Opinion
A129233
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE RUDY KIRK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR-9373 & SCR15533)
Lawrence Rudy Kirk appeals from a judgment recommitting him to the Department of Mental Health (DMH) for an indeterminate period as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He contends the judgment must be reversed because (1) he had not committed a recent overt act when he was originally declared an SVP, thus depriving the court of fundamental jurisdiction; (2) the evidence was insufficient to prove he suffered from volitional impairment as a result of a mental disorder; (3) the court should have limited testimony by the People's experts about out-of-court statements on which they relied to form their opinions, and should have excluded documentary evidence showing that he had been previously diagnosed as a pedophile; (4) the prosecution should not have been permitted to call him as a witness at trial; (5) inadmissible evidence of his prior SVP commitments was presented to the jury; (6) the court should have instructed the jury sua sponte that it must unanimously agree he suffered from pedophilia; (7) the court should have given a sua sponte instruction quantifying the risk of reoffense necessary to support a commitment; (8) his commitment for an indeterminate period under an amended version of the SVPA violates various constitutional rights; and (9) cumulative trial error requires reversal.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We agree with appellant that under People v. McKee (2010) 47 Cal.4th 1172, he is entitled to a remand so the trial court can consider his claim that his indeterminate commitment under the current SVP scheme violates his right to equal protection under the law. We reject the remainder of his arguments.
BACKGROUND
In 1964, when appellant was 19 years old, he sexually assaulted 17-year-old Sandra L. and was convicted of statutory rape.
In 1972, appellant went to the home of 12-year-old Cynthia B., whom he had met at his sister's house, and attempted to enter her bedroom by removing the window screen.
In 1978, appellant met eight-year-old Linda E., whose mother was a drug dealer and was not very protective. He picked Linda up from school one day and took her to his house, where he forced her to have vaginal intercourse and gave her gonorrhea. Appellant told Linda afterward that he would kill her mother and father if she told anyone what he had done. He was convicted of lewd conduct with a child under Penal Code section 288, subdivision (a), found to be a mentally disordered sex offender (MDSO), and committed to Patton State Hospital for treatment. While at Patton, appellant told a Dr. Apostle that he desired children and had lost his sexual interest in adults.
In 1984, after his release from Patton, appellant began dating the aunt of nine-year-old Heidi and five-year-old Jamie. While visiting their home, he began tickling the girls and touched Jamie between the legs. He also put his elbow on Heidi's vaginal area and pressed against her so hard that it hurt. Appellant was convicted of lewd conduct under Penal Code section 288, subdivision (a) and sentenced to prison, but this conviction was later reversed and he was convicted instead of the lesser offense of annoying or molesting a child under Penal Code section 647, subdivision (a). Appellant was released from prison custody in 1986.
In 1987, appellant met Melissa C., the 13-year-old daughter of a woman he had befriended. Appellant stopped by their house on a day when Melissa was sick and had stayed home from school. Finding her alone, appellant prepared Melissa a tea that made her feel woozy before orally copulating her and penetrating her vagina with his penis and fingers. In March 1988, he came to Melissa's house and forced her to have sex. Appellant was convicted of several counts of lewd conduct with a child under Penal Code section 288, subdivision (a) and was sentenced to prison.
An SVP petition was filed in 1999. Appellant was determined to be an SVP in December 2000, and was committed to DMH for a two-year period as the law then provided. Appellant was recommitted for two-year periods on petitions filed in 2002 and 2004; the second of these recommitments was reversed on appeal and remanded for retrial after this court determined that appellant's trial attorney should have objected to using the opinions of nontestifying doctors as substantive evidence of current mental condition. (People v. Kirk, A111308 (nonpub. opn. filed Feb. 1, 2007).)
Additional recommitment petitions were filed in 2006 and 2008, the second of which sought an indeterminate commitment pursuant to recent amendments in the SVPA. These petitions, as well as the retrial on the 2004 petition, were consolidated in February 2010. A jury trial commenced June 7, 2010.
As part of the recommitment process, appellant was evaluated by Jeremy Coles, Ph.D., who testified as a witness for the People. Dr. Coles diagnosed appellant as having pedophilia and a personality disorder with antisocial and narcissistic traits, both of which qualify as mental disorders. Although appellant was 65 years old, an age at which recidivism rates drop significantly, Dr. Coles believed that appellant was likely to engage in sexually violent predatory acts if released. He defined "likely" to mean a serious and well founded risk.
In formulating his opinion that appellant was likely to reoffend, Dr. Coles considered appellant's lengthy criminal history. He also considered appellant's behavior while institutionalized, which included verbal abuse and sexually tinged comments to female staff members; his failure to complete the sex offender treatment available to him at the state hospital; his belief that he no longer suffers from pedophilia and is not a risk; and his "hypersexuality," as evidenced by a history that included over a thousand sexual partners of both genders. According to Dr. Coles, appellant lacked insight into his condition and tended to blame his victims, having stated that 13-year-old Melissa was a prostitute and that eight-year-old Linda had "come on to him." Dr. Coles had also utilized actuarial instruments to evaluate appellant's risk of reoffense, including the Static-99 (which placed appellant at a high risk of reoffense) and the Static-99R (which placed appellant at a low to moderate risk of reoffense).
The Static-99 is a 10-item actuarial assessment instrument created for use with adult male sexual offenders that is designed to estimate the probability of sexual and violent recidivism. (See People v. Reynolds (2010) 181 Cal.App.4th 1402, 1410, fn. 5.) The Static-99R is a newer version of the instrument that accounts for age as a mitigating factor.
Appellant was also evaluated by Dawn Starr, Ph.D., a forensic psychologist who met with him several times between 2002 and 2010. Like Dr. Coles, Dr. Starr diagnosed appellant as suffering from pedophilia and a personality disorder with antisocial and narcissistic features. Dr. Starr explained that a diagnosis of pedophilia under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) was not enough to qualify a person for an SVP commitment; volitional impairment as a result of the mental disorder was also required. In Dr. Starr's opinion, appellant's history showed that he suffered from volitional impairment.
In support of her opinion, Dr. Starr noted that appellant had a history of minimizing his offenses. He tended to inflate the victims' ages, had blamed his eight-year-old victim for initiating sexual contact, and had said he was imprisoned for "tickling" the five- and nine-year-old victims in 1984. According to Dr. Starr, appellant's diagnosis of a personality disorder with antisocial features in addition to pedophilia was like "gas on a fire" because he had deviant urges and did not care about society's rules. She noted that his behavior while institutionalized had been poor, also suggesting an inability to follow rules. He did not believe he needed sex offender treatment and had taken no steps to lower his risk of reoffense.
Dr. Starr had given appellant a score of 5 on the Static-99R, which placed him in the moderate/high risk category, and correlated with a reoffense rate of 25.2 percent over five years and 35.5 percent over 10 years. Dr. Starr also evaluated appellant using the Hare Psychopathy Checklist, scoring him as a 31, or in the severe range of psychopathy. According to Dr. Starr, individuals with psychopathy scores in the severe range do not show the same age-related decrease in recidivism as other individuals.
Appellant was called as a People's witness at trial and asked a number of questions about his history of committing sexual offenses and his attitudes toward the victims. He denied assaulting 17-year-old Sandra in 1964, claiming that they had consensual sex but that she had lied because she did not want her parents to be upset with her. Concerning eight-year-old Linda, he testified that he had picked her up from school at her mother's request and taken her to the property where he was living, but had not thought about molesting her until they were in the car together and she told him he had a nice body. Appellant claimed that he masturbated on Linda's stomach but did not have intercourse with her; he explained her gonorrhea infection as possibly the result of wearing her mother's clothes, as he and her mother had participated in an orgy together.
A defendant in an SVP proceeding has no Fifth Amendment right to refuse to testify and may be called as a prosecution witness. (People v. Leonard (2000) 78 Cal.App.4th 776, 792-793.)
Asked about the 1984 incident involving Heidi and Jamie, appellant claimed he had just been tickling the girls and accidentally fell on the older one and hit her pubic bone with his elbow. His conviction for lewd conduct was reversed and he pled guilty to annoying and molesting a child because his mother was dying and he wanted to get out of custody. As for 13-year-old Melissa, appellant denied drugging her tea and claimed that they had consensual sex after she pulled down her pants and asked him whether he thought she was too fat. He acknowledged telling people that Melissa was a prostitute, explaining that he did so to protect himself in prison, where having sex with an underage prostitute would be viewed more kindly than child molestation. He acknowledged writing a letter to another inmate in 2002 in which he said, "I paid a hooker $30, and I got 15 years, because she turned out to be 13. But to look at her, you would never have guessed she was that young. I don't know where or how she got started doing that, but I can tell you this, though, she was grate [sic]. Maybe not 15 years worth."
Appellant admitted that he had been a pedophile but believes his pedophilia went away in 2006 or so, after he had taken some classes at Coalinga State Hospital. He viewed his pedophilia as learned behavior, having been molested repeatedly by his sister while growing up. Appellant had only participated in phases one and two of the four-phase sex offender treatment program offered by DMH, and he did those only because he had to. He admitted that he acted impulsively and had lost his volitional control when he had sex with Linda and Melissa. He claimed to have developed empathy for his victims through theology classes he took at Folsom prison, noting, for example, that it must have been really difficult for Melissa to know that he had sex with her mother after he had sex with her.
Melissa's mother testified at trial and described appellant as an acquaintance with whom she did not have a dating relationship.
In support of his claim that that he no longer suffered from pedophilia and did not present a current risk, appellant presented the testimony of Dr. James Park, a psychologist who worked with parolees in Chico, California, where appellant intended to move if released. Dr. Park believed that appellant's pedophilia was in remission because there was no evidence he was currently having fantasies about children or engaging in inappropriate behavior. According to Dr. Park, appellant's scores on the Minnesota Multiphasic Personality Inventory (MMPI) and Hare Psychopathy Checklist showed that he did not suffer from a personality disorder or meet the criteria for a psychopath. Dr. Park believed that appellant's age and his reported impotence significantly decreased his likelihood of reoffense, and that it was safe to release him unsupervised into the community.
Dr. Theodore Donaldson, a psychologist, also testified for the defense, and opined that appellant did not meet the criteria for pedophilia. In Dr. Donaldson's opinion, the DSM-IV does not adequately differentiate between pedophilia and opportunistic child molesters. He contrasted people who molest children by choice with those who are compelled by their urges to do so against their own values. In Dr. Donaldson's opinion, the former (like appellant) may be bad people, but they are not mentally ill as the SVPA requires.
Appellant's sister, who lives in Chico with her family, testified that she would provide moral support to appellant if he were released and came to live near her. She was unable to assist him financially or offer him a place to live on her property, and she would be uncomfortable if he was unsupervised. She had not realized appellant had been imprisoned three separate times for sexual offenses.
DISCUSSION
1. Jurisdiction to Hear Recommitment Petition
The original SVP petition was filed after appellant was returned to custody on a parole violation. (See In re Kirk (1999) 74 Cal.App.4th 1066, 1068-1069.) Appellant contends the trial court lacked fundamental jurisdiction to proceed on that petition because there was no evidence that he had committed a recent overt act while he was out of custody before his parole was revoked. We do not accept appellant's premise that the People were required to prove he committed a recent overt act while he was out of custody on parole.
An SVP is statutorily defined 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." (§ 6600, subd. (a)(1).) Under the SVPA, " 'Danger to the health and safety of others' does not require proof of a recent overt act while the person is in custody." (§ 6600, subd. (d).) A "recent overt act" is defined as "any criminal act that manifests the likelihood that the actor may engage in sexually violent predatory criminal behavior." (§ 6600, subd. (f).)
Noting that a recent overt act is not required when a person alleged to be an SVP is in custody, appellant infers that a recent overt act must be proven when such a person has been out of custody near the time that a petition is filed. We are not persuaded. The SVPA contains no such requirement and we will not impose an additional element that the Legislature has not included. Due process does not require proof of a recent overt act to establish the dangerousness necessary to warrant a civil commitment. (See People v. Felix (2008) 169 Cal.App.4th 607, 619-620, and cases cited therein.)
In any event, appellant was not out of custody in any meaningful sense before the SVP petition was filed. Although the record in the current appeal does not reveal the exact dates he was free on parole, it appears he was released for an approximately five-week period in September and October of 1998. Before his release, he had been in prison since at least 1989, when he was convicted of the crimes against Melissa. The lack of a recent overt act is immaterial because appellant was not out of custody for any significant period before the SVP petition was filed, and the SVPA expressly provides that recent overt acts need not be proven while the offender is in custody. (See Felix, supra, 169 Cal.App.4th at p. 618.)
Nor do we agree that the People's alleged failure to prove a recent overt act, even if required, would have deprived the court of fundamental jurisdiction to hear the original SVP petition, or, consequently, of jurisdiction to issue the recommitment order that is currently being challenged on appeal. A lack of jurisdiction in the fundamental sense refers to " 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' " (People v. Jones (1989) 210 Cal.App.3d 124, 135.) The commitment of an SVP without sufficient proof of the statutory elements would be an act in excess of the court's jurisdiction, but the court would not lack power to hear the case. (See ibid.; see also People v. Ellis (1987) 195 Cal.App.3d 334, 343.) " 'Whereas a lack of fundamental jurisdiction may be raised at any time, a challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted.' " (People v. Gerold (2009) 174 Cal.App.4th 781, 787.) Appellant did not timely challenge his original commitment based on the lack of an overt act, and he has forfeited this issue.
2. Substantial Evidence of Volitional Impairment
A person may be committed as an SVP only if the People prove that (1) he was convicted of a sexually violent offense against one or more victims; (2) he suffers from a diagnosed mental disorder affecting his volitional or emotional capacity; and (3) the disorder makes him a danger to the health and safety of others in that it is likely that he will engage in future acts of sexually violent behavior. (§ 6600, subds. (a), (c); People v. Hurtado (2002) 28 Cal.4th 1179, 1187-1188.) Appellant contends the judgment recommitting him must be set aside because the evidence did not support the jury's finding that he was volitionally impaired by a current diagnosed mental disorder. We disagree.
As with any challenge to the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the SVP finding. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) "[T]his 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. Poe (1999) 74 Cal.App.4th 826, 830.) In particular, we do not reassess the credibility of experts or reweigh the relative strength of their conclusions. (Id. at p. 831.) We reverse only if no rational trier of fact could have found the essential elements beyond a reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.)
The People's experts, Drs. Coles and Starr, diagnosed appellant with pedophilia and a personality disorder, and believed these disorders impaired his volition and made him likely to commit sexually violent offenses if released. Appellant complains that there was no evidence he had current symptoms of pedophilia, and argues that there was no basis for such a diagnosis in the absence of current symptoms. This is little more than a request that we reweigh the evidence and substitute the jury's evaluation of the experts' respective credibility with our own. This we will not do. (See People v. Flores (2006) 144 Cal.App.4th 625, 633.)
Appellant argues that the evidence of pedophilia was akin to inadmissible "profile" evidence that allowed the jury to conclude he was an SVP based solely on his prior conduct. He compares his case to People v. Robbie (2001) 92 Cal.App.4th 1075, in which the court reversed a criminal conviction based on an expert's testimony to the effect that sex offenders behaved in certain ways, and if the defendant had behaved in those ways, he was likely to be a sex offender; i.e. that he was guilty of the charged offenses. (Id. at pp. 1083-1085.) The use of profile evidence to prove guilt in a criminal case is far different from introducing evidence of a person's prior acts and mental health diagnosis to predict future dangerousness as required for a civil commitment.
Appellant also relies on People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1509, in which the court found the evidence was insufficient to support the trial court's denial of an SVP's petition for conditional release. Rasmuson is distinguishable because in that case, the evidence showed the defendant had participated in extensive sex offender treatment and was found by eight mental health experts to be unlikely to reoffend. (Ibid.) In the absence of even a "scintilla" of evidence to the contrary, the denial of the petition was "tantamount to concluding that no SVP who has ever committed a prior serious sexual offense, regardless of how long ago it occurred, can be conditionally released." (Ibid.) Here, the evidence showed not only that appellant had committed heinous sexual offenses, but that he had failed to seek any meaningful treatment for his condition. His testimony at trial, in which he continued to minimize his conduct and demonstrated a palpable lack of insight or empathy for his victims, supported the opinions of Drs. Coles and Starr that he had not acquired the tools necessary to avoid reoffending and remained a danger if released.
3. Hearsay Evidence
Appellant argues that his commitment must be reversed because the jury heard a "raft" of inadmissible evidence through the testimony of the expert witnesses. He claims that under the United States Supreme Court decisions in Crawford v. Washington (2004) 541 U.S. 36 (Crawford)and Melendez-Diaz v. Massachusetts (2009) 557 U.S. ____ [129 S.Ct. 2527] (Melendez-Diaz), the experts' reliance on hearsay materials in support of their opinions violated his right to confrontation and due process. We disagree.
Evidence Code section 802 provides, "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter. . . upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." As explained in People v. Gardeley (1996) 14 Cal.4th 605, at page 618 (Gardeley),expert testimony may be "premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions." So long as the material is reliable, "even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony." (Ibid.)
Probation reports, police reports, prior psychological reports, prison records, and hospital files are commonly relied upon by expert witnesses in SVP cases. (People v. Otto (2001) 26 Cal.4th 200, 207 (Otto).) Drs. Coles and Starr relied on such documents in the rendering their opinions that appellant qualified as an SVP, and indicated as much in their testimony. The jury was instructed with CALCRIM No. 360, which provided, "Each expert in this case testified that in reaching their conclusions as an expert witness, [] they considered statements made by Rudy Kirk, various police reports, various hospital records, prison records, court documents, probation reports, and prior evaluations by other psychologists. You may consider those statements as expressed by the experts only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statement is true, unless they have been admitted for other purposes or otherwise proven."
Appellant argues that he was denied the right to confront and cross-examine witnesses guaranteed to him under Crawford, which held inadmissible any "testimonial" statement that is offered for its truth unless the declarant is unavailable to testify at trial and the defendant has had a prior opportunity to examine the declarant. (Crawford, supra, 541 U.S. at p. 54.) He notes that in Melendez-Diaz, the court extended the rule of Crawford to certificates of laboratory analysis that were introduced in a criminal case to prove that seized cocaine was of a certain quantity. (Melendez-Diaz, supra, 129 S.Ct. 2527.) Appellant suggests that the reports and records relied upon by the experts in this case are akin to the certificates of laboratory analysis in Melendez-Diaz, and constituted testimonial statements offered to prove their truth.
Appellant's contention fails for two reasons. First, the rule of Crawford is based on the Sixth Amendment and does not apply to SVP proceedings, which are civil in nature. (People v. Allen (2008) 44 Cal.4th 843, 860 (Allen); People v. Fulcher (2006) 136 Cal.App.4th 41, 55 (Fulcher); People v. Angulo (2005) 129 Cal.App.4th 1349, 1367-1368.) Although an SVP does have a due process right of confrontation that is not coextensive with the Sixth Amendment, due process is not violated by allowing experts to testify about an SVP's prior conduct when explaining the bases for their opinions. (Fulcher, at pp. 55-56.)
Second, the rule of Crawford is inapplicable to hearsay that is relied upon by an expert witnesses as a basis for an opinion, but is not offered for its truth. " 'Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross-examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the confrontation clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." ' " (People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427, citing People v. Thomas (2005) 130 Cal.App.4th 1202, 1210; see also People v. Sisneros (2009) 174 Cal.App.4th 142, 153-154.) The limiting instruction given in this case directed the jury to consider the challenged materials as a basis for the experts' opinions, not for their truth.
In People v. Hill (2011) 191 Cal.App.4th 1104, 1127-1131 (Hill), a different panel of this court critiqued the distinction made in Thomas, supra, 130 Cal.App.4th 1202 between out-of-court statements offered for their truth and those relied upon by an expert as the basis for his or her opinion. The panel noted that "where basis evidence constitutes an out-of-court statement, the jury will often be required to determine or assume the truth of the statement in order to utilize it to evaluate the expert's opinion." (Id. at p. 1131.) Hill concluded, nonetheless, that the distinction between basis evidence and substantive evidence was dictated by Gardeley, supra, 14 Cal.4th 605 and other Supreme Court precedents. (Hill, at p. 1127, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).) It therefore rejected the defendant's claim that the gang expert should not have been permitted to describe the out-of-court statements supporting his opinion during his testimony before the jury. (Hill, at pp. 1127-1128.) We likewise follow Gardeley and apply its distinction between basis evidence and hearsay evidence offered for its truth.
Shifting gears, appellant notes that in People v. Dodd (2005) 133 Cal.App.4th 1564, 1568-1569, the court reversed a judgment committing the defendant as a mentally disordered offender (Pen. Code., § 2960 et seq.) because three expert witnesses had relied on unreliable hearsay in a parole report concerning the defendant's molestation of a young girl. Dodd is inapposite, because appellant has not shown that any of the hearsay material relied upon by the experts in this case was unreliable. Dodd reaffirmed that experts may consider and testify about the details of reliable hearsay supporting their conclusions. (Dodd, at p. 1569.)
Appellant also suggests that the People violated the rule articulated in People v. Campos (1995) 32 Cal.App.4th 304 (Campos), which held that while a medical expert could properly testify that she had relied on the reports of another doctor in forming her opinion, she could not advise the jury that the other doctor had agreed with her opinion. (Id. at p. 308.) As the court in Campos explained, " '[D]octors can testify as to the basis for their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinions of innumerable out-of-court doctors before the jury' " without an opportunity for cross-examination. (Ibid.)
Neither Dr. Coles nor Dr. Starr relied on the diagnoses of other doctors to bolster their own opinions that appellant suffered from a mental disorder. Appellant's real complaint is that the court admitted into evidence certain records and reports from DMH which indicated that appellant had been diagnosed with pedophilia. (Trial Exhibits 22 through 28.) In the documents cited by appellant, those references are relatively brief (generally consisting of a single line stating "Axis I 302.2 Pedophilia, sexually attracted to females, nonexclusive type") and do not include a discussion of the reason for the diagnosis.
Assuming the court erred under Campos in admitting the reports without redacting the references to the pedophilia diagnosis, the references to that diagnosis were harmless. Appellant admitted during his trial testimony that he suffered from pedophilia until 2006, and his own expert, Dr. Park, believed he suffered from pedophilia but that it was in remission. It is not reasonably probable appellant would have obtained a more favorable result at trial if all references to that diagnosis had been redacted from the DMH reports. (Campos, supra, 32 Cal.App.4th at pp. 308-309; People v. Watson (1956) 46 Cal.2d 818, 836.)
Appellant's opening brief blurs the distinction between documentary evidence introduced at trial and documents relied upon by the experts in support of their opinions, some of which were introduced into evidence and some of which were not. We do not understand appellant to challenge the admissibility of the DMH reports that were introduced into evidence apart from their references to the pedophilia diagnosis, and he does not appear to claim that any other documents were erroneously admitted as evidence.
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Finally, appellant suggests that under People v. Dean (2009) 174 Cal.App.4th 186 (Dean),the court should have excluded as unduly prejudicial any expert testimony about the details of the institutional records that they relied upon in forming their opinions. (See Evid. Code, § 352.) We disagree. Though an "on-the-record recitation of sources relied on for expert opinion does not transform inadmissible matter into 'independent proof of any fact," the trial court retains the discretion to control the form in which such evidence is presented. (Gardeley, supra, 14 Cal.4th at p. 619.) Here, the court gave a limiting instruction concerning the proper use of that evidence, minimizing the risk that the jury would consider it in an improper fashion. "Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth." (People v. Montiel (1993) 5 Cal.4th 877, 919.) The court did not abuse its discretion in allowing the experts to testify to the basis of their opinions subject to a limiting instruction. (See People v. Bell (2007) 40 Cal.4th 582, 609 [court's decision to exclude certain details relied upon by defendant's expert was not arbitrary or capricious].)
We also note that much of the hearsay information discussed by Drs. Coles and Starr was independently admissible or cumulative of other, properly admitted evidence. The jury learned of appellant's prior convictions through court records, which were admissible to prove the fact of conviction, appellant's commission of the underlying offenses, the details of the underlying offenses, and the predatory nature of appellant's conduct. (Evid. Code, §§ 452.5, subd. (b), 1280, 1530; Welf. & Inst. Code, § 6600, subd. (a)(3); People v. Superior Court (Howard)(1999) 70 Cal.App.4th 136, 153-154; Otto, supra, 26 Cal.4th at p. 203.) Four of appellant's victims—Cynthia B., Linda E., Melissa C., and Heidi P.—testified at trial about the details of the offenses, as did appellant himself. Appellant acknowledged during his testimony that he had not completed the sex offender treatment program offered by DMH, a key circumstance that Drs. Coles and Starr relied upon in forming their opinion that he remained a danger to the public. It is not reasonably probable that appellant would have obtained a more favorable result if the experts' testimony about certain out-of-court statements had been more circumscribed. (See Dean, supra, 174 Cal.App.4th at p. 202.)
4. Direct Examination of Appellant
Appellant argues that the People should not have been permitted to call him as a witness because "[t]here is no legitimate evidentiary reason to do so." He claims he was subjected to a number of questions that were designed to humiliate and embarrass him and to elicit "needless repetition" of the facts of the prior convictions. We reject the claim.
An SVP commitment is civil in nature, and a defendant has no Fifth Amendment right to refuse to testify at trial. (Allen v. Illinois (1986) 478 U.S. 364, 365, 374-375; Allen, supra, 44 Cal.4th at p. 860; Leonard, supra, 78 Cal.App.4th at pp. 792-793.) Nor did the trial court abuse its discretion in allowing the district attorney to call appellant as a witness. In general, an SVP's participation in the trial as a witness "enhances the reliability of the outcome" of the proceeding. (See Leonard, at p. 793.) Here, for example, appellant was questioned extensively about his prior offenses, his current feelings about his crimes and his victims, his treatment or lack thereof at DMH, and his plans for reentering the community if released. Though some of this information elicited during direct examination might have been embarrassing or prejudicial in the sense that it was unfavorable to appellant, it was highly relevant to determining whether he posed a current risk of harm. Appellant's complaints about certain specific questions during direct examination as unduly prejudicial or harassing have been forfeited because he did not object at trial. (People v. Samayoa (1996) 15 Cal.4th 795, 841.)
5. Evidence Concerning Prior SVP Commitments
Citing People v. Munoz (2005) 129 Cal.App.4th 421 (Munoz),appellant argues that the judgment must be reversed because the People were allowed to present evidence that he had been previously committed as an SVP. We disagree that Munoz applies to this case.
The defendant in Munoz was tried before a jury on his second SVP recommitment petition. (Munoz, supra, 129 Cal.App.4th at pp. 424, 426-428.) The People's experts testified that Munoz suffered from paraphilia, a mental disorder manifested by deviant sexual behavior that predisposed him to commit sexual offenses, and that he had great difficulty controlling his behavior as result of his condition. (Id. at p. 425.) The defense called experts who testified that the defendant did not suffer from paraphilia and did not have difficulty controlling his behavior. (Id. at pp. 425-426.) The defendant testified on his own behalf and was asked during cross-examination why he had not contested the original SVP petition if he did not agree with the People's experts that he qualified as an SVP. (Id. at p. 427.) He was also asked a number of questions about his decision not to testify on his own behalf in the earlier proceeding, and the People were allowed to introduce the minute order showing that he had personally waived his right to trial and was found to be an SVP after submitting the matter on the documents before the court. (Id. at pp. 427-428.) During closing argument, the People argued that when defendant had been declared an SVP four years earlier, he had not contested the findings of the evaluators or the petition seeking his commitment. (Id. at p. 428.) The jury found the defendant to be an SVP and he was recommitted. (Id. at p. 424.)
The appellate court reversed the judgment of recommitment, concluding that it was error for the prosecution to suggest that the prior commitment orders were substantive evidence of the defendant's current mental state. (Munoz, supra, 129 Cal.App.4th at p. 433.) It explained, "It may be impossible to avoid the jury's learning that the defendant has already been committed as an SVP, e.g., it may be necessary for experts to discuss the defendant's treatment and behavior while in the state hospital. Still, it is necessary that nothing be done that suggests to the jury that its task is to compare the defendant's present mental status with an earlier finding that he or she is an SVP. As we have noted each SVP hearing addresses the defendant's current mental state. Nothing must be done to suggest the defendant is required to prove he is no longer an SVP or to effectively lessen the state's burden by establishing a datum of mental disorder and dangerousness. [¶] Unfortunately in this case, that is precisely what happened. The manner in which the prosecutor questioned witnesses, the evidence the trial court admitted, and the manner in which [the People] argued the case suggested that the issue was whether anything had changed since appellant's prior SVP commitment." (Id. at p. 432.)
The judgment in Munoz was not reversed because the jury had learned of the prior SVP commitments. As the appellate court acknowledged, such evidence is all but inevitable when the experts are called upon to discuss the defendant's treatment and behavior during a prior commitment. (Munoz, supra, 129 Cal.App.4th at p. 432.) The problem, rather, was the prosecution had urged the jury to accept those prior commitments as evidence that the defendant currently suffered from a qualifying mental disorder, effectively shifting the burden of proof to the defense. (Ibid.)
In the case before us, the People did not similarly suggest that appellant's prior commitments had any bearing on his current mental state or degree of dangerousness, or that appellant bore the burden of proving a change in his condition. Appellant notes that he was questioned about prior testimony he had given during one of the recommitment trials, and that his expert Dr. Park was asked whether he (appellant) "had started going to court a lot in the last couple of years. . .?" Neither line of questioning suggested that the jury should render its verdict on the basis of any prior proceeding. Appellant also argues that by introducing documentary evidence referring to the prior commitments, the People implied "that the jury need only be concerned about changes in appellant's mental health history rather than providing him a fresh assessment as to the existence of any mental disorder and how it may or may not affect [or] impair him volitionally." But appellant points to no questioning, argument, or instruction suggesting to jurors that the prior findings relieved the People of the burden of proving current dangerousness. Munoz does not require reversal in this case.
6. Juror Unanimity Regarding Pedophilia Diagnosis
The People's experts testified that appellant suffered from both pedophilia and a personality disorder with antisocial and narcissistic traits. Appellant contends the trial court should have given a sua sponte instruction requiring the jurors to unanimously agree that he suffered from pedophilia before finding him to be an SVP.
The trial court instructed the jury with CALCRIM No. 3454, which required the People to prove beyond a reasonable doubt that appellant suffered from a diagnosed mental disorder, and provided, "The term diagnosed mental disorder includes conditions either existing at birth or acquired after birth that affect a person's ability to control emotions and behavior and predispose that person to commit criminal sexual acts to an extent that makes him or her a menace to the health and safety of others." The jury was also given a special instruction stating, "In determining whether respondent suffers from a currently diagnosed mental disorder, it is not necessary that each of you agree on what diagnosed mental disorder respondent suffers from."
Appellant was not entitled to a unanimous jury determination regarding his particular diagnosis. The SVPA requires that a jury verdict be unanimous, but it does not require unanimity as to each element necessary to support an SVP finding. (People v. Carlin (2007) 150 Cal.App.4th 322, 347 (Carlin); Fulcher, supra, 136 Cal.App.4th at p. 59.)
Because an SVP proceeding is civil in nature, case law concerning unanimity instructions in criminal cases does not apply. (Carlin, at p. 347.) But even in the context of a criminal case, no unanimity instruction is required where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) By analogy, in an SVP case the jury must agree unanimously that the defendant suffers from a diagnosed mental disorder, but evidence that he suffers from more than one such disorder simply provides alternative theories as to how this requirement is met.
Appellant complains that a personality disorder does not meet the "mental disorder" element of the SVPA, and that under the facts of this case, he could only be committed if the jury agreed he suffered from pedophilia. We disagree. In Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1158-1161 (Hubbart),the Supreme Court rejected an argument that the SVPA was unconstitutional because it did not exclude from its purview "antisocial personality disorders or other conditions characterized by an inability to control violent antisocial behavior." Nothing in the SVPA or the federal Constitution prohibits a jury from relying on a personality disorder as a basis for an SVP determination. (Hubbart, at pp. 1158-1161.)
7. Sua Sponte Instruction on Risk of Reoffense
Appellant argues that reversal is required because the court did not adequately instruct the jury on the risk of reoffense that is necessary to commit a person as an SVP. He claims the court should have given a sua sponte instruction that more precisely defined the degree of risk. We reject the claim.
By statute, an SVP must have 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." (§ 6600, subd. (a)(1).) "Likely" has been judicially construed to mean " 'the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.' " (People v. Roberge (2003) 29 Cal.4th 979, 982, 989.) The risk of reoffense must be greater than a "mere possibility," but need not be "better than even," i.e., greater than 50 percent. (Id. at pp. 985-988.) The jury was instructed as much.
Appellant argues that the instructions did not go far enough because they "failed to explain the requisite minimum level of risk that the jury must agree upon." He did not request an additional instruction on this point and has not, in his appellate briefs, suggested clarifying language. "Once the trial court adequately instructs the jury on the law, it has no duty to give clarifying or amplifying instructions absent a request." (People v. Butler (2010) 187 Cal.App.4th 998, 1013.)
8. Constitutional Claims
Appellant contends his indeterminate term of commitment under the amended version of the SVPA violates the equal protection clauses of the United States and California Constitutions, the federal due process clause, and the federal constitutional proscription against ex post facto laws. He also claims the law violates his right to due process by providing for lifetime incarceration without meaningful medical treatment, and his right to equal protection by discriminating against him based on his age. We reject the majority of these constitutional claims, but remand the case to the superior court for further proceedings on the equal protection issue, consistent with the California Supreme Court's decision in McKee, supra, 47 Cal.4th at pp. 1184, 1202-1211.
a. Issues Resolved by McKee Decision
As originally enacted, the SVPA provided for a two-year commitment, established procedures for an SVP to obtain release before the expiration of the two-year period, and allowed recommitment upon expiration of the two-year period only if it was proved beyond a reasonable doubt that the person currently met the statutory criteria. (Former §§ 6604, 6604.1, 6605, subds. (d) & (e), 6608; see People v. Williams (2003) 31 Cal.4th 757, 764; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.)
In November 2006, the SVPA was amended to make it more difficult for an SVP to obtain release. "[U]nder Proposition 83, an individual SVP's commitment term is indeterminate, rather than for a two-year term as in the previous version of the Act. An SVP can 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. In other words, the method of petitioning the court for release and proving fitness to be released, which under the former Act had been the way an SVP could cut short his two-year commitment, now becomes the only means of being released from an indefinite commitment when the DMH does not support release." (McKee, supra, 47 Cal.4th 1187-1188; §§ 6604, 6605, 6608.) In light of the November 2006 amendments to the SVPA, the People sought an indeterminate commitment under the consolidated petitions for recommitment. Appellant was recommitted for an indeterminate term under the amended version of the SVPA.
Appellant's ex post facto and due process challenges to the amended version of the SVPA were rejected in McKee, supra, 47 Cal.4th at pp. 1188-1195, and we are bound by that holding. (Auto Equity Sales, supra, 57 Cal.2d at p. 455.) McKee also reaffirmed that an SVP commitment is civil rather than punitive in nature, which necessarily leads us to conclude that the SVP law does not violate the double jeopardy clause. (Id. at pp. 1193-1195; Kansas v. Hendricks (1997) 521 U.S. 346, 369; Hubbart, supra, 19 Cal.4th at p. 1179; People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2.)
There is potential merit to appellant's claim that his indeterminate commitment under the current version of the SVP law violates equal protection principles. In McKee, the court concluded that the state "has not yet carried its burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment." (McKee, supra, 47 Cal.4th at p. 1184, italics added.) It remanded the case to the trial court to determine whether the state could justify its disparate treatment of SVP's, at least as to the individual defendant in McKee. (Id. at pp. 1184, 1208-1211.) We will follow the same procedure and remand the case to the trial court on this issue.
b. Due Process Based on Lack of Meaningful Treatment
Appellant argues that the SVPA violates his right to substantive due process because it does not require treatment for the mental disorders supporting a commitment and can apply to persons whose mental disorders are not treatable. He claims: "If the state has nothing to offer in the way of meaningful treatment, then it cannot be allowed to simply warehouse human beings based on an unquantified, 'fear' that appellant or others might commit a sexual crime if released, particularly as they become senior citizens and must cope with medical infirmities." We reject the claim for the reasons explained in Hubbart, supra, 19 Cal.4th at pp. 1164-1167.
c. Equal Protection/Age Discrimination
Appellant argues that his right to equal protection under the law has been violated because he is being treated differently than other "older" persons who have been convicted of violent felonies and are now eligible for release on parole. He claims his scores on actuarial instruments designed to measure his risk of reoffense will remain the same even as he ages, and suggests he is disadvantaged relative to other prisoners because he was declared an SVP at a relatively early age. The short answer to his claim is that he is not being treated differently than other offenders based on his age, he is being treated differently because he was civilly committed after having been found to meet the SVP criteria. The mere fact that prisoners of a comparable age might not be committed initially as SVP's (a suggestion that finds no evidentiary support in this record) does not establish an equal protection violation.
9. Cumulative Error
Appellant claims that even if none of the errors he has alleged requires reversal, their cumulative impact deprived him of a fair trial. We disagree. To the extent we have assumed error in the introduction of certain hearsay evidence, such error was harmless. Reversal is not required, whether the issues are considered individually or collectively. (See People v. Gutierrez (2009) 45 Cal.4th 789, 828-829.)
DISPOSITION
The case is remanded to the trial court for consideration of appellant's equal protection claim in light of McKee, supra, 47 Cal.4th 1172. The trial court is directed to suspend further proceedings pending finality of the proceedings in the McKee case, including any proceeding in the San Diego County Superior Court in which McKee may be consolidated with related matters. (Id. at pp. 1208-1210.) "Finality of the proceedings" shall include the finality of any subsequent appeal and any proceedings in the California Supreme Court. The judgment is otherwise affirmed.
NEEDHAM, J. We concur. SIMONS, Acting P. J. BRUINIERS, J.