Opinion
G052711
03-28-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH CHRISTNER, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. M10109) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance P. Jensen, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
On December 30, 2003, the People filed a petition in the superior court to commit Joseph Christner as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) The first trial took place in September 2014, and resulted in a mistrial when the jury was unable to agree on a finding. The second trial was held from September 30, 2015 to October 15, 2015, and resulted in the jury finding defendant qualified as an SVP. The trial court ordered defendant committed indefinitely pursuant to section 6604.
All undesignated statutory references are to the Welfare and Institutions Code unless otherwise stated.
Defendant contends the trial court prejudicially erred in admitting a large amount of case-specific hearsay in violation of the recent decision in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and in admitting exhibit 12 into evidence. He further asserts the errors were cumulatively prejudicial. Alternatively, he argues that should we find the issues were forfeited because counsel failed to object, his counsel thereby rendered ineffective assistance in violation of his Sixth Amendment right to counsel.
The Attorney General argues defendant forfeited the issue because he did not object to the introduction of any of the evidence he now claims was erroneously admitted. We agree and affirm the judgment and order of commitment. We will not decide defendant's alternative ineffective assistance of counsel claim because in this instance, that claim is more appropriately raised in a habeas corpus proceeding.
FACTS
Testimony of Dr. Robert Brook
Dr. Robert Brook is a psychologist on the Department of State Hospitals (DSH) SVP evaluator panel. He first evaluated defendant in 2003, and thereafter evaluated him a total of eight or nine times. Prior to visiting a suspected SVP, Brook reviews prison related documents, including the individual's medical history. He reviews other records after he interviews the individual. In determining whether an individual qualifies as an SVP, Brook considers the individual's clinical, sexual, social relationship, drug and alcohol histories, the reasons for their incarceration, their conduct while in custody, and whether they violated parole or probation. He also considers actuarial instruments to determine the likelihood of their committing sexual crimes in the future.
Defendant was convicted of one or more qualifying offenses. Reviewing a court's minute order, Brook testified that defendant was convicted of three counts of committing a lewd act on a child, in violation of Penal Code section 288, subdivision (a). The offenses occurred between June 1993 and February 1994. Defendant pleaded guilty to the offenses. Two of the offenses involved an 11-year-old boy and the other involved an 8-year-old boy. In each instance, defendant fondled the boy's genitals. According to the older boy, defendant also French kissed him for long periods of time. These incidents did not take place on a single day.
Brook stated defendant's garage was stocked with video games and other types of toys for younger children. Brook explained these items are "lures" used to establish relationships with potential victims. In 2014, defendant admitted to Brook that he used the items for grooming purposes. Prior to that time, defendant adamantly denied having molested the boys, called them liars, and portrayed himself as the victim. Brook said defendant's possession of the video games and toys for grooming purposes speaks to defendant being a sexual predator.
"Grooming" is establishing a relationship with a child for the purpose of victimizing the child.
Brook discussed defendant's 1998 probation violation. He said defendant possessed graphic pornography while he was on probation, and was sent to state prison based on a probation violation. To Brook, this demonstrated defendant's lack of control, because he possessed pornography even though he knew he was not supposed to while on probation.
Defendant possessed pornography on another occasion as well. It was found during an investigation of a trash bin fire. Pornography and articles by NAMBLA (North American Man Boy Love Association), promoting sexual contact between men and boys, were found in the bin. Brook said these items were traced to defendant, he admitted the items were his, and that he threw them away. Defendant admitted his membership in NAMBLA to Brook. Defendant said he joined because articles by the organization sexually stimulated him.
Defendant spoke about his sexual and drug histories with Brook. In the 11 or 12 years that Brook had known defendant, defendant "dramatically" changed his sexual contact history on multiple occasions. Brook stated defendant appeared to base his version of his sexual history on what he thought would make a favorable impression on the person with whom he was speaking. To Brook, this spoke to defendant's lack of veracity.
Brook stated defendant has a known sexual interest in children, a "willingness to break some laws in the service of sexual stimulation," and groomed not only the boys he was convicted of having molested, but also other children. In Brook's opinion, those children were "offended in a predatory manner." After his qualifying offenses, eight- to 12-year-old boys were "in and out" of defendant's residence and playing with his toys. Defendant had sleepovers where he supplied movies and popcorn for neighborhood children. Similar to what defendant did in his qualifying offenses, defendant was able to establish the trust of the children's parents in order to carry out the sleepovers.
Brook said defendant needs treatment and the best treatment available is the sexual offender treatment program at Coalinga State Hospital. He said defendant suffers from a mental disorder (pedophilic disorder with a focus on boys), such that he will commit future sexual offenses. A pedophilic disorder is present in one who has sexual fantasies and urges, or sexual behavior concerning prepubescent children under 13 years of age and has acted on those urges. Defendant's focus is on boys and is not limited to family members. He seeks fondling, masturbation and other sexual conduct with boys. Brook stated defendant has a long history of sexual interest in boys and has acted on those urges.
Defendant scored a five on a commonly used actuarial risk assessment scale—the Static-99R. Brook said that means defendant is at a moderate to high risk to reoffend. Individuals scoring a five on the Static-99R, have a 21 percent recidivism rate over a five-year period, and 32 percent recidivism rate over 10 years. Defendant also scored a seven on the Static-2002R, another moderate to high rating for risk of reoffending. According to the Static-2002R score, there is a 21.2 percent reoffense rate in a five-year period, if released.
Brook believed defendant was at risk of reoffending because he had not had treatment for his condition. As defendant had not participated in the sexual offender treatment program in the hospital, it would be unrealistic to believe he would participate in sexual offender treatment in the community, outside the state hospital. According to Brook, defendant cannot successfully be placed in a less restrictive environment. Brook said defendant poses a danger to society because he is likely to engage in sexually violent criminal behavior if released from custody. Defendant requires in-patient treatment. Brook concluded defendant is an SVP and is likely to engage in sexually predatory criminal behavior if released.
Testimony of Robert Rangel
Robert Rangel had been a supervising deputy probation officer in the Orange County Probation Department. After defendant's conviction, his case was assigned to Jerry Maxwell, a probation officer Rangel supervised, in a specialized unit for sex offenders. Defendant represented he was living in San Bernardino County.
In reviewing defendant's file, Rangel noticed a discrepancy in physical addresses in defendant's monthly report forms. Rangel showed the discrepancies to Maxwell and said they needed to have a face-to-face visit with defendant and/or conduct a probation search. Subsequently, early one morning they went to a tow company in the City of Rialto. They arrived before anyone was at the business, and parked across the street, watching cars arrive and people enter the front of the business.
After receiving backup from the Rialto Police Department, the probation officers and a police officer entered the tow company's office. The group contacted a man, Mr. Gorman, who said he was the owner of the business. Rangel said they were there to see defendant and the owner pointed out defendant, who was seated in the lobby. Rangel introduced the group to defendant and stated defendant had represented that location was his residence. When asked to show the probation officers where he sleeps, defendant took them to a back room. The room contained a couch, a refrigerator, and a couple other pieces of furniture. Rangel mentioned the lack of bedding or any clothing in the room and defendant said those items were with a female friend at a laundromat. Rangel asked defendant where he showered and defendant pointed to a bathroom. The bathroom had a toilet and a sink, but no shower.
The police officer told Gorman it was obvious defendant did not live there, and asked where defendant lived. Gorman admitted defendant did not live there, but it was only after the officer said he might have to check the vehicle identification numbers on the vehicles at the yard to make sure they were legitimately towed that Gorman gave an address down the street and said it was the residence marked "A." The probation officers, the police officer, and defendant went to the address given by Gorman. While driving to that address, they left San Bernardino County and entered into Riverside County.
They arrived at a location where two mobile homes were surrounded by a chain link fence. They went to the mobile home marked "A," and all four entered the front door using a set of keys removed from defendant's pocket. Rangel first searched the living room and found a six-week old telephone bill in defendant's name. Rangel found a document involving a chatroom called "Boypics.com" in the tray of a printer. Although he did not have a computer, defendant had access to the internet through a keyboard attached to a smart television. By a second television were a series of commercial videotapes made for children. Rangel played one of the non-commercial videotapes found there. The first five to seven seconds on the tape showed a number of still shots of nude prepubescent boys.
Rangel looked at a video camera he found inside a black bag. The camera had a three-by-five inch screen. Rangel played the tape found inside the camera. It showed defendant camping with three or four boys in the 12 to 14 year old range. The tape bore a date in April 1998, about one month before the search.
Rangel then searched the bedroom while the police officer and Maxwell stayed with defendant in the living room. In a box on the floor next to the bed was a BB gun. Also found were a plastic bag with a picture of a boy wearing "floaties," a bag with "Sock'em Boppers" written on it, two pair of size 10 boy's boxers, two pair of Speedos, and color photographs of naked prepubescent boys, some of which depicted sexual activity. Defendant was arrested for violating his probation.
Although defendant claimed the boys Speedos were his, Rangel said there was no way defendant could fit into a size 10 Speedo. When asked about the pornography, defendant said, "I'm just a boy [or kid] at heart." Defendant initially said he just moved into the mobile home, but that later changed to he moved in a week before, then two weeks before. Defendant admitted he had not yet changed his sex offender registration to reflect the address of the mobile home.
Defense Evidence
Defendant presented the testimony of two psychologists. Dr. Dana Putnam, a clinical and forensic psychologist employed by DSH as an SVP evaluator, first evaluated defendant in 2003. Putnam evaluated defendant nine more times over the years. Putnam did not have documentation concerning defendant's convictions when he initially evaluated him. That being the case, he found defendant did not qualify as an SVP. When he received the documentation, he changed his mind and concluded defendant qualified as an SVP.
After completing a 2012 updated evaluation, Putnam concluded defendant no longer met the criteria for an SVP. In 2003, defendant was seriously depressed, but that condition and psychotic symptoms were not present in 2006. Additionally, Putnam noted the actuarial instrument he used in 2003, the Static-99, was no longer accurate and was replaced with the Static-99R. Significantly, the Static-99R recognizes that the older an individual gets, the less likely he is to reoffend. In addition, the Static-99R recognizes that certain groups of sex offenders are more likely to reoffend than other groups. Defendant received a four on the Static-99R. He had previously scored a five on the Static-99.
Putnam said there are two normative groups under the Static-99R: the "routine sample," and the "high risk/high needs sample." The routine sample includes all sex offenders, whereas the latter group contains only those who have been characterized "for one reason or another" to pose a higher risk. Based on his use of the structured risk assessment version, Putnam placed defendant in the routine sample group. People in that group with defendant's score reoffend at the rate of 11 percent over a five-year period.
Putnam said defendant had a qualifying mental disorder, pedophilic disorder, but no longer qualified as an SVP because he was not likely to reoffend. Putnam reviewed defendant's state hospital records prior to making that determination. He said defendant's self-regulation had significantly improved, consistent with what hospital staff had been saying about him for "the past several years." In the past, defendant had deficits in the area of intimacy. His ability to relate to adults improved significantly, and although he originally denied it, defendant had accepted responsibility for his past offenses. In addition, defendant established a long-term romantic relationship with another man. This alternative means of having his sexual needs met is a good reason for defendant not to molest children.
Dr. Michael Musacco, a psychologist, is employed by the DSH as an SVP evaluator. He was assigned to defendant's case in 2012 as a replacement evaluator. Musacco said defendant has the qualifying convictions and has been diagnosed with pedophilic disorder, but is unlikely to reoffend in the future.
Musacco said defendant scored a four on the Static-99R. With that score, the recidivist rate is 11 percent for the routine group and 17.3 percent for the high-risk group. Musacco placed defendant in the routine group, stating it would be inappropriate to put him in the high risk group. Musacco said defendant's offense behaviors are "relatively mild" compared to most people evaluated. There was no oral copulation, forced penetration, or physically assaultive behavior.
According to Musacco, defendant had participated in a number of groups at the state hospital, including those on sexual compulsivity, sexual diversity, relationship skills, gay relationship skills, substance abuse, coping skills, relapse prevention, and self-esteem. Musacco said defendant took a serious approach to those groups and had incorporated what he learned into his daily life, preparing him for life outside of the hospital.
Musacco had seen defendant's release plan. It demonstrated defendant had an idea as to how he was going to make his way in the world outside of the hospital. Furthermore, it demonstrated defendant had an idea as to what he needed to do to avoid reoffending.
Defendant's sister, Brenda McGrauth, stated she had the ability to help defendant if he was released from the hospital. She was willing to help pay for defendant's housing and had a job for him. She had about $47,000 in savings and checking accounts, and a house she inherited from her mother. There was approximately $300,000 in equity in the home. She also inherited a retirement IRA account containing more than $61,000. If defendant were to be immediately released, she would check him into a motel until she could rent him a house. She found a number of houses for rent that were least one-half mile away from any school and far away from any park, but she did not rent one for defendant because it would be unreasonable to rent a house without knowing if he would be released.
McGauth also located a counseling and psychotherapy center for defendant to attend in Riverside, upon his release from the hospital. The counseling center was about 15 to 20 minutes away from the houses she found for rent. She knew the cost involved and could afford it. If defendant needed transportation, she had an extra truck he could drive.
DISCUSSION
An SVP is an individual who (1) has been convicted of a "sexually violent offense," and (2) has a diagnosed mental disorder that makes the person a danger to others "in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) The burden of proof in an SVP proceeding is on the party seeking the commitment, i.e., the district attorney. (§ 6605, subd. (a)(3); Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1153, fn. 20 [must be proven beyond a reasonable doubt that the defendant "suffers from a clinically diagnosed mental disorder, is dangerous and likely to continue committing such crimes if released into the community" and has suffered the required conviction(s)].) If a jury finds an individual qualifies as an SVP, the SVPA authorizes the indeterminate confinement of the SVP in the state hospital for treatment. (§ 6604.)
As a general rule, hearsay evidence—"evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" (Evid. Code, § 1200, subd. (a))—is inadmissible, except as provided by law (id., subd. (b)). If a statement is offered into evidence for some purpose other than the truth of the matter asserted in the statement, the statement is not hearsay. (People v. Fields (1998) 61 Cal.App.4th 1063, 1068.)
The Legislature has expanded the scope of admissible hearsay evidence in SVP proceedings. "The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals." (§ 6600, subd. (a)(3).) "This provision implicitly authorizes the admission of hearsay statements in those reports." (People v. Otto (2001) 26 Cal.4th 200, 207.) In other words, multiple layers of hearsay are admissible under section 6600, subdivision (a)(3). (Otto, at p. 208.) As the Supreme Court noted in Otto, if the details of the qualifying crime and conviction may be proven by documents, such as a probation report, the details of the offense would necessarily have to be proved by multiple levels of hearsay. The preparer of the report would certainly not have been an eye witness to the offense. (Id. at pp. 206-207.) Moreover, a requirement that an exception exist for each level of hearsay within the probation report would defeat the purpose behind the statute—to protect victims from having to testify perhaps years after the criminal matter was brought to a resolution—and would leave the provision without "practical effect." (Id. at p. 208.)
Not only does section 6600, subdivision (a)(3) authorize the admission of certain documentary hearsay in SVP trials, but as expert witnesses traditionally testify in such proceedings, other hearsay rules are relevant here. "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." (Evid. Code, § 802.) Experts may testify to certain otherwise inadmissible hearsay. "'[T]he common law recognized that experts frequently acquired their knowledge from hearsay . . . .' [Citations.] . . . [Citations.] As such, an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds." (Sanchez, supra, 63 Cal.4th at p. 676.) On the other hand, "an expert has traditionally been precluded from relating case-specific fact about which the expert has no independent knowledge." (Ibid.) The Sanchez Court defined case-specific facts as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.)
The court noted the line between an expert testifying about general background information, to which an expert may testify as the basis for his opinion, and case-specific hearsay "has now become blurred." (Sanchez, supra, 63 Cal.4th at p. 678.) That blurring occurred because an expert could testify to the basis of his opinion, even if the basis entailed inadmissible hearsay evidence, so long as the jury was instructed that "'matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.'" (Id. at p. 679.)
The Sanchez court concluded that "paradigm is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Sanchez, supra, 63 Cal.4th at p. 679.) This is because "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at p. 682.) "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay." (Id. at p. 684.) Consequently, the Supreme Court held an expert cannot testify to case-specific hearsay statements unless those statements "are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) Although Sanchez arose in the context of a criminal prosecution, its rule concerning the admission of case-specific hearsay evidence applies equally in SVP proceedings. (People v. Roa (2017) 11 Cal.App.5th 428, 433.)
Defendant Forfeited the Evidentiary Issues
Defendant alleges more than 30 instances of experts purportedly testifying to case-specific hearsay in violation of Sanchez. These include an expert testifying about defendant's behavior in the underlying criminal case, the sentence defendant received upon conviction, information contained in defendant's probation report in the criminal matter, defendant's failure to participate in the official treatment program at the state hospital, a report from the state hospital stating defendant was suspected of malingering, and a statement a doctor at a state hospital made about defendant. He concedes, however, he did not object to the admission of any of this evidence. Notwithstanding that failure, he argues the issue should be treated as preserved because any objection would have been futile. He reasons that Sanchez had not been decided before his trial and the trial court would have been obligated under People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) to overrule any hearsay objection he made to the evidence he now challenges on appeal. Alternatively, he argues that if the issue was forfeited, then his counsel was ineffective in failing to make a proper objection.
In Gardeley, the defendants were charged with attempted murder and other offenses based on an attack on Edward Bruno. (Gardeley, supra, 14 Cal.4th at pp. 610-611.) A gang expert testified to statements made by a codefendant and another of the individuals who attacked Bruno, both of whom admitted belonging to the Family Crip gang. (Id. at pp. 611-612.) In response to a defense hearsay objection, the prosecutor stated the statements were not being offered for the truth of the matter asserted in the statement, but "to put before the jury facts on which [the expert] could rely in rendering his expert opinion" that the attack was in furtherance of the gang. (Id. at p. 612.) In finding no error, the Gardeley Court stated, "So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony." (Id. at p. 618.) The court went to note an expert is entitled to state on direct examination the basis for his opinion. (Ibid.) In Sanchez, our Supreme Court disapproved Gardeley to the extent it suggested an expert could testify to case-specific hearsay. (Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.)
Defendant's failure to object to the now complained of evidence forfeited the issue. (Evid. Code, § 353; People v. Hinton (2006) 37 Cal.4th 839, 894.) "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353.)
During the district attorney's cross-examination of Putnam, he attempted to ask about what staff had said about defendant. "In that particular area, in addition to what we just talked about, it says that the staff said that [defendant] had a history . . . ." The district attorney did not finish his question because defense counsel interposed the following objection: "I object at this point. People v. Dean." The court sustained the objection.
In People v. Dean (2009) 174 Cal.App.4th 186, the appellate court addressed the issue of an expert testifying to the contents of state hospital and other institutional records of the defendant. (Id. at p. 196.) The court acknowledged the expert could base an opinion on such records, but held the expert's testimony as to the contents of the records was inadmissible. "A problem arises, however, when, on direct examination, an expert brings before the jury inadmissible hearsay. As stated in Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388 [citation], 'while an expert may rely on inadmissible hearsay in forming his or her opinion [citation], and may state on direct examination the matters on which he or she relied, the expert may not testify as to the details of those matters if they are otherwise inadmissible.' [Citation.] This rule is based in part upon the rationale that by allowing an expert to testify as to the details of inadmissible hearsay reports, the jury might improperly consider such testimony as independent proof of the facts described in the reports and the adverse party is denied the opportunity to cross-examine the person who made the statements." (Id. at pp. 196-196.)
As the trial court sustained defendant's objection and precluded the expert from testifying to inadmissible hearsay, we cannot conclude it would have overruled similar objections to the evidence defendant now claims was inadmissible hearsay, and that any such objection to the evidence would have been useless. There is no reason to avoid here the general rule that an objection is necessary to preserve the issue for appeal.
The objection requirement "'is simply a matter of fairness and justice, in order that cases may be tried on their merits. Had attention been called directly in the court below to the particular objection which it is now claimed the general objection of appellant presented, that court would have had a concrete legal proposition to pass on, and counsel for plaintiff would have been advised directly what the particular complaint against the question was, and, if he deemed it tenable, could have withdrawn the inquiry or reframed his question to obviate the particular objection.'" (People v. Partida (2005) 37 Cal.4th 428, 434.) Defendant does not contend the facts to which the experts testified could not have been admitted into evidence through other means. Because it would not have been futile to object in this matter, defendant's failure to do so—should we address his complaint notwithstanding the failure—would deprive "'the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on [a not true finding] at his trial secure in the knowledge that [the finding he qualifies as an SVP] would be reversed on appeal."'" (Ibid.) Had defendant objected to the complained of evidence and had the court sustained the objections, the district attorney likely would have sought to introduce the relevant portions of admissible documents.
We note that at least some of the complained of evidence was admissible. For example, defendant claims the trial court erred in permitting an expert to testify to the circumstances of the defendant's probation violation. However, defendant's probation officer also testified to the circumstances of the probation violation. Therefore, the district attorney's expert was "not precluded from reiterating the same facts during . . . direct examination." (People v. Dean, supra, 174 Cal.App.4th at p. 193.)
Defendant also forfeited any objections to exhibit 12, which contained a number of police reports. He did not make clear any specific ground to exclude the parts of exhibit 12 he now argues were inadmissible. (Evid. Code, § 353, subd. (a).) We note portions of the exhibit were admissible pursuant section 6600, subdivision (a)(3), a fact defendant concedes.
Ineffective Assistance of Counsel
Defendant claims that if we find he forfeited his evidentiary claims, he received ineffective assistance of counsel and the true finding, as well as his commitment to the state hospital, should be reversed. We decline to address the issue under an ineffective assistance of counsel rubric on appeal.
A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. (U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 15.) There is no substantive difference between the federal and state constitutional right. (People v. Doolin (2009) 45 Cal.4th 390, 421.) "The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. [Citation.] The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." (Kimmelman v. Morrison (1986) 477 U.S. 365, 374.)
The standard of review for an ineffective assistance of counsel claim is well settled. To establish a claim of ineffective assistance of counsel, a defendant must establish both that counsel's representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel's error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; People v. Benavides (2005) 35 Cal.4th 69, 92-93; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (Ledesma, at p. 218.) A defendant's obligation is to establish counsel's ineffectiveness by a preponderance of the evidence. (Ibid.)
In reviewing a claim of ineffective assistance, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Maury (2003) 30 Cal.4th 342, 389.) "Whether to object to inadmissible evidence is a tactical decision . . . ." (People v. Hayes (1990) 52 Cal.3d 577, 621.)
The issue of the assistance defendant received from counsel was not raised below. Consequently, counsel was not asked whether he had a tactical reason for not objecting to the evidence defendant now claims was inadmissible hearsay. The appellate record does not indicate the reasons for counsel's failure to object. We cannot conclude there simply could not have been a satisfactory reason for counsel not to object to the admission of the complained of evidence. For all we know, counsel did not object to hearsay evidence of certain hospital records because the records themselves, which could have been admitted as business records (Evid. Code, § 1271; People v. Moore (1970) 5 Cal.App.3d 486, 492-493 [hospital records admissible as business records if properly authenticated]), would have been more unfavorable to defendant than the expert's references to snippets of the records. Counsel may have had a similar reason for not objecting to other hearsay testified to by the experts.
As we noted earlier, some of the evidence was admissible because the same facts had been introduced into evidence by other means. (See fn. 4, ante.) --------
Under the circumstances of this case, the issue of ineffective assistance of counsel is more properly raised in a petition for writ of habeas corpus. (People v. Mayfield (1993) 5 Cal.4th 142, 188 [when ineffective assistance of counsel claim involves tactical choices on a silent appellate record, the claim is "better evaluated" in a petition for habeas corpus].)
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: O'LEARY, P. J. MOORE, J.