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SVP: Admission of Hearsay. Non-Predicate Offenses

The California Supreme Court recently (August 31, 2021) issued a ruling in Jeffrey Walker v. Superior Court of the City and County of San Francisco that will make Penal Code § 6022 hearings more difficult for prosecutors trying to civilly commit those believed to be a sexually violent predator (SVP).
Summary in 50 Words or Less: In a Penal Code § 6022 for an SVP trial to proceed, the prosecution must present admissible evidence and cannot allow experts to testify to facts in a police report that was not properly admitted first.  This ruling by the California Supreme Court gives potential SVP’s increased rights.
As one may know, the 6022 hearing is best considered a case screening, like a preliminary hearing in a standard felony case (also called a probable cause hearing), wherein the purpose is to have a judge decide if there is an adequate evidentiary foundation for an SVP finding before ordering an SVP trial for a civil commitment.  The 6022 hearing, in other words, is not such a trial, but a hearing where the court decides if there is sufficient evidence to proceed to an SVP trial.  Non-meritorious SVP cases are dismissed and terminated if there is not enough evidence.

Like in a preliminary hearing in a standard felony case, the evidentiary standards in an SVP 6022 hearing are somewhat relaxed, but in the case of Jeffrey Walker, he argued they were too relaxed because two experts, testifying for the State of California, offered hearsay testimony about two highly prejudicial non-predicate offenses.  The experts then testified that their opinions were key factors in reaching their evaluation that Walker posed a significant danger to the public if released.

The Sexually Violent Predator Act (SVPA), at Penal Code § 6001, et. seq.,  provides for the involuntary civil commitment of certain sex offenders before the end of their prison or parole revocation terms.  Such offenders may be dangerous due to some type of mental impairment and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes.

California Supreme Court San Francisco

In their civil commitment, the SVP is provided treatment in a secure facility (i.e., at the high security Coalinga State Mental Hospital) for the mental disorder to reduce the risk of harm he or she poses to the public.  The SVP is then eligible for release from the hospital after a period of treatment if they are found to be safe to the public.

Before being civilly committed, however, the state must establish four conditions:
  1. That the person has been previously convicted of at least one qualifying “sexually violent offense listed in Penal Code § 6600(b);
  2. That the person has “a diagnosed mental disorder that makes the person a danger to the health and safety of others;”
  3. The mental disorder makes it likely the person will engage in future acts of sexually violent behavior if released from custody; and
  4. These acts will be predatory in nature.
Cooley v. Superior Court (2003) 29 Cal.4th 228, 243.  Civil commitment can only commence, if after a trial (known as an SVP trial), the judge finds beyond a reasonable doubt that each of these four requirements is met. 

Inmates are screened at least six months before their release for a possible 6022 hearing.  The Department of State Hospitals (DSH) then designates two psychiatrists to evaluate the inmate for possible SVP commitment.  If the psychiatrists find the inmate is an SVP, they will notify the District Attorney for the county in which the inmate would be released.

In June 2015, the District Attorney of the City and County and San Francisco was so notified about Mr. Walker and filed a petition to commit him as an SVP.  At the time, Walker was nearing the end of a state prison term for pandering (Penal Code § 266i).

The case proceeded to a 6022 hearing, at which time each psychiatrist testified that Walker suffered from a mental disorder than made him a danger to continued violent sexual acts if released.  Walker had been convicted of rape in 1990 and sent to prison, but he had also been charged in 1989 with raping a 16-year-old, but was not convicted of rape and plea bargained the case to unlawful sexual intercourse with a minor (Penal Code § 261.5).  A violation of 261.5 is not a qualifying offense for commitment as an SVP, but rape is.

After serving his time for the 1990 conviction for rape, in 2005, he was charged with rape again and went to trial.  The jury acquitted him after it was determined that the victim lied, but convicted him of pandering, which is also an SVP qualifying offense.

At the 6022 hearing, each psychiatrist described Walker as having a certain modus operandi of meeting women in a certain manner and then raping them.  To substantiate their opinions that he was a danger, each psychiatrist described what they had read in the police reports from the cases where he was not convicted of the charge, but a lesser charge.

Walker objected to this hearsay being introduced as violating his Sixth Amendment right of confrontation.  The victims of the prior events and the detectives did not testify as to the facts, after all. 

The court found sufficient evidence to proceed with an SVP trial and Walker appealed the judge’s ruling denying his motions to exclude such evidence.

The case made its way to the California Supreme Court and Walker’s appeal was granted.  This is significant insofar as in future 6022 hearings, the prosecution will need to bring in certain witnesses to lay a foundation for and authenticate evidence relied upon by experts to overcome a hearsay objection. 

While the Supreme Court granted Walker’s appeal, it explained that the statutory scheme for 6022 hearings required this, hinting that in the future, the Legislature may want to modify this because public safety may be endangered otherwise if prosecutors cannot offer such evidence because it is hearsay.  After all, in standard preliminary hearings in felony cases, police officers are permitted to testify to hearsay under Prop 115.  A similar provision may be adopted in 6022 hearings in the future, we suspect.

The citation for the California Supreme  Court ruling discussed above is Jeffrey Walker v. Superior Court of the City and County of San Francisco (2021) 12 Cal. 5th 177, 283 Cal. Rptr. 3d 296, 484 P. 3d 2.

For more information about SVP commitment issues, please click on the following articles:
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