Hearsay Exception for Social Studies Evidence

In In re Malinda S., the Supreme Court addressed looked to the consistent interpretation that the Courts of Appeal had given to Civil Code section 233 as "further indicium of legislative intent to create a hearsay exception for social studies . . ." (Malinda S., supra, 51 Cal. 3d at p. 379.) Civil Code section 233, a statute that the court noted was similar to Welfare and Institutions Code section 281, "requires a specified county official to provide a report for use in proceedings to terminate parental custody rights. Subdivision (d) of that section further mandates that 'The court shall receive the report in evidence and shall read and consider the contents thereof in rendering its judgment.'" (Malinda S., supra, 51 Cal. 3d at p. 379.) The Supreme Court noted that "because the reports [required by Civil Code section 233] must include, inter alia, a statement of the minor's feelings and thoughts concerning the pending action (Civ. Code, 233, subd. (b)), these reports necessarily contain hearsay and even multiple hearsay. Nevertheless, the Court of Appeal has consistently held that as long as a meaningful opportunity to cross-examine and controvert the contents of the report is afforded, such reports constitute competent evidence upon which a court may base its findings." (Malinda S., supra, 51 Cal. 3d at p. 379.) In 1993, Civil Code section 233 was repealed. (See Stats. 1993, ch. 219, p. 1576.) We reiterate that we rely upon Malinda S. not for the particular statutes that it cites, but for the factors that it considers relevant. With respect to the discussion of Civil Code section 233, we rely upon the Supreme Court's implicit endorsement of the reasoning of the Courts of Appeal, namely, that the fact that a report would necessarily include "multiple hearsay" counsels in favor of finding an implicit exception to the hearsay rules. (Malinda S., supra, 51 Cal. 3d at p. 379; see also fn. 4, ante.) Like the Malinda S. decision, we must consider whether a statute, in our case section 6600, subdivision (a), implicitly creates an exception to Evidence Code sections 1200 and 1201. Section 6600 expressly permits the People to show the "details underlying the commission of an offense" through "probation and sentencing reports." ( 6600, subd. (a).) The details of the crime contained in a presentence report necessarily come from some source other than the author of the presentence report and hence must constitute second-level hearsay. Rule 411.5 of the California Rules of Court in fact contemplates that police reports will be used as the source of information for summarizing the crime in the presentence report. (See California Rules of Court, rule 411.5, subd. (a)(7)(i); cf. People v. Superior Court (Howard) (1999) 70 Cal. App. 4th 136, p. 154 ["Probation reports in felony cases necessarily include victim hearsay statements, pursuant to the requirements for probation reports set forth in California Rules of Court, rule 411.5(a)(5)]".) By permitting the use of presentence reports at the SVP trial to show the details of the crime, the Legislature necessarily endorsed the use of multi-level hearsay.