Indefinite sexually violent predator (SVP) commitment reversed where trial court prejudicially allowed the prosecution expert to relate substantial amounts of inadmissible hearsay. Appellant was committed to the Department of State Hospitals (DSH) for an indefinite term as an SVP. He appealed, arguing he was prejudiced by the admission of inadmissible hearsay evidence during the testimony of a prosecution expert. Held: Reversed. In SVP cases, the prosecution must prove beyond a reasonable doubt that the defendant previously committed a sexually violent offense and currently suffers from a mental disorder that renders it likely he will commit a sexually violent offense in the future. To establish the mental disorder, the prosecution typically offers expert testimony. Often the expert relies at least in part on hearsay in forming his opinion. However, hearsay evidence is inadmissible “except as provided by law” (Evid. Code, § 1200, subd. (b)). In People v. Sanchez (2016) 63 Cal.4th 665, the California Supreme Court held that although an expert may rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so, the expert may not relate as true case-specific facts asserted in hearsay statements, unless they are independently proved by competent evidence or covered by a hearsay exception. Here, the prosecution’s expert was allowed to testify as to facts about appellant’s unrelated convictions and unproven allegations that he committed other acts of sexual violence. This inflammatory hearsay evidence depicted appellant as someone with an irrepressible propensity to commit violent sexual offenses. It is reasonably probable the jury would have reached a more favorable verdict had the evidence not been admitted.

The trial court did not err in failing to assess appellant’s mental competency before allowing him to proceed to trial. Prior to trial, appellant’s attorney moved to stay the proceedings due to appellant’s alleged incompetency. The trial court denied the motion, relying on Moore v. Superior Court (2010) 50 Cal.4th 802. In Moore, the California Supreme Court held that due process does not require mental competency on the part of someone undergoing an SVP commitment proceeding. This is true regardless of the precise nature or source of the mental incompetence the defendant alleges. Thus, appellant’s attempt to distinguish Moore on the basis that his alleged mental incompetency stems from a different mental disorder (anti-social personality disorder) than the paraphilia diagnosis at issue in Moore, is unavailing.

The prosecution experts improperly testified regarding the nature of appellant’s qualifying offenses but the evidence was properly admitted via probation reports. Appellant argued the prosecution experts improperly testified as to whether or not a specific offense qualifies under the SVP statute, as this is purely a legal question. In People v. Stevens (2015) 62 Cal.4th 325, the court held in the context of an MDO proceeding that the prosecution may not prove the facts underlying the commitment offense through a mental health expert’s testimony. The same reasoning applies in SVP proceedings. The prosecution may prove that a conviction was for a “sexually violent” offense by introducing documentary evidence such as preliminary hearing transcripts, probation reports, and evaluations by the Department of State Hospitals. In this case, the court admitted probation reports that recited the facts underlying appellant’s offenses, which plainly showed the offenses qualified as “sexually violent.” Thus, any error in allowing the experts to opine that the facts of the offenses rendered them “sexually violent” was harmless.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B267353.PDF