Opinion
H044472
01-22-2021
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER EVANS HUBBART, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 140294)
PUBLIC REDACTED VERSION OF OPINION
Appellant Christopher Evans Hubbart was declared a sexually violent predator (SVP) in 2000. In 2013, Hubbart was granted conditional release from custody under Welfare and Institutions Code section 6608. He appeals from the trial court's 2017 order revoking his conditional release in response to a petition filed under Penal Code section 1608 by the director of his outpatient program.
Hubbart contends the judgment must be reversed because (1) the trial court erroneously allowed the district attorney access to his polygraph records prior to the revocation hearing; (2) the court admitted inadmissible evidence of polygraph results at the hearing; (3) the trial court applied the wrong standard of proof; and (4) the trial court's ruling was not supported by substantial evidence. For the reasons set forth below, we affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
Hubbart is a convicted felon with a history of committing violent sex crimes. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1142 (Hubbart I); People v. Hubbart (2001) 88 Cal.App.4th 1202, 1209-1214 (Hubbart II).) He was first ordered committed as a sexually violent predator within the meaning of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) in 2000. (Hubbart II, at pp. 1208, 1216.) In 2007, Hubbart was retroactively ordered committed to the custody of the State Department of Mental Health for an indefinite term, which commitment this court reversed after deciding that the indefinite commitment statute did not operate retroactively. (People v. Hubbart (June 25, 2008, H031896) [nonpub. opn.] at p. 10 (Hubbart III).) In May 2012, Hubbart was committed indefinitely to the California Department of Mental Health. In December 2012, Hubbart filed a petition in Santa Clara County Superior Court for conditional release pursuant to section 6608.
Unspecified statutory references are to the Welfare and Institutions Code.
On May 10, 2013, the trial court granted Hubbart's petition for conditional release. On May 23, 2014, the trial court approved Hubbart's placement at an address in Los Angeles County, and Hubbart was released from Coalinga State Hospital (Coalinga) on July 7, 2014. In connection with his release, Hubbart agreed to and signed a 16-page document setting out the terms and conditions of his release.
In his petition for conditional release, Hubbart had stated that his county of domicile was Los Angeles County.
Hubbart was placed in the California Conditional Release Program (CONREP) operated by Liberty Healthcare (Liberty), a for-profit company that contracts with the California Department of State Hospitals (DSH) to provide supervision and treatment services for SVPs who are conditionally released into the community.
In February 2015, the Los Angeles County District Attorney petitioned pursuant to Penal Code section 1609 to revoke Hubbart's conditional release. On April 29 and 30, 2015, the trial court held a hearing on the petition. On May 11, 2015, the trial court issued a written decision denying the petition, concluding that the People had not carried their burden of showing that Hubbart was a danger to the health and safety of others.
On August 9, 2016, Alan Stillman of Liberty Healthcare sent a letter to the trial court seeking revocation of Hubbart's outpatient status pursuant to Penal Code section 1608 and his return to custody for extended inpatient treatment. That same day, Hubbart was transported from his residence to Coalinga State Hospital.
In the August 9 revocation letter, Stillman stated [REDACTED]
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The trial court held a hearing on Stillman's revocation request on January 9 and 10, 2017. On January 13, 2017, the trial court granted the petition for revocation and ordered Hubbart confined to the state hospital.
Hubbart timely appealed the trial court's revocation order.
B. Testimony at Revocation Hearing
The trial court heard from five witnesses at the revocation hearing.
Timothy Fletcher [REDACTED]
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Polygrapher Candace Elder [REDACTED]
Alan Stillman [REDACTED]
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John Odum [REDACTED]
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Hubbart called Raymond Nelson [REDACTED]
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Stillman testified as a rebuttal witness [REDACTED]
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II. DISCUSSION
A. Government Access to Polygraph Records
1. Additional Background
Hubbart agreed to and signed on April 17, 2012, a 16-page document setting out the terms and conditions of his release for outpatient treatment. Hubbart initialed a paragraph on the first page of the document that reads:
"If you are accepted into Outpatient Treatment, your treatment and supervision will be overseen by a Community Safety Team. . . . With the exception of law enforcement representatives, this group will freely exchange all information related to your treatment and supervision. This information will be used in regular court reports and may be a component of required court testimony. By your initials here, you agree to provide any necessary written authorization to facilitate this exchange of information." Hubbart also initialed a paragraph stating "I agree to submit to polygraph examinations upon the demand of my Outpatient Supervisor. I agree to answer polygraph questions regarding my treatment and any events occurring after my release to outpatient treatment. I also agree to answer questions related to my history of sexually deviant behavior."
On September 23, 2016, the district attorney requested that a subpoena duces tecum be issued pursuant to Code of Civil Procedure section 1985.3 to require the Department of State Hospitals to produce to the district attorney the records of polygraph examinations conducted on Hubbart from July 7, 2014, to the present. [REDACTED]
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Hubbart filed a motion to quash the subpoena and opposed disclosure of the polygraph records. [REDACTED]
On October 4, 2016, the trial court orally denied Hubbart's motion to quash the district attorney's subpoena. The court indicated that it had a "long in-chambers conference with regard to the release of those records and the Court's perception as to what can be released and why." That conference was not reported, and the trial court did not summarize it for the record. Other than the minute order, the trial court did not issue a written order denying the motion to quash. It granted the district attorney's motion to release Hubbart's polygraph records and ordered that they be released subject to a protective order. The protective order was filed on November 30, 2016. Among other provisions, the protective order states "[t]he parties shall use [Hubbart's] polygraph records . . . for the sole purpose of preparing for the second revocation hearing."
In its oral ruling, the trial court did not make any explicit findings with respect to Code of Civil Procedure section 1985. With respect to Hubbart's claim of privilege, the trial court found that Hubbart had made a limited waiver of his right to confidentiality in his polygraph records in the 2012 terms and conditions of his release.
2. Analysis
Hubbart contends the trial court erred in denying his motion to quash. [REDACTED]
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We focus on the legal issues in dispute—namely, whether Hubbart waived his psychotherapist-patient privilege with respect to the records ordered released by the trial court; if not, whether the records fall within the dangerousness exception to the privilege set out in Evidence Code section 1024; and, if the trial court erred in denying the motion to quash, whether that error was prejudicial.
As a discovery order, we review the trial court's ruling denying Hubbart's motion to quash for abuse of discretion. (Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1124.) Under that standard " 'where there is a basis for the trial court's ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court.' " (Ibid.) As part of the abuse of discretion standard, we determine whether the trial court's factual findings are supported by substantial evidence. (Kirchmeyer v. Phillips (2016) 245 Cal.App.4th 1394, 1402.) " ' " 'When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it.' " ' " (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1102 (McDermott Will & Emery); see also Roman Catholic Archbishop of Los Angeles v. Superior Court (2005) 131 Cal.App.4th 417, 442-443.)
Although we are not called upon to decide the question here, we assume, consistent with the trial court's ruling and the parties' positions on appeal, that Hubbart's polygraph records were presumptively protected by the psychotherapist-patient privilege codified at Evidence Code section 1014. Once the privilege is presumptively applicable, "the burden shifts to the party who contends that the privilege is inapplicable because one or more of the statutory exceptions applies." (People v. Gonzales (2013) 56 Cal.4th 353, 372 (Gonzales).)
The trial court found the polygraph records not privileged based on the statutory exception of waiver. Evidence Code section 912 delineates the scope of the waiver exception. It provides in relevant part "Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section . . . 1014 (psychotherapist-patient privilege) . . . is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege." (Evid. Code, § 912, subd. (a).)
The trial court concluded that Hubbart gave a limited waiver of his psychotherapist-patient privilege when he signed the terms and conditions of his release. Although the trial court did not specifically identify the waiver language upon which it relied, the Attorney General points to a paragraph on the first page of Hubbart's terms and conditions of release, which Hubbart initialed, that reads "If you are accepted into Outpatient Treatment, your treatment and supervision will be overseen by a Community Safety Team. . . . With the exception of law enforcement representatives, this group will freely exchange all information related to your treatment and supervision. This information will be used in regular court reports and may be a component of required court testimony."
We agree that, by agreeing to this condition of outpatient treatment, Hubbart waived his psychotherapist-patient privilege with respect to the polygraph records relevant to the revocation hearing. As part of the terms and conditions of his release, Hubbart explicitly agreed to undergo polygraph examinations. The agreement also states that the community safety team will exchange "all information" about his treatment and supervision which "may be a component of required court testimony."
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Hubbart argues on appeal that his waiver did not encompass release of treatment information to the district attorney. Indeed, the waiver language specifically excepted law enforcement representatives on the community safety team from the exchange of all information about his treatment. Even assuming this exception means that the district attorney was to be excluded from any exchange by the community safety team of information regarding Hubbart's polygraphs, Hubbart mistakes the nature of the release of information here. Hubbart's polygraph information was not released to the district attorney in its role as a member of the community safety team overseeing Hubbart's treatment. Instead, as delineated by the protective order, the court ordered the polygraph records released only for use at the revocation hearing.
At the revocation hearing, the district attorney presented the evidence in support of Stillman's request that Hubbart's release be revoked. To perform this role, the district attorney necessarily had to have access to the relevant materials underlying Stillman's request. As this court has stated in the context of the initial SVP commitment, "the prosecutor plays an integral role in achieving its purposes. . . . [W]here the Director of Mental Health has submitted a request for an SVP commitment, the prosecutor is vested with the authority to decide whether to file a petition and, therefore must make an independent determination. (§ 6601, subd. (i).) To perform this function, the prosecutor must be able to review the bases for a requested commitment, including the reports prepared by psychological evaluators and the documentary evidence they relied upon in preparing their reports. (See § 6601, subds. (d) & (h).)" (People v. Martinez, 88 Cal.App.4th 465, 480.) While there are differences between the initial SVP commitment and a petition for revocation under Penal Code section 1608, the prosecutor's role in each requires that the prosecutor have pre-hearing access to the materials that form the basis of the requested action.
It is true that the waiver language Hubbart signed does not explicitly reference the psychotherapist-patient privilege. However, Hubbart cites no authority, and our independent research has not located any, for the proposition that under Evidence Code section 912, the waiver must necessarily and specifically describe the privilege. Indeed, the text of the statute is inconsistent with such a requirement, as waiver can be "manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure" (Evid. Code, § 912, subd. (a)) without reference to any additional requirement that the privilege be specifically identified by its holder.
We recognize that any waiver of the privilege should be " 'narrowly construed and limited to matters "as to which, based upon [the patient's] disclosures, it can reasonably be said [the patient] no longer retains a privacy interest." ' " (In re M.L. (2012) 210 Cal.App.4th 1457, 1469; see also Mathews v. Becerra (2019) 8 Cal.5th 756, 771.) Nevertheless, we determine that the records ordered released by the trial court fell within the scope of Hubbart's waiver. Hubbart specifically agreed that records of his treatment and supervision could be used as "a component of required court testimony." By agreeing to their use for that purpose, he necessarily agreed to their disclosure to the district attorney solely for their use in conjunction with court testimony.
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The protective order issued by the trial court limited the release of those records solely for use in conjunction with the revocation hearing. In addition, Hubbart did not present any contrary evidence about his own understanding of the waiver language or evidence that he was coerced into signing the agreement. Therefore, substantial evidence supports the trial court's implied factual findings underlying its conclusion the waiver exception applied—factual findings to which we defer on appeal. (See McDermott Will & Emery, supra, 10 Cal.App.5th at p. 1102.) Further, we see nothing in the record that, as a matter of law, undermines application of the waiver exception.
In support of his argument against waiver, Hubbart cites to the California Supreme Court's decision in Gonzales, supra, 56 Cal.4th 353. However, that case does not assist him because the California Supreme Court in that case explicitly did not examine waiver. (See id. at pp. 377-378.) In Gonzales, the trial court did not rely upon a consent or waiver theory when ordering the disclosure of therapy records. (Ibid.)
For these reasons, we agree with the trial court that the requested records fell within Hubbart's limited waiver of his psychotherapist-patient privilege and conclude that it did not abuse its discretion in denying Hubbart's motion to quash. In light of this decision, we do not reach the Attorney General's alternative arguments [REDACTED]
B. Admission of Polygraph Evidence
1. Additional Background
a. Motion in Limine to Admit Polygraph Evidence
Prior to the revocation hearing, the People moved to introduce Hubbart's polygraph exams and the pre- and post-polygraph interview conducted by John Odum on March 7, 2016. The district attorney contended Hubbart's statements were not privileged. Hubbart filed a motion in limine to exclude evidence about the polygraph results from the hearing.
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In a preliminary hearing on the in limine motion, the trial court stated "once I find out how the polygraph information is going to be used, if at all, then I'll make a determination as to whether or not the Kelly-Frye test needs to be invoked and whether or not we need to have a separate hearing with regard to how that evidence is going to be used."
The trial court held a hearing on the motion in limine on December 20, 2016. [REDACTED] [REDACTED]
b. Order on Revocation Petition
In its written decision approving the petition for revocation of conditional release, the trial court discussed the polygraph evidence. It stated, "[t]here was much testimony about the value and validity of polygraphs. All witnesses conceded that they are not foolproof and have limited usefulness. There was expert testimony on both sides about how they were used (or misused) in this case. Stillman testified that they are only a tool that, in this case, helped disclose that [Hubbart] was 'holding back' information, which [Hubbart] admitted after being confronted with the results of the polygraphs."
The court summarized Stillman's testimony about Stillman's consideration of the polygraph information. "Stillman conceded that the polygraphs were an imperfect tool but have some usefulness as a treatment tool with SVPs. Failure of a polygraph alone would not be a reason to revoke. What Stillman said bothered him the most was the deception he believed it revealed that [Hubbart] was not fully forthcoming in his treatment. He said [Hubbart] was 'parceling out information.' He noted that [Hubbart] had made progress and Stillman wanted him to be successful but concluded that more treatment was necessary. In May of 2016 Mr. Stillman delivered a warning letter to [Hubbart] about his 'failed' polygraphs and imposed sanctions for his failures, canceling his volunteer position and restricting his travel. When [Hubbart] 'failed' another polygraph in July, Stillman decided that 'he did not know what else was in there' and 'the best decision' was to send [Hubbart] back to Coalinga."
With respect to "counter measures," the trial court said Stillman "noted that the polygraph examiners believed that [Hubbart] was using 'counter measures' (labored breathing, pressure on cardio cuff, etc.) in one exam to thwart an accurate polygraph test. Ultimately, [Stillman] concluded that [Hubbart] was 'not coming to grips with his distorted thinking.' " The trial court observed that Stillman found that Hubbart had breached his "treatment plan," based on the findings by Elder and Odum that Hubbart had used " 'counter measures' " in one exam. The trial court also stated that Nelson (Hubbart's expert witness) "disputed the conclusion that [Hubbart] had used " 'counter measures' " and contended that the data did not support that conclusion and any discrepancy in the data only showed an involuntary reaction." The trial court noted Nelson's observation that Elder and Odum's conclusions about counter measures was " 'not scientific.' "
In its order, the trial court did not specifically mention whether it found Hubbart had engaged in counter measures or make any explicit factual findings about its consideration of the polygraph evidence.
c. Contentions on Appeal
Hubbart argues that, despite the trial court's in limine ruling, the district attorney in fact introduced the results of the polygraphs and expert opinion derived from the results of the polygraphs, and the trial court considered them for their truth. As the trial court had not held a Kelly hearing on the admissibility of polygraph evidence, the trial court therefore prejudicially erred by admitting the evidence.
Hubbart acknowledges that polygraphs have "some use" in an SVP treatment program but argues they "are not reliable indicators of truth." In addition, Hubbart maintains the trial court erred under Evidence Code section 801, subdivision (b) in allowing expert testimony in which experts based their opinions about the results of the polygraph examinations, although he acknowledges his counsel at the hearing did not specifically object to the testimony under Evidence Code section 801. [REDACTED]
Hubbart contends that the improperly admitted evidence was prejudicial under the standards of People v. Watson (1956) 46 Cal.2d 818 (Watson) because evidence about the polygraphs underlay the bases upon which Stillman sought revocation and this was a close case. In addition, the trial court's acceptance of Stillman's conclusion that Hubbart had held back evidence during the polygraphs implicitly relied upon the truth of the polygraphs "because otherwise there would be no point in referencing polygraphs in this context." Hubbart concedes that he admitted that he had held back information related to "one admission" (presumably the Coalinga incident) but argues that that incident was "not significant."
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With respect to Hubbart's claim under Evidence Code section 801, subdivision (b), the Attorney General asserts that Hubbart forfeited the claim by failing to object on this basis to admission of the evidence and, in any event, it fails on the merits. [REDACTED]
Hubbart replies that the California Supreme Court did not decide in that case whether polygraphs are scientifically reliable.
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2. Analysis
An SVP commitment is not a criminal proceeding but a special proceeding of a civil nature. (People v. Yartz (2005) 37 Cal.4th 529, 532.) A hearing on whether to revoke an SVP's outpatient status is likewise not a criminal proceeding. (People v. Sword (1994) 29 Cal.App.4th 614, 635 (Sword).) Therefore, Evidence Code section 351.1 does not bar the admission of polygraph results or the opinions of a polygraph examiner in a revocation proceeding. (See People v. Fields (2009) 175 Cal.App.4th 1001, 1017 (Fields).)
This statute provides, "(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results. [¶] (b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible." (Evid. Code, § 351.1.)
"Under the Kelly/Frye (or simply "Kelly") inquiry applicable in California courts, 'when faced with a novel method of [scientific] proof, [we] have required a preliminary showing of general acceptance of the new technique in the relevant scientific community' before the scientific evidence may be admitted at trial." (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 831.) In cases that are civil in nature, a party seeking the admission of polygraph evidence must show it is generally accepted as reliable in the scientific community under the principles announced in Kelly. (In re Jordan R. (2012) 205 Cal.App.4th 111, 122, 132-133.) We review the erroneous admission of evidence in an SVP proceeding under the prejudicial error standard set forth in Watson, supra, 46 Cal.2d at p. 836, and in so doing "must determine whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (Gonzales, supra, 56 Cal.4th at p. 388; see also Fields, supra, 175 Cal.App.4th at p. 1018 [applying Watson standard to erroneous ruling on polygraph evidence in an SVP proceeding].)
Hubbart acknowledges the trial court in its ruling on the motion in limine excluded the polygraph information as evidence of whether the statements Hubbart made during the polygraphs were true or false. Therefore, Hubbart's contention that the trial court erred by not holding an evidentiary hearing under Kelly turns on whether evidence in the form of witnesses' testimony about the polygraphs was in fact admitted (contrary to the trial court's ruling) for the purpose of showing whether Hubbart lied in his answers to the polygraphs.
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"It is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties." (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) [REDACTED]
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In its written decision revoking Hubbart's conditional release, the trial court used quotations around any reference to Hubbart's "failure" of the polygraph, indicating that it did not accept those statements at face value.
Instead of using the polygraph information as direct evidence of whether Hubbart was not complying with his outpatient treatment, in its order on the revocation request, the trial court likened polygraphs to an investigative tool that led to subsequent disclosures by Hubbart. Hubbart does not assert that his disclosures were involuntary—indeed courts have upheld on voluntariness grounds the admission of defendants' statements in response to a polygraph accompanied by outright false polygraph results. (See e.g., People v. Mays (2009) 174 Cal.App.4th 156, 164.) Based on the trial court's discussion of the polygraph evidence in its revocation order and Hubbart's own independently admissible statements, we decide that Hubbart has not demonstrated prejudicial error in the testimony given at the hearing about failed polygraphs.
We reach a similar conclusion with respect to Hubbart's argument that the testimony at the hearing related to "counter measures" by Hubbart was also erroneously admitted because the trial court did not hold a Kelly hearing on the method by which Elder determined that Hubbart in fact engaged in counter measures. While the trial court noted the testimony about counter measures—and equally described Nelson's testimony that Elder's conclusion about counter measures was not reliable—it does not appear from the trial court's order that it relied on the evidence about counter measures when making its decision to grant the revocation request. We conclude that Hubbart has not shown prejudicial error in the testimony related to counter measures. (See Watson, supra, 46 Cal.2d at p. 836.)
We turn now to Hubbart's contention that the trial court erred under Evidence Code section 801, subdivision (b), in allowing experts to testify about the polygraph tests because polygraph evidence is inherently unreliable. It is true that the trial court did not find, and case law has not established, that polygraphs are a reliable method of determining whether a person is lying. However, Hubbart's argument confuses the evidentiary value (or lack thereof) of polygraph evidence with the reliability of polygraphs as a part of the treatment model for sex offenders—[REDACTED]
This statute provides "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] . . . [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801, subd. (b).)
The California Supreme Court has described the containment model in the context of mandatory probation conditions for sex offenders: "According to the theory of the model, a polygraph examination (or the threat of one) encourages the offender to be more complete and accurate when detailing his or her sexual history, provides a method of verifying whether the offender is currently engaging in or planning to engage in unlawful behavior, and helps disrupt the pattern of denial that ' "is generally regarded as a main impediment to successful therapy." ' " (Garcia, supra, 2 Cal.5th at p. 801.)
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As noted by one court over thirty years ago, "Polygraph tests are deemed unreliable for evidentiary purposes. (Evid. Code, § 351.1; [citations].) However, this is an evidentiary rule and does not preclude the use of such tests for investigative purposes. [Citation.] In fact, polygraphs are commonly used and have value as an investigative tool." (People v. Miller (1989) 208 Cal.App.3d 1311, 1314-1315.) We therefore reject Hubbart's contention that the trial court erred in considering expert evidence about the use of polygraphs as an investigative tool.
For these reasons, we conclude the trial court did not prejudicially err in its admission of evidence related to polygraphs. We next turn to Hubbart's contentions that the trial court used the wrong standard when considering Stillman's request under Penal Code section 1608 to revoke Hubbart's outpatient release and its decision to grant that request lacked substantial evidence.
C. Standard of Proof Applied by the Trial Court and Sufficiency of the Evidence for Revocation
1. Additional Background
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In its order granting Stillman's request for revocation, the trial court stated "the people, in this case are required to show that there is substantial evidence to support the 'opinion' of the outpatient treatment supervisor that [Hubbart] requires extended inpatient treatment to grant his request to revoke outpatient treatment and return [Hubbart] to the State Hospital." The court described Stillman as "a very experienced therapist who has been the outpatient supervisor for every SVP in California for the last seven years." The court summarized the evidence that had been presented at the hearing but did not make any explicit factual findings about what Hubbart had or had not done. The court stated, "Stillman contended that in his opinion there was a need for inpatient treatment of [Hubbart]. He said he based this on feedback he received from the treatment team and his clinical judgment that such inpatient therapy was necessary. [¶] This court cannot second guess this opinion and finds that there is sufficient evidence that justifies the revocation request. Consistent with the decision in People v. DeGuzman (1995) 33 Cal.App.4th 414 (DeGuzman), the court finds that there is a preponderance of evidence supporting the request for outpatient revocation."
2. Analysis
a. Contentions on Appeal
Hubbart contends the trial court applied the wrong standard of proof at the revocation hearing. Citing the "vast difference between what the trial court was supposed to decide and what it actually decided," Hubbart argues the trial court was supposed to consider all the evidence and "decide whether the government had proven by a preponderance of the evidence that [Hubbart] required extended in patient [sic] treatment. Instead, the trial court only decided there was substantial evidence to support Stillman's decision to request the revocation of [Hubbart's] outpatient status." Hubbart contends this error was prejudicial because it shifted the burden from the government to prove by a preponderance of evidence that he required inpatient treatment to Hubbart to prove there was no substantial evidence that he needed further inpatient treatment.
In addition, Hubbart asserts that the trial court's conclusion that he required extended inpatient treatment lacked substantial evidence. Hubbart maintains that some of the grounds on which Stillman sought revocation of outpatient treatment—such as that Hubbart failed polygraph exams—were not supported by substantial admissible evidence. Other allegations might be "partially correct," but Hubbart argues they "would not have caused any rational person to determine that [Hubbart] needed extended inpatient treatment." Hubbart contends that only his post-June 2016 conduct is relevant to the revocation request, because before that date Liberty Healthcare did not believe his release should be revoked. Hubbart maintains that the "only developments that occurred after that date were the statements by [Hubbart] about not having to disclose everything to the polygrapher and one more polygraph failure." He asserts that these facts do not constitute substantial evidence in support of the trial court's order revoking his release.
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b. Legal Principles
An SVP shall be conditionally released if the court at a conditional release hearing "determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community." (§ 6608, subd. (g).) " 'Outpatient status is not a privilege given the [committed person] to finish out his sentence in a less restricted setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [committed person] and cause no undue hazard to the community." (Sword, supra, 29 Cal.App.at p. 620.) Persons placed in the conditional release program are subject to Penal Code sections 1605 through 1610. (§ 6608, subd (h).) Penal Code sections 1608 and 1609 set out the standards for requests for revocation of an SVP's conditional release.
Revocation of an individual's outpatient status can be initiated by the director of an outpatient program (Pen. Code, § 1608) or by the prosecution (Pen. Code, § 1609). Penal Code section 1608 provides that the director of the outpatient program may file a written request for revocation if the outpatient treatment supervisor believes that the patient "requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision." (Pen. Code, § 1608.) A trial court may order a person's conditional release revoked under Penal Code section 1608 if it finds that "(1) 'the person requires extended inpatient treatment' or, (2) 'refuses to accept further outpatient treatment and supervision.' " (In re McPherson (1985) 176 Cal.App.3d 332, 339 (McPherson).) The revocation procedure under Penal Code section 1608 does not require a determination that an individual is mentally ill or dangerous; instead, it asks whether circumstances have changed such that the individual is no longer suitable for treatment as an outpatient. (See DeGuzman, supra, 33 Cal.App.4th at pp. 419-420.)
In reviewing an order revoking outpatient status under Penal Code section 1608 or 1609, we uphold the trial court's factual findings if supported by substantial evidence (DeGuzman, supra, 33 Cal.App.4th at p. 420) and apply the abuse of discretion standard to the court's decision to revoke outpatient status (see Sword, supra, 29 Cal.App.4th at p. 619, fn. 2 [abuse of discretion applied to decision to deny outpatient status]). We review the sufficiency of the evidence in SVP cases under the substantial evidence test used in criminal appeals. (People v. McCloud (2013) 213 Cal.App.4th 1076, 1088.) " 'Thus, this court must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be " 'of ponderable legal significance . . . reasonable in nature, credible and of solid value.' " ' " (Ibid.)
c. No Reversible Error
We turn first to Hubbart's contention that the trial court applied the wrong standard of proof. The trial court stated in at least one portion of its order that "the people, in this case, are required to show that there is substantial evidence to support the 'opinion' of the outpatient treatment supervisor that [Hubbart] requires extended inpatient treatment to grant his request to revoke outpatient treatment and return [Hubbart] to the State Hospital." However, under Penal Code section 1608, the trial court in a hearing on a request for revocation conducts a "de novo" hearing (DeGuzman, supra, 33 Cal.App.4th at p. 420) to determine whether the People have proved, by a preponderance of evidence, that "(1) 'the person requires extended inpatient treatment' or, (2) 'refuses to accept further outpatient treatment and supervision.' " (McPherson, supra, 176 Cal.App.3d at p. 339.) It is the appellate court—not the trial court—that reviews whether the trial court's decision is supported by substantial evidence. (Id. at pp. 341-342.)
Nevertheless, we do not agree that the language of the trial court's order supports a conclusion that the trial court employed the wrong standard of proof in its decision to revoke Hubbart's outpatient release. Importantly, the trial court's order twice cites the correct standard of proof. The order provides that "[t]he burden is on the state to show that the revocation is appropriate by a preponderance of evidence. People v. DeGuzman (1995) 33 Cal.App.4[th] 414, at [p.] 420." Therefore, in its order the trial court accurately recited both the standard of proof applicable at the hearing and cited the leading case on the burden and standard of proof at a revocation hearing. Further, the trial court stated: "the court finds that there is a preponderance of evidence supporting the request for outpatient revocation." Again, this language demonstrates the trial court's awareness of the applicable standard of proof and that the district attorney—not Hubbart—bore the burden of persuasion.
We do not agree with Hubbart that the court's statement that it " 'cannot second guess' Stillman's opinion" that Hubbart's release should be revoked demonstrates the trial court in fact shifted the burden of proof to Hubbart to prove there was no substantial evidence that he needed further inpatient treatment. The court's order does not suggest that Hubbart bore any burden of proof. Instead, we read the trial court's statement as a finding that it credited Stillman's conclusion that Hubbart's release should be revoked and viewed him as an expert in the treatment of SVPs. Reading the order as a whole, we do not agree that the trial court misapplied the standard of proof and misallocated the burden of proof from the prosecution to Hubbart.
We now consider whether the trial court's decision that Hubbart required extended inpatient treatment lacks substantial evidence. It is clear that the trial court credited Stillman's expert opinion that Hubbart needed extended inpatient treatment. The trial court cited Stillman's extensive experience in treating SVPs. [REDACTED]
[REDACTED]
In his arguments in this court, Hubbart attacks these conclusions, arguing there are innocent explanations for these statements and questioning whether he had, in fact, withheld information. Our task on appeal, however, is not to make de novo evidentiary determinations. " 'In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment.' " (People v. Sumahit (2005) 128 Cal.App.4th 347, 352.)
Although Hubbart argues that, when considering only the admissible evidence presented at the revocation hearing, no "rational person" would determine Hubbart needed further inpatient treatment, he cites no authority for this statement. [REDACTED]
Similarly, Hubbart cites no authority for his contention that the trial court was limited to considering post-June 2016 conduct in making its decision on the revocation request. We see no reason why it would be improper for the trial court to consider any earlier conduct (as of the date upon which the trial court had denied the district attorney's prior revocation request made under Penal Code section 1609) in deciding whether Hubbart's conditional release should be revoked because he needed extended inpatient treatment.
For these reasons, we do not agree that the trial court committed reversible error in reaching its determination that Hubbart's conditional release should be revoked.
D. Remaining Arguments on Appeal
Hubbart makes a number of other arguments that we need not decide in light of the conclusions we have already reached. He contends that, if we reverse the judgment of the trial court, we should order that Hubbart be conditionally released. He maintains that, to the extent we find any of his arguments forfeited for failure to object in the trial court, his trial counsel was constitutionally ineffective. Finally, he argues that multiple errors, even if not individually prejudicial, were cumulatively prejudicial. As we have not reversed the trial court's judgment, found any alleged errors forfeited by failure to raise them in the trial court, or identified multiple errors by the trial court, we do not address these contentions.
We recognize that the conditions of Hubbart's release were extremely challenging. [REDACTED]
The trial court shared these concerns. In its order, the trial court stated "The actions of the Los Angeles District Attorney's Office and the Los Angeles Sheriff's Office were, in this court's view, reprehensible. The Sheriff was less than cooperative with the outpatient team, hampering success of the placement. The District Attorney's Office brought a [Penal Code section] 1609 action in 2015 that was wholly without merit, has filed another, and, most seriously, interfered with the therapy by, in [Hubbart's] view, [] a continuing pattern of seeking revocation that appears to this court may be the reason [Hubbart] withheld information from the polygraph examiner. That led to this revocation petition. Their actions, therefore, undermined the treatment and were contrary to the intent of the statute."
These findings by the trial court raise concerns about the conditions of Hubbart's release. [REDACTED] Based on our review of the record, the trial court's conclusion to revoke Hubbart's conditional release was supported by substantial evidence and does not constitute an abuse of discretion. To the extent that Hubbart in effect attacks the conditions of his release, the appropriate procedural vehicle for that challenge would have been a petition for writ of habeas corpus. (See People v. Ciancio (2003) 109 Cal.App.4th 175, 193.) We make this observation not to condone the actions of Los Angeles County officials, as found by the trial court, but merely to note the limits of our appellate review in this matter.
III. DISPOSITION
The order revoking conditional release is affirmed.
/s/_________
Danner, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Grover, J.