Filed 2/14/ 22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. LARRY ALLEN JACKSON, Defendant and Appellant. G059593 (Super. Ct. No. M

- 11361)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Michael
F. Murray, Judge. Reversed and remanded with directions

. Susan K. Shal er, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorne ys General, for Plaintiff and Respondent.

* * *2 INTRODUCTION A jury found Larry Allen Jackson to be a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA). 1 The trial court ordered him committed to the California Department of
Sta t e Hospitals (DSH) for an indeterminate term.
Jackson argues the trial court prejudicially erred by granting the prosecution’s motion to exclude Jackson’s only SVP expert witness from testifying at
trial . We agree and therefore reverse and remand to the trial court for a new SVP trial.
Based on the record before us , and applying California Supreme Court authority, w e hold that in the context of SVP cases, in determining w hether to exclude defense expert witness testimony, the trial court must consider both applicable statutory
law , including relevant portions of the SVPA and the Civil D iscovery Act of 2004 (Code Civ. Proc., § 2016.010 et seq.) (Civil Discovery Act) and the defendant’s constitutional due process right to present such evidence. Here, the trial court’s exclusion of critical defense expert testimony to rebut the testimony of the prosecution’s two expert witnesses deprived Jackson of a fair trial

.

GENERAL OVER VIEW OF THE SVPA AND ITS INTERPLAY WITH THE CIVIL DISCOVERY ACT AND DUE PROCESS The SVPA authorizes the indefinite involuntary civil commitment of persons found to be sexually violent predators after they conclude their prison terms. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646

- 647; People v. McKee (2010) 47 Cal.4th 1172, 1186

- 1187.) At trial on a commitment petition under the SVPA, the prosecution must prove three elements beyond a reasonable doubt: (1) the person has
suffered a convic tion of at least one qualifying “ sexually violent offense ” ; (2) the person

1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.3 has “ a diagnosed mental disorder that makes the person a danger to the health and safety
of others ” ; and (3) the mental disorder makes it likely the person will engage in future

pre datory acts of sexually violent criminal behavior if released from custody. (§ 6600; see §§ 6603, 6604; People v. Shazier (2014) 60 Cal.4th 109, 126; People v. Yates (2018) 25 Cal.App.5th 474, 477.) The prosecution, therefore, must carry the burden of pr oving beyond a
reasonable doubt “ that because of a diagnosed mental disorder affecting the person ’ s volitional or emotional control, ‘“ it is likely that he or she will engage in sexually violent
behavior ” if released. ’ [Citations.] ‘ Likely, ’ in this cont ext, does not mean more likely than not; instead, the standard of likelihood is met ‘ when “ 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. ”’” ( People v. S hazier, supra , 60 Cal.4th at p. 126 , italics omitted .)
A “‘ [d]iagnosed mental disorder ’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the
commission of criminal sexual acts in a d egree constituting the person a menace to the health and safety of others. ” (§ 6600, subd. (c).) “ Expert testimony, specifically testimony regarding diagnosis of a current mental disorder, is an important element in an SVPA civil commitment proceeding. ” ( People v. Roa (2017) 11 Cal.App.5th 428, 443.) As our Supreme Court has explained in this context: “ [E]xpert testimony is
critical ” because “ the primary issue is not, as in a criminal trial, whether the individual committed certain acts, but rather i nvolves a prediction about the individual ’ s future
behavior. ” ( People v. McKee, supra , 47 Cal.4th at p. 1192.)
SVPA trials constitute s pecial proceedings of a civil nature ( Moore v. Superior Court (2010) 50 Cal.4th 802, 815) , and the Civil Discovery Act applies ( People
v. Landau (2013) 214 Cal.App.4th 1, 25). Under the Civil Discovery Act , a party is permitted t o retain and designate “expert trial witnesses

. ” (Code Civ. Proc., §§ 2034.210

-4 2034.290)

. S ection 6603, subdivision (a) of the SV PA authorizes expert witness discovery , and provid es that “ a person subject to commitment under the [SVPA]
has

. . . a right to retain experts or professionals to perform examinations on his or her
behalf

— and

. . . also has a right to present the resulting evidence to the jury

. ” ( Albertson v. Superior Court (2001) 25 Cal.4th 796, 803 , italics added; see also People v. Superior
Court ( Smith ) (2018) 6 Cal.5th 457, 463 .)
A defendant in an SVP proceeding is entitled to due process protections
because c ivil commitment involves a significant restraint on liberty

. ( Moore v. Superior
Court , supra , 50 Cal.4th at p. 818 ; see People v. Force (2019) 39 Cal.App.5th 506, 514 [ t he defendant in SVP proceedings “has a constitutional right to present a defense, which includes calling witnesses in his favor and testifying on his own behalf”]

. ) As explained by a panel of this court in People v. Landau , supra , 214 Cal.App.4th at p ages 27

- 28:

“ ‘ [C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.] ’ [Citation.] The ‘ most elemental of liberty
interests ’ protected by the due process clause is ‘ the interest in being free from physical detention by one ’ s own government. [Citations.] ’ [Citation.] ‘ Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. ’” In People v. O tto (2001) 26 Cal.4th 200, 210 ( Otto ), the California Supreme Court identified and applied factors that determine t he extent of process due to such a defendant

. If the jury unanimously finds the defendant to be a n SVP , then the
defendant is committed for an indeterminate term to the custody of the DSH. (§ 6604.) Following commitment, the SVP is subject to annual mental examinations to determine
whether he or she continues to meet the definition of a n SVP . (§ 6604.9, subds. (a) & (b).)5 FACTS AND PROCEDURAL HISTORY
I. D EFENSE E XPERT P REPARES R EPORT F OLLOWING E VALUATION OF J ACKSON , AND J ACKSON S ERVES D ESIGNAT ION OF E XPERT W ITNESS . In June 2007, the Orange County District Attorney filed a fourth petition
under the SVPA to commit Jackson a s a n SVP , which is the operative pleading in this

matter

. After extensive litigation not relevant to the issue presented in this appeal, trial
was set for November 2019. In anticipation of trial , defense expert Dr. Christopher J.
Fisher prepared a report in accordance with section 6600 et seq. following the completion
of his psychological evaluation of Jackson (the September 2019 report) . In his report, Dr.
Fisher concluded that Jackson did not qualify as an SVP because he d id not “ have a diagnosed mental disorder that predisposed him t o the commission of criminal acts ” and

was un likely “ to engage in sexually violent predatory criminal behavior as a result of his diagnosed mental disorder without appropriate treatment and custody

. ”
In D ecember 2019, trial was continued to February 18 , 2020 . In anticipation of trial, in early January, the parties exchanged expert witness designations. The prosecut ion designated Dr. Douglas Korpi and D r. Robert Owen as p ositive state
SVP evaluators. Jackson served a notice designating only Dr. Fisher as the defense SVP expert witness , stat ing Dr. Fisher “will testify regarding his evaluation of Mr. Jackson and discuss areas including, but not limited to, diagnosis, risk t o reoffend, volitional control, whether M r . Jackson can be safely treated in an outpatient setting, whether he
meets the criteria as a S exually V iolent P redator, recidivism, and more. ” The following week, the prosecut ion served a subpoena and notice of taking Dr. Fisher’s deposition and a request for the production of documents.6 I I

. T RIAL IS C ONTINUED TO J ULY ; J ACKSON R E
- SERVES H IS E XPERT W ITNESS D ESIGNATION . At the end of January, the prosecut ion filed its first motion to continue the jury trial on the ground one of the prosecution’s two expert witnesses , Dr. Korpi, had
informed the prosecut ion that his opinion that Jackson is an SVP had changed from positive to negative. The prosecut ion also requested that the trial c ourt order Dr. Korpi to conduct an updated evaluation. The trial court granted the prosecution’s motion, ordered Dr. Korpi to complete an updated evaluation, continued trial until July 13, 2020, and “reset all discovery timelines.” On January 31, the pro secut ion cancelled Dr. Fisher’s deposition as noticed.
I n May 2020, Jackson re

- served his expert witness designation and declaration identifying Dr. Fisher as his sole expert witness. III

. I N J UNE 2020, THE P ROSECUT ION I NFORMS THE T RIAL C OURT OF D ELAY S R EGARDING I TS S ECOND E XPERT W ITNESS . At a pretrial hearing on June 5, 2020, the prosecut ion inf o rmed the trial
court that Dr. Korpi had conducted an updated SVP evaluation of Jackson in March and
thereafter confirmed his original positive opinion that Jackson qualified as an SVP

. The prosecut ion also advised the trial court , however, that the prosecution’s other SVP expert (Dr. Owen ) had retir ed in May , result ing in the designation of a replacement evaluator. The replacement evaluator, h owever, had recently declared a conflict in the case. The prosecut ion ’s request for another replacement SVP evaluator was pending. The prosecut ion advised the trial court that, as a result of these developments, it did not appear likely the prosecution w ould be ready for trial as scheduled on July 13

. The trial cour t did not continue trial at that time, but acknowledged the prosecution’s challenges and informed the parties “ ‘ you will not go out the 13th

. You7 might go out a couple months of that ’ ” and that “ ‘ at the end of the day it is going to be delayed for every single case, ’ due to the COVID

- 19 Global Pandemic. ”
I V

. T HE T RIAL C OURT G RANTS THE P ROSECUT ION ’ S S ECOND M OTION TO C ONTINUE T RIAL AND R ESETS D ISCOVERY A GAIN . The following week, the prosecution filed its second motion to continue the
trial . This time, it was brought o n the ground that the prosecution needed time to obtain subpoenaed “necessary and essential records” that the new evaluator for the prosecution, Dr. Craig King, had reviewed in his evaluation of Jackson. At the hearing on the motion,
the trial court stated it was inclined to grant a brief continuance of the trial given the prosecution’s entitlement to th e subpoenaed records and the po ssibility Jackson would want to depose Dr. King

. Over Jackson’s objection , the trial court continued trial to August 3, warning the parties: “[Y] ou should ge t your witnesses lined up. You will be go i ng.” The trial court and counsel thereafter engaged in the following discussion: “[The prosecutor]: I’m going to do that as soon as I’m done here, your
H onor. I am going to ask the court to reset discovery, also, so that I can include Dr. King in the People’s

— “The C ourt: So reset.

“ [ A ] re you going t o waive any discovery time line issues so you can get everything as quickly as possible? Otherwise, i t’s supposed to be a 90

- day t i me line, and
we’re well within that. “[ Defense counsel]: Well, it’s

— yes. “The Court: You understand what I’m saying? “[ Defense counsel]: I do.8 “ T he C ourt: We can go and splice that into each one of the pieces and parcels a s to what that turns into, but at this point if you just waive them generically, we can get to the point where you can share everything and get this done. “[ Defense counsel]: Yes, within reason.
“The C o u rt : Of course. I f something changes, come and bring it to m e.”
V. T HE P ROSECUT ION S ERVES A D EMAND FOR E XCHANGE OF E XPERT W ITNESS I NFORMATION AND AN E XPERT W ITNESS D ESIGNATION AND D ECLARATION . On July 14, 2020, the prosecut ion served a demand for exchange of expert
information , request ing the mutual exchange of expert information on Au gust 3 (the date then set for trial). On July 31 , the prosecut ion served its “ E xchange of E xpert
I nformation , ” identifying Dr. Korpi and Dr. King as the expert witnesses t he prosecut ion
intended to call at trial.
VI

. A FTER J ACKSON D OES N OT R E
- S ERVE H IS E XPERT W ITNESS D ESIGNATION BUT I NCLUDES D R . F ISHER ON H IS W ITNESS L IST , THE P ROSECUT ION M OVES IN L IMINE TO H AVE D R . F ISHER E XCLUDED F ROM T ESTIFYING AT T RIAL .

Jackson did not re

- serve his expert witness designation and declaration by August 3. In stead, three days later, he served his witness list , which included Dr. Fisher

. In response, the prosecut ion filed a motion in limine seeking to exclude Dr. Fisher from testifying at trial . The prosecution argued exclusion was the only remedy under Code of
Civil Procedure section 2034.300 to address Jackson’s failure to comply with the expert exchange requirement. At the hearing on the motion, the trial court confirmed that Jackson had already served expert witness declaration s designating Dr. Fisher twice , first in January and again in May. The prosec utor informed the trial court that if Dr. Fisher was not
exclude d, he wanted to depose Dr. Fisher and wanted to do so before the jury was9 selected . The prosecutor said Dr. Fisher’s tes timony could affect how the prosecut ion would conduct voir dire and present its case
- in

- chief

. The trial court deferred ruling on th e motion in limine pending the parties’

success in deposing Dr. Fisher during scheduled days off from trial later that month. The
trial court opted to move ahead with jury selection and opening statements before Dr. Fisher’s deposition could be taken

. 2 The prosecut or asked if there was any additional information that defense
counsel needed to provide to the prosecut ion ; defense counsel indicated there was none. The prosecutor confirmed with defense counsel tha t the September 2019 report was the only report Dr. Fisher had produced and tha t the information stated in that report was still
what Dr. Fisher was going to rely on and testify to at trial

. After d efense counsel later confirmed that Dr. Fisher w ould be available to
sit for a remote deposition on August 26, 2020 , t he prosecut ion served a subpoena and
notice of Dr. Fisher’s deposition . They included a demand that Dr. Fisher produce
written notes, documents, and / or recording s that he prepared in relation t o or pertaining

to his interview of Jackson.
VII.
T HE P ROSECUTION ’ S C ASE
- IN
- C HIEF 3 From August 11, 2020 through August 24, 2020, a jury was selected and the prosecut ion presented most of its case

- in

- chief by calling as witnesses five victims of
Jackson’s molestation s , a retired investigator , and the prosecuti on ’s two expert witnesses.

2 The prosecut ion confirmed that Dr. Korpi would be available to testify on rebuttal after Dr. Fisher testified at trial

. 3 The trial evidence of Jackson’s prior sex offenses is not at issue in this appeal. This section contains a brief sum mary of the facts for the purpose of providing general background.10 The evidence presented showed that i n the late 1970’s, Jackson lived with his brother, his brother’s wife, and his brother’s three young stepdaughters who were all under the age of 10 years. On several occasions, Jackson sexually molested the young girls . In 1979, Jackson pleaded guilty to one count of annoying or molesting children in
violation of former Penal C ode section 647a against the oldest child , T

. , and was sentenced to three years’ probation.
In the mid

- 1980’s, Jackson lived with a mother, her two sons, and her
three

- year
- old daughter B

. ; Jackson molested B. over the course of two years. In August
19 84, Jackson molested a five

- year
- old girl who had visited the family with her mother. In 1988, Jackson pleaded guilty to two counts of violating Penal Code section 288, subdivision (a) (lewd and lascivious acts with a child under the age of 14) against B

. and was sentenced to 10 years in prison. In January 1994, Jackson was invited to move in with a friend who had a
f

our
- year
- old daughter. Jackson molested that child, too

. In that case, Jackson pleaded guilty to one count of committing a lewd and las civious act against a child under 14 years of age in violation of Penal Code section 288, subdivision (a), and was sentenced to three years in prison.
Jackson suffered probation and parole violations. The prosecut ion also offered Dr. King ’s and Dr. K orpi’s expert witness testimony that then 67

- year
- old Jackson met all the criteria for qualifying as an SVP.
VIII. O N THE E VE OF D R . F ISHER ’ S D EPOSITION , D EFENSE C OUNSEL D I S CLOSES D R . F ISHER H AD M ET WITH J ACKSON IN F EBRUARY 202 0 ; D R . F ISHER P RODUCES N OT ES FROM THAT M EETING . The prosecut ion had almost completed its case
- in

- chief at the time of Dr. Fisher’s deposition. The afternoon before that de position, defense counsel sent an email to the prosecutor stat ing the following :11 “Hello [the prosecutor] , “I talked with Dr. Fisher briefly and he let me know that he saw Mr. Jackson on February 20, 2020 for a short period of time to discuss his offenses. He admitted to the two qualifying and T [.] There is no other information: He did not writ e an addendum and was not paid to see him the second time. I guess he was seeing other patients at CSH. “Thanks,

“ [Defense counsel] .” On August 26, 2020, the prosecutor began the remote deposition of Dr.
Fisher during which the prosecutor concluded t hat many of the representations made by
defense counsel in her email were contradicted by Dr. Fisher ’s testimony . Among other things, Dr. Fisher said he had pages of notes relating to his February 2020 interview of
Jackson and the interview was conducted in part at defense counsel’s direction. At the deposition, Dr. Fisher testified: “Q

. When did you relay to [defense counsel] that you had spoken with Mr. Jackson again?
“A. I know we discussed it yesterday . I don’t recall if I had told her

— I
know we discussed previously, like in January or February, about the idea of m e interviewing him again, and then I did go and interview him again on February 20 th of this year. “I don’t recall when I would have relayed that information to [defense
counsel ] or if I ever explicitly did. I think I probably did, actually, but I couldn’t tell you
when. I don’t know.

“ Q. Do you normally write a report and then do a follow

- up interview and not relay the fa c t that you interviewed someone to the attorney who ret ained you? “[¶]

. . . [¶] “A. No. That would not be my normal process. ”12 The prosecutor asked Dr. Fisher why he met with Jackson to discuss offenses Jackson had already denied committing. Dr. Fisher testified : “ So I was already at Coalinga State Hospital that week seeing a number of other patients, and [defense counsel] and I had communicated about m y initial interview with him and the report that
I had already written at that point, and we had discussed his denial of his offenses to me,
and then [defense counsel] let me know that she felt like his explanation of his offenses might have evolved and changed over the

— what was it

— five months or so since I had
last seen him or six months. [¶] And so that’s why I set up another interview with him,
and it

— initially, the motivation was just to discuss his offenses. The interview took a couple of other turns as well, and we didn ’ t only discuss his offenses, although that was the primary motivation at the beginning. ”
Dr. Fisher thus confirmed he met with Jackson at defense counsel’s prompting and that he met with Jackson for an hour and took notes that had not been produced even to defense counsel . H e did not write a report after that meeting

. Dr.
Fisher stated that, within a few weeks or a month af ter the interview , he had informed
defense counsel of it

. Dr. Fisher testified he assumed this info rmation would come out during his deposition and at trial. He added that n othing in those interviews change d his ultimate opinion s as outlined in the Septe mber 2019 report, and that if anything , they only “ kind of strengthened my opinions. ” The prosecutor stated he felt he was at a disadvantage , having received th e information about the February 2020 interview on the day of the deposition

. Dr. Fisher

sen t the prosecutor “about two pages worth” of handwritten notes that he had taken regarding the February 2020 interview. Dr. Fisher confirmed he had not yet billed for the
hour

- long interview in February 2020 , but that he intended to do so

. The prosecutor proceeded to depose Dr. Fisher on his opinions on the SVP criteria as they applied to Jackson. Dr. Fisher testified that Jackson’s age (67 years ) is a protective factor and “the most mitigating factor.” He testified that a diagnosis of13 pedoph ilic disorder is not automatically a permanent diagnosis. Dr. Fisher stated that in the 1970’s through the 1990’s, Jackson likely met the criteria for the diagnosis , but that
he did not believe he met the criteria in 2020. 4 After three hours, the pros ecutor stopped the deposition . He stated he had only budgeted three hours for it and had defense counsel given him the information about the February 2020 interview, he could have been prepared instead of spending one of the three hours sorting out what h ad happened. It i s unclear wh ether the prosecutor had any further questions for Dr. Fisher before concluding the deposition

. IX

. T HE T RIAL C OURT G RANTS THE P ROSECUT ION ’ S M O TION S EEKING TO E XCLUD E D R . F ISHER ’ S T ESTIMONY AT T RIAL . On August 31, 2020, the prosecut ion filed a nother motion to exclude Dr. Fisher from testifying. This time, the prosecution sought exclusion of Dr. Fisher’s expert testimony at trial because Jackson had “ fail [ ed ] to participate in a properly demanded
E xpert E xchange ” and had “ intentionally mispresent [ed] discovery compliance regarding properly demanded discovery pursuant to a deposition subpoena after the court
determined [ the P eople ] would be afforded the opportunity to depose [ Jackson’s ] undeclared expert witness after the jury trial had begun and after [ the People ] had effectively completed putting on [ its ] case
- in

- chief. ” At the hearing, defense counsel opposed the prosecution’s motion by arguing:

4 Dr. Fisher further testified at his deposition that “there aren’t any studies, not a single one, that point to men of the age of 67 or older as serious and well

- founded recidivism risk [ s] even if they have multiple prior sex offenses.” He clarified that it is not impossible for men of older age to reoffend, but with age, that risk becomes highly unlikely, particularly because Jackson’s last offense occurred in 1994. Dr. Fisher also clarified that his opinion was not premised on the notion Jackson had not commit ted the sex offenses and that he had not taken Jackson at his word when , in September 2019, he denied committing those offenses

.14 • D efense coun sel had already disclosed Dr. Fisher as the defense expert witness after the initial trial setting and the “whole purpose ” of the most recent

ex change of expert witness information was to enable the prosecut ion to designate newly assigned evaluator Dr. K in g as an expert for the prosecution ;

• T he prosecution’s notice of deposition itself did not require production of requested documents three days before Dr. Fisher’s deposition;

• Dr. Fisher produced the requested documents at the deposition in compliance with the notice;

• D efense counsel thought she had sent the prosecutor an email informing him of Dr. Fisher’s February 2020 meeting with Jackson , but when she could
not find such a n email, she disclosed that information , admittedly later than she should
have ; 5

• A lthough she did not plan to a sk Dr. Fisher at trial about Jackson’s admission of the sex offenses, she recognized that that information might be relevant for

cross
- examina tion , but then believed the issue had bec o me “moot” in March 2020 when Jackson admitted to Dr. Korpi he had committed the sex offenses;

• T he trial court should impose a lesser sanction such as the exclusion of evidence regarding Dr. Fisher’s 2020 intervie w, a late discovery instruction, and/or
the reopening of Dr. King’s direct examination ; and

• N one of Dr. Fisher’s diagnostic impressions and risk assessments had changed, and what Dr. Fisher testified to at his deposition was the same information presented in the September 2019 report

. The prosecutor argued that nothing short of the remedy of witness preclusion would be fair to address Jackson’s discovery violation s : “The People’s

5 At the hearing, defense counsel stated: “[I]t’s 100 percent my error, your H onor

. . . . When I didn’t see an email, I figured that I needed to disclose it at that time, and it’s my error.”15 whole strategy with this trial would have been different had I know n that this was, for
one, at [defense counsel’s] direction that all of a sudden her client is copping , not some internal growth but a tactic legally

. . . . Would have completely impacted whether the
P eople would have brought any of the statements of Jackso n in had he known at the end of his case, virtually,

. . . by the way t he defense expert is going to completely agree and say that he cops to everything

. ” The prosecutor further argued it was impossible to

“ unring the bell ” after he had already brought in un specified statements by Jackson through the prosecution’s expert witnesses: “Had the P eople known about what Mr. Jackson had said to Dr. Fisher, it would have enormously impacted on whether any of Mr. Jackson’s statements would have been brought in thr ough the People’s experts in the first place. So [defense counsel’s] suggestion that that somehow makes the P eople
whole is absurd. It’s absurd.”
The trial court granted the prosecution’s motion to exclude Dr. Fisher’s expert testimony at trial: “T he problem that the court has is, as the P eople have indicated, they can ’ t unring that bell. The approach that they took on the case was premised on the information that they had regarding D r. Fisher, and the only published for discovery
information t hey had was on a report that predated his interview of February 20th, 2020,
with the defendant where I find that there was a material change in information provided by your client. That information was not disclosed, nor was there an expert exchange as

wa s required under [Code of Civil Procedure] 2034.300. [¶] The court made its best efforts to try and conduct the trial and provide the petitioner with the opportunity to conduct a deposition mid trial. I find through no fault of the petitioner that there was a repeated discovery violation and a failure to provide information regarding updated
information that D r. Fisher had considered and relied upon, that that discovery violation continued up to and through la st Thursday’s attempt at deposing D r. Fisher, and that that has put the P eople in a completely untenable position such that there is no other remedy than the remedy called for in [Code of Civil Procedure section] 2034.300, and that is to16 strike D r. Fisher as a testifying witness for [Jackson]

. [¶] So he is hereby stricken from [Jackson’s] witness list, and he will not be permitted to testify. [¶] The court further orders reimbursement to petitioner, $600 for deposition costs, $1,270.52 for an expedited

tr anscript of that deposition, for a total cost of $1,870.52 due to petitioner. ”
Defense counsel immediately moved for a mistrial on the grounds that
Jackson had rights under the 6 th and 14 th Amendment s to the United States Constitution
in the SVP proceed ing and specifically had a right to an expert at trial. The trial court denied the motion

. X. T HE J URY F INDS J ACKSON TO B E AN SVP AND THE T RIAL C OURT D ENIES J ACKSON ’ S M OTION FOR A N EW T RIAL . In September 2020, a jury found Jackson to be a n SVP within the meaning
of the SVPA. In October 2020, Jackson filed a motion for a new trial on the ground the trial court erred by gra n ting the prosecution’s motion seeking to exclude Dr. Fisher as an expert witness; the trial court denied the motion on the ground nothing ha d changed since the court excluded Dr. Fisher from testifying at trial

. In October 2020, the trial court ordered Jackson committed to Coalinga State Hospital for an indeterminate term. Jackson appealed.

DISCUSSION
I.
B ACKGROUND Cit ing section 2034.300 of the Code of Civil Procedure, the trial court preclude d Jackson’s expert witness from testifying at trial because defense counsel had failed to timely (1) re
- serve an expert designation after trial was continued and discovery

was res et in July 2020; (2) disclose to the prosecution Dr. Fisher’s February 2020 meeting with Jackson at which Jackson first admitted to Dr. Fisher that he had committed17 the two qualifying prior sex offenses and his sex abuse of T

. ; and (3) produce to the

prose cut ion the notes Dr. Fisher took regarding that February 2020 meeting with Jackson.
Section 2034.300 of the Code of Civil Procedure provides in relevant part
that “ on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following : [¶] (a) List that witness as an expert under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] [or] (c) Produce reports and writings of expert
witnesses under Section 2034.270. ” (Italics added.) Here, Jackson had identified Dr. Fisher as an expert witness for trial and submitted an expert witness declaration regarding Dr. Fisher in January 2020 , before the February 2020 trial date, and again in May 2020 , before the July trial date . However , he
did not re
- serve those documents on the prosecution after the tr ial court granted the

prosec u tion’s second motion to continue the trial to August and “reset discovery

. ” In its motion, t he prosecut ion argued that Dr. Fisher’s expert testimony must be exc lu ded from trial by operation of Code of Civil Procedure section 2034. 300

. In an effort to avoid Jackson’s forfeiture of his sole expert witness at trial, the trial court deferred ruling on the prosecut ion ’s motion seeking to exclude Dr. Fisher from testifyin g at trial and fashioned a “nonstatutory remedy” o f providing the prosecution the opportunity to depose Dr. Fisher during a scheduled break in the prosecution’s case
- in

- chief. T he trial court denied the prosecut ion ’s request that Dr. Fisher’s deposition b e scheduled before jury selection

. The trial court ultimately granted the prosecution’s originally sought

- after relief of excluding Dr. Fisher’s testimony after the prosecution learned that Dr. Fisher , in February 2020, had had a n hour

- long conversation with Jackson during which Jackson first admitted committing the qualifying sex offenses and the sex offense against T

. At the deposition, the prosecution received a t hree

- page document containing Dr. Fisher’s18 handwritten notes about that conversation. Presented with this information of delayed disclosures, the trial court concluded there was no other possible appropriate remedy but
to exclude Dr. Fisher’s trial testimony under section 2034.300 of the Code of C ivil
Procedure

. I t is true Jackson failed to re

- serve his expert witness designation in July or August 2020 after the trial was again continued and the prosecut ion served a demand for an exchange of expert information. And there is no dispute that defense counsel did not
disclose D r. Fisher’s 2020 conversation with Jackson or Dr. Fisher’s attendant notes until
Dr. Fisher’s deposition was held during a break in the trial toward the end of the prosecut ion ’s case

- in

- chief. Jackson argues any discovery violations were not un reasonable under the
circumstances of this case within the meaning of section 2034.300 , and the trial court abused its discretion by precluding Dr. Fisher’s testimony as a discovery sanction. ( Landau v. Superior Court , supr a , 32 Cal.App.5th at p. 1080 [ “ We generally review discovery orders for an abuse of discretion ” ].) We do not need to evaluate whether Jackson’s discovery violations were reasonable under the statute because even if they were unreasonable, our analysis doe s not end

. Instead, we must consider statutory rights conferred by the SVPA as well constitutional rights that attach in SVP proceedings in evaluating Jackson’s contention of error.
I I.

S ECTION 6603 , THE R IGHT TO D UE P ROCESS IN SVP P ROCEEDINGS , AND THE O TTO F ACTORS .

“ P ursuant to section 6603, subdivision (a), [ 6 ] a person subject to
commitment under the [SVPA] has a right to counsel and a right to retain experts or

6 Section 6603, subdivision (a) provides in part: “ A pe rson subject to this article is entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on the person’s behalf , and to have access to all relevant medical and psychological records and reports. ” (Italics added.)19 professionals to perform examinations on his or her behalf

— and of course he or she also
has a right to present the resulting evidence to the jury

. ” ( Albertson v. Superior Court
, supra, 25 Cal.4th at p. 803 , italics added ; see also People v. Superior Court ( Smith )
, supra , 6 Cal.5 th at p. 463 .) Civil commitment in SVP proceedings inherently involves a significant restraint on the defendant’s liberty . Therefore , a defendant in such a proceeding “ is entitled to certain due process protections.” ( Moore v. Superior Court
, supra , 50 Cal.4 th at p. 81 8 .) With regard to due process, t he California Supreme Court has explained: “[P] roceedings under the SVPA, in common with proceedings under other civil commitment statutes, are civil proceedings with consequences comparable to a criminal
conviction

— invol untary commitment, often for an indefinite or renewable period, with associated damage to the defendant ’ s name and reputation. ” ( P eople v. Hurtado (2002)
28 Cal.4 th 1179, 1192 ( Hurtado ) ; see People v. Force , supra , 39 Cal.App.5th at p. 514, fn. 2 [SVP proceedings “are rooted in criminal convictions and therefore retain the due process rights associated with criminal trials,” affording defendants in such proceedings a constitutional right to present a defense, which includes calling witn esses in his favor and testifying on his own behalf].) In Hurtado, supra , 28 Cal.4th at pages 1192

- 1194, the California Supreme Court recognized that California courts have relied on burden of proof decisions to hold that the standard of Chapman v. Califo rnia (1967) 386 U.S. 18 ( Chapman ) applies to federal constitutional error in civil commitment proceedings

. Under the high standard of Chapman , federal constitutional error is reversible unless shown to be harmless beyond a reasonable doubt. ( Ibid. ) The Hurtado court concluded
that the Chapman standard “ necessarily governs review under the SVPA. ” ( Hurtado,

supra , at p. 1194.) W e therefore apply the standard of Chapman , supra , 386 U.S. 18
here

. Upon concluding that a defendant in an SVP proceeding is entitled to due process protections, “‘the question remains what process is due.’” ( Otto , supra , 2620 Cal.4 th at p. 210 .) In Otto , the Supreme Court identified the following four factors (the
Otto factors) to be consider ed and applied in making that determination : “ (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional

or substitute procedural safeguards; (3) the government ’ s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing
indi viduals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official. ” ( Ibid. )
II I

. A PPLICATION OF THE O TTO F ACTORS E STABLISHES THE D EFENDANT ’ S D UE P ROCESS R IGHT TO P RESENT E XPERT W ITNESS T ES TI MONY AT AN SVP T RIAL . The parties have cited no published legal authority specifically addressing what process is due in the context of expert witness testimony preclusion in SVP trials,
and we have found none. 7 Applying the Otto factors here, first, we conclude there is no question that “ the private interests that will be affected by [a civil commitment under the SVPA] are significant limitations on [ the defendant ’ s] liberty, the stigma of being

7 In People v. McKee, supra , 47 Cal.4th at page 1192, the California Supreme Court addressed an SVP’s due process interest in having the assistance of an expert witness in the SVP’s effort to petition the trial cou rt under former section 6608 for his or her release from civil commitment. The court observed: “ If the state involuntarily commits someone on the basis of expert opinion about future dangerousness, places the burden on that person to disprove future dangerousness, and then makes it difficult for him to access his own expert because of his indigence to challenge his continuing commitment, that schema would indeed raise a serious due process concern. ” ( Ibid. ) Explaining “[w]e construe statutes when reasonable to avoid difficult constitutional issues,” the Supreme Court held: “G iven that the denial of access to expert opinion when an indigent individual petitions on his or her own to be released may pose a significant obstacle to ensuring that o nly those meeting SVP commitment criteria remain committed, we construe section 6608, su b d ivision (a)

. . . to mandate appointment of an e xpert for an indigent SVP who petitions the court for release.” ( Id. at p 119 3 .) As so interpreted, the court conclu ded former section 6608 did not violate the due process clause. ( Ibid. )21 classified as an SVP, and subjection to unwanted treatment. ” ( Otto, supra , 26 Cal.4th at p. 210.) Second, we consider the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any , of any addit ion al or substitute safe guards

. T he preclusion of expert testimony on behalf of the defense would seriously limit the defendant’s ability to respond to the prosecution’s expert testimony

. If the only defense expert witness is precluded from testifying, t here would be no expert witness to rebut the prosecution’s experts’ testimony that the defendant ha s a diagnosed mental disorder that would make him a danger to the health and safety of
others and would make it likely he will engage in future predatory act s of sexually violent criminal behavior if released from custody. ( See People v. McKee , supra , 47 Cal.4th at
p. 1192 [ e xpert witness testimony “is critical in an SVP commitment proceeding” ]; see also Ake v. Oklahoma (1985) 470 U.S. 68, 81 [“Psychiatry is not . . . an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of fut ure dangerousness”].) Third, t he SVPA “ articulates the strong government interest in protecting the public from those who are dangerous and mentally ill. ” ( Otto, supra , 26 Cal.4th at

p. 214.) Recognizing that a defendant in an SVP proceeding has a due p rocess right to critical expert witness testimony does not interfere with the strong government interest in protecting the public. Defense expert testimony may show that the defendant is not an SVP. The government has no interest in protecting the public from non

- SVP’s. Finally, we consider whether a right to have an expert witness testify for the defense is necessary to safeguard a defendant ’ s “ dignitary interest ” in an SVP proceeding. ( Otto , supra , 26 Cal.4th at p. 210 .) T he Otto court explained t hat a person subject to the SPVA has a “ dignitary interest in being informed of the nature, grounds , and consequences of the SVP commitment proceeding ” and in “ presenting his side of the22 story before a responsible government official. ” ( Id. at p. 215.) If the trial court precludes a defendant ’s expert witnes s from testifying at an SVP trial , it is hard to see
how the defendant can present his or her side of the story of whether the defendant is an SVP and whether it is likely the defendant w ould engage in future predatory acts of sexually violent criminal behavior if released from custody. Having considered and applied the Otto factors , we conclude a defendant in an SVP proceeding has a due process right to present expert witness testimony a t trial

. ( People v. Angulo (2005) 129 Cal.App.4 th 1349, 1361 [“Due process in an SVPA proceeding is satisfied where ‘the defendant has the opportunity to thoroughly present his side of the story ’ ” ]; People v. Superior Court ( Howard ) (1999) 70 Cal.App.4 th 136, 154 [ due process under the SVPA is preserved when the mandated proceedings provide the defendant “the opportunity to thoroughly present his side of the story”].)
I V

. S ECTION 2034.300 OF THE C ODE OF C IVIL P ROCEDURE C ANNOT B E A PPLIED W ITHOUT C ONSIDERATION OF W ELFARE AND I NSTITUTIONS C ODE S ECTION 6603, SUBDIVISION ( a ) AND THE D EFENDANT ’ S D UE P ROCESS R IGHT TO P RESENT E XPERT W ITNESS T ESTIMONY IN AN SVP T RIAL . Before and during trial, t he p rosecut ion argued that if a party is found to have unreasonably violated expert witness disclosure requirements, section 2034.300 of
the Code of Civil Procedure commands that “the trial court shall exclude from evidence the expert opinion of any witness

. ” (Italics added.) In other words, the prosecut ion

argue d that upon finding a party unreasonably violated certain disclosure requirements,
the trial court is compelled to exclude that party’s exper t witness from testifying at trial

. It is true a defendant in an SVP proceeding cannot be free to circumvent applicable discovery statutes, given the government’s strong interest in protecting the public from those who are dangerous to others. (See Ott o, supra , 26 Cal.4th at p. 214.) Even a defendant in a criminal action must comply with discovery rules. However, “[p] reclusion sanctions may be imposed against a criminal defendant only for the most23 egregious discovery abuse. Specifically, such sanctio ns should be reserved to those cases
in which the record demonstrates a willful and deliberation violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony

. ” ( People v. Edwards (1993) 17 Cal.App.4th 1248, 1263.) 8

But here, the trial court read the word “shall” in section 2034.300 of the
Code of Civil Procedure in a vacuum. E ven assuming for purposes of our analysis that
Jackson’s discovery violations were unreasonable , this readin g directly conflict s with (1)
Jackson’s specific right in this SVP proceeding to present an expert witness at trial under section 6603, subdivision ( a ) , and (2) his constitutional due process right to present such evidence and be provided the opportunity to tell his side of the story. Given this conflict, consideration of the applicability section 2034.300 of the Code of Civil Procedure in evaluating the trial court’s expert witness preclusion order is necessarily only the start of the analys is and not, as argued by t he prosecut ion , the end. V. T HE T RIAL C OURT ’ S O RDER E XCLUDING D R . F ISHER ’ S T RIAL T ESTIMONY V IOLATED J ACKSON ’ S R IGHT TO D UE P ROCESS AND C ONSTITUTED P REJUDICIAL E RROR . Applying due process principles discussed ante to the record be fore us , we conclude the trial court for several reasons erred by selecting the preclusion of Dr. Fisher’s expert witness testimony as the remedy for Jackson’s discovery violations. We do not regard this issue as a close one

. The Supreme Court has explained that, generally speaking, the civil discovery statutes “were intended to curtail surprises, enable each side to learn as much as possible about the strengths and weakness of its case, ” and thereby facilitate , among

8 I t is well established that in a criminal case, the defendant has the due process right to the assistance of expert witnesses. ( Ake v. Okl ahoma , supra , 470 U.S. at p p

. 83 , 87, fn

. 13 .) “‘The Sixth and Fourteenth Amendments to the United States Constitution also guarantee a defendant’s right to present the testimony of these expert witnesses at trial.’” ( People v. Nieves (2021) 11 Cal.5th 404, 449.)24 other things , efficient trials. ( Williams v. Superior Court (2017) 3 Cal.5th 531, 543. fn. 3 , italics omitted .) Here, any argument that the prosecut ion was taken by surprise that Jackson intended to call Dr. Fisher as his expert witness at trial , or was in any way prejudiced simply be cause Jackson did not re
- serve his expert witness designation a third
time within a seven

- month period , strains credulity.
The record shows : (1) Dr. Fisher had evaluated Jackson and produced the September 2019 report ; (2) i n January 2020, Jackson first served his expert witness designation and declaration identifying Dr. Fisher as his sole expert witness (neither the prosecut ion at trial nor the Attorney General on appeal have suggested that Jackson’s expert witness designation and declaration w ere in a ny way deficient ); (3) i n May 2020,
Jackson re

- served his expert witness designation and declaration naming Dr. Fisher as his sole expert witness ; (4) although Jackson did not respond by August 3 to the prosecut ion’s most recent demand for an exchange of expert witness information , three days after his response w as due, Jackson served his trial witness list which included Dr.
Fisher ; and (5) the prosecut ion had the opportunity to and did take Dr. Fisher’s deposition
and obtained all requested d ocuments from Dr. Fisher before concluding its case
- in

- chief
at trial. The prosecut ion argued that the disclosure of Dr. Fisher’s February 2020 meeting with Jackson (and related notes) during his deposition taken in the midst of trial
also compelled the e xclusion of Dr. Fisher’s testimony. Defense counsel acknowledged that she should have disclosed Dr. Fisher’s February 2020 conversation with Jackson
sooner than she did , and she agreed she should have produced Dr. Fisher’s notes related

to that conversati on three days before his deposition. For several reasons, the record does not support the prosecut ion’s claims of undue prejudice as a result of the delayed disclosures, or that absolute expert witness preclusion would be an appropriate

— much
less a necess ary

— sanction under the circumstances of the case.25 First, although Dr. Fisher’s meeting with Jackson in February 2020 was generally undisclosed until the eve of Dr. Fisher’s deposition, the only “new” information gained from that meeting was that Jackson admitt ed for the first time to Dr. Fisher that he
had committed the underlying sex offenses

. 9 Second, shortly after his February 2020 conversation with Dr. Fisher,
Jackson admitted committing the same sex offenses directly to Dr. Korpi during his updated evaluation of Jackson in March 2020 , and to Dr. King during his June 2020
evaluation of Jackson

. Therefore, the prosecut ion was well aware, as early as March 2020, that Jac kson had jettisoned his past denials and admitted he had committed those
sex offenses. Third, Dr. Fisher’s expert opinion, as explained in the September 2019 report and during his deposition, encompassed opinions on several central issues at trial,
includ ing whether Jackson had a mental illness that made him dangerous and likely to
reoffend . When and whether Jackson had admitted or denied qualifying offenses or other
sex offenses to Dr. Fisher was a t most a relatively small aspect of the scope of Dr.
Fish er’s proposed expert witness trial testimony. Fourth, the prosecut or proceeded to take Dr. Fisher’s deposition as scheduled and did not identif y any information he was unable to discover during that deposition as a result of the delayed disclosures.
Fi fth, the deposition occurred while the prosecution was still presenting its

case
- in

- chief and while one of its experts , Dr. Korpi, was still under redirect examination. The record does not show why the delayed disclosures were not remediable by simply
el i citing further expert tes timony from the prosecut ion’s experts. In support of his request that the trial court exclude Dr. Fisher’s testimony, the prosecut or argued in general terms that , had he known of the February 2020 meeting

9 Although Jackson had pleaded guilty to several of the offenses, he had previously denied committing them to Dr. Fisher.26 and Jackson’s admissions before trial, he would have structured his entire case

- in

- chief differently and would not have had to elicit Jackson’s statements denying he committed the qualifying sex offenses through h is own experts. The prosecutor never explained how he would have changed his presentation, what statements he had to elicit, or why either
fact caused the prosecution undue prejudice. Defense counsel proposed that the trial court issue a different sanc tion such as a jury instruction on late disclosure or the preclusion of evidence regarding the February 2020 meeting. The trial court declined imposing any other sanction s and
instead selected the nuclear option of excluding Jackson’s sole expert witness from testifying at all at trial . This ruling forc ed Jackson to proceed at trial without any expert witness testimony to rebut the testimony of the prosecution’s two expert witness , Dr. Korpi and Dr. King , on the dispositive issues at trial.
The trial c ourt’s ruling preventing Jackson from presenting any expert witness testimony in his defense at trial denied Jackson constitutional due process. We
cannot conclude the trial court’s error w as harmless beyond a reasonable doubt. ( Chapman v. California , su pra , 386 U.S. at pp. 22

- 24 .) The Attorney General cannot dispute that Dr. Fisher’s expert testimony w as relevant, material, and crucial to the
defense . Nor can he dispute that the preclusion of that testimony significantly curtailed Jackson’s right to present his side of the story. Indeed, it is fair to say that without expert testimony to challenge the prosecution’s two expert witnesses, Jackson had no chance of prevailin g at trial. Jackson is entitled to a new trial. Nothing in this opinion is intended to suggest that the preclusion of a defense expert witness from an SVP trial is always reversible error. Instead, t he Civil Discovery Act must be applied in each SVP pro ceeding in light of section 6603 and the
constitutional due process right s at stake . Using the analytical framework we have described, rulings are reviewed on a case

- by

- case basis

.27 Because we reverse and remand to the trial court for a new trial, we d o not need to address Jackson’s other contentions of error that he received ineffective assistance of counsel and that the trial court erred by denying his motion for a
continuance and motion for a new trial.

DISPOSITION
The judgment is reversed and the matter is remanded for a new trial on all
issues

.

FYBEL, J. WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.