In re Morse

• Decision Date: 05 January 2021
• Docket Number: D077483
• Citation: 273 Cal.Rptr.3d 648,59 Cal.App.5th 607
• Parties: IN RE William Jim MORSE on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

59 Cal.App.5th 607

273 Cal.Rptr.3d 648

IN RE William Jim MORSE on Habeas Corpus.

D077483

Court of Appeal, Fourth District, Division 1, California.

Filed January 5, 2021

Benjamin Salorio, Public Defender, Darren Bean, Deputy Public Defendant for Petitioner.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Joy Utomi, Deputy Attorneys General, for Real Party in Interest.

BENKE, Acting P. J. William Jim Morse petitions for a writ directing the superior court to reverse its finding under the Sexually Violent Predators Act ( Welf. & Inst. Code,¹ § 6600 et seq. ) (SVPA) that there is probable cause to believe petitioner is likely to engage in sexually violent predatory behavior without treatment or custody. The court during the section 6602 probable cause hearing sustained petitioner's objection based on People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ) to portions of the experts' psychological evaluations, but nonetheless found the remaining evidence was sufficient to support a finding that petitioner met the criteria of a sexually violent predator (SVP).²

At the probable cause hearing, a court must "review" the SVP petition. (See § 6602, subd. (a).) The petition, in turn, must be supported by statutorily mandated evaluations that in some, if not most, cases rely on a broad array of sources dating back years, if not decades, that an evaluator must consider under the SVPA as part of his or her standardized assessment of a person.

Petitioner argues that the court correctly found Sanchez applied at the probable cause hearing; that, after sustaining his hearsay objection to the experts' evaluations, there was insufficient evidence to support the court's probable cause finding; and that the People "waived" their right to assert section 6602 is an implied exception to the hearsay rule by failing to raise this specific ground at the hearing. Petitioner therefore argues the petition must be dismissed.

As we explain, we conclude the court erred in sustaining petitioner's hearsay objection at the section 6602 hearing. We find the SVPA as a whole, and section 6602 in particular, evince a legislative intent to allow a court to consider hearsay in the experts' evaluations when making a probable cause determination. In our view, requiring an evaluator to rely on nonhearsay only in preparing his or her evaluation of a person, or requiring the People to produce at an interim probable cause hearing independent foundational evidence to support the historical information relied on by evaluators, would undermine the purpose of such a hearing and the SVPA in general.

Our decision finds further support in that a person at a section 6602 hearing is afforded various procedural safeguards, including the assistance of counsel, the right to cross-examine the evaluators and challenge their findings, and the ability to call witnesses.

We note, however, that our decision is limited to a section 6602 probable cause hearing. At an SVP trial, the People must still proffer nonhearsay evidence in proving beyond a reasonable doubt that a person is an SVP subject to civil commitment.

In light of our decision, we conclude there is ample evidence in the record to support the court's probable cause finding. We thus deny petitioner's writ petition.

OVERVIEW

On February 20, 2020, the El Centro District Attorney filed a petition to commit petitioner as an SVP. The petition was supported by the evaluations of psychologists Erik Fox and G. Preston Sims. In connection with their evaluations, the doctors reviewed petitioner's background, criminal, prison, and mental health records, and records of the qualifying sexual offense. Petitioner refused to be interviewed by Dr. Fox; he thus completed his evaluation by relying on about 39 sets of documents, which he identified, including dates, in his evaluation.

Petitioner did agree to an interview with Dr. Sims, who also reviewed voluminous records identified in his evaluation. The doctors in their evaluations concurred that petitioner met the definition of an SVP as provided under the SVPA.

Qualifying Sexually Violent Offense

As described in the doctors' evaluations,³ petitioner's February 2012 Imperial County Probation Report (sometimes, probation report) noted deputies on January 24, 2010, responded to a physical altercation in a trailer park where petitioner was then living. Deputies contacted petitioner and discovered he had been hiding in the bedroom closet of seven-year-old⁴ Jane Doe. Petitioner claimed while hiding he heard Jane Doe's 16-year-old cousin asking to be orally copulated by Jane Doe, and saw him exposing his penis to his cousin. Petitioner further claimed he confronted the cousin and a fight ensued.

Deputies searched petitioner's RV positioned adjacent to the victim's residence. Inside the RV deputies found "images of child erotica, notebooks with handwritten text discussing child sex and an intention to engage in sex with children, literature discussing sex with children in foreign countries, and baby dolls with red paint on their vaginal areas."

According to the probation report, deputies on February 10, 2010, interviewed Jane Doe's mother. She disclosed she had met petitioner about two months earlier, he was the caretaker of the trailer park, and an acquittance of her boyfriend. She also disclosed petitioner had given her daughter "underwear and toys"; he had "frequently followed her daughter around"; and her daughter had reported petitioner "touched or tickled her in the underwear area."

On February 23, Jane Doe was taken to the Chadwick's Children Center for a forensic interview. The probation report notes the following statements were then taken: "Jane Doe said she was watching Strawberry Shortcake when the defendant entered her room. He sat next to her on the bed and placed his hands on her upper/inner thigh. Jane Doe said she was scared and told her mother. On a separate occasion, Jane Doe said she was taking out the trash when the defendant began chasing after her. Jane Doe said she was very scared. Jane Doe further said that the defendant had given her a doll that had a hole on the ‘private parts’ area. On one occasion, he kissed the victim's doll on the vaginal area. The victim said the defendant repeatedly attempted to take her to the beach and had given her underwear and a Sea World towel. The victim lastly said that the defendant had attempted to kiss her. Jane Doe reiterated that she was afraid and did not like him at her house."

Although charged with multiple counts, petitioner pleaded guilty to a single count of committing lewd acts upon Jane Doe, a child under the age of 14. ( Pen. Code, § 288, subd. (a).) The court sentenced petitioner to 12 years in prison.

Dr. Fox's Evaluation

Dr. Fox opined that petitioner's conviction under Penal Code section 288, subdivision (a) qualified as "sexually violent offense" under section 6600, subdivision (b).⁵ Dr. Fox also opined that petitioner has a diagnosed mental disorder that predisposes him to the commission of criminal sexual acts. ( § 6600, subd. (a)(1).)

With respect to his latter finding, Dr. Fox reviewed petitioner's psychological history. Dr. Fox noted there was limited information on this subject matter. Dr. Fox cited to a Clearwater, Florida supplemental police report from 1995 in which petitioner had been arrested for kidnapping and false imprisonment of a nine-year-old child. Subsequent to his arrest, petitioner's mother was interviewed by an investigating officer. She stated petitioner had a "long history of drug related problems" that led her to "kick" petitioner out of the house on several occasions.

Dr. Fox also addressed petitioner's educational, employment, relationship, and psychosexual history, as set out in the probation report. This history shows petitioner completed the ninth grade; served in the United States Army for three years⁶ ; and had at least four children. Dr. Fox noted the probation report provided some background information regarding petitioner, including about his father who died in combat while serving in the United States Army, and about his mother, who died in 2010.

Regarding petitioner's psychosexual history, Dr. Fox in his evaluation noted there also was a dearth of information on this subject matter, particularly as a result of petitioner's refusal to submit to a clinical interview. Dr. Fox noted the probation report provides evidence that in the qualifying crime petitioner attempted to "groom" Jane Doe; that Jane Doe's mother was often intoxicated, making the victim "particularly vulnerable"; and that the Facts of Offense Sheet dated February 14, 2012 listed the titles of videos petitioner had in his possession at the time of the qualifying crime. These titles included: " ‘6-9 years. Girls Fuck. Little Cunts. Fucked by big daddy. Rape little girl.’ ‘5 mins. Russia. 7 yo Fucked by Daddy.’ ‘Hot little vaginas from Germanyu. 4-6 yrs—raped by 2 daddies.’ Thailand-Bankok babes—pretens 5 yrs, 6yrs. Hot 8 yrs old getting pussy fucked by old dude.[ ] etc...."

Dr. Fox described an incident from the probation report that took place after petitioner had been arrested for the qualifying crime. An undercover agent from Immigration and Custom Enforcement was placed in petitioner's Imperial County Jail cell because authorities were concerned by petitioner's "intent to access child pornography and have sex with children in foreign countries." The agent befriended petitioner; they had a number of conversations about child pornography and sex with children; and petitioner agreed to purchase child pornography videos from the agent on petitioner's release.

After making bail, petitioner went to the agent's motel room to purchase the videos. The probation report, relied on by Dr. Fox, noted a hidden camera and microphone in the motel room recorded the following: " ‘... [T]he pornographic videos...