide at least 10-plus times; and had experienced auditory
hallucinations, paranoia, disorganization, and mood swings. Dr. Sims also
reviewed and summarized health records of petitioner from R.J. Donovan
Correctional Facility.
Dr. Sims asked petitioner about his psychiatric history. Dr. Sims
summarized their conversation as follows: “Mr. Moore stated that he had
been hospitalized at Atascadero State Hospital ‘a number of times.’ He
stated, ‘I’m not schizoaffective. I think I’m schizophrenic. I don’t have manic
episodes.’ He stated that he has auditory hallucinations ‘at times.’ He
denied having paranoid thoughts. He stated that he currently takes lithium
and valproic acid, but ‘I don’t notice a difference.’ ” Petitioner during the
interview admitted several previous suicide attempts, “including breaking a
razor off in his arm in 2016, drinking gasoline on the yard in 2016 and taking
someone else’s medications in a suicide attempt, also in 2016.”
When asked to access his risk for sexual re-offense, petitioner told Dr.
Sims “zero.” When asked why this was case, petitioner replied, “ ‘because I’m
going to get alcohol treatment. After 12 years of reflection, there’s no way
20
that I would do the same thing.’ ” Petitioner then denied needing any
treatment for “sexual offense behavior.”
Based on the foregoing, Dr. Sims diagnosed petitioner using the DSM-5
as follows: “302.2 Pedophilic Disorder, Sexually Attracted to Females, Non-
exclusive type”; “295.70 Schizoaffective Disorder, Depressive Type”; “303.90
Alcohol Use Disorder, Severe, in a controlled environment”; and “301.7
Antisocial Personality Disorder.”
Dr. Sims used the same criteria from the DSM-5 used by Dr. Fox
regarding the diagnosis of Pedophilic Disorder. Dr. Sims concluded petitioner
met the criteria, explaining: “Mr. Morse has been reported to view child
pornography repeatedly, to engage in sexual activity with a 6-year-old and to
make comments regarding his sexual interest in children, such as ‘My
daughter sucked my dick when she was like eight years old,’ and ‘I will
protect fucking people that are like me. All my fucking life I knew I wasn’t
the only one, the only so-called fucking molester or the only fucking pervert.’ ”
Dr. Sims found his diagnosis of Schizoaffective Disorder was warranted
because petitioner’s “[p]ast symptoms have included auditory and visual
hallucinations, bizarre delusions, paranoia, grandiosity, extensive mood
swings with depression and mania, aggressive and assaultive behavior and
extremely disorganized thinking.” Dr. Sims also found support for this
diagnosis because petitioner previously had been diagnosed with
schizophrenia, as he admitted during the interview, and because of his
history of at least 10 suicide attempts.
Dr. Sims then reviewed the factors from the DSM-5 and petitioner’s
history to diagnose him with Alcohol Use Disorder. Dr. Sims also used the
criteria from the DSM-5 to explain his diagnosis of Antisocial Personality
Disorder. Dr. Sims explained: “Mr. Morse’s failure to conform to social
21
norms with respect to lawful behaviors as indicated by repeatedly performing
acts that are grounds for arrest . . . indicated in hi[s] approximately 31
arrests and approximately 20 convictions. His deceitfulness is indicated in
his false imprisonment conviction, in his reporting the death of his mother on
numerous occasions and in his report that he was posing as an FBI agent to
entrap ‘Don Ramon.’ His impulsivity and failure to plan ahead is indicated in
his alcohol abuse and parole and probation violations. His irritability and
aggressiveness and reckless disregard for the safety of others was indicated
in his arrests and convictions for Battery on Person, Assault with a Deadly
Weapon, Attempted Murder, Child Cruelty and Lewd Act Upon Child. His
consistent irresponsibility is indicated in his sporadic work history and
failure to support five children. His lack of remorse was clearly evident in
the current interview.”
Dr. Sims also concluded petitioner has a mental disorder affecting his
volitional and emotional control that predisposes him to the commission of
criminal sexual acts. Dr. Sims based his conclusion on petitioner’s diagnoses
of Pedophilic Disorder, Schizoaffective Disorder, Alcohol Use Disorder, and
Antisocial Disorder which, when combined, produce such a condition. Dr.
Sims found that this condition created a “volitional impairment” in light of
the repetitive nature of petitioner’s sexual offenses, “despite the potential of
being caught and sanctioned”; and that petitioner repeatedly engaged in such
sexual acts “despite the victims’ discomfort/distress,” evidencing the condition
affected his emotional capacity. Dr. Sims thus opined petitioner met the
definition of “diagnosed mental disorder” under section 6600, subdivision (c).
Dr. Sims also opined that absent treatment or custody, petitioner was
likely to engage in sexually violent criminal behavior as a result of his
diagnosed mental disorder. Dr. Sims found that petitioner’s scores based on
22
the Static-99 and Static-2002 placed him in the average risk category for
being charged or convicted of another sexual offense. Dr. Sims nonetheless
found these scores did not include psychological risk factors, which, when
considered, supported his finding petitioner in the future was likely to engage
in sexually violent criminal behavior.
Focusing on the factors of the structured risk assessment—forensic
version, Dr. Sims found the factor for sexual preference for children applied
to petitioner, as Jane Doe was under 14 years of age, and petitioner in the
past has “expressed an interest in sexual activity with children in his
statement [to] the undercover agent and his purchasing the alleged child
pornography at that time.” Other factors found present, or partially present
by Dr. Sims included petitioner’s sexual preoccupation beyond that
considered “normal” for an adult; his emotional congruence with children; his
callousness and lack of empathic connection with others; his grievance
thinking based on poorly managed anger and a “persistent pattern of verbal
aggression, angry outbursts, threatening and intimidating behavior”; his
lifestyle impulsivity, demonstrated by his “sensation-seeking and poor
tolerance for boredom”; his resistance to rules and supervision; and his
dysfunctional coping.
Based on these factors, Dr. Sims opined that petitioner’s score on the
structured risk assessment—forensic version, was 33, which “placed him at a
‘high’ level of psychological need.”
Dr. Sims also considered protective risk factors. He found the risk of
reoffense by petitioner may be reduced as a result of petitioner’s chronic pain.
However, Dr. Sims found other protective risk factors, such as completing a
comprehensive sex offender treatment program or having been in the
community without sexually reoffending, did not apply to petitioner.
23
Dr. Sims also evaluated not only whether it was “likely” petitioner
would sexually reoffend, but also whether such an offense would be
“predatory” in nature as defined in section 6600, subdivision (e). Dr. Sims
opined that if petitioner does sexually reoffend, it will likely be predatory
given his offense against Jane Doe, who was merely a “casual acquaintance”
with whom petitioner had no substantial relationship.
Based on all of the foregoing, and despite petitioner’s Static-99R and
Static-2002R scores, Dr. Sims concluded petitioner “represents a substantial
danger, that is, a serious and well-founded risk of committing a future violent
sexual offense. Therefore, . . . he is likely to engage in sexually violent
predatory criminal behavior as a result of his diagnosed mental disorder
without appropriate treatment and custody.”
SVP Petition, the Probable Cause Hearing, and the Writ Petition
As noted, the El Centro District Attorney filed a petition in February
2020 to commit petitioner as an SVP. The petition was supported by the
evaluation of Drs. Fox and Sims, which were attached to the petition. In
April 2020, the court held a probable cause hearing under section 6602. The
People did not call any witnesses, and submitted on the evaluations of the
two doctors. The petitioner also did not call any witnesses.
Relying on Sanchez and People v. Superior Court (Couthren) (2019) 41
Cal.App.5th 1001 (Couthren), petitioner at the hearing objected to the
evaluations on the ground they presented facts based on case-specific
hearsay. Therefore, petitioner argued the experts’ opinions lacked proper
foundation and the petition should be dismissed. The court sustained the
objection.
However, after sustaining the objection, the court found there was
sufficient admissible evidence to support the finding that petitioner “is a
24
person that would fall under the SVP law.” In making this finding, the court
noted the qualifying offense involving Jane Doe was a “sexually violent
offense” as defined under section 6600, subdivision (b).
The court then turned to the other requirements of the SVPA and
found they too were satisfied, noting: “[E]ven with the objection being
sustained, there’s sufficient evidence in the file to support the opinion that
the qualifying crime was predatory in that even Mr. Morse was stating to the
interviewer—and that’s not hearsay at that level—that the child was a
neighbor kid and that, you know, certain statements about the child’s mother
and her behavior and that sort of thing. So there’s probable cause.
“I’m not saying any further burden of proof than that. But there’s
probable cause to believe that it was predatory in nature. Mr. Morse
acknowledged to the interviewer that he did at least have schizophrenia.
“He doubted that he had schizoaffective disorder. But that’s a mental
disorder and, therefore, the interviewer or the author of the report [i.e., Dr.
Sims], which was submitted [to the court] on April the 15th, had sufficient
basis for the opinion that he suffers from a mental disorder that makes it
likely that he will commit sexually violent acts in the future, at least as a
probable cause standard.”
On May 12, 2020, petitioner filed a writ petition. The People on June
25 filed an informal response, and Petitioner on July 8 filed a reply to that
response. On July 14, this court ordered the People to show cause why the
relief sought in the petition should not be granted. The People responded by
filing a return on August 6, and the petitioner filed a traverse on September
8.
25
DISCUSSION
As noted, petitioner contends the court impermissibly relied on
hearsay, including his interview statements to Dr. Sims and, despite
sustaining his objection under Sanchez, to other case-specific facts in the
evaluations in making its probable cause finding. Absent this inadmissible
hearsay, he contends there is insufficient evidence to support the probable
cause finding; and therefore, the petition must be dismissed.
Currently, there is a split in the Court of Appeal whether an evaluation
based on case-specific facts from hearsay sources is admissible at a section
6602 probable cause hearing to establish a person may be an SVP.
(Couthren, supra, 41 Cal.App.5th 1001 [inadmissible]; Bennett v. Superior
Court (2019) 39 Cal.App.5th 862 (Bennett) [same].) This issue is now pending
before our high court. (Walker v. Superior Court (2020) 51 Cal.App.5th 682
(Walker) [admissible], review granted September 9, 2020, S263588.)
A. Statutory Overview
The SVPA “allows for the involuntary commitment of certain convicted
sex offenders, whose diagnosed mental disorders make them likely to
reoffend if released at the end of their prison terms.” (Cooley v. Superior
Court (2002) 29 Cal.4th 228, 235 (Cooley).) To be committed, the trier of fact
must find beyond a reasonable doubt that the person is an SVP. (Id. at p.
243.)
As noted, the SVPA defines an SVP as “a person who has been
convicted of a sexually violent offense against one or more victims and who
has a diagnosed mental disorder that makes the person a danger to the
health and safety of others in that it is likely that he or she will engage in
sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) The People must
also prove that the sexually violent criminal behavior the person is likely to
26
engage in will be predatory in nature. (People v. Hurtado (2002) 28 Cal.4th
1179, 1186.)
Before the People may file a petition to commit a person as an SVP, the
Department of Corrections and Rehabilitation (CDCR) must first screen him
or her, generally at least six months before his or her scheduled release date.
(§ 6601, subd. (a).) “If as a result of this screening it is determined that the
person is likely to be a sexually violent predator, the [CDCR] shall refer the
person to the [DSH] for a full evaluation of whether the person meets the
criteria in Section 6600.” (§ 6601, subd. (b).)
Once a person is referred to DSH, he or she is evaluated under a
standardized assessment protocol developed by DSH to determine whether he
or she may be an SVP. The “standardized assessment protocol shall require
assessment of diagnosable mental disorders, as well as various factors known
to be associated with the risk of reoffense among sex offenders. Risk factors
to be considered shall include criminal and psychosexual history, type,
degree, and duration of sexual deviance, and severity of mental disorder.”
(§ 6601, subd. (c).)
A person is initially evaluated by two mental health professionals
designated by the DSH. (§ 6601, subds. (c) & (d).) If both evaluators concur
“that the person has a diagnosed mental disorder so that he or she is likely to
engage in acts of sexual violence without appropriate treatment and custody,”
the DSH forwards a request for a petition for civil commitment under section
6606 to the county in which the person was convicted of the offense for which
he or she is currently incarcerated. (§ 6601, subds. (d) & (i).) “Copies of the
evaluation reports and any other supporting documents shall be made
available to the attorney . . . who may file a petition for commitment.”
27
(§ 6601, subd. (h)(1).) If the county’s designated counsel concur with the
recommendation of DSH, “a petition for commitment shall be filed in the
superior court.” (§ 6601, subd. (h)(1).)
“Upon filing of the petition and a request for review under this section,
a judge of the superior court shall review the petition and determine whether
the petition states or contains sufficient facts that, if true, would constitute
probable cause to believe that the individual named in the petition is likely to
engage in sexually violent predatory criminal behavior upon his or her
release. If the judge determines that the petition, on its face, supports a
finding of probable cause, the judge shall order that the person be detained in
a secure facility until a hearing can be completed pursuant to Section 6602.”
(§ 6601.5.)10
Regardless of whether the court conducts a “paper review” under
section 6601.5 (Walker, supra, 51 Cal.App.5th at p. 690), a person alleged to
be an SVP is entitled to a probable cause hearing. (§ 6602, subd. (a).) The
probable cause hearing is somewhat “analogous to a preliminary hearing in a
criminal case; both serve to ‘ “ ‘weed out groundless or unsupported charges ...
and to relieve the accused of the degradation and expense of a . . . trial.’ ” ’
[Citation.]” (Cooley, supra, 29 Cal.4th at p. 247.)
At the probable cause hearing, the court “shall review the petition and
determine whether there is probable cause to believe that the individual
named in the petition is likely to engage in sexually violent predatory
10 “An order issued by a judge pursuant to Section 6601.5, finding that the
petition, on its face, supports a finding of probable cause to believe that the
individual named in the petition is likely to engage in sexually violent
predatory criminal behavior upon his or her release, shall toll that person’s
parole pursuant to paragraph (4) of subdivision (a) of Section 3000 of the
Penal Code, if that individual is determined to be a sexually violent
predator.” (§ 6601, subd. (j).)
28
criminal behavior upon his or her release.” (§ 6602, subd. (a).) At the
hearing, the individual is “entitled to assistance of counsel.” (Ibid.) “If the
judge determines there is not probable cause, he or she shall dismiss the
petition and any person subject to parole shall report to parole. If the judge
determines that there is probable cause, the judge shall order that the person
remain in custody in a secure facility until a trial is completed . . . .” (Ibid.)
A trial is required to determine whether the person is, by reason of a
diagnosed mental disorder, a danger to the health and safety of others in that
the person is likely to engage in acts of sexual violence upon his or her
release from the jurisdiction of the [CDCR] or other secure facility.” (§ 6602,
subd. (a).) A person alleged to be an SVP is “entitled to a trial by jury, to the
assistance of counsel, to the right to retain experts or professional persons to
perform an examination on the person’s behalf, and to have access to all
relevant medical and psychological records and reports.” (§ 6603, subd. (a).)
If neither the person deemed to be an SVP nor the attorney petitioning for
commitment demand a jury trial, “the trial shall be before the court without a
jury.” (Id., subd. (f).) “A unanimous verdict shall be required in any trial.”
(Id., subd. (g).)
“If the court or jury determines that the person is a sexually violent
predator, the person shall be committed for an indeterminate term to the
custody of the [DSH] for appropriate treatment and confinement in a secure
facility.” (§ 6604.) Once a person has been found to be an SVP, the DSH
must conduct annual mental health examinations, reporting to the court
whether the person continues to meet the definition of an SVP. (§ 6604.9,
subd. (a).) The report to the court must recommend whether unconditional
discharge or conditional release to a less restrictive alternative (that would
adequately protect the community) is in the person’s best interest. (Id., subd.
29
(b).) If the DSH does not recommend either unconditional discharge or
conditional release, a person may still petition for conditional release without
the recommendation or concurrence of the DSH. (§ 6608, subd. (a).)
B. The Section 6602 Hearing Pre-Sanchez
The SVPA is “sparse in its description of the procedural requirements
for a probable cause hearing” (Walker, supra, 51 Cal.App.5th at p. 691),
merely requiring the court to “ ‘review the petition’ ” and determine whether
or not there is “ ‘probable cause’ ” to believe the person named in the petition
is an SVP. (Ibid., quoting § 6602, subd. (a).)
Before our high court decided Sanchez in 2016, case law dating back at
least to 1998 had recognized that at a section 6602 probable cause hearing a
person had more rights than a mere “paper review” of the petition, as
provided in section 6601.5 (In re Parker (1998) 60 Cal.App.4th 1453, 1460
(Parker)); that a person instead had the right under section 6602 to
“challenge the facts on which the petition was filed, i.e., the underlying
attached experts’ evaluations” (id. at p. 1468); and to present both oral or
written evidence. (Id. at pp. 1469–1470.) Although the opinions of experts
could be admitted through the hearsay reports of the experts, a person at the
probable cause hearing also had the right to “challenge the accuracy of such
reports by calling such experts for cross-examination . . . and call[ing] such
other witness who, upon a proper showing, the superior court judge finds to
have relevant evidence.” (Ibid.)
Our high court in 2001 approvingly cited to Parker in connection with
the “show cause hearing” under section 6005, applicable to a petition for
unconditional release of a person committed as an SVP. (People v. Cheek
(2001) 25 Cal.4th 894, 899 (Cheek).) Cheek construed section 6605 to grant a
person the same rights to present evidence and cross-examine witnesses as
30
he or she has under section 6602, as Parker had found. (Cheek, at p. 900
[noting “[s]ection 6605, like section 6602, provides for a pretrial hearing and
grants the defendant the right to be present and to be represented by an
attorney at that hearing,” and noting the “parallel language and function of
sections 6605 and 6602 indicate that section 6605 should be construed to
grant a defendant the same rights to present evidence and cross-examine
witnesses as he [or she] has under section 6602”].)
In 2002, our high court addressed the “scope and substance” of a section
6602 probable cause hearing. (Cooley, supra, 29 Cal.4th at p. 235.) Cooley
found the purpose of such a hearing was for the court to determine whether a
“reasonable person could entertain a strong suspicion that the [attorney]
petitioner has satisfied all the elements required for a civil commitment as an
SVP.” (Id. at p. 236.) Although section 6602, subdivision (a) describes the
hearing to merely require only probable cause that a person is “ ‘likely to
engage in sexually violent predatory criminal behavior’ ” upon his or her
release, Cooley concluded the trial court in determining probable cause under
this statute must consider “whether (1) the offender has been convicted of a
qualifying sexually violent offense . . . ; (2) the offender has a diagnosable
mental disorder; (3) the disorder makes it likely he or she will engage in
sexually violent criminal conduct if released; and (4) this sexually violent
criminal conduct will be predatory in nature.” (Cooley, at p. 236.)
Walker recognized that in dicta Cooley observed that the SVPA “ ‘does
not provide any specific procedural requirements for the probable cause
hearing,’ but it again endorsed Parker’s interpretation of the statutory
requirements. (Cooley, supra, 29 Cal.4th at p. 245, fn. 8.) The Court [in
Cooley] explained: ‘Although the petitioner is allowed, despite their hearsay
nature, to present the contents of any reports that form the basis of the petition
31
as evidence, the alleged sexual predator is allowed to cross-examine the
expert concerning the evaluation and can call the expert to the stand for that
purpose. ([Parker, supra, 60 Cal.App.4th] at pp. 1469–1470.) The person
named in the petition is thus allowed to ‘challenge the accuracy’ of the
evaluations by experts who found that he or she met the criteria for an SVP.
(Id. at p. 1470.)’ ([Cooley, at p. 245, fn. 8].)” (Walker, supra, 51 Cal.App.5th
at pp. 692–693.)
C. Sanchez and Hearsay
Hearsay is evidence of an out-of-court statement offered to prove the
truth of the matter stated. Unless an exception applies, hearsay is
inadmissible. (Evid. Code, § 1200, subds. (a) & (b).) We apply an “abuse of
discretion standard of review to any ruling by a trial court on the
admissibility of evidence, including one that turns on the hearsay nature of
the evidence in question [citations].” (People v. Waidla (2000) 22 Cal.4th 690,
725.)
One exception to the hearsay rule is found in Evidence Code section
801.11 Subdivision (b) of this statute generally permits an expert witness to
base his or her opinion on matters made known to the expert, “whether or not
admissible, that is of a type that reasonably may be relied upon by an expert
11 This statute provides: “If a witness is testifying as an expert, his
testimony in the form of an opinion is limited to such an opinion as is: [¶] (a)
Related to a subject that is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter
(including his special knowledge, skill, experience, training, and education)
perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the
subject to which his testimony relates, unless an expert is precluded by law
from using such matter as a basis for his opinion.” (Evid. Code, § 801.)
32
in forming an opinion upon the subject to which his testimony relates.”
(Evid. Code, § 801, subd. (b).)
Before Sanchez, another broad exception to the hearsay rule was based
on the principle that “out-of-court statements offered to support an expert’s
opinion are not hearsay because they are not offered for the truth of the
matter asserted. Instead, they are offered for the purpose of assessing the
value of the expert’s opinion.” (People v. Dean (2009) 174 Cal.App.4th 186,
193.) Our high court in Sanchez found this principle conflicted with the rule
that “an expert has traditionally been precluded from relating case-specific
facts about which the expert has no independent knowledge.” (Sanchez,
supra, 63 Cal.4th at p. 676.)
Sanchez thus rejected this principle, reasoning: “When an expert relies
on hearsay to provide case-specific facts, considers the statements as true,
and relates them to the jury as a reliable basis for the expert’s opinion, it
cannot logically be asserted that the hearsay content is not offered for its
truth. In such a case, ‘the validity of [the expert’s] opinion ultimately turn[s]
on the truth’ [citation] of the hearsay statement. If the hearsay that the
expert relies on and treats as true is not true, an important basis for the
opinion is lacking.” (Sanchez, supra, 63 Cal.4th at pp. 682–683.)
Sanchez continued: “What an expert cannot do is relate as true case-
specific facts asserted in hearsay statements, unless they are independently
proven by competent evidence or are covered by a hearsay exception.”
(Sanchez, supra, 63 Cal.4th at p. 686.) The Sanchez court thus found that
case-specific facts related by the People’s gang expert to the jury concerning a
defendant’s gang membership were inadmissible because “[t]hey were recited
by the expert, who presented them as true statements of fact, without the
requisite independent proof.” (Id. at p. 670.)
33
In contrast to case-specific facts asserted in hearsay statements,
Sanchez noted that its “decision does not call into question the propriety of an
expert’s testimony concerning background information regarding his
knowledge and expertise and premises generally accepted in his field.”
(Sanchez, supra, 63 Cal.4th at p. 685.) Thus, an “expert may still rely on
hearsay in forming an opinion, and may tell the jury in general terms that he
did so. Because the jury must independently evaluate the probative value of
an expert’s testimony, Evidence Code section 802 properly allows an expert to
relate generally the kind and source of the ‘matter’ upon which his opinion
rests. A jury may repose greater confidence in an expert who relies upon
well-established scientific principles . . . . There is a distinction to be made
between allowing an expert to describe the type or source of the matter relied
upon as opposed to presenting, as fact, case-specific hearsay that does not
otherwise fall under a statutory exception.” (Sanchez, at pp. 685–686.)
D. The Court of Appeal Decisions in Bennett, Couthren, and Walker
Bennett was the first of two cases in 2019 to find Sanchez applied to a
section 6602 probable cause hearing to render inadmissible part of a
defendant’s evaluations based on case-specific facts from hearsay sources. In
Bennett, the Court of Appeal addressed whether criminal background
information stemming from a 2012 incident in which the defendant was
arrested for two rape-related offenses, which charges were ultimately
dropped when the victim could not be located, could be used to support the
experts’ determination in their evaluations, and in their testimony at the
section 6602 hearing, that the defendant met the criteria of an SVP.
(Bennett, supra, 39 Cal.App.5th at pp. 868–869).
Both experts in Bennett relied extensively on the 2012 incident, using
police and probation reports for the descriptions of the alleged offense, an
34
incident the defendant denied during his forensic interviews. (Bennett,
supra, 39 Cal.App.5th at p. 869.) One of the experts stated in his evaluation,
and during his testimony at the probable cause hearing, that absent the 2012
incident—which had only led to the defendant’s conviction for failing to
register, a non-sexually violent offense under the SVPA—he likely would not
have found the defendant was an SVP based solely on defendant’s two 1986
rape convictions. (Ibid.) However, this same expert in his evaluation stated
he “ ‘tend[ed] to believe the [rape] victim’ ” over the defendant, and therefore
found the defendant’s “ ‘rape behavior’ ” extended between 1986 and 2012.
(Ibid.) The trial court, after sustaining the defendant’s hearsay objection to
the experts’ evaluations regarding the 2012 rape incident, nonetheless found
there was probable cause the defendant was an SVP. (Id. at pp. 872–873.)
Bennett concluded that the trial court had properly sustained the
defendant’s hearsay objection at the probable cause hearing because the
evaluations included case-specific facts from the 2012 incident that were
derived from hearsay sources, and these facts were neither proven by
competent evidence nor subject to a hearsay exception. (Bennett, supra, 39
Cal.App.5th at pp. 868, 880.) In so doing, Bennett rejected the People’s
argument that the formal rules of evidence, including the hearsay rule, did
not apply at a section 6602 hearing. (Bennett, at pp. 878, 882.) Because the
case-specific facts relied on by the experts were “central” to the court’s
probable cause finding, the court ordered the SVP petition dismissed. (Id. at
p. 868.)
A few months later, the Court of Appeal in Couthren followed Bennett
in concluding case-specific facts in evaluations that were derived from
multiple hearsay sources were inadmissible at a section 6602 hearing.
(Couthren, supra, 41 Cal.App.5th at p. 1005.) In so doing, Couthren rejected
35
the People’s argument that long-standing precedent, and that section 6602’s
directive that a trial court “ ‘review the petition,’ ” allowed the People to prove
probable cause through the evaluations despite the experts’ reliance on
hearsay. (Couthren, at pp. 1014–1015.)
Couthren on the one hand recognized that SVP evaluations are
typically comprehensive and based on myriad sources, including “probation
and police reports, investigative reports from prosecuting agencies, court
records and transcripts, face-to-face interviews with the SVP defendant,
prison and hospital rule violation reports, records of arrests, convictions and
juvenile dispositions, and hospital records, including staff treatment notes,
medication reports, and attendance records.” (Couthren, supra, 41
Cal.App.5th at pp. 1010–1011.) Couthren on the other hand concluded that
“[e]ach level of hearsay, the expert evaluation, the police report, and the
victim’s statement, must fall within an exception to be admitted into
evidence. (Evid. Code, § 1201.)” (Couthren, at p. 1011.)
As noted, Walker disagreed with Bennett and Couthren that a probable
cause finding at a section 6602 hearing could not be based on evaluations
that included case-specific facts derived from hearsay sources. Walker
instead concluded a court reviewing evaluations at this hearing may consider
hearsay within those evaluations in determining whether there is probable
cause a person is an SVP. (Walker, supra, 51 Cal.App.5th at p. 686.) The
court thus found substantial evidence supported the trial court’s probable
cause finding and denied Walker’s writ petition. (Ibid.)
Walker first took up the issue of what a petition must include when a
court “reviews” it at section 6602 hearing. In light of the “integral role” the
experts play in the initiation of an SVP petition (Walker, supra, 51
Cal.App.5th p. 695), the court determined these evaluations “must be deemed
36
incorporated into the petition, regardless of whether the People physically
attach them to the petition at the time of filing or provide them to the court
under separate cover.” (Id. at pp. 695–696.) We agree with Walker on this
point, and note in the instant case petitioner’s evaluations were both
attached to the petition and provided to the court at the section 6602 hearing.
Walker next addressed the main issue we also face: whether a court
reviewing an SVP petition and the evaluations on which it is based may
“consider the entirety of an evaluation or only such portions as do not contain
otherwise inadmissible double hearsay.” (Walker, supra, 51 Cal.App.5th at p.
696.) The court concluded the trial court could review the entirety of the
experts’ evaluations in determining probable cause, reasoning as follows:
“We note that the language of section 6602(a) . . . requires the trial judge to
determine probable cause based on a review of ‘the petition,’ which we
understand to include the evaluations, not just some portion of the petition
and evaluations whose admissibility is independently established. But even
if we conclude the language of section 6602(a) is ambiguous on this point, our
analysis of the [SVPA’s] structure and purpose (Cooley, supra, 29 Cal.4th at
p. 247) confirms that section 6602(a) excepts the evaluations and any
information contained within them from the hearsay rule, allowing the trial
judge to consider the reports in their entirety.” (Walker, at p. 696.)
For support, Walker relied on the dicta in Cooley that the petitioner
attorney at a probable cause hearing “ ‘is allowed, despite their hearsay
nature, to present the contents of any reports that form the basis of the
petition as evidence.’ ” (Walker, supra, 51 Cal.App.5th at p. 694, quoting
Cooley, supra, 29 Cal.4th at p. 245, fn. 8.)
For additional support, Walker turned to section 6601, the provision of
the SVPA requiring two concurring psychological evaluations prior to the
37
filing of an SVP petition. The court recognized the number of categories of
information and requirements prescribed by the Legislature that experts
must consider in adhering to a “ ‘standardized assessment protocol.’ ”
(Walker, supra, 51 Cal.App.5th at p. 696, quoting § 6601, subd. (c).) As we
have noted, this includes “ ‘assessment of diagnosable mental disorders, as
well as various factors known to be associated with the risk of reoffense
among sex offenders. These risk factors include criminal and psychosexual
history, type, degree, and duration of sexual deviance, and severity of mental
disorder.’ ” (Walker, at p. 696, quoting § 6601, subd. (c).)
Based on section 6001’s requirement the experts include all such
information in their reports, Walker recognized “[m]uch of this broad array of
historical information will be found in hearsay sources. Indeed, the
evaluations in this case reveal that both evaluators relied on a variety of
hearsay sources, including court records, probation reports, Walker’s record
of arrest and prosecutions, and Walker’s prison central file recounting
incidents during his incarceration. The Legislature clearly intended for
evaluators to rely on hearsay sources in their evaluations, as the alternative
would be to require that evaluators reinvestigate a lifetime worth of
historical information comprising the person’s ‘criminal and psychosexual
history,’ a near-impossible task for which a psychologist is ill-suited. And
given that the evaluations necessarily contain considerable amounts of case-
specific hearsay, the Legislature must have intended the trial judge to review
this hearsay in reviewing the reports. Were this not the case, most of the
historical information included in the evaluations at the Legislature’s behest
would be subject to exclusion.” (Walker, supra, 51 Cal.App.5th at pp. 696–
697.)
38
Because Walker concluded section 6602 provided an exception to the
hearsay rule, it further concluded that Sanchez did not apply at the probable
cause hearing, reasoning as follows: “As has long been understood,
exceptions to the Evidence Code’s rule against hearsay (Evid. Code, § 1200)
may be found in statutes outside the Evidence Code, and in judicial decisions.
[Citations.] We conclude that when the [SVPA] directs the superior court to
‘review the petition’ in determining probable cause (§ 6602(a)), the act
establishes just such an exception to the hearsay rule. This exception
allows—indeed requires—the trial court to consider the expert evaluations on
which the petition necessarily depends, including case-specific facts obtained
from hearsay sources described within the evaluations. Because these
evaluations and their contents are ‘covered by a hearsay exception’ specific to
SVP probable cause hearings, they are not subject to exclusion under
Sanchez.” (Walker, supra, 51 Cal.App.5th at pp. 694–695.)
E. Section 6602 Is an Implied Exception to the Hearsay Rule
We find Walker’s reasoning persuasive on the issue before us. We
agree with Walker that section 6602’s requirement that a trial court “review”
the petition (and evaluations) in making a probable cause finding is
indicative of legislative intent that this statute, when viewed in light of the
SVPA as a whole, creates an implied exception to the hearsay rule, thus
allowing the court to review the entirety of the evaluations in making this
determination.
As summarized ante, Drs. Fox and Sims in their psychological
evaluations of petitioner relied on broad array of historical information in
adhering to the statutorily mandated “standardized assessment protocol”
developed by DHS. The experts were required not only to assess petitioner
for any “diagnosable mental disorders,” but also for the various risk factors
39
associated with the risk of reoffense among sex offenders. (See § 6601, subd.
(c).)
In completing this task, both experts each reviewed about 40 sets of
documents from myriad sources, including the 2012 probation report; police
reports; prison and hospital rule violation reports; criminal history records;
hospital and medical records, including prior to petitioner’s incarceration on
the qualifying crime, when he was admitted both to Patton and Atascadero
State Hospitals; and during his incarceration, when he received psychiatric
treatment, including hospitalization(s) as an acute psychiatric patient.
Requiring independent proof of such historical information from these
myriad sources, as a condition to its admission at the probable cause hearing,
first would place an enormous burden on experts in performing their
standardized assessment protocol of a person; and second on the People in
having to proffer competent evidence at what amounts to an interim hearing
before an SVP trial can be set. Such a requirement, if applied in the instant
case, would have severely limited the information available to the court in
making its probable cause determination, even if this information was highly
relevant on this issue. (See Walker, supra, 51 Cal.App.5th at pp. 696–697
[requiring evaluators to “reinvestigate a lifetime worth of historical
information comprising the person’s ‘criminal and psychosexual history,’ ” in
order to rely on such information in their SVP evaluations, would be a “near-
impossible task for which a psychologist is ill-suited”].) We thus conclude, as
did Walker, that section 6602 is an implied exception to the hearsay rule.
We also find persuasive the point made in Walker that our high court in
situations not unlike ours has sought to avoid duplicity in the presentation of
evidence at an interim hearing (i.e., section 6602) and at a subsequent trial
(i.e., sections 6003 and 6004). (See Walker, supra, 51 Cal.App.5th at p. 697,
40
citing Conservatorship of Manton (1985) 39 Cal.3d 645 (Manton).) Our high
court in Manton reversed a conservatorship judgment because the trial court
erred in admitting at trial a conservatorship investigation report containing
hearsay that was properly admitted at an interim hearing to determine
whether the proposed conservatee was gravely disabled. (Id., at pp. 651–
652.)
Manton reasoned: “If the report were admissible at both the initial
hearing and a subsequent court trial, the two proceedings would be
essentially identical in terms of the acceptable range of evidence to be
considered.” (Manton, supra, 39 Cal.3d at p. 651.) In order to avoid such
redundancy, Manton construed legislative intent as allowing investigation
reports to be admissible only at the hearing. (Ibid.)
The law is well settled that experts’ evaluations and hearsay in them
are inadmissible at an SVP trial. (See e.g., Walker, supra, 51 Cal.App.5th at
p. 698; People v. Yates (2018) 25 Cal.App.5th 474 (Yates) [same]; People v.
Roa (2017) 11 Cal.App.5th 428 (Roa) [same].) Not unlike the statutory
scheme in the conservatorship statutes, the SVPA requires a court at the
section 6602 hearing to “review the petition,” but no such language exists in
sections 6003 and 6004 governing SVP trials.
Applying the reasoning of Manton, we can infer a legislative intent that
hearsay is admissible in a section 6602 probable cause hearing where the
court “reviews” the petition and the experts’ evaluations. Otherwise, the
interim section 6602 hearing and the SVP trial—where hearsay is not
allowed—would be nearly “identical in terms of the acceptable range of
evidence to be considered,” a conclusion Manton, albeit under the
conservatorship statutes, sought to avoid absent “clear legislative intent to
the contrary.” (See Manton, supra, 39 Cal.3d at p. 651; see also Walker,
41
supra, 51 Cal.App.5th at p. 698 [relying on Manton in finding it “highly
unlikely the Legislature intended for a prosecutor to procure independent
evidence for the vast amount of case-specific hearsay information contained
in a psychological evaluation—including criminal history, familial and
relationship history, medical information, and a defendant’s prison
disciplinary record—at a probable cause hearing, and then again at a
subsequent trial”].)
For the foregoing reasons, we agree with Walker and disagree with
Bennett and Couthren in concluding section 6602, when viewed in light of the
SVPA as a whole, impliedly allows a court at a probable cause hearing to
consider hearsay in the neutral experts’ evaluations when making a probable
cause determination.
As a result of our decision, we conclude that Sanchez is inapplicable at
a section 6602 probable cause. We also conclude the People did not waive (or,
more appropriately, forfeit) any potential hearsay objection under section
6602 by failing to raise it at the probable cause hearing, as petitioner
contends, inasmuch as our decision derives from construction of section 6602
and presents a question of law that we have now resolved against petitioner.
(See People v. Tran (2015) 61 Cal.4th 1160, 1166 [noting questions of
statutory interpretation are reviewed de novo].)
42
F. Substantial Evidence Supports the Trial Court’s Probable Cause
Finding
Considering the evaluations of Drs. Fox and Sims in their entirety, we
conclude the court’s probable cause finding is supported by substantial
evidence. Petitioner’s conviction for a violation of Penal Code section 288,
subdivision (a) in 2012 constituted a “sexually violent offense.” (See §§ 6600,
subd. (b) & 6600.1 [providing: “If the victim of an underlying offense that is
specified in subdivision (b) of Section 6600 is a child under the age of 14, the
offense shall constitute a ‘sexually violent offense’ for purposes of Section
6600”].)
Petitioner was also found to have a “diagnosed mental disorder.” (See
6600, subd. (c).) Drs. Fox and Sims both found he suffered from Pedophilic
Disorder among other disorders, and both found this condition affected
petitioner’s emotional or volitional capacity that predisposes him to the
commission of criminal sexual acts.
Indeed, the evaluations show that petitioner groomed seven-year-old
Jane Doe in connection with his qualifying offense by buying her “underwear
and toys” and giving her a sexually explicit doll. In addition, when deputies
searched petitioner’s RV located adjacent to the trailer where Jane Doe lived,
they found images of “child erotica, notebooks with handwritten text
discussing child sex and an intention to engage in sex with children,
literature discussing sex with children in foreign countries, and baby dolls
with red paint on their vaginal areas.” Also found in petitioner’s possession
at the time of commission of the qualifying crime were videos titled, by way of
example only, “ ‘6-9 years. Girls Fuck. Little Cunts. Fucked by big daddy.
Rape little girl’ ” and “Hot 8 yrs old getting pussy fucked by old dude.[ ]
etc. . . .”
43
After his arrest, petitioner sought to purchase, and eventually did
purchase after making bail, child pornography from the undercover agent.
Petitioner at the same time made plans to travel to Mexico with the agent to
have sex with children, claiming he was hoping to have a “real” relationship
with an 11-year-old girl, whom he could “fuck” after paying off the girl’s
mother. Petitioner also admitted to the agent that he was a “molester” and
“pervert” and he would “protect” others just like him; and that his daughter
had “sucked [his] dick when she was like eight years old.”
When questioned by Dr. Sims about “Don Ramon,” petitioner claimed
his intention in buying the child pornography videos from the agent, and
agreeing to travel with this individual to Mexico to have sex with children,
was all part of his plan to “entrap” this individual; and that petitioner gave a
similar story when asked by Dr. Sims about journals found in petitioner’s
possession that referenced sex with children, claiming his intention was to
“infiltrate” a group of child molesters in Ocotillo by acting like one of them.
Additional evidence to support the finding petitioner has a diagnosable
mental disorder of pedophilia stems from petitioner’s incarceration. In 2011,
during a routine inspection deputies found papers and drawings in
petitioner’s cell. Dr. Fox reviewed the drawings. He noted one of the
drawings displayed a “a female with her legs spread open and a caption of
her saying, ‘Fuck me hard daddy!’ Underneath the image is the quote,
‘Seems he has a daughter that just loves to fuck.’ ” Another drawing/writing
of petitioner provided, “ ‘Little girls inside of blacked out minivans in Lost
Angelles Cal. Arcade Fun!’ ”
As also summarized in the evaluations, there were myriad references to
petitioner suffering from schizophrenia. Petitioner also admitted to Dr. Sims
during the forensic interview that he suffered from this condition. Both
44
doctors opined petitioner suffered from Schizophrenic Disorder, which
contributed to their opinion he had a “diagnosed mental disorder” under
section 6600, subdivision (c).
Both evaluators found petitioner’s mental disorders affect his emotional
and/or volitional capacity predisposing him to commit criminal sexual acts.
The evaluators noted petitioner committed the qualifying crime against Jane
Doe while on community supervision. They also noted that even after he was
charged with multiple counts including lewd act on a child under the age of
14, while out on bail petitioner purchased child pornography from the
undercover agent and made plans with the agent to travel to Mexico to have
sex with children. And, despite the potential for being caught and
sanctioned, petitioner while incarcerated in 2011, 2012, and 2015 was found
to be in possession of writings and drawings of a sexual nature involving
prepubescent females.
Both evaluators concluded from their review of myriad medical and
psychiatric records that petitioner was psychologically unstable. Dr. Fox
noted petitioner’s lack of compliance in taking his antipsychotic medication,
which required a court order and was given intramuscularly. Dr. Sims noted
petitioner on multiple occasions attempted suicide, including during his
incarceration on the qualifying crime. Petitioner also admitted attempting
suicide during his interview with Dr. Sims. Both evaluators noted
petitioner’s medical and psychiatric history showed he suffered from auditory
hallucinations, paranoia, and disorganization. Petitioner during his
interview with Dr. Sims also admitted “at times” to having auditory
hallucinations. And both evaluators noted petitioner’s extensive criminal
history, his inability to conform to social norms and behave lawfully, his
45
sporadic work history, and his lack of remorse for his sexual acts against
Jane Doe and other victims.
In addition, Dr. Fox found petitioner’s Static-99R score placed
petitioner in the above average risk category for being charged or convicted of
another sexual offense. As summarized ante, Dr. Fox also found multiple
factors in the VRS-SO assessment suggested that if left untreated, petitioner
was likely to engage in sexually violent criminal behavior as a result of his
disorders.
Although Dr. Sims found petitioner’s Static-99R and Static-2002 scores
placed petitioner in the average risk category for being charged or convicted
of another sexual offense, in assessing petitioner under the structured risk
assessment—forensic version, Dr. Sims opined petitioner’s score placed him
at a “high” level of psychological need. Among other factors summarized
ante, Dr. Sims found the factor for sexual preference for children applied to
petitioner, based not only on his conviction under Penal Code section 288,
subdivision (a) in the qualifying crime, but also on his repeated interest in
engaging in sexual activity with prepubescent females.
Finally, both experts concurred that if left untreated or absent custody,
petitioner’s sexually violent criminal behavior will be predatory in nature.
Both evaluations noted petitioner’s qualifying crime was “predatory” (see §
6600, subd. (e)), as Jane Doe was a person of casual acquaintance with whom
petitioner had no substantial relationship, and the primary purpose of his
relationship with Jane was sexual victimization. (See ibid.)
We reiterate our decision in this case—that hearsay in the
psychological evaluations of a person may be considered by the court in its
“review” of an SVP petition—is limited to the probable cause hearing in
section 6602. The People at an SVP trial may not satisfy their evidentiary
46
burden by relying on hearsay, unless independently proven by competent
evidence or covered by a hearsay exception. (See Walker, supra, 51
Cal.App.5th at p. 702; Yates, supra, 25 Cal.App.5th at p. 476; Roa, supra, 11
Cal.App.5th at pp. 452-453.)
DISPOSITION
The petition is denied.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
47