California Supreme Court Sets Probable Cause Hearing Standards
For SVPA Actions in Cooley v. Superior Court (Marentez)

Summary



On November 25, 2002, the California Supreme Court decided Cooley v. Superior Court (Marentez) (S094676)1, resolving questions regarding the scope of probable cause hearings under the Sexually Violent Predator Act ("SVPA"), §§6600, et. seq. The Court decided three main issues and set the hearing requirements: 

(1) "The probable cause determination, like the ultimate determination to be made at trial, encompasses all four of the elements contained in the definition of an SVP." (Slip Opin. p.22) The elements are as follows: Whether a reasonable person could entertain a strong suspicion that "(1) the offender has been convicted of a qualifying sexually violent offense against at least two victims; (2) the offender has a diagnosable mental disorder; (3) the disorder makes it likely he or she will engage in sexually violent criminal conduct if released; and (4) this sexually violent criminal conduct will be predatory in nature." (Slip Opin. p.2) 

(2) The standard of proof is held to be "whether a reasonable person could entertain a strong suspicion that the offender is an SVP." (Slip Opin. p. 25) 

(3) The superior court must find probably cause to believe that a potential SVP presents a serious and well-founded risk of committing sexually violent criminal acts that will be of a predatory nature. (Slip Opin. p. 31) 

To these, the Court added the additional requirement of considering the defendant's amenability to voluntary treatment. (Slip Opin. p. 32) The Court went on to determine the proper standard of review, holding that the burden of proof for SVP probable cause hearings is analogist to criminal preliminary hearings, and that they should apply the same standard of review. (Slip. Opin. p. 32) 

In the context of the Marentez probable cause hearing, the Court concluded, "that entire proceeding was infected with error." (Slip Opin. p. 37) Finally, the Court orders a new probable cause hearing. (Slip Opin p. 38) This was an 7 to 0 unanimous decision. 

This decision also discusses the Kelly/Frye scientific evidence standard, (Slip Opin. p.p. 10-11, FN 2, 3, 4), and citing Hurtado, differentiates between "situational" and "predatory" offenders. (Slip Opin. p. 38). The evidence standard is discussed. (Slip Opin. p. 23). The standard of "strong suspicion" is adopted. (Slip Opin. p. 25) 

Review

I. SCOPE OF PROBABLE CAUSE HEARING (Slip Opin. p.p. 16-22)

This controversy arose because the legislature used different sections and different language to describe the ultimate determinations to be made a trial [§6604] and at the probable cause hearing [§6602]. The Court of Appeal and the District Attorney took the position that "'the only finding the court has to make' at the probable cause hearing 'is whether there is probable cause to believe that the sexual predator is likely to engage in sexually violent criminal behavior upon release.'" (Slip Opin. p. 17-18) 

The Supreme Court rejected this approach based on the structure of the SVPA, and the purpose of the probable cause hearing being "analogist to a preliminary hearing in a criminal case; both serve to weed out groundless or unsupported charges. . .and to relieve the accused of the degradation and expense of a . . .trial." [Citation.] "Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition. [Citation.]" (Slip Opin. p.p. 18-19) 

The Court then applied the rule of statutory construction that "provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.]" (Slip Opin. p. 20) The Court discusses this (Slip Opin. p.p. 20-22) with respect to each element, and at one point states: "In light of the fact that this element can be easily verified, excluding this determination from the scope of the probable cause hearing would lead to the absurd result that an individual could potentially be kept in custody pending and eventual trial, even though he or she did not meet the basic requirement for civil commitment." (Slip. Opin. p. 22) 

The conclusion was that all four elements must be determined at the probable cause hearing. These were previously listed on page one of this paper. (The four elements are listed at Slip Opin. p. 2.) The fourth element was added August 22, 2002, by the decision in People v. Hurtado (2002) 28 Cal. 4th 1179. The Hurtado decision set the same four requirements for the trial stage, the present case (Cooley) now requires the same four elements also be shown at the probable cause hearing. 

II BURDEN OF PROOF (Slip Opin. p.p. 22-29)

This lengthy discussion of the appropriate burden of proof includes an equal protection argument where Marentez claims that since the SVPA is civil in nature it is inappropriate to apply a criminal standard; that equal protection requires the preponderance of evidence standard that is applied under the Lanterman-Petris-Short Act ("LPS Act"), Section 5051. 

The Court rejected this claim, finding the defendants are not similarly situated. (Slip Opin. p.p. 27-28) 

However, the Court did agree with Marentez that the SVPA was civil, and that Evidence Code §115 applies. Section 115 requires a preponderance of evidence standards, "except as otherwise provided by law." The Court then finds that §6602 provides that "otherwise provided" caveat. (Slip Opin. p. 23) The Court then adopts the much lower standard of "strong suspicion." Therefore, the superior court must decide "whether a reasonable person could entertain a strong suspicion that the offender is an SVP." (Slip Opin. p. 25) 

III. DEFINITION OF LIKELY (Slip Opin. p.p. 29-32)

Referring to their decision in People v. Superior Court (Ghilotti), (2002) 27 Cal. 4th 888, where the Court "specifically rejected the argument that, in order to meet the 'likely' standard, an evaluator must determine there is a 'better than even [i.e., more likely than not] chance of new sexual violence.' (Id. At p. 895)." "We held that 'an evaluator applying this standard must conclude that the person is "likely" to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain sexually violent behavior, the person presents a substantial danger, that is a serious and well-founded risk, that he or she will commit such crimes if free in the community.' (Id. At p. 922)" (Slip Opin. p. 29) 

The Court, as it did in Ghilotti, devotes several pages to discuss in the meaning of "likely" at the probable cause hearing stage. Footnote 14 informs us: "The issue of the meaning of 'likely' at the trial state of the SVP proceeding is before the court in People v. Roberge (review granted Mar. 28, 2001, S-094627)." 

The Ghilotti requirement that the need for treatment and the need for custody are not always the same must be considered is again discussed, "and therefore, the evaluators must determine whether 'the person presents a substantial danger of reoffense if released without conditions, or whether instead he is safe only if restrained, supervised, and treated involuntar8ily [in] custody.' (Ghilotti, supra, 27 Cal. 4th at 926-927.)" (Slip Opin p. 31) 

"We hold, therefore, that the superior court at the probable cause hearing must also consider whether the offender's amenability to voluntary treatment would affect its determination that the potential SVP poses a serious and well-founded risk of committing sexually violent predatory criminal acts upon release." (Slip Opin. p. 32) 

IV STANDARD OF REVIEW (Slip Opin. p. 32-34)

Having concluded that the burden of proof for SVP probable cause hearings is analogist to that of a criminal preliminary hearing, the Court also concludes that they should apply the same standard of review. (Slip Opin. p. 32) 

The decision states: "The resolution of mixed questions of law and fact, like probable cause, usually is examined independently [Citation.]" (Slip Opin. p. 33) 

After some explanation, including stating that the superior court must render and support its findings, the Court states, "The superior court should not find an absence of probable cause simply because it finds the defense witnesses slightly more persuasive than the prosecution witnesses. Rather, to reject the prosecution evidence at the probable cause stage, either the evidence presented must be inherently implausible, the witness must be conclusively impeached, or the demeanor of the witness must be so poor that no reasonable person would find them credible. Thus, if the prosecution presents evidence a reasonable person could accept over that presented by the defense, probable cause should be found. The superior court may not substitute its own personal belief as to the ultimate determination to be made at trial for that of a reasonable person evaluating the evidence." (Slip Opin. p.p. 33-34) 

This section is concluded, "A reviewing court must still draw every inference in favor of the superior court's factual findings and cannot substitute its judgment as to the credibility of the witnesses or the weight of the evidence over that of the magistrate. [Citation.]" (Slip Opin. p. 34) 

V. ANALYSIS OF PROBABLE CAUSE DETERMINATION (Slip Opin. p.p. 34-38)

This part delves into the particulars of the Marentez probable cause hearing and appellate review thereof. However, many of the same type shortcomings will be common to other defendants because of the new requirements announced in this and other recent decisions. These new requirements were not previously done, as they were not previously required, or they had been improperly defined. 

Fault was found in applying incorrect standards: "Our review is made more complicated, however, by the fact that although the superior court's findings of credibility are supported by the evidence, the superior court's determination was based on the improper definition of the word likely.' . . . Furthermore, the court did not reach the issue of whether there was probable cause to believe that violent criminal behavior in the future would be 'predator' in nature, as that term is defined in section 6600, subdivision (e)." (Slip Opin. p. 36) 

"None of the experts was ever asked to consider the definition of 'likely' . . .Nor did they consider whether their statistical predictions or clinical judgment would be altered by Marentez's amenability to voluntary treatment were he to be released." (Slip Opin. p. 37) 

"Finally, none of the experts testified as to whether they believed Marentez was likely to commit sexually predatory criminal acts in the future--a requirement that also might affect their statistical predictions and clinical judgment. In essence, therefore, the probable cause hearing can be characterized as a battle of experts, some more credible than others, but all failing to consider all of the required elements, and all applying the wrong definition of the only element in dispute. We conclude, therefore, that the entire proceeding was infected with error." (Slip Opin. p. 37) 

The Court also tells us: "The record suggests that Marentez's offenses may have been related to his substance abuse, and thus it is unclear whether his history of past offenses necessarily establishes a clear pattern of 'predatory' over 'situational' or improper 'familial' sexual conduct." (Citing Hurtado.) (Slip Opin p. 38) 

"Because of the incorrect application of the correct definition of 'likely' by both parties and the trial court, and because the parties did not address whether Marentez's future sexual violence would be 'predatory' in nature, we believe that an independent review of the record by this court would be improper, and that remand to the superior court is appropriate. (See Ghilotti, supra, 27 Cal. 4th at p. 896)." 

The Supreme Court then concludes that there should be a new probable cause hearing consistent with the views expressed herein. (Slip. Opin. p. 38) 

Tom Watson 

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1. All references by page number are to the Slip Opinion. At the time of writing this paper the official case cite was not yet available. 

2. All unlabeled statutory references are to the California Welfare and Institutions Code.
 


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