Sexually Violent Predator Cannot be Compelled to be Interviewed before Trial

Nicholas NEEDHAM, Petitioner, v.The SUPERIOR COURT OF ORANGE COUNTY, Respondent; The People, Real Party in Interest. S276395; July 1, 2024; 2024 WL 3243077 (Cal.)

Summary: County district attorney filed petition to commit sex offender as a sexually violent predator (SVP). Offender filed motions to preclude People’s retained expert from testifying at trial. The Superior Court, Orange County, denied the motions. Offender filed petition for writ of mandate or prohibition to prevent People’s expert from conducting any further interviewing or testing and from testifying at trial. Fourth District Court of Appeal denied the petition. Supreme Court granted offender’s petition for review and transferred the matter to Court of Appeal with direction to issue order to show cause. Court of Appeal thereafter granted the writ petition and directed the trial court to exclude expert’s testimony. People’s petition for review was granted.

Holdings: The Supreme Court held that:

1 People’s expert could not properly compel offender to be interviewed or participate in testing before trial, disapproving People v. Landau, 214 Cal.App.4th 1, 154 Cal.Rptr.3d 1., and

2 allowing People’s expert to testify to offer opinion on subject of offender’s SVP qualification did not undermine fairness of proceedings, disapproving People v. Sloan, 93 Cal.App.5th 698, 311 Cal.Rptr.3d 255.

Sexually Violent Predator Act (SVPA or the Act) (Welf. & Inst. Code,1 § 6600 et seq.)

A person convicted and imprisoned for certain sex offenses may be civilly committed for treatment in a secure facility following completion of a prison term. The Act sets out the procedures for formally evaluating a defendant as a potential sexually violent predator (SVP), as well as for initiating and litigating a commitment petition. In People v. Superior Court (Smith) (2018) 6 Cal.5th 457 (Smith), we concluded the People may share discovery of the defendant’s treatment records with their retained expert. Here, the Supreme Court held that, although the People may call their retained expert to testify at trial, both to contest the testimony of other witnesses and to offer an independent opinion as to whether the defendant qualifies as an SVP, the People’s retained expert may not compel a defendant to be interviewed or participate in testing before trial.  The Supreme Court reversed the Court of Appeal’s  judgment and remanded the case for trial.

Background

In 2016, the Department of Corrections and Rehabilitation referred Needham for evaluation as a possible SVP.  The State Department of State Hospitals (DSH) appointed two evaluators, Dr. Jeremy Coles and Dr. Michael Musacco, who each determined that defendant had a mental disorder making him likely to engage in sexual violence unless civilly committed and treated as provided by the SVPA. The Orange County District Attorney’s Office then petitioned to commit defendant as an SVP.

The SVPA, Updated/Replacement Evaluations, and the Civil Discovery Act

The SVPA “provides for the involuntary civil commitment of certain sex offenders before the end of their prison or parole revocation terms.” (Walker v. Superior Court (2021) 12 Cal.5th 177, 190 (Walker); see § 6600 et seq., eff. Jan. 1, 1996.) The Act sets out with specificity how the SVP process is to be initiated, who may evaluate a person for possible SVP treatment, and how that formal evaluation is to be conducted. The Act provides treatment for mental disorders from which they currently suffer and reduces the threat of harm otherwise posed to the public. No punitive purpose was intended.” An SVP action is a special civil proceeding.

The People’s Retained Expert May Not Compel a Defendant to Participate in an Interview or Testing

SVP trials are special proceedings of a civil nature wholly unrelated to any criminal case. The rules of evidence apply at these trials. A People’s expert may not, under the Act, interview or test a defendant before a commitment has been ordered.

The People’s Retained Expert May Testify at Trial and Offer an Opinion on the Subject of SVP Qualification

Generally, an expert may testify in the form of an opinion if it is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact” and is based on matter “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates ….” (Evid. Code, § 801, subds. (a), (b).) However, “[t]he court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper.” (Evid. Code, § 803.)

The SVPA provides a process under which a convicted sex offender may be civilly committed after completion of a sentence. A pre commitment evaluation may only be conducted by evaluators appointed by DSH using the procedures and assessment protocol specified by the SVPA and relevant regulations. Independent interviews and testing by outside experts are distinct from the regulated evaluation process and the Act makes no provision for them. Both a defendant and the People are entitled to a jury trial, which is civil in nature and at which the People bear the burden of proof. Both parties are entitled to discovery as the Act provides. The CDA generally applies to civil proceedings, but contrary provisions of the Act take precedence over the CDA. Except where the Act provides otherwise, the trial is conducted under the Code of Civil Procedure and the Evidence Code. The People may discover, subject to a protective order, all the reports and relied-upon information compiled during an evaluation. They may retain independent experts and reveal to their expert otherwise privileged information about the defendant contained in the evaluations and supporting materials. Under the Act, a People’s retained expert is not authorized to compel a defendant to participate in interviews and testing before the defendant is committed as an SVP. Either party may call a DSH evaluator to testify at the commitment trial. The People’s qualified expert may testify and give an opinion as to whether the defendant meets the statutory definition of an SVP. The Act also sets out different procedures that apply after a defendant has been committed.

The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only.  Information on this website may not constitute the most up-to-date legal or other information.