Filed 7/24/24 P. v. Hicks CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JAMES RILEY HICKS,

 Defendant and Appellant.

2d Crim. No. B333994

(Super. Ct. No. F328947)

(San Luis Obispo County)

James Riley Hicks appeals an order denying his motion for 

the appointment of an expert in his annual examination as a 

sexually violent predator (SVP). (Welf. & Inst. Code, § 6600 et 

seq.)1 We conclude that the trial court did not abuse its 

discretion by denying Hicks’s request for appointment of a 

qualified expert, and affirm. (§ 6604.9, subd. (a); People v. 

Hardacre (2001) 90 Cal.App.4th 1392, 1396, 1398 [trial court has 

1 All statutory references are to the Welfare and 

Institutions Code unless otherwise stated.
2

discretion to appoint expert for SVP for initial, probable cause 

hearing].)

FACTUAL AND PROCEDURAL HISTORY

In 1985 and 1994, Hicks was convicted of committing lewd 

acts with children. (Pen. Code, § 288, subds. (a) & (c).) Following 

his service of a prison term, he was committed as an SVP. 

(People v. Hicks (Jan. 14, 2008, B193533) [nonpub. opn.].) The 

district attorney has since petitioned to extend Hicks’s SVP 

commitment. 

On July 31, 2023, Hicks moved for the appointment of 

counsel and an expert or professional witness pursuant to section 

6604.9, subdivision (a). Hicks did not support his motion with a 

particularized showing that he could benefit from the 

appointment of an expert, i.e., that there was probable cause to 

believe his mental condition had changed or that he no longer 

would be a danger to others. On October 30, 2023, the trial court 

summarily denied Hicks’s motion. 

Hicks appeals and contends that the trial court erred by 

denying him an expert witness to participate in his annual 

examination.

DISCUSSION

Hicks argues that he has the right to the appointment of an 

expert to participate in his annual SVP examination. He relies 

upon People v. McCloud (2021) 63 Cal.App.5th 1, 15-16, that an 

SVP may request an expert pursuant to section 6604.9, 

subdivision (a).

Section 6604.9, subdivision (a) provides for an annual 

examination of an SVP’s mental condition and states: “A person 

found to be a sexually violent predator and committed to the 

custody of the State Department of State Hospitals shall have a 
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current examination of his or her mental condition made at least 

once every year. The report shall be in the form of a declaration 

and shall be prepared by a professionally qualified person. The 

person may retain or, if he or she is indigent and so requests, the 

court may appoint, a qualified expert or professional person to 

examine him or her, and the expert or professional person shall 

have access to all records concerning the person.” The 

appointment of an expert at this stage of the SVP proceedings 

falls within the trial court’s discretion.

In People v. Hardacre, supra, 90 Cal.App.4th 1392, 1398,

we rejected the contention that an SVP is entitled to the 

appointment of an expert to assist him in preparing for the 

annual examination. We concluded that under former section 

6605 regarding annual SVP examinations, “the appointment of 

an expert at that stage of the proceedings was a matter within 

the trial court’s discretion.”2 Our opinion rested in part upon the 

statute’s permissive language – “may retain” and “may appoint.” 

(Hardacre, at p. 1398.) We also noted that by contrast, “when the 

court schedules a full hearing on the SVP’s status after finding 

probable cause to believe he is no longer a danger to others, ‘the 

court shall appoint an expert if the person is indigent and 

requests an appointment.’ ” (Ibid. [citing former section 6605, 

subdivision (d), now found in section 6605, subdivision (a)(3)].)

Moreover, People v. Hardacre, supra, 90 Cal.App.4th 1392,

1396, 1399-1401, concluded that due process of law does not 

2 The provision regarding annual SVP reports was in 

former section 6605, subdivision (a). The Legislature 

subsequently moved that provision into section 6604.9. The 

substance of the provision has not changed. (People v. Smith 

(2022) 75 Cal.App.5th 332, 342.)
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require the appointment of an expert as a matter of right before 

probable cause has been established. “If an SVP articulates some 

reason to believe that information in the annual report . . . is 

inaccurate or unreliable, the court may exercise its discretion . . .

and appoint an expert to assist the SVP at the show cause 

hearing. But this does not mean that an expert is 

constitutionally required in all cases.” (Id. at p. 1401.)

Hicks also did not provide any particularized showing to 

support the appointment of an expert. Although he objects to the 

recommendation that he be retained for treatment, he did not 

suggest that his mental disorder has changed or that he would no 

longer be a danger to others. Hicks’s motion stated that he 

intended to generally challenge the truthfulness of his annual 

evaluation. The trial court’s ruling was not irrational or 

arbitrary. (People v. Hardacre, supra, 90 Cal.App.4th 1392, 1399 

[standard of review for discretionary ruling].)

People v. McCloud, supra, 63 Cal.App.5th 1, does not assist 

Hicks. McCloud concerned a hearing for conditional release 

pursuant to section 6608 and the right to an expert once the trial 

court determines that an evidentiary hearing is required. 

(McCloud, at p. 15.) In dictim, McCloud stated that the 

defendant “is free to request an expert examination under section 

6604.9, subdivision (a) in the future.” (Id. at p. 16.) McCloud did 

not hold that an SVP is entitled to an expert at the annual review 

as a matter of right.
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DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

CODY, J.
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Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Christian C. Buckley, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Marc A. Kohm and David A. Wildman, Deputy 

Attorneys General, for Plaintiff and Respondent.