Opinion
D056615
10-18-2011
THE PEOPLE, Plaintiff and Respondent, v. URAL DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MH101972)
APPEAL from a judgment of the Superior Court of San Diego County, Roger W. Krauel and Kerry Wells, Judges. Affirmed in part and reversed in part.
In December 2007 the People filed a petition for Ural Davis's commitment and treatment as a sexually violent predator (SVP) under Welfare and Institutions Code section 6600 et seq. (the SVPA or Act). (All undesignated statutory references are to the Welfare and Institutions Code.) Three qualifying offenses were alleged: a 1984 conviction for forcible rape and oral copulation using a gun, a 1988 conviction for forcible oral copulation using a knife, and a 1993 conviction for kidnapping for sexual purposes. A trial was held in September 2008, after which the jury was unable to reach a verdict and the court declared a mistrial. A second trial was held in December 2009, after which the jury found Davis qualified as an SVP. The court ordered him committed indefinitely to a secure facility designated by the state Department of Mental Health (DMH).
Davis appeals, asserting (1) there is no substantial evidence he has a mental disorder that causes a serious difficulty in controlling criminal sexual behavior; (2) the opinions of the People's experts do not provide substantial evidence of that element; (3) the court erred in its evidentiary rulings by (a) allowing the People's experts to define legal principles and testify on the ultimate issues reserved for the trier of fact, (b) allowing the experts to testify using inadmissible hearsay, (c) allowing the People to misstate the meaning of "substantial, serious, and well-founded risk," and (d) barring Davis from presenting evidence of conditions of parole and potential sentences should he reoffend; (4) the court erroneously instructed the jury on consideration of hearsay evidence; (5) the court erred by failing to instruct on the element that he suffered a mental disorder that created a serious difficulty in controlling his criminal behavior.
In a supplemental brief Davis asserts that under the California Supreme Court's decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee),his indeterminate commitment violated his equal protection rights.
We conclude that based upon McKee we must remand this matter to the trial court for reconsideration of defendant's equal protection argument in light of McKee, supra, 47 Cal.4th 1172, and the final resolution of the proceedings on remand in McKee (see id. at pp. 1208-1210). In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
A. People's Case
1. Qualifying sexually violent prior convictions
In 1984, when he was a minor, Davis pled guilty to rape (Pen. Code, § 261, subd. 2), and oral copulation (§ 288a, subd. (c)) of Tammy D., and the court found true the allegation that he used a gun in the commission of those offenses (§ 12022.3, subd. (a)). The court committed Davis to the California Youth Authority.
While on parole for those offenses Davis committed another sex offense. In 1988 Davis pled guilty of forcing Stacy M., a 26-year-old prostitute, to orally copulate him while he was armed with a knife (§§ 288a, subd. (c), 12022.3, subd. (a)). The court sentenced Davis to a six-year term in state prison.
Davis was paroled in February 1992. On November 17, 1992, Davis approached Matilda H., who was walking alone late at night, took her arm and told her he was going to force her to orally copulate him. Davis was armed with a knife. Matilda was able to break free from Davis's grip, but he stabbed her in the chest. Matilda then ran to a nearby apartment. After Davis was arrested, he pled guilty to kidnapping for sexual purposes while armed with a knife (§§ 207, 208, subd. (d), 12022, subd. (b)). The court sentenced Davis to a term of 27 years in state prison.
2. Self-reported sexually violent prior offenses
In 1993 Davis submitted to an interview with psychologist Katherine Di Francesca. He admitted he started raping when he was 15. He identified offenses for which he had not been caught. In one instance, he approached two girls who were about 12 or 13 years old. He pretended to have a knife and raped them. On another occasion he approached two women with a knife and raped one of them. The one he did not rape was pregnant. Davis also stated that he came into contact with a boy and a girl who were together. Davis made the boy lie on the ground. He ordered the girl to remove her clothes, but then left.
Reporters' transcripts in this case spell the doctor's name "Defranchesca." We will use the correct spelling, "Di Francesca."
3. Sexual misconduct while incarcerated
While incarcerated, Davis received three rules violations for sexual misconduct, including masturbation and indecent exposure. In 1998 Davis was masturbating on his bunk and did not stop until an officer flashed her flashlight on him. In 1999, during count, Davis has his erect penis protruding through his boxer shorts. Davis stood with his arms crossed at his chest, and his hips thrust forward, exposing his erect penis. When he was told his behavior was inappropriate, he replied, "What the fuck are you talking about?" Davis later stated that he thought the female officer "wanted it." In 2001 Davis received another rules violation for indecent exposure. He masturbated while looking at a female officer.
4. Expert testimony
Psychologist Dawn Starr testified that Davis met SVP commitment criteria. She diagnosed Davis with paraphilia, not otherwise specified (NOS), because of a recurrent, intense, deviant arousal and urge to have sex with nonconsenting women. Dr. Starr believed Davis needed treatment to help him regulate his paraphilia and that his mental disorder affected his ability to control his behavior.
Dr. Starr evaluated "static" and "dynamic" risk factors associated with the predictability of future reoffense. She opined as to his static risk he scored in the highest level of risk for reoffense. Dr. Starr also considered other dynamic risk factors to help her determine that Davis posed a substantial risk of reoffending. She noted that he did not participate in an available sex offender treatment program while he was housed at Coalinga State Hospital. She stated that this meant he was not amenable to a voluntary outpatient sex offender treatment program. In rendering her opinion that Davis posed a "substantial[,] serious and well-founded risk of criminal sexual reoffense," she opined that given paraphilia is a chronic and lifelong diagnosis, "there is no reason to believe that simply because [Davis has] been locked up that these deviant intense fantasies he's had would go away."
Psychologist Michael Musacco also evaluated Davis and diagnosed him with paraphilia, NOS (not otherwise specified), because he had deviant sexual arousal by having nonconsenting sex. Dr. Musacco opined that paraphilia, NOS, is a chronic disorder that does not go into remission. One may participate in treatment to manage the condition, but it will not simply resolve itself. Dr. Musacco believed that paraphilia, NOS, affected Davis's ability to control his emotions and behavior and predisposed him to commit criminal sexual acts to the point that he was a menace to the health and safety of the community. He opined that, based upon Davis's history, he demonstrated the requisite impairment under the SVP law, that is, an inability to control his behavior. In his opinion, Davis demonstrated he was volitionally impaired because he failed to learn from the negative consequences of his conduct and persisted in making decisions that led to dysfunction.
Dr. Musacco rejected the theory that Davis raped because of his deformed hands (he had no middle finger on each hand), because it was accepted in gang culture, or because he was molested as a child. He opined that paraphilia was the causative factor in Davis's rape offense history. He also opined that Davis presented a serious and well-founded risk of reoffense if released.
Dr. Musacco acknowledged that the risk of reoffense declines past 40. However, Davis's scores on the actuarial tools used to assess risk, even considering his age, placed him in the high-risk category. This fact further supported his opinion that Davis was likely to reoffend. Dr. Musacco opined that treatment in a noncustodial setting would be insufficient to address Davis's treatment needs. Davis required the level of structure and supervision provided by inpatient treatment.
Davis was 41 at the time of the SVP hearing.
B. Defense Case
Defense psychiatrist Alan Abrams interviewed appellant twice: in 2008 for three hours and in 2009 for an hour and a half. He reviewed the reports prepared by Dr. Musacco and Dr. Starr. Dr. Abrams testified that Dr. Starr and Dr. Musacco misdiagnosed Davis with paraphilia. Instead, he opined that Davis was a "power rapist." He testified that since the SVP law went into effect, paraphilia NOS had been applied too often to criminals instead of the mentally ill. He also testified that rape is not a sexual crime, but rather is committed out of anger, to humiliate the victim and to demonstrate dominance.
Dr. Abrams opined that Davis acted on his free will, i.e., choice, rather than compulsion, when he committed his prior sexually violent crimes. Therefore, he could not conclude that Davis was volitionally impaired in his ability to control his behavior. Dr. Abrams credited Davis with having resolved his rage and believed that in middle age he had control over his anger. He testified that people change and that Davis had "matured out" of his anger and therefore did not present a current risk. Dr. Abrams testified that Davis was safe to be treated voluntarily for his past anger-based raping behavior.
Coalinga Hospital staff members who had interacted with Davis also testified. An intake nurse testified that, based upon her observations and contact with Davis, that he was amenable to treatment in the community. A behavior specialist acknowledged that Davis had been diagnosed with paraphilia, NOS, but believed that he "deserve[d] a chance" to be released into the community.
A psychologist testified that Davis had participated in one-on-one sessions with her in a Phase 1 group, and an anger management group at Coalinga. She described the Phase 1 group as a discussion of what one could expect if he decided to participate in the sex offender treatment program, i.e., Phases 2, 3, 4, 5, etc. She declined to opine as to whether it was appropriate to release Davis into the community as she was not qualified to render an opinion because she had not conducted, nor was she aware of, any testing indicating he would reoffend. She agreed with his diagnosis of paraphilia, NOS.
Davis's mother and adult daughter testified. Each said that Davis had changed over the years in that he was remorseful for his prior conduct and had taken responsibility for his acts.
Davis testified in his defense. He stated that he raped because he was angry. He indicated that he had low self esteem because of his deformed hands. He testified that he did not feel compelled to commit rape but did so because it made him feel "in control" or because he was "just horny." He stated that he falsely presented himself through his years of incarceration to manipulate the system and obtain placement in housing that he preferred. Davis testified that he would pursue treatment voluntarily.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Davis asserts that there is no sufficient evidence that his mental disorder caused serious difficulty in controlling his behavior. This contention is unavailing.
A. Standard of Review
In reviewing the sufficiency of the evidence to support a person's civil commitment as an SVP, we apply the substantial evidence standard of review. (People v. Mercer (1999) 70 Cal.App.4th 463, 465-466.) "Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, italics omitted.)
We "must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990) 51 Cal.3d 294, 314.) "We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . ." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) Furthermore, "[a]lthough we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (People v. Jones, at p. 314.)
In particular, "[t]he credibility of the experts and their conclusions [are] matters [to be] resolved . . . by the jury," and "[w]e are not free to reweigh or reinterpret [that] evidence." (People v. Mercer, supra, 70 Cal.App.4th at pp. 466-467.) "The testimony of one witness [e.g., an expert witness], if believed, may be sufficient to prove any fact. (Evid. Code, § 411.)" (People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.)
B. Applicable Legal Principles
" '[A]n SVPA commitment proceeding is a special proceeding of a civil nature . . . commenced by petition independently of a pending action' " (People v. Yartz (2005) 37 Cal.4th 529, 536) for the purpose of confining and treating persons identified as SVP's until they are no longer a threat to society. (People v. Allen (2008) 44 Cal.4th 843, 857.) The Act defines an SVP as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welf & Inst. Code, § 6600, subd. (a)(1), italics added.) The Act provides: " 'Diagnosed 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 degree constituting the person a menace to the health and safety of others." (Welf. & Inst. Code, § 6600, subd. (c).)
In determining whether it is likely a person will reoffend, the question is whether the individual presents a "serious and well-founded risk" of committing sexually criminal acts of a predatory nature if set free in the community. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 255.)
The commencement of a proceeding under the SVPA occurs when the secretary of the Department of Corrections and Rehabilitation determines that an inmate appears to meet the SVP criteria and refers the inmate to the DMH for a more thorough assessment. (§ 6601, subd. (b).) The DMH "shall evaluate the person in accordance with a standardized assessment protocol, developed and updated by the [DMH]" and must involve an evaluation by two practicing psychiatrists or psychologists "to determine whether the person is [an SVP]." (§ 6601, subds. (c), (d).) If both professionals concur that "the person has a diagnosed mental disorder [such] that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody," the DMH shall request the filing of a commitment petition in the superior court in the county where the offender was convicted of the crime for which he or she is currently imprisoned. (§ 6601, subds. (d), (i).) If the county's designated counsel concurs with the recommendation, he or she files the petition for commitment accordingly. (§ 6601, subd. (i).)
Once filed, the superior court holds an adversarial hearing on the petition to determine whether there is "probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release." (§ 6602, subd. (a).) If the court finds probable cause within the meaning of the Act, it orders a trial to determine whether the person is an SVP and retains the person in a secure facility until the trial is completed. (§ 6602, subd. ( a).) At trial, the fact finder "shall determine whether, beyond a reasonable doubt, the person is [an SVP]." (§ 6604.) "If the court or jury determines that the person is [an SVP], the person shall be committed for an indeterminate term to the custody of the [DMH] for appropriate treatment and confinement in a secure facility designated by the [DMH]." (§ 6604; see generally People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922 (Ghilotti).)
C. Analysis
Davis's contention that there is no substantial evidence to support a finding that he suffered from a serious lack of ability to control his behavior is based upon facts that he portrays not in the light most favorable to the judgment, but rather in his favor. For example, Davis asserts that in the year preceding his trial, all persons who interacted with him at Coalinga "found his behavior appropriately controlled, his emotions appropriately controlled, and his overall conduct positive." However, an SVP finding does not require evidence that the defendant has engaged in recent manifestations of sexually predatory behavior:
"The fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. . . . Such an assessment must include consideration of his past behavior, his attitude toward treatment and other risk factors applicable to the facts of his case." (People v. Sumahit (2005) 128 Cal.App.4th 347, 353.)
Davis also challenges the prosecution's experts' opinions that his mental disorder caused a volitional impairment that caused a serious difficulty in controlling his behavior. Specifically, Davis first asserts that their opinions were based solely upon his recidivism. However, as detailed, ante, the experts not only evaluated his prior offenses, but his statements to Dr. Di Francesca, his static and dynamic risk factors, the actuarial tests that revealed a high level of risk for reoffense, his conduct while incarcerated, and his refusal to participate in sex offender treatment. The weight to be given the opinions of the People's experts was for the jury to decide. (People v. Ward (1999) 71 Cal.App.4th 368, 374; CALCRIM No. 332.)
Davis asserts that there is no substantial evidence to support the verdict because the People's expert opinions were based upon legal and factual errors. As to the purported legal error, he asserts the experts' understanding of "volitional impairment" was legally incorrect under United States Supreme Court precedent. However, he only cites to Dr. Musacco and Dr. Star's testimony without any citation to legal authority. An appellant must support each point by citation to authority, and the failure to do so permits a reviewing court to disregard that argument. (Cal. Rules of Court, rule 8.204, subds. (a), (e)(2)(B); People v. Stanley (1995) 10 Cal.4th 764, 793.)
Further, the People's experts properly testified as to the meaning of volitional impairment. In Kansas v. Hendricks (1997) 521 U.S. 346, 358, the United States Supreme Court explained that an SVP finding is limited "to those who suffer from a volitional impairment rendering them dangerous beyond their control." In making this finding "there must be proof of serious difficulty in controlling behavior." (Kansas v. Crane (2002) 543 U.S.413.) However, the high court also emphasized that volitional impairment "will not be demonstrable with mathematical precision" in part because psychiatry itself is an ever-advancing, inexact science that is not designed to mirror legal categories. (Ibid.)
Dr. Starr defined volitional impairment as "serious difficulty in controlling . . . deviant sexual interests or desires." Dr. Musacco defined it as follows: "Volitional impairment would be . . . thinking about a process by which we make a decision, and impaired volitional control would either be failing to learn from the negative consequences of our decision or making decisions that lead in some way to some dysfunction." As Dr. Musacco further explained, "When you see multiple crimes followed by punishment, short time frames in the community and reoffense, you see someone who has an impairment in their ability to make sound decisions to lead their life in a way that helps them to be productive and happy." These opinions comport with the United States Supreme Court's definition of "volitional impairment."
As to the purported factual errors in the experts' opinions, Davis asserts they were based upon the erroneous belief he had not sought or received "treatment." However, while it is true that Davis received anger and stress management treatment, what was important to the People's experts was that he refused to participate in sex offender treatment.
Davis also takes issue with Dr. Starr's opinion that he had engaged in repetitive patterns or scripted offenses, committed sexual offenses despite an available sexual partner, was written up three times for sexual misconduct while incarcerated, and assessed his risk of offense with actuarial tools that are not specific to paraphilic rapists. He cites evidence that he asserts show the offenses were not identical, gives an explanation as to why he raped when he had an available partner, and argues the sexual misconduct while incarcerated was remote in time. However, these are issues to argue to the jury and which the jury rejected. Counsel for Davis had the opportunity to cross-examine the experts for the People. Moreover, the court instructed the jury under CALCRIM No. 332 [evaluation of expert testimony] that the weight to be given the experts' opinion was for them to decide, and "[y]ou must decide whether information on which the expert relied was true and accurate."
II. EVIDENTIARY ISSUES
Davis makes four evidentiary challenges on appeal. Specifically he asserts (1) the experts improperly testified as to the ultimate issue in the case: whether he met SVP commitment criteria; (2) the experts improperly presented hearsay evidence to the jury; (3) the court erred by allowing the prosecutor to misrepresent the meaning of "substantial[,] serious and well-found risk" to the public; and (4) the court improperly excluded evidence of the conditions of parole and that he faced a potential "life-top commitment" if he reoffended. These contentions are unavailing.
A. Standard of Review
"In determining whether to admit expert testimony, the trial court has broad discretion, and we may not interfere with that discretion unless it is clearly abused." (People v. Bui (2001) 86 Cal.App.4th 1187, 1196.) " 'A court abuses its discretion when it acts unreasonably under the circumstances of the particular case.' " (People v. Panah (2005) 35 Cal.4th 395, 426.)
B. Analysis
1. Expert testimony on "ultimate issue" of volitional impairment
a. Background
At trial, Davis argued that the experts were not qualified to render an opinion on whether he was volitionally impaired because the concept is one in the law only and outside the area of their expertise. The court took the matter under submission until the experts testified to determine if they could lay an adequate foundation for their opinions. When Dr. Starr testified to the definition of a person who suffers from a volitional impairment, counsel objected on the basis of lack of foundation. The court overruled the objection. However, counsel never objected that the testimony was improper on the basis that it was an ultimate issue in the case.
b. Analysis
As stated, ante, Davis did not object to the experts' testimony on the basis that it embraced the ultimate issue the jury was to decide. Therefore, he has forfeited this issue on appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1171; Evid. Code, § 353.)
Moreover, an otherwise admissible expert opinion is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.) Indeed it is necessary and proper in SVP cases for experts to consider any factor that "is relevant to the ultimate issue whether the person is a substantial danger to reoffend if free in the community . . . ." (Ghilotti, supra, 27 Cal.4th at p. 927.)
Davis also asserts that the experts impermissibly testified as to the meaning of the law. However, the court properly allowed the experts to testify why they believed Davis met the SVP commitment criteria, including the issue of volitional impairment. Their opinions were based upon criminal reports, prison records, psychiatric reports and mental medical evaluations, actuarial assessments, as well as their own interviews. These type of materials were properly considered by the experts in determining "whether [Davis] is a sexually violent predator as defined in [the SVPA]." (§ 6601, subd. (c).)
2. Experts' reliance on hearsay
Davis next asserts the experts did more than rely on hearsay evidence in rendering their opinions—they improperly discussed the hearsay evidence in detail before the jury. Specifically, Davis asserts it was improper for the experts to testify to the statements he made to Dr. Di Francesca. This contention is unavailing.
Davis's admissions he made to Dr. Di Francesca were admissible under an exception to the hearsay rule. Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." The statements made by Davis were admissions by a party that were admissible under Evidence Code section 1220. Indeed, at trial, Davis's counsel admitted his statements to Dr. Di Francesca were admissible under this exception.
3. Prosecutor's statements in closing argument
Davis asserts the court erred in allowing the prosecutor to misrepresent the meaning of "substantial[,] serious and well-founded risk" to the public. We reject this assertion.
a. Background
In her rebuttal argument, the prosecutor stated:
"The definition of 'likely to reoffend," again, it defines it for you in [CALCRIM No.] 3454. There has to be a . . . substantial, serious and well-founded risk that Mr. Davis will engage in this behavior in the future. [¶] So how do we know what that means? Let's look at the opposite of the meanings; the antonyms. Substantial. What would be the opposite of substantial? Insubstantial. That is lacking substance. Is the evidence that Mr. Davis will engage in future sexual crimes insubstantial? The answer to that is no. [¶] What is the antonym for serious? A trivial risk. Is the risk that Mr. Davis presents a trivial risk? The answer to that is no."
At that point defense counsel objected that the prosecutor misstated the law. That objection was overruled.
The prosecutor continued:
"What is well-founded? The opposite of well-founded is unfounded. That is lacking in a basis, in fact. Is the doctors', the People of the State of California's doctors', opinion that Mr. Davis presents such a risk, is it based in fact? Yes, it is."
b. Analysis
A prosecutor in a criminal case can commit misconduct under either federal or state law. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
To preserve a claim of prosecutorial misconduct, a defendant must timely object and request a curative admonition unless an admonition would not have cured the harm caused by the misconduct. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp (1999) 20 Cal.4th 826, 858.) Therefore, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) Alternatively stated, "[a]s a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request." (People v. Cole (2004) 33 Cal.4th 1158, 1201.)
Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct. (People v. Bell (1989) 49 Cal.3d 502, 534, 542); People v. Castillo (2008) 168 Cal.App.4th 364, 386; People v. Crew (2003) 31 Cal.4th 822, 839.) If the prosecutorial misconduct renders the defendant's trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct is harmless beyond a reasonable doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324.)
Davis has waived the right to challenge the above statements as prosecutorial misconduct because, although he objected they misstated the law, he did not request that a curative instruction be provided to the jury. Had he requested that the trial court admonish the jury on the burden of proof, the alleged harm caused by the prosecutor's statements would have been cured. Thus, Davis's claim of misconduct has been forfeited on appeal. (People v. Brown, supra, 31 Cal.4th at p. 553.)
Moreover, even if requesting a curative instruction would have been futile or defense counsel had no opportunity to make such a request because the court immediately overruled his objection, there was no misconduct. The prosecutor discussed the meaning of "likely to reoffend" by referring to the definition in CALCRIM No. 3454. Prosecutors are given wide latitude in closing argument. (People v. Hill (1998) 17 Cal.4th 800, 819.) The prosecutor's comments were not deceptive or reprehensible. (People v. Riggs (2008) 44 Cal.4th 248, 298.)
Moreover, the alleged misconduct was not prejudicial as it did not render Davis's trial fundamentally unfair. The remarks were brief and referred the jury back to the definition provided in CALCRIM No. 3454. Further, in addition to being instructed under CALCRIM No. 3454 as to the SVPA commitment criteria, the jury was instructed under CALCRIM No. 220 on the reasonable doubt standard of proof, and under CALCRIM No. 200, which states in part, "You must follow the law as I explain it to you . . . . If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." We must presume the jury followed the trial court's instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Given the strong and substantial evidence, discussed in detail, ante, that Davis met the SVPA commitment criteria, together with the court's instructions, it is not reasonably probable that Davis would have obtained a finding he was not an SVP had the remarks not been made. (People v. Bell, supra, 49 Cal.3d at pp. 534, 542.)
4. Exclusion of evidence of parole conditions and potential sentence should he reoffend
Davis asserts that the court erred in excluding evidence of his conditions of parole and potential sentences that he risked if he reoffended. We conclude that as to evidence of potential sentences he risked if Davis reoffended he has forfeited that claim. Moreover, we conclude that as to evidence of parole conditions or possible sentences upon reoffending, he was not prejudiced by exclusion of such evidence.
a. Background
The People brought an in limine motion seeking to preclude any reference to the fact that an SVP commitment can be a lifetime commitment. Defense counsel argued the consequences of his potential lifetime commitment was a factor experts would consider in assessing his risk of recidivism.
The court granted the motion, ordering that the jury be instructed not to consider the consequences of their decision and that there be no reference at trial that if someone is determined to be an SVP they may be committed for life.
During his testimony, Davis attempted to tell the jury that if released he would be on parole until 2011. The prosecutor objected and moved to strike that testimony, which the court sustained.
b. Analysis
As detailed, ante, Davis never sought to introduce evidence that if he reoffended he faced the possibility of a life sentence. Therefore, Davis has forfeited that issue on appeal. (People v. Ledesma (2006) 39 Cal.4th 641, 730.)
Furthermore, we conclude that it would have been error for the court to exclude that evidence (and the evidence he sought to admit as to the conditions of his parole if released) had it been excluded, but that any such error was harmless.
In People v. O'Shell (2009) 172 Cal.App.4th 1296, this court concluded that the trial court erred in excluding O'Shell's testimony that he faced a life sentence under the Three Strikes law if he reoffended because it was relevant to whether O'Shell was likely to reoffend in a sexually criminal manner. However, we found the error was harmless. In reasoning the evidence was relevant in an SVP commitment proceeding we stated: "In the instant case, the severe penalties that would be imposed under the Three Strikes law if O'Shell were to reoffend, and his fear of those penalties, had a tendency in reason to increase O'Shell's 'motivation . . . to function lawfully without supervision or restraint despite the [mental] impairment.' [Citation.] In addition, O'Shell claimed that he was willing to attend outpatient treatment for his disorder. His awareness of the severe penal consequence of reoffense bore on 'the credibility and sincerity' of his expressed intent not to reoffend and to seek treatment to avoid doing so. [Citations.] [¶] In sum, O'Shell's testimony as to the consequences of reoffense under the Three Strikes law was not properly excluded as irrelevant. The jury would, of course, be free to disregard the testimony (once admitted) as self-serving and entitled to little weight. Nevertheless, the excluded testimony was not irrelevant and the trial court did not have the discretion to exclude it on that basis." (O'Shell, at p. 1308.)
However, in concluding the exclusion of such evidence was harmless, this court focused on the fact that O'Shell's defense was he did not have a mental disorder, so that even if he was likely to reoffend, he did not meet the SVPA commitment criteria. (O'Shell, supra, 172 Cal.App.4th at pp. 1310-1311.) The court also noted that "the evidence was overwhelming and largely uncontested that O'Shell posed a 'substantial[,]. . . serious, and well-founded risk of reoffending upon release." (Id. at p. 1311.)
Likewise, in this case Davis was not prejudiced by the exclusion of the conditions of his parole and possible sentences he faced upon reoffense. His defense at trial was twofold. First, he argued that he did not suffer from a mental disorder. Second, he argued he was not likely to reoffend because he was not volitionally impaired. Rather, he asserted his past sexual criminal conduct was the result of choice based upon his circumstances: his gang lifestyle, his deformed hands, and hypersexualization based upon prior molestations, not a mental disorder. (Under this theory, even if Davis were likely to reoffend, he did not meet the SVPA commitment criteria. Therefore, his fear of potential sentences would not have assisted in his defense. Moreover, as discussed in detail, ante, there was strong, substantial evidence supporting his commitment. Therefore, there is no reasonable probability that if evidence were introduced as to possible sentences should he reoffend the result would have been different. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III. ALLEGED INSTRUCTIONAL ERROR
Davis asserts the court committed two errors in instructing the jury: (1) the court did not provide a complete instruction on how the jury should evaluate hearsay evidence the experts relied upon; and (2) the court erred when it did not instruct the jury that it had to find that Davis's mental disorder caused "serious difficulty" in controlling his criminal sexual behavior. We reject these contentions.
A. Instructions on Hearsay
1. Background
When Drs. Starr and Musacco testified as to the reports and other records they relied upon in reaching their decisions, the court gave a limiting instruction that the jury was to consider those items only to evaluate the expert's opinion and not "as proof that the information contained in the reports or the records is true."
At the instructional conference, the parties expressly waived any objections to the instructions. The court thereafter instructed the jury under CACRIM No. 332, on evaluating expert testimony. The court also again gave them the same limiting instruction, under CALCRIM No. 360 as to how they were to consider the reports and records the experts relied upon. The court also instructed the jury under CALCRIM No. 358 on how they were to evaluate the evidence of statements Davis made to the experts.
2. Analysis
Davis asserts that "the court left unclear whether [Davis's] statements to Dr. Di Francesca, as reported by Dr. Starr and Dr. Musacco, were to be used for their truth, regardless of whether they were contemporaneously written or recorded or not." However, as detailed ante, his statements were admissible for their truth under Evidence Code section 1220, as party admissions. Therefore he could have suffered no prejudice by the court failing to give a limiting instruction as to whether they could be considered for the truth of the statements made.
Further, if Davis wanted a further limiting instruction, it was up to him to request one. (People v. Dennis (1998) 17 Cal.4th 468, 538 [court has no sua sponte duty to give limiting instruction]; People v. Ferraez (2003) 112 Cal.App.4th 925, 934.) Therefore, he has forfeited this issue on appeal.
B. "Serious Difficulty in Controlling Criminal Behavior" Instruction
1. Background
The court instructed the jury under CALCRIM No. 3454, which tracks the language of the SVPA, that it could not find Davis an SVP unless (1) there existed a predicate condition; (2) he had a current diagnosed mental disorder; (3) as a result of which he would be likely to engage in sexually violent, predatory, criminal behavior; and (4) it is necessary to confine him to ensure the health and safety of others.
CALCRIM No. 3454 further defines the "likely to engage" element as follows: "A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial, serious, and well-founded risk that the person will engage in such conduct if released into the community."
2. Analysis
Our Supreme Court has rejected the notion that a separate instruction is required stating that the defendant has a "serious difficulty" in controlling his criminal sexual behavior as Davis suggests. In People v. Williams (2003) 31 Cal.4th 757, the defendant contended his commitment was invalid because the statutory language of the SVPA did not include the federal constitutional requirement of proof of a mental disorder that caused "serious difficulty in controlling behavior" (Kansas v. Crane, supra, 534 U.S. at p. 413), and "the jury was not specifically instructed on the need to find such impairment of control." (Williams, supra, 31 Cal.4th at p. 764.) Our Supreme Court rejected this argument, holding that the express terms of the SVPA limited persons eligible for commitment to persons "who have already been convicted of violent sexual offenses against multiple victims [citation], and who have 'diagnosed mental disorder[s]' [citation] 'affecting the emotional or volitional capacity' [citation] that 'predispose[ ] [them] to the commission of criminal sexual acts in a degree constituting [them] menace[s] to the health and safety of others' [citation], such that they are 'likely [to] engage in sexually violent criminal behavior' [citation]. (Williams, supra, at p. 759, quoting § 6600, subds. (a)(1), (c).) The court held that this statutory language inherently encompassed and conveyed to the jury the requirement of a mental disorder that caused serious difficulty in controlling criminal sexual behavior. The court concluded that, because the jury instructions tracked the statutory language, including the SPVA's definition of a " 'diagnosed mental disorder,' " no additional instruction was necessary. (Williams, supra, at p. 759.)
Because we have concluded that none of Davis's claims of error have merit, and even if error occurred, no prejudice resulted, we need not address his contention that to the extent any issues have been forfeited by the failure of trial counsel to object, this resulted in ineffective assistance of counsel.
IV. INDETERMINATE TERM OF COMMITMENT
The SVPA, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for a two-year involuntary civil commitment of certain persons following the completion of their prison terms if they were found after a jury trial to be an SVP. (McKee, supra, 47 Cal.4th at p. 1185.) That commitment could not be extended beyond the two-year term unless a new petition was filed requesting a successive two-year commitment and a new jury found beyond a reasonable doubt that the person was currently an SVP. (Ibid.)
In 2006 the SVPA was amended, first by the Legislature (Stats. 2006, ch. 337) and then by the electorate with the passage of Proposition 83, to among other things, provide for an indeterminate term of commitment, "rather than for a two-year term as in the previous version of the Act. An SVP can [now] only be released conditionally or unconditionally if the DMH authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP." (McKee, supra, 47 Cal.4th at p. 1187.)
Davis contends we are required to follow McKee's holding that an indefinite commitment under the SVPA potentially violates an SVP's right to equal protection and to remand the matter to the trial court for reconsideration of this argument in light of McKee. We agree.
After discussing the law and standards applicable to an equal protection claim, the Supreme Court addressed McKee's challenge to the indefinite commitment and release procedures of the amended SVPA in comparison to other civil commitment schemes and concluded that SVP's are similarly situated to persons deemed mentally disordered offenders (MDO's) under the MDO Act (Pen. Code, § 2960 et seq.) and those found not guilty by reason of insanity (NGI's) (Pen. Code, § 1026 et seq.). (McKee, supra, 47 Cal.4th at pp. 1196-1203, 1207.) The court in McKee thus held that absent a showing by the People of a compelling state interest in treating SVP's significantly less favorably than MDO's and NGI's regarding the term of commitment and the burden of proof for release, the SVPA may violate the equal protection clause of the United States Constitution. (Id. at pp. 1203, 1207-1209.)
In remanding the case to the trial court to determine whether the state could establish a compelling interest justifying its disparate treatment of SVP's and whether such treatment was necessary to further legitimate state interests, the McKee court explained that "the government [had] not yet shown that the special treatment of SVP's is validly based on the degree of danger reasonably perceived as to that group, nor whether it arises from any medical or scientific evidence. On remand, the government will have an opportunity to justify Proposition 83's indefinite commitment provisions, at least as applied to McKee, and demonstrate that they are based on a reasonable perception of the unique dangers that SVP's pose rather than a special stigma that SVP's may bear in the eyes of California's electorate." (McKee, supra, 47 Cal.4th at p. 1210, fn. omitted.)
The court in McKee observed that even though fundamental distinctions between classes of persons subject to civil commitment are subject to strict scrutiny, the government may nonetheless make reasonable distinctions, " 'depending on degrees of danger reasonably perceived as to special classes of persons.' " (McKee, supra, 47 Cal.4th at p. 1210, quoting Conservatorship of Hofferber (1980) 28 Cal.3d 161, 171-172.)
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Because McKee is binding upon this court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), we conclude that Davis's indefinite commitment under the SVPA potentially violates his right to equal protection. (McKee, supra, 47 Cal.4th at pp. 1207, 1210.) As in McKee, the record in this case is inadequate to determine whether the state has a compelling interest in justifying its disparate treatment of SVP's, including Davis. (Id. at p. 1210.) We therefore remand this case to the trial court to conduct a hearing consistent with McKee to determine whether the government can "demonstrate the constitutional justification for imposing on SVP's a greater burden than is imposed on MDO's and NGI's in order to obtain release from commitment." (Id. at pp. 1208-1209, fn. omitted.) The admission of evidence at the hearing on remand appropriately rests in the first instance within the sound discretion of the trial court.
DISPOSITION
The indeterminate term of commitment is reversed, and the case is remanded to the trial court for reconsideration of defendant's equal protection argument in light of McKee, supra, 47 Cal.4th 1172, and the final resolution of the proceedings on remand in McKee (see id. at pp. 1208-1210). In this regard, the trial court shall suspend further proceedings in this case pending finality of the proceedings on remand in McKee, including any proceeding in the Superior Court of San Diego County in which McKee may be consolidated with related matters, any subsequent appeal, and any proceedings in the California Supreme Court. In all other respects, the judgment is affirmed.
NARES, Acting P. J. WE CONCUR:
AARON, J.
IRION, J.