Opinion
F084604
03-29-2023
In re JUAN ZAMORA On Habeas Corpus
Antoinette Taillac, Public Defender, Douglas S. Feinberg and Vang Heu, Deputy Public Defenders, for Petitioner. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Julie A. Hokans, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; application for writ of habeas corpus. Fresno Super. Ct. No. 20CRSP685730 Arlan L. Harrell, Judge.
Antoinette Taillac, Public Defender, Douglas S. Feinberg and Vang Heu, Deputy Public Defenders, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Julie A. Hokans, Deputy Attorneys General, for Respondent.
DETJEN, Acting P. J.
INTRODUCTION
The People of the State of California, through the Fresno County District Attorney, filed a petition for indeterminate civil commitment of petitioner Juan Zamora as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA or the Act) (Welf. & Inst. Code, § 6600 et seq.). Following a hearing, the superior court found the petition was supported by probable cause and held petitioner over for trial.
Undesignated statutory references are to the Welfare and Institutions Code.
Petitioner filed a petition for writ of habeas corpus in the superior court, which was denied. He then brought the instant petition for writ of habeas corpus, challenging the court's finding of probable cause. In the petition itself, he argues his incarceration is unlawful because the reports of the People's two experts were erroneously admitted into evidence, and the court relied on hearsay contained in the experts' reports to find probable cause. However, in the memorandum included with the petition, he presents no argument on this point and instead raises a different, but related, issue: that the expert opinion testimony was improper because it was based on inadmissible hearsay. In arguing this point, he raises several issues: (1) his California Law Enforcement Telecommunications System (CLETS) rap sheet, which was admitted into evidence, contained inadmissible hearsay; (2) even if not hearsay, the CLETS rap sheet was admissible only for limited purposes not relevant to his probable cause hearing; (3) "case-specific hearsay statements in the probation and police reports were . . . inadmissible"; and (4) the experts' reliance on inadmissible hearsay rendered their opinions irrelevant and lacking in foundation and evidentiary value. In light of the foregoing, he argues the admissible evidence is insufficient to support the court's finding of probable cause, and the petition for civil commitment must be dismissed or, alternatively, the probable cause finding must be vacated and the matter remanded for a new probable cause hearing.
We have determined the experts' reports and the probation and police reports regarding nonpredicate offenses were not admitted into evidence, nor were hearsay statements contained in those reports relayed to the trier of fact. We therefore conclude petitioner's arguments with regard to these documents are without merit. We also conclude that the CLETS rap sheet was admissible pursuant to a hearsay exception.
With regard to the expert opinion testimony, we conclude the experts generally were permitted to rely on hearsay in forming their opinions and permissibly did so in this case. Furthermore, we conclude the expert opinions were supported by competent evidence, and therefore were not irrelevant or lacking foundation or evidentiary value. We therefore hold the admissible evidence is sufficient to support the court's finding of probable cause.
We previously issued an order to show cause. Because we now conclude petitioner's arguments are without merit, we discharge the order to show cause and deny the petition.
FACTUAL AND PROCEDURAL HISTORY
I. Initial Proceedings
On August 19, 2020, the People filed their petition for petitioner's civil commitment under the SVPA.
Prior to the probable cause hearing, petitioner moved to exclude the diagnoses and opinions of the People's expert witnesses, Dr. M. Vorwerk and Dr. L. Lunceford, as well as any hearsay that might support their diagnoses and opinions, on the ground they improperly relied on hearsay statements regarding nonpredicate offenses in forming their diagnoses or opinions.
II. Probable Cause Hearing
A. CLETS Rap Sheet
At the beginning of the probable cause hearing, the prosecutor moved to admit into evidence a certified copy of petitioner's CLETS rap sheet. Relevant here, the rap sheet reflected that petitioner was arrested in or about 1991 on a charge of lewd or lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)). He ultimately suffered a misdemeanor conviction for sexual battery (Pen. Code, § 243.4, subd. (d)) and was placed on probation for two years. Additionally, petitioner was arrested in or about 2008 on a charge of lewd or lascivious acts on a child 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1)). He suffered a conviction for felony sexual battery (Pen. Code, § 243.4, subd. (a)) and this time was placed on probation for four years. His probation later was revoked and he was incarcerated. Finally, in or about 2015 or 2016, petitioner suffered a conviction for lewd or lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and was sentenced to state prison for a term of six years.
Petitioner asked that the rap sheet be redacted to exclude all arrests and convictions other than the 2015 offense, which petitioner acknowledged was admissible as a qualifying sexually violent predicate offense. Petitioner argued "any evidence" regarding the nonpredicate offenses constituted hearsay pursuant to People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and the convictions themselves were irrelevant because, standing alone, they did not suggest petitioner has a qualifying mental health disorder. Petitioner again argued the experts could not rely on hearsay information in rendering their diagnoses and opinions.
The court admitted the certified CLETS rap sheet into evidence over petitioner's objection.
B. Expert Witness Lunceford
Lunceford testified at the probable cause hearing that she is a licensed clinical psychologist and consultant to the State Department of State Hospitals (DSH). She performs evaluations to determine whether individuals meet the criteria for commitment as an SVP. In doing so, she reviews records provided by DSH, which generally include the individual's CLETS rap sheet, probation officers' reports, crime incident reports, the individual's prison central file, and prison mental health records. She also interviews the individual being evaluated. In the instant case, Lunceford reviewed documents and interviewed petitioner.
Lunceford explained that the first criterion for commitment as an SVP is that the person has been convicted of a qualifying, sexually violent crime. Lunceford determined petitioner satisfied this criterion. In this regard, Lunceford determined, based on a probation officer's report and the abstract of judgment, that petitioner was convicted in 2015 of lewd or lascivious acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (a). When the prosecutor asked Lunceford to relate the details of the 2015 offense, petitioner objected under Sanchez and People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001 (Couthren). The prosecutor responded that the testimony fell within the hearsay exception set out in section 6603. The court overruled the objection. Lunceford testified that, according to the probation officer's report, petitioner had attended a family funeral where a seven-year-old girl reported that petitioner kissed her on the mouth while in a secluded area. The girl reported that she was hiding in a closet while playing hide-and-seek with other children when petitioner grabbed her by the arm, pulled her to him, and kissed her on the mouth. In Lunceford's interview with petitioner, petitioner denied the offense. He explained that he had kissed his niece on the forehead at her request, and the victim of the offense then stated, "I'm your niece too." Although the girl was not petitioner's niece, petitioner then also kissed her on the forehead.
Petitioner cited to these cases throughout the hearing as the basis for his objections. We discuss both cases in detail below. For brevity, we will characterize petitioner's objections based on these cases as hearsay objections.
It appears the prosecutor intended to reference section 6600, subdivision (a)(3).
Lunceford explained that the second criterion for commitment as an SVP is that the person has a diagnosable mental disorder which predisposes him or her to the commission of criminal sexual acts. The prosecutor asked Lunceford if she had determined whether petitioner met this criterion. Petitioner objected on hearsay grounds. The court overruled the objection on the ground "the doctor can express an opinion as to whether she has an opinion on whether [petitioner] has a mental disorder." Lunceford responded that she had reached such a determination. The prosecutor asked Lunceford to specify the disorder with which she had diagnosed petitioner. Petitioner again objected on hearsay grounds. The court overruled the objection and Lunceford stated she had diagnosed petitioner with pedophilic disorder, sexually attracted to females, nonexclusive type.
When asked what she looked at to make this diagnosis, Lunceford explained that she looked at incidents other than the predicate offense. The prosecutor asked Lunceford whether she knew what petitioner was charged with in the 1991 incident. Petitioner objected on foundation and hearsay grounds. The court overruled the objection, noting that the incident was reflected in petitioner's CLETS rap sheet and, "[t]o the extent that this 1991 incident resulted in a conviction, it is an established fact that something took place. So I will allow the doctor to discuss what she understands took place and she can provide a basis for where she got that information. The [c]ourt has to determine whether it is accurate or not."
Lunceford explained that her information concerning the 1991 offense came from a Fresno Police Department crime report. She acknowledged she also had a copy of the CLETS rap sheet for petitioner, which reflected petitioner's charge and conviction. She confirmed that petitioner was charged with a violation of Penal Code section 288, but entered a plea to sexual battery. In Lunceford's interview with petitioner, petitioner denied the offense and claimed the child and her mother made up the story to get back at petitioner's brother-in-law for declining to sell the mother drugs. He did not know the girl prior to the date of the incident. Petitioner believed the victim of the 1991 offense was 11 or 12 years old.
Lunceford explained that she also considered a 2007 incident in reaching her diagnosis. She confirmed that petitioner was charged with a violation of Penal Code section 288, subdivision (c), but again pled to sexual battery. In Lunceford's interview with petitioner, he explained that he went to the movies with his niece and her friend. He then took his niece home first before taking home the other girl. Petitioner thought the girl's mother's boyfriend "would do things" with the girl when her mother passed out using drugs. Petitioner claimed the girl made up the story regarding the 2007 incident with petitioner. He denied being sexually attracted to children. On cross-examination, Lunceford acknowledged that, aside from her interview with petitioner, her information regarding this offense came from a Sanger Police Department crime report. Lunceford also testified on cross-examination that petitioner denied "having kissed the girl and put his tongue in her mouth."
Lunceford also considered whether petitioner's pedophilic disorder affected his volitional control or ability to control his behavior. She determined petitioner lacked volitional control based on "the pattern of his behavior," which included a detection, followed by a sanction in the form of being arrested and placed on probation, followed by a second offense, with detection and a sanction that included stricter probation and sex offender treatment, followed by an additional offense. Petitioner moved to strike this testimony on foundation and hearsay grounds. The court afforded the prosecutor the opportunity to lay the appropriate foundation. Lunceford explained that petitioner told her he had completed a one-year sex offender treatment program after the second offense, and he then reoffended with the qualifying predicate offense. The court overruled petitioner's objection.
Lunceford explained that the third criterion for commitment as an SVP is that the person is likely to commit sexually violent, predatory criminal offenses because of his mental disorder, without custody or treatment. In considering this criterion, Lunceford employed a static assessment and a dynamic assessment. The static assessment, the Static-99R, compares petitioner against other similar offenders and gives a score to assess how likely he is to reoffend. In applying the Static-99R, Lunceford considered information given by petitioner in his interview, as well as the CLETS report. Petitioner received a score of 4, which put him at an above-average risk of reoffending. Lunceford also considered several dynamic factors based on information obtained from petitioner. Dynamic factors that she found present or partially present with petitioner included sexual attraction to prepubescent children, emotional congruence with children, poor problem solving, and resistance to rules and supervision. Finally, Lunceford opined that petitioner posed a substantial serious risk of reoffending in a sexually violent predatory manner.
On cross-examination, Lunceford acknowledged she had no personal knowledge of events in petitioner's past. She testified that her interview with petitioner, standing alone, would have been insufficient to support an opinion that petitioner has a pedophilic disorder, absent the CLETS and the probation officer's and police reports she reviewed. On redirect, Lunceford confirmed that she based her opinion partly on the CLETS, partly on petitioner's statements, and partly on the facts underlying the qualifying crime.
C. Expert Witness Vorwerk
Vorwerk testified at the probable cause hearing that she is a licensed forensic psychologist who performs SVP evaluations under contract with DSH. In performing such evaluations, she reviews all records provided by DSH regarding the individual before interviewing the individual, conducting a risk assessment, and then forming her opinion as to whether the individual meets the criteria for commitment as an SVP. The records provided by DSH typically include the individual's prison central file and prison medical and mental health records, police reports, probation officers' reports, their CLETS rap sheet, and other legal documents. Vorwerk confirmed that, in the instant case, she had a copy of petitioner's CLETS rap sheet and also interviewed petitioner.
Vorwerk determined petitioner met the first criterion for commitment as an SVP based on having been convicted of a sexually violent predicate offense. She made this determination based on the CLETS rap sheet. She also determined from a probation officer's report that petitioner was convicted in 2015 of lewd or lascivious acts with a child under 14 years of age, in violation of Penal Code section 288, subdivision (a), in relation to an incident involving a seven-year-old girl. Vorwerk testified that, according to the probation report, petitioner attended a gathering following a funeral and played hide-and-seek with his niece and the victim, who was a friend of the family. Petitioner hid in a closet with the victim and put his tongue inside her mouth and kissed her. In Vorwerk's interview with petitioner, he denied kissing the victim on the mouth but stated he did kiss the victim on her forehead and she gave him a hug. He denied playing hide-and-seek with the victim or forcing his tongue into her mouth.
Petitioner objected to this line of questioning on foundation grounds, but the objection was overruled.
The prosecutor asked whether Vorwerk formed an opinion as to whether petitioner met the second criterion for commitment as an SVP, having a mental disorder that predisposes him or her to the commission of criminal sexual acts. Vorwerk answered affirmatively. Petitioner objected on foundation and hearsay grounds. The objection was overruled. The prosecutor asked Vorwerk for her diagnosis under the second criterion, and petitioner again objected. The objection was again overruled. Vorwerk testified that she diagnosed petitioner with pedophilic disorder.
In reaching this determination, Vorwerk considered the qualifying predicate prior, as well as a 1991 incident in which petitioner was charged with lewd or lascivious acts with a child under 14 years of age, in violation of Penal Code section 288, subdivision (a), and was convicted of sexual battery in violation of Penal Code section 243.4, subdivision (d). Petitioner objected to and moved to strike this testimony as hearsay and lacking foundation. The court queried whether this information was contained in the CLETS printout that Vorwerk reviewed. Vorwerk answered affirmatively and the court overruled the objection. Vorwerk also asked petitioner about this incident. Petitioner told her that he thought the girl involved in the incident was 11 or 12 years old at the time. He admitted kissing her on her forehead but claimed the kiss was not sexual. He additionally stated that he realized, both at the time of the incident and at the time of his arrest, that he should not have done it. He denied putting his tongue in the victim's mouth. On cross-examination, Vorwerk confirmed that petitioner "did not substantiate" (boldface omitted) in his interview that he kissed the victim on the mouth or picked her up and put her back on the ground. Vorwerk also confirmed that petitioner did not clarify what he meant by knowing his conduct was wrong.
Vorwerk also considered an incident from 2007 in reaching her diagnosis. Based on the CLETS rap sheet, Vorwerk determined petitioner was charged with lewd or lascivious acts with a child 14 or 15 years of age, in violation of Penal Code section 288, subdivision (c)(1), and sexual battery in violation of Penal Code section 243, subdivision (d)(1), but was convicted only on the latter charge. Petitioner told Vorwerk that the victim in the case was his niece's friend. The incident happened after they came home from the movies. They stopped at the niece's home and petitioner told her to stay home to wash the dishes. Petitioner then took the victim home. Before petitioner dropped the victim off, she kissed him on the cheek. He denied "doing anything with her at the movie theater, trying to hold her hand, stopping at fruit trees in the orchard with his car, and he also denied forcing his tongue in her mouth and denied being sexually attracted to the victim." The charges in the case and the facts of the qualifying predicate offense contributed to Vorwerk's diagnosis.
It appears this offense involved a violation of section 243.4, subdivision (a).
Vorwerk also determined that petitioner had volitional impairment based on his having committed a number of sexual offenses over a span of years and having continued to reoffend despite sanctions. Vorwerk noted that petitioner was sentenced to jail time and probation following his 1991 offense and went on to reoffend in 2007 despite that sanction. Additionally, he was sanctioned with probation and attended sex offender treatment following his 2007 offense, but his probation was revoked and he spent time in prison. He thereafter went on to reoffend again in 2015. Vorwerk explained that this pattern "illustrates his serious difficulty controlling his behavior." Vorwerk testified that this indicated petitioner was not deterred by criminal punishment or sex offender treatment. Vorwerk additionally noted that petitioner told her he knew his conduct involved in the 1991 offense was wrong, but he reoffended thereafter anyway.
Vorwerk explained that the third criterion for commitment as an SVP is that the person is likely to engage in criminal predatory sexually violent behavior in the future as a result of their diagnosed mental disorder without appropriate treatment in custody. Vorwerk considered whether petitioner met this criteria by applying the Static-99R assessment and considering additional dynamic risk factors through application of the Stable-2007 instrument. She also considered whether any protective factors would reduce petitioner's likelihood of sexually reoffending in the future. On the Static-99R, Vorwerk scored petitioner a 5, meaning he fell within the above-average risk range. She determined petitioner did not have any protective factors present.
Vorwerk ultimately testified that petitioner met all three criteria for commitment as an SVP.
Petitioner objected to the prosecutor's question in this regard as compound, leading, lacking foundation, and calling for hearsay. The court overruled the objection.
On cross-examination, Vorwerk confirmed that petitioner denied being sexually aroused by prepubescent children. However, she explained that petitioner admitted to kissing the 1991 and 2015 victims on the forehead and, to the extent Vorwerk felt those actions were sexual in nature, despite petitioner saying that they were not, petitioner's statements alone could potentially support her diagnosis of pedophilic disorder. Vorwerk explained that petitioner was guarded during his interview regarding even minor subjects, which would have raised a "red flag" even if she did not have additional information regarding the offenses.
On redirect and re-cross examination, Vorwerk confirmed she relied on the CLETS rap sheet, probation officer's report, abstract of judgment, and "all the legal documents" in forming her opinion.
D. Probable Cause Finding
The prosecutor argued the People had met their burden to establish probable cause. The prosecutor argued the People's experts properly relied on the facts underlying the 2015 conviction as a qualifying sexually violent predicate offense. With regard to the nonpredicate offenses, the prosecutor argued: "Both doctors testified that they knew the nature of the charges by the CLETS, which, again comes in under a hearsay exception, the charges and the convictions, and the response of [petitioner] to questions about all the incidents. And when they put that together, both doctors find that [petitioner] meets all three criteria."
Petitioner pointed out that he had "denied everything." He also pointed out that the CLETS could be admitted to prove he had a qualifying predicate conviction, but he argued the convictions for violation of Penal Code section 243.4 did not show he had an interest in prepubescent children as there is no age limitation on that offense. Petitioner also argued the experts had improperly relied on hearsay in their evaluations. Petitioner therefore asked the court not to hold him for trial as the only evidence to show he had a pedophilic disorder was hearsay.
The court ultimately found probable cause to hold petitioner for trial.
III. Petition for Writ of Habeas Corpus in the Superior Court
While trial on the petition for petitioner's commitment was still pending, our Supreme Court issued its opinion in Walker v. Superior Court (2021) 12 Cal.5th 177 (Walker II), addressing the admissibility of hearsay at the SVPA probable cause hearing. Thereafter, petitioner filed in the superior court a petition for writ of habeas corpus, arguing the superior court erred in admitting opinion testimony based on hearsay evidence as to nonpredicate offenses. Petitioner argued that, absent the hearsay evidence of nonpredicate offenses, the evidence was insufficient to establish he suffered from pedophilic disorder. He therefore sought vacatur of the court's probable cause finding.
A review of the Fresno Superior Court's online Case Management and Information System indicates the case is currently set for a status conference on April 13, 2023.
The superior court denied the petition by written order for failing to state a prima facie case for relief. The court noted that the experts' reports were not admitted into evidence, and the expert testimony did not relate "any case-specific information regarding the facts of the two nonpredicate convictions," other than petitioner's own statements during his interviews. Accordingly, the court determined petitioner failed to demonstrate that any case-specific hearsay related to the nonpredicate offenses was improperly admitted. The court also determined petitioner had not shown error in the admission of the CLETS rap sheet, which the court determined fell under the hearsay exception for criminal conviction records. (Evid. Code, § 452.5.) Finally, the court rejected petitioner's argument that the expert opinions were improperly admitted because they had no evidentiary value. The court noted that the experts had explained their opinions were based in part on petitioner's rap sheet, probation report, and police report. The court explained:
"An expert witness may testify based upon inadmissible information 'that is of a type that reasonably may be relied upon by an expert in forming an opinion.' (Evid. Code, § 801, subd. (b).) Petitioner acknowledges that Sanchez did not directly address the admissibility of expert opinions based upon case-specific hearsay themselves as opposed to the facts upon which they were based. Petitioner refers to where the Walker [II] court noted that the Legislature did not determine that the experts have the relevant expertise to be able to relate the reliability of witness statements in police reports. (Walker [II], supra, 12 Cal.5th at p. 202.) This was relevant to the [high] court's finding that it was not persuaded that the experts' role justified admitting every single line of hearsay in their reports into evidence. (Ibid.) The Walker [II] court was not addressing whether the experts could rely on that type of hearsay in forming their opinion. To the contrary, the Walker [II] court noted that '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.' (Ibid.) As such, [p]etitioner fails to demonstrate that the court erred when it allowed the experts' opinions into evidence."
As such, the superior court did not consider petitioner's claim that the evidence would be insufficient to support a finding of probable cause if the hearsay and opinion testimony had been excluded.
DISCUSSION
We begin with an overview of the SVPA and the principles governing hearsay evidence, particularly as applied in SVPA proceedings. We then address petitioner's challenges to the admissibility of particular pieces of evidence before turning to his challenge to the admission of the expert opinion testimony.
I. Overview of the SVPA
The SVPA allows for the involuntary commitment of sexually violent predators immediately following the completion of their prison terms. (People v. Roberge (2003) 29 Cal.4th 979, 984; accord, Walker II, supra, 12 Cal.5th at pp. 184, 190.) A sexually violent predator is "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) Qualifying mental disorders include "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (Id., subd. (c).) Additionally, the finding of future dangerousness must derive from "a currently diagnosed mental disorder characterized by the inability to control dangerous sexual behavior." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1158.)
Thus, "[i]n 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) [citation]; (2) the person has 'a diagnosed mental disorder that makes the person a danger to the health and safety of others' [citation]; (3) the mental disorder makes it likely the person will engage in future acts of sexually violent criminal behavior if released from custody [citation]; and (4) those acts will be predatory in nature [citation]." (Walker II, supra, 12 Cal.5th at p. 190.)
SVPA proceedings are civil in nature. (Moore v. Superior Court (2010) 50 Cal.4th 802, 818 (Moore).) However, the SVPA affords alleged SVP's many of the same procedural protections afforded to criminal defendants. (See Moore, at p. 818.) "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 [citation], and refers any potential SVP to DSH for a 'full evaluation' [citation]. 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.' [Citation.] 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 county in which the inmate was last convicted. [Citations.] If the county's designated counsel agrees, the petition for commitment is filed in superior court. [Citation.]" (Walker II, supra, 12 Cal.5th at pp. 190-191.)
"The superior court must review the petition once [it is] received to determine whether probable cause exists to commit the individual as an SVP." (Walker II, supra, 12 Cal.5th at p. 191.) "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." (Ibid.) The probable cause hearing represents the "initial step in the judicial process for commitment." (Id. at p. 185; see § 6602, subd. (a).) "If the court determines that probable cause supports the state's petition, it must then hold an offender over for trial. [Citation.] Otherwise, the court must dismiss the petition." (Walker II, at p. 185; see § 6602, subd. (a).) Probable cause exists when" 'a reasonable person could entertain a strong suspicion that the offender is an SVP.'" (Walker II, at pp. 206-207, italics omitted; accord, Cooley v. Superior Court (2002) 29 Cal.4th 228, 252 (Cooley).)
"The trial represents the final step in the 'complex administrative and judicial process' required to civilly commit an individual as an SVP." (Walker II, supra, 12 Cal.5th at p. 190.) At trial, the People must prove beyond a reasonable doubt that the alleged SVP qualifies for commitment under the Act. (§ 6604; People v. Shazier (2014) 60 Cal.4th 109, 126.) Once a petition under the Act is found true, an SVP may be confined and treated "until their dangerous disorders recede and they no longer pose a societal threat." (Moore, supra, 50 Cal.4th at p. 815.)
II. Applicable Law Regarding Hearsay
A. General Hearsay Principles
Hearsay is defined as an out-of-court statement, made by someone other than the testifying witness, offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Hearsay is generally inadmissible unless it falls under an exception. (Id., subd. (b).) Multiple hearsay is admissible only when each level of hearsay meets the requirements of an exception to the hearsay rule. (Sanchez, supra, 63 Cal.4th at pp. 674675.)
Until our Supreme Court's 2016 decision in Sanchez, expert witnesses were permitted to testify about out-of-court statements upon which they relied in forming their opinions, even if the statements were otherwise inadmissible under the hearsay rule. (E.g., People v. Bell (2007) 40 Cal.4th 582, 608, disapproved by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Case law held that such evidence was not offered for its truth, but to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620, disapproved by Sanchez, at p. 686, fn. 13.) Pursuant to this rationale, appellate courts deemed such use of out-of-court statements to be compliant with the hearsay rule. (People v. Valadez (2013) 220 Cal.App.4th 16, 30 [collecting cases].)
However, in Sanchez, our Supreme Court determined that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the hearsay rule. (Sanchez, supra, 63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at p. 686.) Factual assertions are "case-specific" if they relate to "the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.)
Sanchez also considered the circumstances under which such testimony violates the confrontation clause. (Sanchez, supra, 63 Cal.4th at p. 687, citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) As petitioner concedes, this aspect of Sanchez is not at issue here because Crawford has not been extended to civil SVPA proceedings. (Sanchez, supra, 63 Cal.4th at p. 680, fn. 6; see People v. Fulcher (2006) 136 Cal.App.4th 41, 55.)
Following Sanchez, an expert "may still rely on hearsay in forming an opinion, and may tell the [trier of fact] in general terms that he [or she] did so." (Sanchez, supra, 63 Cal.4th at p. 685.) Thus, an expert may properly "relate generally the kind and source of the 'matter' upon which his [or her] opinion rests." (Id. at p. 686.) However, "[t]here is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Ibid.) An expert may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Ibid.)
B. Admission of Hearsay Under the SVPA
The SVPA contains a broad hearsay exception that permits the People to establish the existence of a qualifying sexually violent predicate offense through "documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the [DSH]," as well as through multiple levels of hearsay contained in such documents. (§ 6600, subd. (a)(3); accord, Walker II, supra, 12 Cal.5th at p. 198; People v. Otto (2001) 26 Cal.4th 200, 208 (Otto); People v. Roa (2017) 11 Cal.App.5th 428, 443-444 (Roa).) However, the SVPA does not expressly provide for the admission of hearsay evidence regarding nonpredicate offenses.
Sexual battery (Pen. Code, § 243.4) is not a qualifying sexually violent predicate offense. (§ 6600, subds. (a)(2), (3), (b).)
Prior to Sanchez, courts had generally adopted the "Parker procedure," which interpreted section 6602, subdivision (a) as permitting the People to introduce into evidence at the probable cause hearing the evaluation reports prepared by the People's experts despite their hearsay nature, in support of or in lieu of the expert's testimony on direct examination. (See Walker II, supra, 12 Cal.5th at p. 192; see In re Parker (1998) 60 Cal.App.4th 1453, 1469-1470 (Parker).) Although our Supreme Court "remarked on Parker's hearsay reference in passing" (Walker II, at p. 205; see Cooley, supra, 29 Cal.4th at p. 245, fn. 8), it did not expressly endorse this procedure and would eventually characterize its remarks as "dictum" unsupported by analysis (Walker II, at p. 206).
"A judge of the superior 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. The person named in the petition shall be entitled to assistance of counsel at the probable cause hearing. Upon the commencement of the probable cause hearing, the person shall remain in custody pending the completion of the probable cause hearing. If the judge determines there is not probable cause, he or she shall dismiss the petition and any person subject to parole shall report to parole. If the judge determines that there is probable cause, the judge shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections and Rehabilitation or other secure facility." (§ 6602, subd. (a).)
Under the Parker procedure the alleged SVP "should have the ability to challenge the accuracy of such reports by calling such experts for cross-examination." (Parker, supra, 60 Cal.App.4th at p. 1470.)
Meanwhile, the Sanchez rule regarding case-specific hearsay "has repeatedly been held to apply in SVP proceedings." (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 878 (Bennett); see id. at pp. 878-879 [collecting cases].) In People v. Burroughs (2016) 6 Cal.App.5th 378, 407, the People's experts "related extensive and case-specific facts they gleaned from documents such as police reports, probation reports, and hospital records" as the basis for their opinions. The Court of Appeal determined the trial court erred in allowing the People's experts to testify to the contents of these documents, which were not subject to a hearsay exception. (Id. at p. 411.) In Roa, supra, 11 Cal.App.5th at page 450, the trial court excluded two reports prepared by a district attorney investigator as inadmissible hearsay, but allowed the People's experts "to rely upon the reports and testify as to their contents as the basis for their opinions." The Court of Appeal held that the experts could properly rely on the reports in forming their opinions, even if the reports constituted inadmissible hearsay. (Id. at p. 451.) However, admission of expert testimony relating the case-specific facts contained in these reports was error. (Id. at p. 452.) In People v. Flint (2018) 22 Cal.App.5th 983, 1002, the Court of Appeal determined the trial court "arguably" erred in admitting expert testimony that "included some case-specific facts that [the expert] gleaned from out-of-court statements contained in legal and medical reports," to which no hearsay exception applied. In People v. Yates (2018) 25 Cal.App.5th 474, 485, the Court of Appeal determined the trial court erred in allowing the People's experts to relate case-specific facts drawn from documents "that were neither introduced or admitted into evidence, nor shown to fall within a hearsay exception." All these cases, however, involved the admission of hearsay evidence at the SVP jury trial, rather than at the probable cause hearing. (Burroughs, at p. 383; Roa, at p. 433; Flint, at p. 987; Yates, at p. 476.) Thus, none of these cases addressed the continuing vitality of the Parker procedure post-Sanchez.
More recently, in Bennett, the Court of Appeal addressed a petition for writ of habeas corpus challenging the trial court's finding of probable cause on the grounds (1) the People's experts improperly relied on hearsay concerning an incident other than the predicate offenses in forming their opinions, (2) the trial court improperly allowed the experts to relate facts from that incident, and (3) the trial court improperly considered the incident in making its probable cause determination. (Bennett, supra, 39 Cal.App.5th at p. 873.) The Court of Appeal determined the trial court erred in allowing expert testimony of case-specific facts relating to the incident, and the trial court improperly relied on the incident in finding probable cause. (Id. at p. 879.) The court rejected the People's argument that the "formal rules of evidence, including the hearsay rule, do not apply at the probable cause hearing." (Id. at p. 882; see id. at p. 883.) The court further explained that, "to the extent (if any) that Parker could have been read as allowing the prosecution at a probable cause hearing to introduce otherwise inadmissible case-specific hearsay evidence solely through the testimony and reports of its experts, such a reading would not pass muster following Sanchez." (Id. at p. 883.)
The Court of Appeal deemed the petition to be a petition for writ of mandate or prohibition. (Bennett, supra, 39 Cal.App.5th at p. 873.)
In Couthren, the superior court dismissed the People's petition for civil commitment following a probable cause hearing in which the People relied solely on documentary evidence, including expert psychological evaluations. (Couthren, supra, 41 Cal.App.5th at pp. 1005-1006.) The Court of Appeal affirmed after determining the admissibility of the evaluations was governed by the hearsay rule and any applicable exceptions. (Id. at p. 1010.) The court further determined that Parker did not squarely authorize the admission at the probable cause hearing of multiple hearsay contained in SVP evaluator reports. (Id. at p. 1015.) Thus, the court concluded, "neither statute nor decisional law authorizes the wholesale admission of the reports of expert evaluators for their truth at SVP probable cause hearings." (Id. at p. 1018.) Furthermore, even if such exception were previously recognized in decisional law, it would no longer be tenable in the wake of Sanchez. (Id. at p. 1019.)
A different division of the same court that issued Couthren reached a different conclusion in Walker v. Superior Court (2020) 51 Cal.App.5th 682 (Walker I), reversed by Walker II, supra, 12 Cal.5th at page 210. There, the Court of Appeal noted our Supreme Court's observation in Cooley, supra, 29 Cal.4th at page 245, that the SVPA" 'does not provide any specific procedural requirements for the probable cause hearing,'" (Walker I, at p. 692.) The Court of Appeal also noted that Cooley had seemingly endorsed the Parker procedure. (Walker I, at pp. 692-693.) Thus, the Court of Appeal determined that section 6602 provided an exception to the hearsay rule and Sanchez therefore did not apply. (Walker I, at pp. 694-695.) The court explained: "[W]hen the [SVPA] directs the superior court to 'review the petition' in determining probable cause (§ 6602[, subd. ](a)), the act establishes . . . an exception to the hearsay rule. This exception allows-indeed requires-the trial court to consider the expert evaluations on which the petition necessarily depends, including case-specific facts obtained from hearsay sources described within the evaluations. Because these evaluations and their contents are 'covered by a hearsay exception' specific to SVP probable cause hearings, they are not subject to exclusion under Sanchez." (Ibid.) Thus, the Court of Appeal concluded the superior court could review the entirety of the expert's evaluations in determining whether there was probable cause to hold the petitioner for trial. (Id. at p. 696.)
Our Supreme Court addressed this conflicting line of case law in Walker II, supra, 12 Cal.5th 177. There, the high court determined that the question of "whether the SVPA or decisional law on the statute" create a hearsay exception covering expert report contents concerning nonpredicate offenses could be resolved through statutory interpretation, without resort to the nuances of Sanchez. (Id. at p. 193.) Ultimately, the high court determined that "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." (Id. at p. 194.)
III. Admission of Case-specific Hearsay
Petitioner argues "Sanchez bars introduction of hearsay testimony through experts and opinion testimony based upon case-specific hearsay." (Boldface, underlining &some capitalization omitted.) In this regard, petitioner argues the court erroneously admitted case-specific hearsay at his probable cause hearing, and relied on this hearsay in finding probable cause. Specifically, he contends (1) the reports of the People's experts were admitted into evidence and contained hearsay, (2) statements in probation and police reports relied on by the experts constituted hearsay, and (3) the CLETS rap sheet contained hearsay. Although there is now no question that Sanchez prohibits an expert from relaying case-specific hearsay to the trier of fact, petitioner does not direct our attention to any point at which either of the People's experts did so.
A. The Experts' Reports
In the petition for writ of habeas corpus, petitioner argues his incarceration is unlawful "because the court admitted the doctor reports and the court used the hearsay statements in those reports to find probable cause." Petitioner further argues that, absent the reports and related testimony, "insufficient evidence remains to justify a commitment."
Petitioner does not cite to the record to support his claim that the expert reports were admitted. The People deny the reports were admitted. Our own review of the record reveals that no written expert reports were admitted into evidence at the probable cause hearing. Accordingly, petitioner's contentions in this regard are without merit.
As this is the only ground for relief alleged in the petition itself, this arguably ends our inquiry. (See People v. Duvall (1995) 9 Cal.4th 464, 474; Pen. Code, § 1474, subd. 2 ["If the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists[.]"].) We nonetheless address the additional arguments raised in the memorandum accompanying the petition.
B. Probation and Police Reports
In the memorandum accompanying the petition, petitioner contends the "casespecific hearsay statements in the probation and police reports were . . . inadmissible." Although the experts stated that they reviewed probation and police reports related to the nonpredicate offenses, neither relayed any details derived from those reports. The probation and police reports were not admitted into evidence. To the extent petitioner argues hearsay from these reports was erroneously admitted, his argument is without merit.
C. CLETS Rap Sheet
Petitioner argues the CLETS rap sheet constituted inadmissible hearsay and the experts therefore could not rely on the rap sheet in forming their opinions. However, the CLETS rap sheet was admitted into evidence and the petition does not specifically challenge its admission. (Cal. Rules of Court, rules 8.204(a)-(b), 8.384(a)(2).) Regardless, the CLETS rap sheet was admissible under the public records exception to the hearsay rule. (People v. Martinez (2000) 22 Cal.4th 106, 113, 119 (Martinez); see Evid. Code, § 1280; see also People v. Morris (2008) 166 Cal.App.4th 363, 367.) Although petitioner takes issue with the superior court's admission of the CLETS rap sheet pursuant to Evidence Code section 452.5, he does not dispute that the CLETS rap sheet falls within the hearsay exception set out in Evidence Code section 1280. He nonetheless argues the rap sheet was inadmissible to prove his prior convictions.
Petitioner relies on People v. Wheeler (1992) 4 Cal.4th 284, 288, to argue "the fact of conviction is inadmissible on hearsay grounds when used to show a person committed a criminal offense." Petitioner overstates the holding in Wheeler. Wheeler held that "the fact of conviction of a misdemeanor remains inadmissible under traditional hearsay rules when offered to prove that the witness committed misconduct bearing on his or her truthfulness." (Ibid.) The case did not address the admissibility of rap sheets, but rather statutory hearsay exceptions relating to the use of prior convictions for impeachment. (Wheeler, at pp. 298-300.) Furthermore, Wheeler's holding in this regard was subsequently superseded by statute, as explained in People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461. Wheeler therefore does not alter our analysis.
Petitioner also relies on People v. Ratcliffe (1981) 124 Cal.App.3d 808, 822-823, to argue there is nothing "talismanic about rap sheets that makes them immune to hearsay objections." Ratcliffe addressed the inclusion in probation reports of police contacts that did not result in convictions. The court noted that "bare 'rap sheet' information" concerning law enforcement contacts, without supporting factual information, should not be included in a probation report because such records are" 'unreliable, highly prejudicial, and under many circumstances could result in a fundamentally unfair hearing.'" (Id. at p. 823.) Ratcliffe did not address hearsay or hearsay exceptions. Moreover, the arrests in petitioner's case did result in convictions, albeit on different charges. Thus, Ratcliffe does not alter our analysis.
Petitioner relies on People v. Guerrero (1988) 44 Cal.3d 343, 345 (Guerrero), disapproved by People v. Miles (2008) 43 Cal.4th 1074, 1094, footnote 14, to argue a rap sheet is inadmissible to "show the offense committed" because it "is not the record of conviction." Guerrero considered the evidence a trier of fact may consider in determining whether a prior conviction was a "serious felony" for purposes of imposing a sentencing enhancement. (Guerrero, at p. 345.) During the relevant time period," 'burglary of a residence'" was considered a serious felony, but the defendant had been convicted of burglary at a time when the nature of the building entered was not an element of the crime. (Id. at p. 346.) Nonetheless, the accusatory pleading to which the defendant entered a plea charged a residential burglary. (Id. at p. 345.) Our Supreme Court determined the trial court could properly "look beyond the judgment to the entire record of the conviction in determining the truth of each of the two prior-conviction allegations." (Id. at p. 356.) The high court concluded: "To allow the trier to look to the record of the conviction-but no further-is also fair: it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial." (Id. at p. 355.) In other words, Guerrero allowed the prosecution to rely on the entire record of conviction to establish the elements of a prior conviction enhancement, but barred the prosecution from presenting new evidence not contained in the record of conviction. (See id. at pp. 348-355.) Nothing in Guerrero purports to limit the use of a CLETS rap sheet to establish petitioner's prior convictions for purposes of the SVP probable cause hearing, as petitioner claims.
Petitioner also argues Martinez does not allow his convictions for sexual battery, as reflected in the CLETS rap sheet, to be "used to establish that he committed sexual offenses because such determinations require considering the nature and circumstances of the convictions." We disagree. Martinez considered whether a CLETS rap sheet may be admitted to show that a defendant served a prison term for a prior felony conviction, as necessary to impose a sentencing enhancement. (Martinez, supra, 22 Cal.4th at p. 116.) The high court determined that the limitation set forth in Guerrero - that a prior serious felony may be established only through the record of conviction - did not extend to other aspects of a prior conviction. (Id. at p. 117.) Thus, the Martinez court determined the CLETS rap sheet generally was admissible to "establish matters other than the nature and circumstances of the conduct underlying a prior conviction," such as identity, for purposes of a sentencing enhancement. (Id. at p. 116.) Here, the record does not suggest the prosecutor, the experts, or the court relied on the CLETS rap sheet to establish the "nature and circumstances" of petitioner's convictions. Moreover, sexual battery is, by definition, a sexual offense. No further information regarding the "nature and circumstances" of the conviction is required to make such determination.
Finally, petitioner argues neither experts nor the court may "rely on arrests not leading to conviction to prove the conduct for which [p]etitioner was arrested." We again note as an initial matter that petitioner's arrests did lead to conviction, albeit for different offenses than those with which he was initially charged. Both experts noted that petitioner was arrested in 1991 on a charge of lewd or lascivious acts on a child under the age of 14 years in violation of Penal Code section 288, subdivision (a), and was convicted of sexual battery in violation of Penal Code section 243.4, subdivision (d). Both experts also noted that petitioner was arrested in 2007 or 2008 on a charge of lewd or lascivious acts on a child under the age of 14 years in violation of Penal Code section 288, subdivision (c). Vorwerk also noted that petitioner was charged at the same time with sexual battery in violation of Penal Code section 243.4, subdivision (d). Both experts noted that, with regard to this incident, petitioner was convicted only of sexual battery. Certainly, petitioner's arrests do not establish that he committed the offenses for which he was charged but not convicted. However, the record does not suggest the court understood otherwise and, in the absence of evidence to the contrary, we presume the trial court knows the law and applies it correctly. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398.)
In sum, we reject petitioner's contention that case-specific hearsay was improperly admitted at the probable cause hearing, and we likewise reject his argument that the CLETS rap sheet could not be used to establish his prior convictions for sexual battery.
IV. Expert Reliance on Case-specific Hearsay
Petitioner raises two arguments with regard to the admission of the expert opinions: (1) experts may not rely on hearsay in forming their opinions, and (2) expert opinions based on hearsay are irrelevant and lack foundation and evidentiary value, and are inadmissible on that basis.
Petitioner's first argument is resolved by a straightforward application of Sanchez. As we stated above, Sanchez holds that an expert "may still rely on hearsay in forming an opinion, and may tell the [trier of fact] in general terms that he [or she] did so." (Sanchez, supra, 63 Cal.4th at p. 685.) This is precisely what occurred in the instant case. There is no question that the People's experts relied on hearsay in forming their opinions. The experts properly "relate[d] generally the kind and source of the 'matter' upon which [their] opinion[s] rest[]." (Id. at p. 686.) They "describe[d] the type or source of the matter relied upon" and did not present "as fact, case-specific hearsay that does not otherwise fall under a statutory exception." (Ibid.) Doing so is permissible under Sanchez.
However, petitioner suggests Walker II limits this language from Sanchez. In Walker II, the court rejected the People's argument that the reports of expert SVP evaluators had "a degree of reliability and trustworthiness that supports an implied hearsay exception for their full admission, including any hearsay they contain regarding nonpredicate offenses." (Walker II, supra, 12 Cal.5th at p. 202.) The court noted that nothing about the circumstances surrounding the experts' medical diagnoses, or their "apparent objectivity and neutrality" indicated "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." (Ibid.)
Based on these statements in Walker II, petitioner argues the People's experts could not rely on police reports or arrest records to form an opinion regarding petitioner's mental disorder. Petitioner fundamentally misunderstands the role of expert testimony. Expert witnesses are not arbiters of the truth. Rather, it is for the trier of fact to determine whether the information relied on by an expert is true and accurate. Thus, although the expert may rely on hearsay in forming his or her opinion, the trier of fact must be presented with independent, competent evidence of the facts underlying the opinion, so that the trier of fact may independently evaluate the probative value of the expert's testimony. (Sanchez, supra, 63 Cal.4th at pp. 684-686.)
This leads us to petitioner's second argument. Courts of Appeal have characterized expert opinions that are unsupported by competent evidence as irrelevant, lacking in foundation, and lacking in evidentiary value. (E.g., People v. Yates, supra, 25 Cal.App.5th at p. 487 ["Without the inadmissible hearsay, the foundation for the experts' opinions goes up in smoke[.]"]; People v. McVey (2018) 24 Cal.App.5th 405, 417 [trial court properly excluded expert testimony based wholly on hearsay contained in medical and police records, "for without disclosure of the contents of the records, any opinion the expert might have offered would have been irrelevant"]; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 509 ["If the underlying hearsay is not true, the opinion is rendered irrelevant to the case at hand.]; Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510 ["[T]he expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact."]; see Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923 ["[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based."]; accord, Sanchez, supra, 63 Cal.4th at p. 683 ["If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking."].) We agree with petitioner that expert opinions must be supported by competent evidence.
However, petitioner does not suggest the competent evidence presented at the probable cause hearing was insufficient to support the experts' opinions. We acknowledge both experts relied in part on inadmissible hearsay that was not otherwise presented through competent evidence. Lunceford based her opinion in part on facts regarding petitioner's 1991 and 2007 offenses that were drawn from police reports. Vorwerk relied on a variety of "legal documents" in forming her opinion.
However, both experts confirmed they based their opinion partly on the CLETS rap sheet, which we have determined to be competent evidence. Both experts also relied on their interviews with petitioner in reaching their conclusions. The CLETS rap sheet and petitioner's statements constitute competent evidence of the following facts: Petitioner was convicted in or about 1991 of sexual battery against a victim he believed to be 11 or 12 years old. He faced criminal sanctions but nonetheless reoffended again in or about 2007 by committing another sexual battery. He again faced criminal sanctions and, by his own admission, underwent sex offender treatment. However, he reoffended again in 2015 by committing the predicate offense of lewd or lascivious acts against a seven-year-old girl. Petitioner does not present any argument to suggest these facts are insufficient to support the experts' determination that petitioner suffers from a pedophilic disorder that affects his ability to control his behavior. Nor does he suggest these facts are insufficient to support the court's finding of probable cause. (See Cooley, supra, 29 Cal.4th at p. 252 [court determines at the probable cause hearing whether "a reasonable person could entertain a strong suspicion that the offender is an SVP" (italics omitted)].)
Because we have concluded the CLETS rap sheet and expert opinions are admissible, we do not address whether the other evidence, standing alone, would be sufficient to establish probable cause.
Based on the foregoing, petitioner has not demonstrated his incarceration is unlawful, as claimed in the petition. Accordingly, we will discharge the order to show cause and deny the petition.
DISPOSITION
The order to show cause is discharged and the petition for writ of habeas corpus is denied.
WE CONCUR: MEEHAN, J. SNAUFFER, J.