Walker v. Superior Court

IN THE SUPREME COURT OF

CALIFORNIA

JEFFREY WALKER,

Petitioner,

v.

THE SUPERIOR COURT OF THE CITY AND COUNTY OF

SAN FRANCISCO,

Respondent;

THE PEOPLE,

Real Party in Interest.

S263588

First Appellate District, Division Four

A159563

San Francisco City and County Superior Court

2219428, 195198

August 30, 2021

Justice Cuéllar authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,

Kruger, Groban, and Jenkins concurred.

Chief Justice Cantil-Sakauye filed a concurring opinion.

WALKER v. SUPERIOR COURT

S263588

Opinion of the Court by Cuéllar, J.

The Sexually Violent Predator Act (Welf. & Inst. Code,

§ 6600 et seq. (SVPA or the Act))1 allows the state to petition

superior courts for the involuntary civil commitment of certain

convicted sex offenders whose diagnosed mental disorders make

them a significant danger to others and likely to reoffend after

release from prison. The purpose of the SVPA is to protect the

public from a select group of criminal offenders (sexually violent

predators, or SVPs), and to provide these offenders with the

necessary treatment for their mental disorders. (Hubbart v.

Superior Ct. (1999) 19 Cal.4th 1138, 1143–1144 (Hubbart).)

Consistent with this goal, the Act relies on a number of

procedural safeguards to ensure that only those offenders

predisposed to criminal sexual violence can be committed, and

only for as long as they need treatment. Section 6602,

subdivision (a) of the Act provides one such safeguard: It

requires the superior court to hold a “probable cause hearing” as

an initial step in the judicial process for commitment. (§ 6602,

subd. (a).) If the court determines that probable cause supports

the state’s petition, it must then hold an offender over for trial.

(Ibid.) Otherwise, the court must dismiss the petition. (Ibid.)

What concerns us in this case is what kind of evidence the

trial court may consider in making its initial SVPA probable

1

Further unspecified statutory references are to the

Welfare and Institutions Code.

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Opinion of the Court by Cuéllar, J.

cause determination. Specifically, we must resolve whether

superior courts can admit certain hearsay evidence in

psychological evaluation reports in finding probable cause to

commit individuals under the SVPA. Petitioner Jeffrey Walker

challenges the Court of Appeal’s denial of his writ petition,

arguing that the trial court admitted inadmissible hearsay in

two evaluations in finding probable cause: factual details

underlying two rape offenses that he had been charged with, but

not convicted of, and resulted in convictions that did not qualify

as predicate offenses for commitment under the SVPA. He

contends that the trial court’s decision to admit this hearsay

concerning nonpredicate offenses represented prejudicial error.

We agree. Contrary to the Court of Appeal’s reasoning,

section 6602, subdivision (a) does not create an exception that

allows hearsay regarding nonpredicate offenses to be introduced

via evaluation reports. What we hold is that nothing in the

statutory language, its legislative history, its place in the

broader SVPA statutory scheme, or comparisons to other

statutory provisions indicates the existence of a hearsay

exception for such hearsay in expert evaluations. Nor does

anything in the SVPA or our case law indicate that the

Legislature — in creating the hearing as a safeguard for SVP

candidates to test the sufficiency of the evidence supporting the

state’s petition and prevent meritless ones from proceeding to

trial — must have created an exception for hearsay on

nonpredicate offenses to be introduced via evaluations. Under

these circumstances, we decline to find that the Legislature

explicitly or implicitly created a hearsay exception in section

6602, subdivision (a), for this evidence.

Because the inadmissible hearsay was foundational to the

trial court’s probable cause determination, we must reverse and

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Opinion of the Court by Cuéllar, J.

remand to the Court of Appeal, with instructions for it to

remand the matter to the trial court so it can conduct a new

probable cause hearing consistent with this opinion.

I.

In June 2015, the District Attorney of the City and County

of San Francisco filed a petition to commit Walker as an SVP.2

At the time, Walker was nearing the end of a state prison term

for a pandering conviction. (Pen. Code, § 266i.)

Two mental health evaluations supported the petition.

Thomas MacSpeiden and Roger Karlsson, psychologists

appointed by the Director of the State Department of State

Hospitals (DSH), evaluated Walker shortly before the district

attorney filed the petition. MacSpeiden and Karlsson were

appointed pursuant to section 6601, subdivision (e), after the

first two appointed psychologists disagreed whether Walker

satisfied the statutory criteria to be an SVP. Both concluded

that Walker satisfied the statutory criteria. MacSpeiden

diagnosed Walker with “Borderline Personality Disorder” and

“Other Specified Paraphilia, Sexual Activity with Non-

consenting Persons”; Karlsson diagnosed him with “Antisocial

Personality Disorder, augmented by a severe level of

psychopathy.”

In their evaluation reports, the psychologists discussed

Walker’s 1990 conviction for rape, a predicate “ ‘[s]exually

violent offense’ ” under the SVPA. (Welf. & Inst. Code, § 6600,

2

We grant Walker’s request that we take judicial notice of

the SVPA petition, the docket and the People’s writ petition in

People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001

(Couthren), and Department of Corrections and Rehabilitation

forms. (Evid. Code, § 452, subds. (d), (h).)

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Opinion of the Court by Cuéllar, J.

subd. (b).) They also discussed the alleged facts regarding two

charged sex crimes that did not result in convictions qualifying

as sexually violent offenses. First, Walker was charged in 1989

with raping a 16-year-old victim. The trial court dismissed the

rape charge prior to trial, but it convicted Walker of unwanted

sexual intercourse with a minor. (Pen. Code, § 261.5.) Second,

Walker was charged with rape in 2005. A jury acquitted Walker

of this charge (apparently, during the trial, it was determined

the victim had lied), but it convicted him of pandering.

MacSpeiden and Karlsson obtained the details underlying

the 1990 rape conviction from a September 1991 report from

Walker’s probation officer. The evaluations related the

following details regarding the offense: Walker unsuccessfully

approached the victim at a nightclub. He eventually pulled her

onto the dance floor and danced with her, though she attempted

to push him away when he tried to pull her closer. He then

pulled her to the club’s parking lot. She believed she could get

in her car to drive away. When they arrived at her car, she

pushed him away as he tried to pull her closer. She reluctantly

agreed to give him a ride to his house. When they arrived at the

location that he had directed them to, Walker reached across her

and turned off the ignition. She rejected his attempts to kiss her

and attempted to fight him off, but he raped her.

The psychologists obtained the details underlying the

1989 rape allegation from the 1991 probation report, and they

obtained the details underlying the 2005 rape allegation from a

police inspector’s affidavit in support of an arrest warrant. In

his evaluation, MacSpeiden quoted the documents’ description

of events, which in turn summarized and quoted the victims’

account of Walker’s conduct and statements leading up to,

during, and after the alleged rapes. Karlsson also quoted the

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Opinion of the Court by Cuéllar, J.

police affidavit, and he summarized the probation report’s

description of events.

In particular, the evaluations conveyed the following

about the 1989 rape allegation: Walker met the victim at a car

show, and he told her he was a photographer for a company

hiring models. They met up five nights later, and Walker drove

her to a park and took photographs of her. He then asked her

to change into a swimsuit she had brought along. When she

went into the bathroom to change clothes, Walker followed her,

refused to leave, pushed her against the wall face first, groped

her, and called her a “ ‘bitch.’ ” While repeatedly pushing her

face into the wall, he forcibly had sex with her; he then forced

her onto the floor facedown and continued to rape her.

Afterward, Walker drove the victim to her car, and he grabbed

her and forcibly kissed her before she left.

Regarding the 2005 rape allegation, the evaluations

indicated that Walker introduced himself to the 2005 alleged

rape victim as the employee of a local radio station that was

looking for help promoting the station at clubs. She readily

conveyed her interest. They met a few days later, after he

contacted her and informed her that he had some promotions at

a few San Francisco clubs. He drove her up to San Francisco,

and during the drive he instructed her on the procedures for

working in a strip club and the prices to charge for certain sex

acts. The victim had never worked at a strip club or as a

prostitute. Once they arrived in San Francisco, Walker parked

the car and told her he needed to show her “ ‘the game.’ ” He

went around to the passenger door, entered the car, and placed

his hands between her legs. The victim told him to stop and

kept her legs closed, but Walker refused. He attempted to take

her underwear off, and he digitally penetrated her. She

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continued to tell Walker to stop and was very upset, but Walker

persisted and eventually forcibly had sex with her. He then took

her to various strip clubs in an attempt to employ her. The

victim went along out of fear. She turned over the money she

made at the clubs to Walker. When they returned to his car, he

forced her to orally copulate him. He then drove her home.

In February and March 2016, the trial court held a

probable cause hearing spanning five sessions. At the hearing,

the prosecution moved to admit the psychologists’ reports into

evidence. Walker objected, arguing that the reports contained

inadmissible hearsay regarding the 1989 and 2005 rape

allegations, and that their admission would violate due process

because of the unreliability of the hearsay evidence. He moved

to exclude the reports entirely, or in the alternative to strike the

portions of the reports containing inadmissible hearsay. The

trial court overruled Walker’s objections and admitted the

reports into evidence.

During the probable cause hearing, Walker’s attorney

cross-examined the psychologists about their evaluations,

including their reliance on the 1989 and 2005 rape allegations.

MacSpeiden testified that the two rape allegations

constituted key rationales for his evaluation, even though he

knew neither resulted in a rape conviction. According to

MacSpeiden, the two allegations and Walker’s 1990 rape

conviction all had “essentially the same” “modus operandi.”

Because of this modus operandi, and because the rape

allegations resulted in charges, he determined it was important

to describe them in his report, and he believed in reaching his

evaluation and continued to believe during his testimony that

the allegations were true and the documents relaying them were

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Opinion of the Court by Cuéllar, J.

reliable and appropriate evidence for him to rely on. He did

contend that he would have still arrived at the same evaluation

even without the rape allegations, because Walker had 11 sex

offense charges between 1988 and 2007 — a pattern of illegal

sexual conduct. But he admitted that charges do not carry the

same weight as convictions for purposes of his evaluation, and

that he had none of the factual details underlying the charges

besides the rape allegations.

Karlsson also testified that his evaluation was informed

by the 1989 and 2005 rape allegations. He explained that he

relied on the probation report and police affidavit relaying these

allegations because the documents were from sworn officers,

and he therefore had no reason to believe the records had untrue

information. But he indicated that he had not considered

whether the 1989 allegation involved force, stating, “I would

need to read my report and recalibrate my opinion of that.” And

he stated that had he not been able to factor either the 1989 or

2005 rape allegation into his evaluation, his overall opinion

could have been different.

After cross-examining the psychologists, the defense

called four witnesses at the probable cause hearing: (1) the 2005

victim’s ex-boyfriend, who testified that the victim admitted she

had falsely accused Walker of rape; (2) Bruce Yanofsky, one of

the initial psychologists to evaluate Walker, who testified that

Walker did not qualify as an SVP; (3) the police officer

investigating the 2005 rape allegation, who very briefly testified

about producing the affidavit at issue; and (4) Walker, who

testified that, as he had explained in his evaluation interviews,

the 1989 and 2005 rape allegations were untrue.

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Following the hearing, the trial court determined that

probable cause existed to commit Walker as an SVP.

Walker then repeatedly but unsuccessfully sought to

dismiss the petition. He first moved to dismiss the petition in

September 2016, arguing that the psychological evaluations

contained inadmissible hearsay in violation of our recent

decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).

The trial court denied the motion. In March 2017, Walker

unsuccessfully moved to have the trial court reconsider the

denial of his motion to dismiss. Walker filed another motion to

dismiss in October 2019, this time citing Bennett v. Superior

Court (2019) 39 Cal.App.5th 862 (Bennett), a decision holding

that facts regarding two dismissed rape allegations against the

defendant, relayed by psychologists in their SVPA evaluation

reports and probable cause testimony, were inadmissible

hearsay under Sanchez. The trial court denied Walker’s motion.

Walker filed a petition for writ of mandate with the Court of

Appeal, but it summarily denied the petition. In January 2020,

Walker filed yet another motion to dismiss, citing Bennett as

well as Couthren, supra, 41 Cal.App.5th 1001, a decision that

also applied Sanchez at an SVPA probable cause hearing to bar

the admission of hearsay in psychological evaluations. But the

trial court again denied Walker’s motion to dismiss.

Walker challenged the denial of his last motion to dismiss

by filing another petition for writ of mandate in the Court of

Appeal. After issuing an order to show cause, the court denied

Walker’s writ petition. (Walker v. Superior Court (2020) 51

Cal.App.5th 682, 686 (Walker).) In reaching this holding, it

disagreed with Bennett and Couthren: It created a split of

authority over whether the SVPA permits the trial court at an

SVPA probable cause hearing to admit hearsay regarding

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nonpredicate offenses contained in expert evaluations. (Walker,

at pp. 694, 701–702.) We granted review to resolve the split.

II.

To determine whether trial courts conducting SVPA

probable cause hearings may admit hearsay concerning

nonpredicate offenses in evaluation reports, we must apply the

SVPA’s general requirements, including those governing

probable cause hearings; and the SVPA’s hearsay rules, as

established by the statute and decisional law. We examine these

threads individually before proceeding to weave them together.

A.

The SVPA provides for the involuntary civil commitment

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

revocation terms. (§ 6601.) “In describing the underlying

purpose” of the SVPA, “the 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.” (Hubbart, supra, 19

Cal.4th at pp. 1143–1144.) “[T]o the extent such persons are

currently incarcerated and readily identifiable,” the Legislature

has indicated that “commitment under the SVPA is warranted

immediately upon their release from prison.” (Hubbart, at p.

1144.) The Act provides these individuals with “treatment for

mental disorders from which they currently suffer and reduces

the threat of harm otherwise posed to the public.” (Hubbart, at

p. 1144.) SVPs are committed “for an indeterminate term to the

custody of [DSH] for appropriate treatment and confinement in

a secure facility.” (§ 6604.)

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In order to commit someone under the Act, the state must

establish four conditions: (1) the person has previously been

convicted of at least one qualifying “sexually violent offense”

listed in section 6600, subdivision (b) (§ 6600, subd. (a)(1)); (2)

the person has “a diagnosed mental disorder that makes the

person a danger to the health and safety of others” (ibid.); (3)

the mental disorder makes it likely the person will engage in

future acts of sexually violent criminal behavior if released from

custody (ibid.); and (4) those acts will be predatory in nature

(Cooley v. Superior Court (2003) 29 Cal.4th 228, 243 (Cooley)).

Civil commitment can commence only if, after a trial, the trier

of fact finds beyond a reasonable doubt that each of these four

requirements is met. (Ibid., citing §§ 6600, 6601, 6603, 6604.)

The trial represents the final step in the “complex

administrative and judicial process” required to civilly commit

an individual as an SVP. (Cooley, supra, 29 Cal.4th at p. 244.)

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 subsequently

appointed professionals concur), the DSH Director forwards a

request for a commitment petition, along with copies of the

evaluation reports and other supporting documents, to the

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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).)

The superior court must review the petition once it’s

received to determine whether probable cause exists to commit

the individual as an SVP. As an interim step, the SVPA allows

a potential SVP to request a review of the petition under section

6601.5. If the superior court determines from the face of the

petition that probable cause exists, it shall order a probable

cause hearing under section 6602. (§ 6601.5.) Regardless of

whether alleged SVPs request a paper review of the petition

under section 6601.5, they are entitled to a probable cause

hearing under section 6602.

They are entitled to specific procedures at the hearing, too.

The trial court “shall review the petition and shall determine

whether there is probable cause to believe that the individual

named in the petition is likely to engage in sexually violent

predatory criminal behavior upon his or her release.” (§ 6602,

subd. (a).) The alleged SVP is entitled to assistance of counsel

at the hearing. (Ibid.) If the court determines that there is not

probable cause, it must dismiss the petition; but if it determines

that probable cause does exist, the court must order a trial to be

conducted. (Ibid.)

Section 6602, subdivision (a) provides instructions — but

only spare ones — for conducting the probable cause hearing. It

does not delineate the “specific procedural requirements”

governing the presentation and admission of evidence at the

probable cause hearing. (Cooley, supra, 29 Cal.4th at p. 245, fn.

8.) Following In re Parker (1998) 60 Cal.App.4th 1453 (Parker),

lower courts have generally construed the subdivision as

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requiring “something more than a facial review of the petition”

(Parker, at p. 1464): that is, that it allows for the admission of

both oral and written evidence (id. at p. 1469; see People v.

Hayes (2006) 137 Cal.App.4th 34, 43 (Hayes)). In a few cases,

we have briefly noted the procedural requirements that Parker

developed, without resolving whether section 6602, subdivision

(a) mandates them. (See, e.g., Cooley, at p. 248, fn. 8; People v.

Cheek (2001) 25 Cal.4th 894, 899–900 (Cheek).)

The parties must comply with the rules of evidence. (Evid.

Code, § 300 [“Except as otherwise provided by statute,” the Evid.

Code applies in all actions other than those before a grand jury];

In re Kirk (1999) 74 Cal.App.4th 1066, 1071–1073 (Kirk).) That

the hearsay rule applies at SVPA probable cause proceedings is

the crux of the issue we resolve in this case.

A core premise of evidence law is that not all statements

are created equal. The hearsay label applies to an out-of-court

statement offered to prove that its assertion is true. (Evid. Code,

§ 1200, subd. (a).) A familiar feature of the law of evidence, in

California and beyond its borders, is that hearsay is generally

inadmissible unless it falls under a specific exception that

justifies its admission. (Id., subd. (b).) Documents like reports

and records are generally hearsay if they are offered for their

truth, and indeed, may contain further instances of hearsay,

each of which is inadmissible unless also covered by an

exception. (Sanchez, supra, 63 Cal.4th at pp. 674–675; see also

Evid. Code, § 1201.)

No one disputes that the evaluation reports at issue here

are hearsay and contain hearsay. As with many SVPA

evaluation reports, and as the People concede, the MacSpeiden

and Karlsson reports were offered for their truth. The People

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sought their admission as competent evidence of the experts’

opinions and the facts on which they relied. (See Couthren,

supra, 41 Cal.App.5th at p. 1010.) The experts expressly drew

upon secondary sources — most relevantly, a probation report

and police affidavit — for their contents, including the truth of

out-of-court statements like victim statements. (See id. at pp.

1010–1011.) Each level of out-of-court statement, from the

evaluation reports to the probation and police reports to the

victim statements, ordinarily must fall under a hearsay

exception to be admitted into evidence. (Id. at p. 1011.)

Trial courts have conducted many probable cause hearings

since Parker was decided. They’ve generally understood

Welfare and Institutions Code section 6602, subdivision (a) as

permitting the state to introduce into evidence the evaluation

reports, despite their hearsay nature. (See, e.g., Parker, supra,

60 Cal.App.4th at pp. 1469–1470; Hayes, supra, 137 Cal.App.4th

at p. 43.) Under the Parker procedure, which the trial court here

followed, the state may present the reports as evidence — in

support of or in lieu of the experts’ testimony on direct

examination — subject to the alleged SVP’s right to cross-

examine the experts. (Parker, at pp. 1469–1470; see also Kirk,

supra, 74 Cal.App.4th at pp. 1071–1073 [the evaluations must

be properly certified under Evid. Code, §§ 1530–1531].) The

working assumption appears to be that the subdivision’s

command to “review the petition” (Welf. & Inst. Code, § 6602,

subd. (a)) also allows for the review of “the facts on which the

petition was filed, i.e., the underlying . . . experts’ evaluations”

(Parker, at p. 1468). This assumption does not strike us as an

unreasonable inference to draw from the subdivision’s language.

The subdivision directs courts to review the petition and

determine “whether there is probable cause.” (Welf. & Inst.

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Code, § 6602, subd. (a).) The separate command to determine

probable cause contrasts with the language of Welfare and

Institutions Code section 6601.5, which simply directs courts to

engage in a prehearing, facial review of the petition for its

adequacy. This contrast suggests that Welfare and Institutions

Code section 6602, subdivision (a) does not limit the probable

cause inquiry to consideration of the four corners of the petition,

and instead also contemplates review of other evidence such as

the evaluations that necessarily support the petition.

Parker’s hearsay rule permits the admission of the

evaluations. Although the rule plausibly effectuates section

6602’s sparse language, we need not definitively resolve its legal

validity. (Cf. Cooley, supra, 29 Cal.4th at p. 248, fn. 8 [noting

Parker’s hearsay rule in passing].) Walker does not challenge

the admissibility of the reports; nor does he challenge the

admissibility of hearsay in the reports writ large, including

content otherwise admissible via hearsay exceptions outside the

SVPA. (See Walker, supra, 51 Cal.App.5th at pp. 695–696

[similar].)3 The dispositive question here concerns a narrower

question: the admissibility of particular hearsay content in the

3

Though the parties agree that the Parker rule properly

allows for the admission of the expert reports, they disagree on

its second step: the SVP’s right to cross-examine the report

authors. On the one hand, this step, like Parker’s first step,

strikes us as a potentially reasonable extrapolation to make

regarding the conduct of the probable cause hearing —

particularly since (a) the hearing requires more than section

6601.5’s “paper review,” and (b) cross-examination enables

defendants to easily test the basis of the experts’ reports,

regardless of whether the People have introduced this basis into

evidence in the first instance via the reports. But we need not

decide this particular issue, since this case turns on the first-

order question of the admissibility of specific report content.

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reports. (Cf. Bennett, supra, 39 Cal.App.5th at p. 883 [the issue

is not “whether the prosecution may present an expert’s

conclusions at the probable cause hearing through the

introduction of the expert’s report,” but instead experts relating

particular inadmissible hearsay].) More specifically, we must

determine whether hearsay about nonpredicate offenses —

otherwise inadmissible hearsay — may be admitted through

expert reports under section 6602.

When the appellate courts decided the cases that led us to

grant review here, they understood their disagreement to be

about the implications of Sanchez, supra, 63 Cal.4th at page 686

(an expert may not testify to case-specific hearsay facts, about

which the expert has no personal knowledge, “unless they are

independently proven by competent evidence or are covered by

a hearsay exception”). (Walker, supra, 51 Cal.App.5th at pp.

694–695; Couthren, supra, 41 Cal.App.5th at pp. 1006, 1019–

1021; Bennett, supra, 39 Cal.App.5th at pp. 878–880.) Though

the parties’ briefing emphasized Sanchez, we don’t need to

further parse that case to decide this one.

We can instead resolve this case as a straightforward

question of statutory interpretation: whether the SVPA or

decisional law on the statute create a hearsay exception

covering expert report content like what’s at issue here. (Evid.

Code, § 1200, subds. (a), (b); People v. Otto (2001) 26 Cal.4th 200,

207 (Otto) [“ ‘[E]xceptions to the hearsay rule [in Evidence Code

section 1200] . . . may . . . be found in other codes and decisional

law’ ”]; Sanchez, supra, 63 Cal.4th at p. 686.) The parties agree

that this case turns on whether either source creates a hearsay

exception for content in an expert report concerning offenses

that are not predicate offenses.

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Bennett and Couthren answered this question in the

negative. But the Court of Appeal here disagreed. It held that

section 6602 and prior interpretations of the SVPA establish a

hearsay exception that permits trial courts at probable cause

hearings to broadly admit any hearsay in evaluations. What we

conclude from our analysis of the SVPA and cases interpreting

the Act is that, as Bennett and Couthren reasoned and Walker

argues, no hearsay exception allows for the wholesale admission

of SVPA evaluations, with any hearsay that they may contain.

More specifically, neither the Legislature nor our case law has

created a hearsay exception allowing admission of hearsay

accounts involving prior, nonpredicate allegations or convictions

at SVPA probable cause hearings.

For the reasons that follow, the Court of Appeal erred in

determining otherwise.

B.

1.

We interpret the SVPA de novo. (Kirby v. Immoos Fire

Protection, Inc. (2012) 53 Cal.4th 1244, 1250.) As with any

question of statutory construction, our core task here is to

determine and give effect to the Legislature’s underlying

purpose in enacting the SVPA and any particular provisions at

issue. (California Teachers Assn. v. San Diego Community

College Dist. (1981) 28 Cal.3d 692, 698; Calatayud v. State of

California (1998) 18 Cal.4th 1057, 1065; Goodman v. Lozano

(2010) 47 Cal.4th 1327, 1332.) We first consider the words of

the statute, as statutory language is generally the most reliable

indicator of legislation’s intended purpose. (In re H.W. (2019) 6

Cal.5th 1068, 1073.) We consider the ordinary meaning of the

relevant terms, related provisions, terms used in other parts of

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the statute, and the structure of the statutory scheme. (Larkin

v. Workers’ Comp. Appeals Bd. (2015) 62 Cal.4th 152, 157.) If

the relevant statutory language is ambiguous, we look to

appropriate extrinsic sources, including the legislative history,

for further insights. (In re H.W., at p. 1073.)

Nothing in the language of the SVPA indicates the

Legislature created an explicit hearsay exception to allow

hearsay in evaluation reports, regarding an SVP candidate’s

prior nonqualifying offenses, to be admitted at a probable cause

hearing. In describing the requirements for the hearing,

Welfare and Institutions Code section 6602, subdivision (a)

states simply that the trial court “shall review the petition and

shall determine whether there is probable cause,” and that the

defendant has a right to the assistance of counsel. We find in

this limited language no indication that the Legislature created

an express exception for evaluation reports that covers hearsay

content regarding nonpredicate offenses. (Couthren, supra, 41

Cal.App.5th at p. 1012; cf. Kirk, supra, 74 Cal.App.4th at pp.

1071–1072 [SVPA is silent as to whether documentary evidence

must comply with the certification requirements of Evid. Code,

§§ 1530–1531, and therefore does not create an exception to

these requirements].) What the subdivision focuses on is the

petition: It directs the superior court to make its determination

based on its review of the petition, with no mention of the

experts, their psychological evaluation reports, or any

documentary evidence those evaluations relied upon. (See

Couthren, at p. 1014.)

Even assuming section 6602, subdivision (a)’s spare

language allows consideration of experts’ opinions and

conclusions contained in their reports (see ante, at p. 14), the

Court of Appeal’s elaboration on this premise — that the

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Opinion of the Court by Cuéllar, J.

language creates a broad hearsay exception for all instances of

hearsay contained in those reports, including facts regarding

nonpredicate offenses — goes too far.

The Court of Appeal’s reading of the subdivision relied on

a chain of dubious inferences. First, it determined that courts

must consider the psychological evaluations because the SVPA

requires the evaluation reports as the basis for the petition.

(Walker, supra, 51 Cal.App.5th at pp. 686, 694–695.) Based on

this “necessary” role, the court inferred that the reports’ facts

are “ ‘impliedly intended to be pleaded by averments or proper

attachment to the petition’ ” and the reports “must be deemed

incorporated into the petition” (id. at p. 695) — meaning “section

6602’s directive for a trial court to ‘review the petition’ at a

probable cause hearing necessarily requires the court to review

the evaluations, as well” (Walker, at p. 696). Second, it reasoned

that trial courts may, as part of their review of the evaluations,

consider hearsay contained therein. (Id. at pp. 686, 688; see also

id. at p. 696 [§ 6602, subd. (a)’s directive to review the petition

includes review of the evaluations in their entirety, and even if

the subdivision’s language is ambiguous, the SVPA’s “structure

and purpose [citation] confirms that section 6602[, subdivision

](a) excepts the evaluations and any information contained

within them from the hearsay rule”].) We’re not persuaded.

To begin, the SVPA does not appear to require

consideration of the evaluation reports. It requires only that

these reports be prepared as a predicate to filing an SVPA

petition and then be made available to the county’s designated

counsel, who then decides whether to file a petition and what to

include in it. (§ 6601, subds. (d), (h)(1), (i).) Although the

evaluations are often attached as exhibits to the petition (see

Hubbart, supra, 19 Cal.4th at p. 1149; Walker, supra, 51

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Opinion of the Court by Cuéllar, J.

Cal.App.5th at p. 695; cf. People v. Superior Court (Ghilotti)

(2002) 27 Cal.4th 888, 913 (Ghilotti) [in describing the process

for how a party can challenge an expert evaluation for material

legal error, we advised that the evaluations “should . . . be

attached to the petition”]), the statutory provisions governing

the evaluations do not dictate how the county’s counsel should

present them to the court or even require the attorney to do so.

The People may choose to establish the facts underlying the

petition by other means. In view of these considerations, which

tend to suggest that the evaluation reports largely play a

“discrete and preliminary” gatekeeping role in the SVPA

commitment process (People v. Superior Court (Preciado) (2001)

87 Cal.App.4th 1122, 1130; see also In re Wright (2005) 128

Cal.App.4th 663, 672), the Court of Appeal likely went too far in

reasoning that the reports must be deemed incorporated into the

petition and therefore considered — along with any

hearsay tucked inside — in the trial court’s probable cause

determination.

Even if the petition does incorporate the underlying

reports, that doesn’t mean that courts “review[ing] the petition”

under Welfare and Institutions Code section 6602, subdivision

(a) have carte blanche to admit and consider any hearsay the

experts include. (See Couthren, supra, 41 Cal.App.5th at p.

1012.) The logical extension of this argument: Anything the

experts put in their reports can come in too. All of the other

rules of evidence, like foundation (Evid. Code, § 402), relevance

(id., § 350), or undue prejudice (id., § 352) wouldn’t apply

either — essentially removing the trial court from any role in

discerning what is admissible from inadmissible in the

evaluations. That cannot be correct.

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The legislative history also fails to buttress the Court of

Appeal’s interpretation. Legislators have left unchanged the

relevant language in the subdivision since the first version of

the SVPA bill. (See Parker, supra, 60 Cal.App.4th at p. 1465,

citing Assem. Bill No. 888 (1995–1996 Reg. Sess.) § 3, as

introduced Feb. 22, 1995; § 6602, subd. (a).) The legislative

history is silent on what procedural requirements govern the

probable cause determination. (Parker, at p. 1465 [the

legislative history lends “little assistance”].) Instead, it simply

emphasizes that the probable cause hearing serves as one

important safeguard for defendants’ liberty interests, including

by preventing unfair or arbitrary involuntary confinements.

(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 888

(1995–1996 Reg. Sess.) as amended Apr. 17, 1995, p. 7.) Nothing

else from the legislative history has material bearing on the

hearsay question before us.

Nor have our prior interpretations determined that the

Legislature, in enacting section 6602, explicitly or implicitly

created a hearsay exception covering the evidence at issue here.

Our case law has explained that subdivision (a)’s limited

language, legislative history, and place in the broader structure

of the SVPA all establish that the probable cause hearing

functions much like a criminal preliminary hearing. It serves to

“ ‘ “ ‘weed out groundless or unsupported charges.’ ” ’ ” (Cooley,

supra, 29 Cal.4th at p. 247 [explaining this in the context of

holding that a court must test the sufficiency of the evidence of

all four elements required for commitment, and not just a single

element]; see also id. at p. 252 [adopting the same burden of

proof as in the criminal context].) Nothing about this evidence-

screening function indicates that the Legislature necessarily

meant for its limited instructions — “review the petition” and

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Opinion of the Court by Cuéllar, J.

“determine probable cause” (§ 6602, subd. (a)) — to create a

hearsay exception covering facts about nonqualifying offenses

contained in an evaluation report.

This conclusion comes into sharper focus when we

compare Welfare and Institutions Code section 6602,

subdivision (a) to rules governing an analogous context:

probable cause hearings involving criminal charges. The

comparison is not a perfect one. As the Court of Appeal and the

People identify, the governing statutes for the two hearings

appear different in a number of ways. (Walker, supra, 51

Cal.App.5th at p. 700 [unlike Welf. & Inst. Code, § 6602, subd.

(a), the statutes governing criminal preliminary hearings

explicitly “contemplate that the prosecution will present its case

by examining witnesses in the presence of the defendant” (citing

Pen. Code, § 865)].) But we can still compare the two hearings

because of their similar evidence-screening functions, and

because the Evidence Code similarly governs how this screening

occurs for both hearings, absent specified exceptions. (Evid.

Code, § 300.)

It’s telling that an explicit exception to the Evidence

Code’s hearsay rule does exist for criminal preliminary

hearings. Proposition 115, adopted by the voters in 1990,

amended Penal Code section 872, subdivision (b) to create a

“limited” hearsay exception (Whitman v. Superior Court (1991)

54 Cal.3d 1063, 1074 (Whitman)), allowing “a properly qualified

investigating officer to relate out-of-court statements by crime

victims or witnesses” (id. at p. 1072). As we explained in

Whitman, the subdivision clearly contemplates that the

testifying officer has sufficient experience, expertise (id. at pp.

1073–1074 [at least five years in law enforcement or special

training]), and “knowledge of the crime or the circumstances

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Opinion of the Court by Cuéllar, J.

under which the out-of-court statement was made so as to

meaningfully assist the magistrate in assessing the reliability of

the statement” (id. at p. 1072). In view of this clear and carefully

delineated hearsay exception in a relatively analogous context,

we are not persuaded by the People’s interpretation. The People

ask us to read section 6602, subdivision (a)’s spare language as

an indication that the Legislature created an even broader

hearsay exception than what Proposition 115 created: one that,

in the absence of any apparent legislative determination of, or

requirements for, their expertise or knowledge to do so, allows

any psychologist to relate hearsay as true accounts of

nonpredicate offenses from investigating officers’ reports,

including any victim and witness statements to these officers.

(Cf. Whitman, at pp. 1072, 1074 [declining to read the limited

exception the voters enacted as embracing “ ‘reader’ ” testimony:

“whereby a noninvestigating officer, lacking any personal

knowledge of the matter, nonetheless . . . relate[s] not only what

the investigating officer” described in his or her investigatory

report, “but also what the other witnesses told the investigating

officer”].)

Other SVPA provisions reinforce our qualms about

reading into section 6602, subdivision (a) an exception for

hearsay about nonpredicate offenses contained in expert

reports. Section 6600, subdivision (a)(3) and section 6605,

neither of which apply to the evidence in dispute here, both

contain hearsay exceptions — in stark contrast to section 6602.

Consider what section 6600, subdivision (a)(3) allows. It

permits the prosecution to show the existence of and details

underlying the first element of the SVP determination — a

predicate sex-offense conviction — “by documentary evidence,

including, but not limited to, preliminary hearing transcripts,

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trial transcripts, probation and sentencing reports, and

evaluations by the [DSH].” (Ibid.) As originally enacted, the

subdivision did not provide for the admission of documentary

evidence. But for understandable reasons, the Legislature

amended it to relieve victims of the burden and trauma of

testifying about the details of the predicate convictions. (Otto,

supra, 26 Cal.4th at p. 208; see also ibid. [Legislature acted in

response to prosecutors’ complaints about having to “ ‘bring

victims back to court to re-litigate proof of prior convictions’ ”];

Whitman, supra, 54 Cal.3d at pp. 1070, 1072 [comparable

reasoning for Proposition 115 context].) In light of its purpose,

we have interpreted the provision as allowing the prosecution to

prove the facts of a defendant’s prior qualifying convictions not

just with certain documents (like evaluations) but also with

multiple-level-hearsay statements contained therein (like police

and probation reports, and victim and witness statements they

include). (Otto, at pp. 207–208.)

But the Legislature carefully limited the scope of this

hearsay exception to one category of proof: establishing

predicate convictions. (See, e.g., Bennett, supra, 39 Cal.App.5th

at p. 877; see Otto, supra, 26 Cal.4th at p. 211 [hearsay under

§ 6600, subd. (a)(3) is sufficiently reliable for this purpose,

because “some portion, if not all, of the alleged conduct will have

been already either admitted in a plea or found true by a trier

of fact after trial”].) Courts agree that section 6600, subdivision

(a) does not broadly permit the wholesale admission of an

evaluation report: Any hearsay to prove the details of

nonpredicate convictions, like Walker’s 1989 and 2005 offenses,

would be inadmissible under the subdivision. (See, e.g.,

Couthren, supra, 41 Cal.App.5th at p. 1012; Burroughs, supra,

6 Cal.App.5th at pp. 410–411.) As we commented in People v.

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Stevens (2015) 62 Cal.4th 325, 338, the subdivision shows that

“the Legislature knows how to adopt special rules of evidence to

govern commitment proceedings.” It clearly has not elected to

do so under section 6602 for hearsay evidence regarding

nonpredicate offenses. (Couthren, at pp. 1012–1013.) And if

section 6602 already permitted courts at probable cause

hearings to broadly admit hearsay like this via evaluation

reports, the need to amend section 6600, subdivision (a)(3) is, for

the probable cause context, not immediately obvious, and

potentially surplusage. (Cf. Couthren, at p. 1015.)

The Court of Appeal’s argument that section 6600,

subdivision (a)(3) represents an inappropriate comparison point

fails to persuade. The court pointed to two apparent differences

between the “function and purpose” of the hearsay exception in

the subdivision and its counterpart in section 6602. (Walker,

supra, 51 Cal.App.5th at p. 701.) As it explained, section 6600,

subdivision (a)(3) “functions as a hearsay exception that not only

applies at SVP probable cause hearings, but also extends to SVP

trials” and was intended to “ ‘relieve victims of the burden and

trauma of testifying about the details of the crimes underlying

the prior convictions.’ ” (Walker, at p. 701.) By contrast, the

court reasoned, the section 6602 hearsay exception applies only

at probable cause hearings, and it serves to allow the People to

make an initial showing without putting on a mini trial.

(Walker, at p. 701 [victims and witnesses may be spared from

testifying at the hearing, but that does not represent the

hearsay exception’s rationale].) Despite these considerations,

Couthren’s point still stands: If section 6602, subdivision (a)

already provided a broad hearsay exception for probable cause

hearings, the Legislature could have aimed section 6600,

subdivision (a)(3) specifically at the trial context, instead of

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covering the probable cause context as well. And in any event,

it is notable that the Legislature has created a hearsay

exception that permits “[t]he details underlying the commission

of an offense that led to a prior [predicate] conviction” to be

established through documentary evidence (§ 6600, subd. (a)(3)),

but has not done the same for the details underlying the

commission of nonpredicate offenses, despite the similar

potential burden on victims who are called to testify.

A reading of section 6605 in context also offers a telling

comparison to section 6600, subdivision (a)(3). That section

provides that when a committed SVP defendant petitions for

unconditional release, the court must order “a show cause

hearing.” (§ 6605, subd. (a)(1).) In Cheek, we explained that

section 6605 “resembles” section 6602 because the provisions

use “parallel language” and both provide hearings that are

pretrial in nature and afford a defendant the right to be present

and represented by an attorney. (Cheek, supra, 25 Cal.4th at

pp. 899–900.) After Cheek, Proposition 83 amended section 6605

to provide that “the court . . . can consider the petition and any

accompanying documentation provided by the medical director,

the prosecuting attorney, or the committed person” at the show

cause hearing. (§ 6605, subd. (b) [now subd. (a)(1)] as amended

by Prop. 83, § 29, as approved by voters, Gen. Elec. (Nov. 7,

2006); see § 6604.9, subd. (f).) This amendment, like the section

6600, subdivision (a)(3) amendment, shows it is possible to

adopt special hearsay rules for SVPA proceedings, but that we

have no comparable indication that such rules operate in

probable cause hearings. (Cf. Couthren, supra, 41 Cal.App.5th

at p. 1016, fn. 6.)

That the Legislature can suspend evidence rules in

analogous contexts — but chose not to do so in SVPA probable

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cause hearings for hearsay concerning nonpredicate offenses —

is reinforced by provisions in the Welfare and Institutions Code.

Consider, for example, the Lanterman–Petris–Short Act (LPS

Act; § 5000 et seq.), the general civil commitment statute

governing the treatment of mentally ill persons in California.

(Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008 (Susan

T.).) The LPS Act provides that an appointed hearing officer

must conduct a “certification hearing” in order for the state to

commit an individual beyond the initial 72-hour evaluation and

treatment period (unless the detainee has already filed a

petition for writ of habeas corpus). (Susan T., at p. 1009.) The

certification hearing, similar to the section 6602 hearing,

determines whether probable cause exists to detain individuals

because they remain a danger to themselves or others. (Susan

T., at p. 1009; § 5256.4.) But unlike the section 6602 hearing,

the certification hearing “shall be conducted in an impartial and

informal manner in order to encourage free and open discussion

by participants. The person conducting the hearing shall not be

bound by rules of procedure or evidence applicable in judicial

proceedings.” (§ 5256.4, subd. (b), italics added.)

The People raise a variety of arguments that largely track

the Court of Appeal’s reasoning (Walker, supra, 51 Cal.App.5th

at pp. 695–699) and fail to persuade. They first argue that the

subdivision establishes an implied hearsay exception —

covering any hearsay in evaluation reports — by mandating

that courts “review the petition” and thereafter assess probable

cause. (Welf. & Inst. Code, § 6602, subd. (a).) This argument

fails not only because it relies on the same dubious chain of

inferences the Court of Appeal relied on, but also by comparison

to the chief authority the People rely on, In re Malinda S. (1990)

51 Cal.3d 368 (Malinda). There, we interpreted Welfare and

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Institutions Code section 281’s language directing juvenile

courts to, in reaching a jurisdictional determination, “ ‘receive

and consider’ ” social studies prepared by probation officers or

social workers. (Malinda, at p. 376, italics added by Malinda.)

We concluded this language created an implied hearsay

exception reaching multiple-level hearsay in the reports. (Id. at

pp. 376–379; see id. at p. 379 [“Because the reports must

include, inter alia, a statement of the minor’s feelings and

thoughts concerning the pending action (Civ. Code, § 233, subd.

(b)), these reports necessarily contain hearsay and even multiple

hearsay”].) Section 6602, subdivision (a) lacks comparable

language: There’s no direction that the courts consider expert

evaluations. But even assuming the Legislature contemplated

that courts would consider such evaluations, nothing in the

SVPA definitively indicates that the subdivision permits courts

to consider all of the multi-level hearsay contained in such

reports, including hearsay concerning nonpredicate offenses.

The People also contend that the Legislature specifically

contemplated that the evaluations would contain hearsay like

accounts regarding nonpredicate offenses, because the

“standardized assessment protocol” in Welfare and Institutions

Code section 6601, subdivision (c) requires consideration of a

broad array of historical information in hearsay sources.

Quoting the court below (Walker, supra, 51 Cal.App.5th at pp.

696–697), the People urge that the Legislature “ ‘clearly

intended’ ” for evaluators to rely on these hearsay sources in

their evaluations, “ ‘as the alternative would be to require’ ”

evaluators to embark on the “ ‘near-impossible task’ ” of

“ ‘reinvestigat[ing] a lifetime worth of historical information

comprising the person’s “criminal and psychosexual history.” ’ ”

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But both strands of this argument fail. The standardized

protocol merely assures that the experts offer their professional

medical judgments within the “specified legal framework”

establishing statutory criteria for committing an individual as

an SVP. (Ghilotti, supra, 27 Cal.4th at p. 910, italics added by

Ghilotti.) In no way does it allow or direct admission of hearsay

in expert reports regarding the facts associated with offenses

that didn’t lead to predicate convictions. And the absence of a

hearsay exception for such evidence at probable cause hearings

does not necessarily impose a near-impossible burden on experts

or the People. First, the facts that certain offenses are alleged

might be admissible for nonhearsay purposes. Also, at least

some of the hearsay documents identified by the People and

Court of Appeal — e.g., probation reports, as well as court,

prison, and medical records — may still come in without too

much difficulty, provided they don’t include further

inadmissible hearsay material. (See, e.g., Evid. Code, §§ 1271

[business records], 1280 [official records], 452.5, subd. (b)(1)

[properly certified records of conviction].) Moreover, nothing

precludes the experts from, in forming their opinions, relying on

inadmissible hearsay “that is of a type that reasonably may be

relied upon by” those experts. (Evid. Code, § 801, subd. (b); see

Sanchez, supra, 63 Cal.4th at p. 685.)4 And, of course, the

Legislature can also enact reforms to address any further

practical concerns.

4

Under these circumstances, the SVP might still challenge

the basis of the experts’ evaluation, including by cross-

examination (under the Parker procedure). (See People v.

Valencia (2021) 11 Cal.5th 818, 838, fn. 16; but see ante, at pp.

11–12, 14 [this case does not require us to review the Parker

procedure].)

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We’re also not persuaded that the experts’ role justifies

admitting every single line in their reports. The People contend

that because the experts are “neutral” evaluators applying the

standardized protocol, the evaluation reports have a degree of

reliability and trustworthiness that supports an implied

hearsay exception for their full admission, including any

hearsay they contain regarding nonpredicate offenses. As

support, the People analogize to Malinda, supra, 51 Cal.3d at

pages 375–378, 385. Setting aside the markedly different

statutory language in that case (ante, at p. 27), Malinda also

critically differs in terms of the nature of the hearsay evidence

and expertise at issue. There, we did agree with similar

arguments that the Legislature implicitly created a hearsay

exception, but we did so in part based on a judgment about the

reliability of the hearsay evidence: The relevant experts, social

workers, would bring knowledge and expertise to bear in the use

of the hearsay information in the social study reports they

authored. (Id. at p. 377.) In particular, the social workers

prepared the social studies on the basis of direct interviews with

the minor and her parents (id. at pp. 373–374), and they related

the contents of these interviews as part of their statutory role:

as “ ‘a special arm of the court to investigate the status of the

children and report’ ” back (id. at p. 377, fn. 8; see also id. at pp.

377–379).

Here, no similar justification exists for concluding the

Legislature has implicitly allowed psychologists to relate, via

their reports, hearsay accounts of nonpredicate criminal

offenses. Yes, these experts offer diagnoses that fall within a

properly qualified mental health professional’s expertise, and in

doing so they often do draw insight from a comprehensive array

of sources. (Couthren, supra, 41 Cal.App.5th at pp. 1010–1011.)

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But these circumstances surrounding the validity of the experts’

medical diagnoses, and the experts’ apparent objectivity and

neutrality, are beside the point. Nothing about these

circumstances indicates the Legislature has impliedly

determined the experts have relevant expertise to be able to

relate the reliability either of (a) hearsay accounts in law

enforcement documents like police or probation reports, which

may have been prepared years or even decades ago, or (b)

further levels of hearsay, like victim statements, contained

therein. (Malinda, supra, 51 Cal.3d at p. 377; see Couthren, at

p. 1018, fn. 7; Bennett, supra, 39 Cal.App.5th at p. 884, fn. 6; cf.

Whitman, supra, 54 Cal.3d at pp. 1072–1074.)

To begin with, this evidence presents some inherent

reliability concerns. As the People admit, “the reliability of

victim hearsay statements in [police and probation reports] is

lessened where, as here, the defendant has not been convicted

of the crimes to which the statements relate.” (Cf. Otto, supra,

26 Cal.4th at p. 211.) And, more importantly, we have no

particular reason to believe it would be consistent with the

legislative design to conclude the mental health evaluators

bring any professional judgment to bear in assessing the

veracity of these hearsay statements — as the facts of this case

underscore. As we’d expect for any psychological expert, it

doesn’t appear that either MacSpeiden or Karlsson had any

meaningful basis to assess the reliability of the two dismissed

rape allegations in the probation and police reports, including

what the alleged victims told investigating officers. The experts

readily admitted that they simply assumed these documents

had accurate information, and they presented the information

as accurate in their reports. Given the reliability concerns, we

think it implausible that it was within the ambit of the

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legislative purpose to allow the admission of this information as

evidence merely because experts chose to include it in their

evaluation reports.

Finally, the People’s analogy to Conservatorship of

Manton (1985) 39 Cal.3d 645 fails, too. Manton addressed an

LPS Act provision relating to conservatorship proceedings for

gravely disabled persons. That provision, section 5354,

subdivision (a), directs a county officer to investigate

alternatives to conservatorship and render a written report to

the court prior to the initial conservatorship hearing; and it

provides that the court “may receive the report into evidence” at

the hearing “and may read and consider the contents thereof in

rendering its judgment.” We held that this section does not

permit the subsequent use of the report at trial, explaining in

part: “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. We believe that the better interpretation is

one avoiding such redundancy in the absence of clear legislative

intent to the contrary.” (Manton, at p. 651.) The People focus

on this reasoning, arguing that, as in Manton, the language and

structure of the SVPA indicate that it does not require

duplicative evidence at the probable cause hearing and trial.

Neither the language nor the structure of the SVPA

compels us to apply Manton’s reasoning here. In contrast to

section 5354 of the LPS Act, Welfare and Institutions Code

section 6602 does not mention the reports. Without legislative

guidance to the contrary, the same evidentiary rules, i.e., the

Evidence Code, govern the probable cause hearing and trial —

which therefore expectedly leads to the potential for some

duplicative evidence at the proceedings. The same holds true

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for criminal preliminary hearings, for example. (See LaFave et

al., 4 Criminal Procedure (4th ed. 2015) § 14.3(a), p. 365, fn. 35

(LaFave) [California’s criminal preliminary hearing is relatively

akin to a “mini-trial hearing,” even in the wake of Prop. 115, in

that its rules potentially increase the rigor of its screening

function by generally limiting the prosecution to the use of

evidence that would be admissible at trial]; but cf. LaFave, §

14.4(b) at p. 383 [unlike California, “perhaps a majority” of

jurisdictions “start from the premise that the rules of evidence,”

including hearsay rules, do not apply to the preliminary

hearing, and they entrust magistrates to take appropriate

account of the reliability and weaknesses of such evidence].)

The Legislature can, of course, create a hearsay exception

that prevents any duplication of evidence. (Cf. Parker, supra,

60 Cal.App.4th at p. 1469 [noting that the Legislature can “fill

the procedural gap in section 6602”].) It can choose to permit

hearsay involving prior nonpredicate crimes to come in through

evaluation reports. Nothing in our analysis should be

understood as taking a position on whether such an exception

ought to exist. That is a distinct question from what we must

resolve: whether a hearsay exception does, in fact, exist in

section 6602. The Court of Appeal blurred the distinction

between the two inquiries. It concluded that a hearsay

exception supports the practical role of the probable cause

hearing, and then reasoned backward, without any statutory

basis, to conclude that such an exception must therefore be

implied. If we embraced this reasoning, we’d risk imposing an

arrangement that essentially requires consideration of hearsay

statements in the reports — a result unmoored from the SVPA’s

language, its legislative history, and other indicia of statutory

purpose.

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True: Allowing experts to relate hearsay accounts of

nonpredicate offenses would “streamline the People’s ability to

make [its] initial showing without having to duplicate” trial

evidence and track down victims and witnesses. (Walker, supra,

51 Cal.App.5th at p. 701; see conc. opn., post, at p. 4.) But

Walker raises countervailing considerations: defendants’

interest in especially rigorous evidence testing to bar any

potentially unreliable hearsay from being used to prop up a

weak petition. (See Couthren, supra, 41 Cal.App.5th at pp.

1014, 1020.) Reasonable minds can certainly disagree on

whether hearsay like this, which would be inadmissible at the

eventual SVP trial, should come in at a preliminary hearing.

(Cf. LaFave, supra, § 14.4(b) at pp. 387–389.) But setting aside

these policy judgments, the Legislature’s decision to not carve

out an exception for the evidence in dispute in this case —

hearsay accounts of nonpredicate offenses introduced via expert

reports — reasonably aligns with the hearing’s evidence-testing

function, as the Legislature has presently designed it and our

prior cases have interpreted it.

2.

We separately address one argument the Court of Appeal

presented, and to which the People briefly allude. The Court of

Appeal argued that two prior decisions have, consistent with

section 6602, already recognized a hearsay exception covering

the hearsay report content at issue: Parker, supra, 60

Cal.App.4th at pages 1469–1470, and Cooley, supra, 29 Cal.4th

at page 245, footnote 8. (Walker, supra, 51 Cal.App.5th at pp.

691–694, 699–700.) Although exceptions to the hearsay rule

may be found in decisional law (Otto, supra, 26 Cal.4th at p.

207), courts rarely exercise their power to create these

exceptions, and for good reason (see In re Cindy L. (1997) 17

33

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

Cal.4th 15, 27; see also ibid. [“The general rule that hearsay

evidence is inadmissible because it is inherently unreliable is of

venerable common law pedigree”]). Courts exercise this power

only “for classes of evidence for which there is a substantial

need, and which possess an intrinsic reliability that enable them

to surmount constitutional and other objections that generally

apply to hearsay evidence.” (Id. at p. 28.) But nothing in Parker

or Cooley can be applied to this case and taken to mean that

hearsay accounts of nonpredicate offenses, relayed by expert

evaluations, meet these stringent requirements (see ante, at pp.

17–19, 29–31), or that the cases even sought to recognize a

relevant hearsay exception.

Parker addressed, as a matter of first impression, “the

nature” of the probable cause hearing under section 6602.

(Parker, supra, 60 Cal.App.4th at p. 1455; see id. at pp. 1461–

1462.) It determined from its statutory analysis that section

6602 affords defendants “a hearing at which [they] could be

heard, not merely by counsel pointing out legal deficiencies on

the face of the petition, but also by being able to effectively

challenge the facts on which the petition was filed, i.e., the

underlying attached experts’ evaluations.” (Parker, at p. 1468.)

The court explained that the probable cause hearing

consequently should allow for the admission of oral and written

evidence. (Id. at p. 1469.) It then made the following passing

reference to hearsay: “While we believe the prosecutor may

present the opinions of the experts through the hearsay reports

of such persons, the prospective SVP should have the ability to

challenge the accuracy of such reports by calling such experts

for cross-examination.” (Id. at pp. 1469–1470.)

Then in Cooley, where we addressed “the scope and

substance of the probable cause determination” under section

34

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

6602 (Cooley, supra, 29 Cal.4th at p. 235), we remarked on

Parker’s hearsay reference in passing. Citing Parker, supra, 60

Cal.App.4th at pages 1469–1470, as part of a footnote in our

general overview of the SVPA, we stated: “Although the

petitioner is allowed, despite their hearsay nature, to present

the contents of any reports that form the basis of the petition 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.” (Cooley, at p. 245, fn. 8.)

The Court of Appeal seized on the two cases’ brief

references to hearsay, urging that the “Parker/Cooley rule”

allows evaluation reports to be fully admitted at a probable

cause hearing, despite their hearsay contents. (Walker, supra,

51 Cal.App.5th at pp. 693, 700.) But neither Parker nor Cooley

establish a judicially created exception that would cover hearsay

content regarding nonpredicate offenses.

Parker turned on whether due process requires something

more than a facial review of the petition under section 6602. In

answering this question, it briefly observed that prosecutors

should be allowed to present the opinions of the experts through

their hearsay reports. Its focus, though, was not on the

admission of the reports’ hearsay contents, but instead on

fleshing out what due process requires at the hearing to allow

defendants a meaningful opportunity to challenge the basis of

the petition. Parker therefore “contains no discussion regarding

the competency of the multiple hearsay necessarily contained

within . . . expert evaluations.” (Couthren, supra, 41

Cal.App.5th at p. 1017.)

Although Cooley did cite to Parker’s statement on the

admission of hearsay reports, it did so in a single dictum

35

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

footnote. Moreover, Cooley addressed the subject “in the context

of describing matters which were not disputed by the parties

and therefore not analyzed by the court.” (Couthren, supra, 41

Cal.App.5th at p. 1017.) As in Parker, Cooley provided no

analysis supporting the admission of the reports or their

hearsay contents as competent evidence, or concerning the

application of the Evidence Code to SVPA probable cause

hearings more generally. Consistent with the opinion as a

whole, its focus in the footnote was generally laying out the

procedural requirements that protect defendants at SVPA

hearings.

C.

The admission of the contested hearsay in the MacSpeiden

and Karlsson evaluation reports represented prejudicial error

under the standard set forth in People v. Watson (1956) 46

Cal.2d 818, 836 (for a statutory error, we must determine

whether it is reasonably probable the result would have been

more favorable to appellant absent the error). As described in

Cooley, “a determination of probable cause by a superior court

judge under the SVPA entails a decision whether a reasonable

person could entertain a strong suspicion that the offender is an

SVP.” (Cooley, supra, 29 Cal.4th at p. 252, italics added by

Cooley.) We believe it is reasonably probable that, absent the

erroneously admitted hearsay, the trial judge would not have

entertained a strong suspicion that Walker qualified as an SVP.

On the one hand, some of the properly admitted evidence

supports the existence of probable cause. Walker’s qualifying

offense was a forcible rape of a stranger. MacSpeiden and

Karlsson diagnosed him with particular mental disorders

predisposing him to commit sex offenses — with MacSpeiden

36

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

diagnosing him with “Other Specified Paraphilia, Sexual

Activity with Non-consenting Persons” and “Borderline

Personality Disorder,” and Karlsson concluding he had

“Antisocial Personality Disorder, augmented by a severe level of

psychopathy.” And both experts scored him as having a high

risk of sexual reoffense under various diagnostic tools.

On the other hand, some of the properly admitted evidence

cut against the existence of probable cause. Yanofsky, one of the

initial psychologists appointed by DSH to evaluate Walker,

concluded that Walker did not qualify as an SVP. In his

evaluation report, which the trial court admitted into evidence,

he diagnosed Walker as suffering from “Other Specified

Personality Disorder (Mixed Features),” i.e., antisocial and

narcissistic personality traits. Yanofsky determined these traits

did not affect Walker’s “emotional and volitional capacity to

such a degree” that it predisposed him to commit criminal

sexual acts that would endanger the health and safety of others.

He ruled out paraphilia as a differential diagnosis, explaining

that Walker’s criminal sexual history, although reflecting a

“sexual preoccupation,” did not necessarily appear driven by

“deviance” or “to be a sustained pattern” of inappropriate

conduct. Although he did score Walker as having a moderate-

to-high risk of sexual reoffense under various diagnostic tools,

he determined the absence of a predisposing mental health

condition was dispositive. His testimony at the probable cause

hearing aligned with the conclusions in his report.

Nothing in the record tells us exactly how the trial court

settled on its probable cause determination by weighing the

competing evidence. But the nature and role of the inadmissible

hearsay make it likely that this evidence prejudicially affected

37

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

the trial court’s determination. (See Bennett, supra, 39

Cal.App.5th at pp. 884–885.)

First, the lurid hearsay details regarding the 1989 and

2005 rape allegations depicted Walker as an individual with a

strong propensity and modus operandi for violent sex offenses.

(See ante, at pp. 5–6.) In particular, they portrayed him as

someone who preyed on women by falsely promising them

entertainment and promotion employment; coerced and lured

them to isolated locations; suddenly groped them; and ignored

their pleas to stop and raped them. The resulting impression

enhanced the experts’ credibility and materially supported their

conclusions that Walker’s mental health predisposed him to

sexual criminal acts and made it likely he would reoffend with

predatory behavior. (Cf. Burroughs, supra, 6 Cal.App.5th at p.

412.) We cannot discount the possibility that the nature of the

rape allegation evidence impermissibly factored into the trial

court’s probable cause determination. Similarly, even though

Walker could (and did) cross-examine the experts regarding

particular deficiencies of the rape allegation evidence, that did

not adequately protect against the error here: the full admission

of the reports, and the chance that the trial court would rely on

this substantive evidence in its probable cause analysis.

Moreover, as in Bennett, the inadmissible hearsay that the

court admitted critically supported the evaluation reports’

conclusions. (Bennett, supra, 39 Cal.App.5th at pp. 884–885.)

Had that content been excluded, the state’s case would have

been materially weakened.

MacSpeiden emphasized the hearsay in his report. He

indicated in the diagnosis section of his report — which

contained the hearsay accounts of the 1989 and 2005 rape

38

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

allegations — that Walker’s “history amply demonstrates that

he is sexually disordered with recurrent, intense sexually

arousing fantasies and urges which he is unable to exclude from

overt sexual behavior with non-consenting persons.” According

to MacSpeiden, this “history” included a long track record of

illegal sexual behavior, as shown in Walker’s numerous arrests

and charges between 1988 and 2007. But the facts and

circumstances underlying the two alleged rapes were the only

two offenses in this track record, outside of Walker’s predicate

conviction, that MacSpeiden had any real details to support his

diagnosis. Moreover, as part of the diagnostic scoring to

determine Walker’s risk of reoffense, MacSpeiden discussed how

the 1989 and 2005 prior rape allegations helped show Walker

was “inclined to engage in sexually violent predatory behavior

directed toward a stranger, a person of casual acquaintance . . .

or an individual with whom a relationship has been established

or promoted for the primary purpose of victimization.”

MacSpeiden’s cross-examination testimony aligned with

his report. He testified that the 1989 and 2005 rape allegations,

which he assumed were true, constituted a central part of his

evaluation. He explained that the allegations, along with

Walker’s predicate offense, showed Walker had a modus

operandi of telling the victims “ ‘I’m going to make you an

important person,’ ” suddenly attacking them, and degrading

them and acting with anger toward them. And relatedly, at

several points MacSpeiden invoked the allegations as part of a

“where there is smoke there is fire” type of logic for why he

believed Walker qualified as an SVP.

Karlsson similarly indicated in his report that the hearsay

details regarding the 1989 and 2005 rape allegations shaped his

evaluation. He described these allegations as two of the three

39

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

rapes Walker committed, the other being the rape underlying

Walker’s predicate conviction. In diagnosing Walker with

“Antisocial Personality Disorder,” Karlsson explained that the

most prominent feature of these sex offenses was “a pattern of

pandering/pimping, involving introducing women to the world

of prostitution and strip teasing by acting as an adult

entertainment promoter,” and the use of “manipulation and

coercion to make . . . victims compliant” — all things clearly

drawing on the hearsay accounts of the dismissed rape

allegations. On cross-examination, he confirmed that the 1989

and 2005 rape allegations informed his report, and without

these allegations his opinion could have been different.

In other words, without the inadmissible hearsay, the trial

court would have lacked critical evidence to establish the

diagnosis and reoffense elements of the SVP determination.

(Bennett, supra, 39 Cal.App.5th at p. 885; cf. People v. Yates

(2018) 25 Cal.App.5th 474, 487.) For that reason, and because

of the inflammatory nature of the hearsay evidence, its

admission prejudiced Walker.5

III.

When the Legislature enacted the SVPA, it provided

safeguards to ensure that only a select group of dangerous sex

offenders may be involuntarily committed — safeguards

reflecting the Legislature’s judgment with regard to balancing

5

We decline to reach the second issue briefed by the parties:

whether defendants in SVPA proceedings have a due process

right to confront and cross-examine witnesses presenting

contested hearsay evidence. Based on our state law holding, we

need not further consider what due process requires. (People v.

Williams (1976) 16 Cal.3d 663, 667.)

40

WALKER v. SUPERIOR COURT

Opinion of the Court by Cuéllar, J.

risks to community safety and the liberty interests of

individuals facing the prospect of long-term confinement. The

probable cause hearing serves as a critical safeguard in this

scheme. The provision governing the probable cause hearing,

section 6602, subdivision (a), provides for an adversarial

hearing and clearly establishes that the superior court must

review the petition to determine whether the state has met its

evidentiary burden to proceed to trial. What it does not provide,

however, is a hearsay exception allowing the prosecution to

introduce hearsay regarding nonpredicate offenses via expert

evaluations. Nothing in the language of the subdivision, its

legislative history, its place in the broader SVPA statutory

scheme and relationship with other provisions, or comparisons

to other analogous Welfare and Institution Code provisions

indicates the existence of a hearsay exception for such hearsay

in expert evaluations. The introduction of this hearsay

prejudicially affected Walker’s ability to challenge the basis of

the state’s petition and the sufficiency of the evidence to proceed

to trial.

We reverse and remand with instruction to the Court of

Appeal to, in turn, remand the matter to the superior court for

a new probable cause hearing consistent with this opinion.

CUÉLLAR, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

41

WALKER v. SUPERIOR COURT

S263588

Concurring Opinion by Chief Justice Cantil-Sakauye

I concur in Justice Cuéllar’s majority opinion, which holds

that the lack of an express hearsay exception in the statute

governing sexually violent predator (SVP) probable cause

hearings precludes the admission of hearsay regarding

nonpredicate crimes contained in expert evaluation reports.

I am concerned, however, that our ruling will complicate, if not

frustrate, the intended screening function of SVP probable cause

hearings, and I write separately to urge the Legislature to

provide additional guidance addressing the proper conduct of

such hearings.

A hearsay exception is not the only provision missing from

Welfare & Institutions Code section 6602 (section 6602), the

statute governing SVP probable cause hearings under the

Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600

et seq.). The majority is generous in characterizing the guidance

provided by that statute regarding the conduct of such hearings

as “spare.” (Maj. opn., ante, at pp. 11, 17, 22.) Section 6602

instructs the trial judge tasked with conducting a probable

cause hearing merely to “review the petition” in order to

“determine whether there is probable cause to believe that the

individual named in the petition is likely to engage in sexually

violent predatory criminal behavior upon his or her release.”

(Id., subd. (a).) Taken on its own terms, this instruction is

problematic. A trial judge can no more discern probable cause

to believe a person may be an SVP from reviewing the

1

WALKER v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

commitment petition than a judge conducting a preliminary

examination hearing can determine whether there is probable

cause to believe a crime was committed by reviewing the

criminal complaint. Both pleadings presumably contain the

allegations necessary to support a claim of criminality or SVP

status, but neither provides the evidentiary foundation

necessary to a finding of probable cause. Additional proceedings

are required.

Although section 6602 anticipates that a probable cause

hearing will occur (id., subd. (a)), it provides no guidance about

the nature of the hearing, as we recognized in Cooley v. Superior

Court (2002) 29 Cal.4th 228, 245, fn. 8 [“The SVPA does not

provide any specific procedural requirements for the probable

cause hearing”]. Applying constitutional principles in an early

decision, the Court of Appeal in In re Parker (1998)

60 Cal.App.4th 1453 (Parker) formulated an outline for the

conduct of SVP probable cause hearings that has stood

unchallenged, at least by this court, until our decision today.

Other recent developments in the law, however, had already

threatened to undermine the Parker procedures. Parker,

ratified by our subsequent decision in Cooley, assumed that an

SVP probable cause hearing would focus on the evaluation

reports prepared by the two psychiatric professionals whose

concurrence is required before an SVP commitment petition can

be filed. (Welf. & Inst. Code, § 6601, subd. (d).) It permitted

introduction of such reports at the probable cause hearing,

notwithstanding their status as hearsay, as well as any hearsay

they might contain. (Parker, at pp. 1469–1470 [“the prosecutor

may present the opinions of the experts through the hearsay

reports of such persons”]; see also Cooley, at p. 245, fn. 8 [“the

petitioner is allowed, despite their hearsay nature, to present

2

WALKER v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

the contents of any reports that form the basis of the petition as

evidence”].)

At the time of Parker, supra, 60 Cal.App.4th 1453,

admission of the contents of the evaluation reports was

uncontroversial because expert witnesses were permitted to

testify concerning the basis for their opinions, even if those

opinions were premised on hearsay. (E.g., People v. Montiel

(1993) 5 Cal.4th 877, 918.) Parker therefore had no reason to

opine separately on the admission of the type of hearsay

considered today and, as the majority notes, did not do so. (Maj.

opn., ante, at pp. 34–35.) That practice came to an end with

People v. Sanchez (2016) 63 Cal.4th 665, which held that case-

specific hearsay on which an expert relies is offered for its truth

and must be supported by admissible evidence. (Id. at pp. 682–

683.) Relying in part on Sanchez, one Court of Appeal has

already ruled that the absence of a hearsay exception in section

6602 requires the exclusion of all otherwise inadmissible

hearsay at an SVP probable cause hearing, including any such

hearsay in the expert evaluation reports. (People v. Superior

Court (Couthren) 41 Cal.App.5th 1001, 1010 [“We conclude that

the rules of evidence apply in an SVP probable cause proceeding

and therefore the admissibility of documentary evidence such as

expert evaluations will be governed by the hearsay rule and any

applicable exceptions”].) That would also appear to be the

logical consequence of the rationale employed in our decision

today, although the opinion disavows ruling on the issue. (Maj.

opn., ante, at p. 14.) At a minimum, our decision requires the

redaction from the evaluation reports of any accounts of prior

nonpredicate crimes committed by the alleged SVP, assuming

no admissible evidence is presented at the hearing to support

that hearsay. But if the absence of an express hearsay exception

3

WALKER v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

requires exclusion of this type of hearsay, consistency likely

implicates the exclusion of all other inadmissible hearsay as

well.

I am concerned that these rulings will prevent the SVP

probable cause hearing from serving its intended purpose, which

I understand to be an efficient screening function to determine

whether a trial is required. Like a probable cause hearing before

a criminal trial, the purpose of a section 6602 hearing is, in

general terms, to permit the court to ensure that there is an

adequate evidentiary foundation for an SVP finding. By

requiring the county to present admissible evidence of any

nonpredicate offenses that form a part of that foundation, and

potentially of any other hearsay found in the evaluation reports,

our decision will convert the probable cause hearing into a

proceeding barely distinguishable from a subsequent trial on the

merits. Although such a hearing can, of course, serve the

screening function, it will do so at the cost of time consuming

and unnecessary efforts, imposing a potentially sizable burden

on counsel and courts that will likely be duplicated at trial.

It was this concern for the efficient conduct of SVP

probable cause hearings that led the Court of Appeal below to

imply a hearsay exception into section 6602. Although I agree

with my colleagues that we lack legal authority to recognize

such an exception in these circumstances, I am otherwise wholly

sympathetic to the Court of Appeal’s well-articulated concerns.

Our present decision appears to be the beginning of the end for

the time-tested Parker procedures.

The only solution for this problem is a legislative one. The

Parker procedures have served as a fair and efficient guide to

the conduct of SVP probable cause hearings for more than

4

WALKER v. SUPERIOR COURT

Cantil-Sakauye, C. J., concurring

20 years. I encourage the Legislature to make the statutory

amendments necessary to preserve those procedures, beginning

with an exception for hearsay contained in the expert evaluation

reports. Even better, I hope the Legislature will reexamine SVP

probable cause hearing procedures and formulate clear

statutory guidelines for the conduct of such hearings. Our

polestar is to implement our Legislature’s intent, but reliable

implementation is difficult when, as in section 6602, there is

little statutory indication of that intent.

CANTIL-SAKAUYE, C. J.

5

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Walker v. Superior Court

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 51 Cal.App.5th 682

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S263588

Date Filed: August 30, 2021

__________________________________________________________

Court: Superior

County: San Francisco

Judge: Charles S. Crompton

__________________________________________________________

Counsel:

Erwin F. Fredrich for Petitioner.

Benjamin Salorio, Public Defender (Imperial), and Darren Bean,

Deputy Public Defender, for William Morse as Amicus Curiae on behalf

of Petitioner.

No appearance for Respondent.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E Winters,

Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant

Attorney General, Seth K. Schalit, René A. Chacón and Moona Nandi,

Deputy Attorneys General, for Real Party in Interest.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Erwin F. Fredrich

P.O. Box 471313

San Francisco, CA 94147

(415) 563-8870

Moona Nandi

Deputy Attorney General

455 Golden Gate Avenue

San Francisco, CA 94102

(415) 510-3829