People v. Sloan

Filed 7/17/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C095622

Plaintiff and Respondent, (Super. Ct. No. 03F00743)

v.

MARVIN SLOAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Sacramento County, Allen H. Sumner, Judge. Reversed with directions.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Dina Petrushenko and Julie Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

Marvin Sloan appeals from the trial court’s order finding he qualified as a sexually violent predator (SVP) and committing him to the State Department of State Hospitals

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(Department of State Hospitals). His sole argument on appeal is that the trial court erred in allowing the People to use a privately retained expert to testify at trial. To support this position, Sloan cites Needham v. Superior Court (2022) 82 Cal.App.5th 114, review granted October 26, 2022, S276395 (Needham), which held that the People have no right to privately retain an expert under the Sexually Violent Predators Act (SVPA). (Needham, at p. 128.) Our Supreme Court has recently granted review in Needham and will decide whether Needham’s interpretation of the SVPA was correct. In the meantime, we join Needham in concluding that the People cannot retain an expert to testify at an SVP trial. We therefore reverse the order declaring Sloan to be an SVP and committing him to the Department of State Hospitals. We remand to the trial court to issue an order excluding the testimony of the People’s privately retained expert and to conduct a new trial. We express no opinion as to the People’s ability to obtain a replacement evaluator. FACTUAL AND PROCEDURAL BACKGROUND The Sacramento County District Attorney filed a petition to commit Sloan as an SVP (Welf. & Inst. Code, 1 § 6600 et seq.) in November 2018. The People supported this petition with evaluations of Sloan prepared by Dr. Jocelyn Chen and Dr. Roudabeh Rahbar. Both Dr. Chen and Dr. Rahbar testified at Sloan’s probable cause hearing (§ 6602) in 2019. In April 2021, the People told the trial court that Dr. Rahbar was no longer available as an expert due to private medical and personal matters. The People disclosed Dr. Craig King as a replacement evaluator in July 2021. Dr. King had started working on Sloan’s case in February 2021 and completed an evaluation report of Sloan in March 2021. In preparing the report, Dr. King did not interview Sloan, but he did review