Opinion
B288740
01-27-2021
THE PEOPLE, Plaintiff and Respondent, v. GEORGE ALLEN, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. ZM006764) APPEAL from an order of the Superior Court of Los Angeles County, Thomas Rubinson, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant George Allen appeals from a commitment order classifying him as a sexually violent predator and committing him to the State Department of Hospitals, pursuant to Welfare and Institutions Code section 6600 et seq., for a period of two years. Allen contends that delays in bringing his case to trial violated his speedy trial and due process rights, and that the trial court erroneously excluded relevant expert testimony. We discern no violation of Allen's constitutional rights and no reversible error, and therefore affirm the court's order.
FACTUAL AND PROCEDURAL BACKGROUND
1. The SVPA
The Sexually Violent Predator Act (SVPA) "allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms." (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235.) A sexually violent predator (SVP) is "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welf. & Inst. Code, § 6600, subd. (a)(1).) A person who is declared an SVP is committed to the State Department of State Hospitals (SDSH) for treatment. (§ 6604.) The SVPA is "not punitive in purpose or effect," and a commitment proceeding under the SVPA is a " 'special proceeding of a civil nature.' " (People v. Yartz (2005) 37 Cal.4th 529, 535, 536; Stats. 1995, ch. 763, § 1.)
All further undesignated statutory references are to the Welfare and Institutions Code.
2. Allen's underlying criminal and sexual offenses
In 1983, Allen pled guilty to two counts of forcible rape (Pen. Code, § 261, former subd. (2)), one count of kidnapping (Pen. Code, § 207), and one count of unlawful sexual intercourse (Pen. Code, § 261.5). The charges involved female victims ranging from 11 to 15 years old. Allen was sentenced to a term of 11 years six months in state prison.
In 1995, Allen pled guilty to two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)). The victim in both counts was his stepdaughter. Allen had sex with the victim over 100 times, beginning when she was 12 years old. The trial court sentenced Allen to a term of 17 years in prison.
3. August 2003 SVPA commitment petition
On August 27, 2003, prior to Allen's prison release date, the Los Angeles County District Attorney filed a petition to commit him as an SVP. It alleged that Allen had been previously convicted of four counts of forcible rape, a sexually violent offense within the meaning of section 6600, subdivisions (b) and (e). The petition, supported by evaluations from two psychologists, further alleged that Allen had a diagnosed mental disorder that made him likely to engage in acts of predatory sexual violence within the meaning of section 6600, subdivisions (c) through (e).
On September 4, 2003, the trial court found probable cause to believe that Allen was an SVP. It ordered him transported to Atascadero State Hospital pending further trial proceedings.
4. Pre-trial continuances between September 2003 and October 2006
Thereafter, numerous continuances ensued. Between September 2003 and October 2006, Allen's attorney, Deputy Public Defender Jeffrey Wong, requested eight continuances; counsel stipulated to three others. At the October 24, 2006 hearing, defense counsel requested a pretrial hearing date of January 23, 2007.
The reporter's transcripts of proceedings transpiring between September 5, 2003 and July 24, 2006 are unavailable. Transcripts from hearings conducted on July 25 and October 24, 2006 shed no light on why the parties stipulated to further continuances.
5. 2006 legislation and stipulation
On September 20, 2006, the Governor signed into law Senate Bill No. 1128 (2005-2006 Reg. Sess.), a piece of urgency legislation that, among other things, amended section 6604 to lengthen the term of an SVP commitment from two years to an indeterminate period. (See People v. Castillo (2010) 49 Cal.4th 145, 150.) At the November 2006 general election, the voters of California adopted Proposition 83 (known as Jessica's Law), which enacted the same changes. (People v. Castillo, at pp. 150, 152.)
Under pre-2006 law, an individual had to be released at the end of his two-year commitment period unless the People filed a new petition and again proved to a jury, beyond a reasonable doubt, that he met the definition of an SVP. (People v. McKee (2010) 47 Cal.4th 1172, 1183-1184, 1187; see also People v. Putney (2016) 1 Cal.App.5th 1058, 1065-1066.) Under post-2006 law, an individual can be released from his indeterminate commitment if the SDSH determines he no longer meets the definition of an SVP, or he petitions for conditional release and proves, by a preponderance of the evidence, that he is no longer an SVP. (People v. McKee, at p. 1187; People v. Putney, at p. 1066; § 6608.)
On October 11, 2006, the Los Angeles County District Attorney, the Los Angeles County Public Defender, and the Presiding Judge of the Los Angeles County Superior Court entered into a stipulation agreeing that, due to uncertainty regarding retroactive application of the new law, the district attorney would continue to seek two-year commitments for those persons whose commitment petitions had been filed before the amended law went into effect. The stipulation stated that a copy of the agreement would be filed in every SVP case in which a petition was pending prior to the effective date of the legislation or the initiative, and it was filed in Allen's case on October 31, 2006.
6. Continuances between January 2007 and April 2010
On January 23, 2007, Allen's attorney was replaced with Deputy Public Defender Alvin Thomas. Thomas requested time to review the case file and, pursuant to the stipulation of counsel, the matter was continued. At the next appearance, on May 9, 2007, the district attorney informed the court that the most recent evaluations of Allen had resulted in a split of opinion; thus, two more evaluators had to be appointed. The matter was continued by stipulation of the parties.
The record does not indicate why Deputy Public Defender Wong was relieved.
Under the SVPA, if evaluations result in a split of opinion, two new evaluators must be appointed to examine and evaluate the individual. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 647-648; § 6601, subds. (d)-(g).)
Over the next year, the parties stipulated to further continuances as available evaluators were located and appointed, and examinations of Allen were conducted. On April 22, 2008, the district attorney reported that the new reports were ready and complete. After the district attorney's announcement, another round of continuances ensued as defense counsel requested time to review the new evaluations and sought out new defense experts and further re-evaluations of Allen.
On April 8, 2010, defense counsel informed the court that he had received updated evaluations from his experts, but Allen was requesting another probable cause hearing pursuant to In re Ronje (2009) 179 Cal.App.4th 509 (Ronje). Defense counsel intended to visit Allen the following week to discuss the matter with him.
In Ronje, an assessment protocol used by the State Department of Mental Health (DMH) was found to be an illegal "underground" regulation, i.e., one not adopted in accordance with the Administrative Procedure Act. (Ronje, supra, 179 Cal.App.4th at pp. 516-519; see Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542, 552; Cal. Code Regs., tit. 1, § 250, subd. (a).) SVP defendants who had been evaluated under the invalid protocol were thus entitled to fresh evaluations and a new probable cause hearing. (Ronje, at p. 519.) This process was subsequently rejected by the California Supreme Court. (Reilly v. Superior Court, supra, 57 Cal.4th at p. 655 [disapproving Ronje to the extent it omitted a materiality requirement in determining whether relief was warranted].)
7. April 2010-May 2011: Allen executes a speedy trial waiver and asserts his right to fresh evaluations and a new probable cause hearing
On April 12, 2010, Allen executed a written waiver of his speedy trial rights. The waiver stated that he understood he had a due process right to a speedy trial under the state and federal constitutions and People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon), but that he did not wish to exercise this right and wanted his trial delayed. Allen stated he would notify the court and/or his attorney when he desired a trial. In his waiver, Allen further acknowledged that several areas of SVPA law were unsettled, and any delay in proceeding to trial could either benefit or disadvantage him, depending on the outcome of developing case law.
After Allen executed the waiver, his public defender asserted Allen's right to fresh evaluations and a new probable cause hearing under Ronje. The trial court granted Allen's motion. After new evaluations and further continuances, the court held another probable cause hearing in May 2011. Following the testimony of two expert witnesses, the trial court again found probable cause to believe that Allen met the SVP criteria.
8. Pretrial continuances between May 2011 and January 2018 with no assertion of speedy trial rights
Over the next six and one half-years, Allen did not assert his speedy trial rights as additional continuances ensued for a variety of reasons, including changes in representation and new counsel's need for case familiarization, updated expert evaluations and opposing party reviews, and exploration of the possibility of a court trial with accommodation of Allen's request to appear by video. The vast majority of continuances were requested by defense counsel, while the remaining proceeded by stipulation of the parties.
Because the SVPA requires proof that a defendant suffers from a "current" mental disorder that makes him likely to reoffend, an expert evaluation is deemed presumptively stale after one year. (Albertson v. Superior Court (2001) 25 Cal.4th 796, 802-803.)
In April 2016, Allen's fourth public defender declared a conflict and the trial court appointed bar panel attorney Arlene Binder to represent him. After further continuances necessitated by updated evaluations, witness availability, and scheduling conflicts, a trial date was set for February 5, 2018.
9. Allen's motion to dismiss
On January 29, 2018, just a week before trial was set to begin, Allen's attorney filed a motion to dismiss the petition on the ground the delays in prosecution had violated his due process right to a timely trial. Fearing further delays, the trial court elected to hear the motion after the trial concluded. The court noted that testimony would be required in order for it to address the motion to dismiss. It pointed out that one of Allen's former attorneys had become a judge, located in the same building, and the court was not comfortable judging his credibility. The court therefore intended to treat the issue as preserved and assign it to another judge after trial.
The timing of the motion prompted the prosecution to argue that Allen had not previously asserted his speedy trial rights for tactical reasons, i.e., in the hopes his case would be dismissed, and was now seeking to avoid a disposition on the merits.
In stating that a hearing with testimony from Allen's former defense attorneys would be necessary, the trial court noted that defense counsel had attached a ruling from another trial judge "on the Vasquez matter." In People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36 (Vasquez), the trial court, when considering a motion to dismiss for violation of speedy trial rights, considered testimony from the alleged SVP's former attorneys. (Id. at pp. 73-74).
10. Jury trial, commitment order, and notice of appeal
Jury trial commenced on February 5, 2018. Two forensic psychologists, Dr. G. Preston Sims and Dr. Harry Goldberg, who had evaluated Allen, testified for the prosecution. Dr. Sims diagnosed Allen with non-exclusive pedophilic disorder, and opined that he presented a "serious and well-founded" risk of reoffending if released. Dr. Sims opined that Allen posed a higher risk than that reflected in the actuarial instruments (indicating Allen posed an average risk of reoffending) due in part to the fact that Allen reoffended while on bail for his 1983 offenses, and then reoffended again after release from prison.
Dr. Goldberg diagnosed Allen with other specified paraphilic disorder, specifically as an "attraction to adolescent females between the ages of 11 and 15." Dr. Goldberg also assessed Allen's risk of reoffense using actuarial instruments, which placed Allen in the average risk categories. Dr. Goldberg, however, noted that a "tremendous red flag" was that during conversations with Allen, Allen told him that his daughter had asked him to speak with his 12 or 13 year-old granddaughter about whether she was becoming too sexually provocative, and Allen expressed an intention to either live with, or nearby, the daughter. This concerned Dr. Goldberg because the dynamics were similar to those existing when Allen had raped his stepdaughter in the 1990s.
In defense, Allen presented the testimony of two psychologists, Dr. Christopher Fisher and Dr. Brian Abbott, who opined that Allen's previous sexual offenses were driven by anger and antisocial personality traits, as opposed to any diagnosable mental disorder. Both doctors opined that Allen presented a low risk of reoffending if released.
On February 21, 2018, the jury returned a verdict finding true the allegation that Allen was an SVP. The trial court subsequently issued an order declaring Allen an SVP, and committing him to the SDSH for two years. The court then set the hearing on the speedy trial motion for March 21, 2018.
On March 8, 2018, Allen filed a notice of appeal. In so doing, he divested the trial court of jurisdiction over the case. (People v. Wagner (2009) 45 Cal.4th 1039, 1061 [filing a " 'notice of appeal vests jurisdiction of the cause in the appellate court' " and " 'deprives the trial court of jurisdiction to make any order affecting that judgment' "].)
DISCUSSION
1. The commitment order is a final, appealable judgment
An SVPA commitment order constitutes a final, appealable judgment. (People v. Whaley (2008) 160 Cal.App.4th 779, 802 [pursuant to Code Civ. Proc., § 1064, an SVP commitment order is a final appealable judgment].) To the extent Allen argues the order was not final because the trial court did not resolve his speedy trial/due process claim, we disagree. Allen not only failed to object to the trial court's pronouncement of judgment, but subsequently divested the trial court of its jurisdiction to hear the motion by filing his notice of appeal before the motion was due to be heard. (See People v. Braxton (2004) 34 Cal.4th 798, 813 [when a party fails to press for a ruling, any assertion of error " ' "may be deemed waived or abandoned . . . just as if he had failed to make the objection in the first place" ' "] & p. 814 [" 'The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them' "].)
To the extent Allen argues that defense counsel was ineffective for failing to object to the trial court's entry of judgment, we disagree. Given that the trial court scheduled hearing on the speedy trial/due process motion, counsel could have reasonably determined that the court would address the matter and, if Allen was victorious, grant the requested relief. (People v. Bona (2017) 15 Cal.App.5th 511, 521 [deficient performance cannot be established on direct appeal unless record affirmatively discloses counsel had no rational purpose for the challenged act or omission].) Allen filed the notice of appeal himself. Thus, counsel cannot be held responsible for the timing of the filing.
2. The appeal is not moot
Allen's two-year commitment order was issued on February 21, 2018, and, by its own terms, expired on February 21, 2020. (See § 6604.1 [term of commitment "shall commence on the date upon which the court issues the initial order of commitment"].) In People v. Hurtado (2002) 28 Cal.4th 1179 (Hurtado) and People v. Cheek (2001) 25 Cal.4th 894 (Cheek), the California Supreme Court concluded that appeals from SVPA commitment orders were rendered moot when the commitment terms expired during pendency of the appeals, but in both cases deemed the issues of sufficient importance to merit discretionary review. (Hurtado, at p. 1186; Cheek, at pp. 897-898.)
In light of Cheek and Hurtado, we requested supplemental briefing from the parties on whether the appeal should be dismissed as moot. In his supplemental letter brief, Allen notes that a new SVPA petition has been filed against him and contends this appeal is not moot because "the recommitment petition currently pending is dependent upon the existence of a valid initial commitment." The People, on the other hand, point out that an appeal from an SVP commitment order is rendered moot when the commitment term expires during the pendency of the appeal. (See People v. Superior Court (Rigby) (2011) 195 Cal.App.4th 857, 869-870 ["[c]ase law is clear that once the previous commitment terminates, the recommitment petition represents a new and independent proceeding"].) However, we need not reach the issue because, in his second supplemental letter brief, Allen identifies a collateral consequence flowing from his SVPA commitment that precludes a finding of mootness. Under Penal Code section 290.012, an SVP is required to verify his sex offender registration every 90 days, while a non-SVP convicted of prior sex crimes only has to verify his registration once a year. A violation of the 90-day rule is punishable "by imprisonment in the state prison or in a county jail not exceeding a year." (Pen. Code, § 290.018, subd. (f).)
Given that a favorable decision in this appeal could provide Allen with some type of relief, the appeal is not moot and we therefore proceed to consideration of the merits. (In re Arroyo (2019) 37 Cal.App.5th 727, 732-733 [case becomes moot only when court's decision " ' "can have no practical impact or cannot provide the parties with effective relief" ' "]; In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231 [same].)
3. Due process right to a timely SVPA trial
Relying on Vasquez, supra, 27 Cal.App.5th 36, and Litmon, supra, 162 Cal.App.4th 383, Allen contends that the long delays in bringing this case to trial violated his due process rights. The People counter by pointing out that all the continuances were either at Allen's request, or by stipulation, and that no circumstances exist that would warrant a conclusion that the delay should be attributed to the state.
On this record, we agree with the People.
a. Applicable legal principles
(i) Due process right to a timely trial under the SVPA
The SVPA does not specify a time by which a trial on a commitment proceeding must be commenced or concluded. (People v. Sanders (2012) 203 Cal.App.4th 839, 846; see § 6600, et seq.) Though the constitutional right to a speedy trial applies only in criminal prosecutions, the federal due process clause extends to involuntary civil commitments under the SVPA and requires a hearing " ' "at a meaningful time and in a meaningful manner." ' " (Litmon, supra, 162 Cal.App.4th at p. 395; see Addington v. Texas (1979) 441 U.S. 418, 425 ["[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection."].)
As observed in People v. Landau (2013) 214 Cal.App.4th 1, 27 (Landau), "[a] person alleged to be an SVP is entitled to a probable cause hearing within 10 days of a judge's facial review of the SVP petition (§ 6601.5), but no time guideline is set for trials." (Landau, at p. 27, fn. 8.)
Courts have analyzed an alleged deprivation of due process arising from delays in SVPA proceedings in two ways: (1) under the framework established in Barker v. Wingo (1972) 407 U.S. 514, 530 (Barker) for assessing a criminal defendant's Sixth Amendment right to a speedy trial; and (2) under the framework established in Mathews v. Eldridge (1976) 424 U.S. 319, 334-335 (Mathews) for assessing denials of the constitutional right to due process. (See, e.g., Vasquez, supra, 27 Cal.App.5th at pp. 60-82; Litmon, supra, 162 Cal.App.4th at pp. 399-406.)
"The Barker test involves a weighing of four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. [Citation.]" (United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency (1983) 461 U.S. 555, 564.) Under Mathews, the court considers three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value, if any, of any additional procedural safeguards; and (3) the government's interest, including the function involved and fiscal and administrative burdens that additional or substitute procedures would entail. (Mathews, supra, 424 U.S. at p. 335.)
Because the Mathews test involves a cost-benefit analysis (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1035), it is best suited to facial challenges aimed at general governmental practices or statutory schemes, as opposed to challenges based on the circumstances of delay in an individual case. (See, e.g., Heller v. Doe (1993) 509 U.S. 312, 330-332 [Matthews test used in addressing statutory provisions allowing guardians and family members to participate during involuntary commitment procedures of mentally challenged individuals]; Washington v. Harper (1990) 494 U.S. 210, 213, 229-231 [Matthews test used in addressing whether a judicial hearing must precede forcible administration of antipsychotic medication to state prison inmates].)
It is not entirely clear what analytical framework—Mathews, Barker (or some amalgam)—will ultimately be deemed appropriate by our high court in SVPA cases. However, what is clear in this case is that regardless of the test applied, Allen cannot prevail on his claim.
(ii) The speedy trial cases: Barker, Brillon, and Williams
A. Barker
In Barker, 407 U.S. 514, the court set out the four-factor balancing test for assessing whether a defendant's constitutional speedy trial rights had been violated, and "emphasize[d]" the "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." (Id. at pp. 530-532.) This proved to be the case for Barker, in light of a record that "strongly suggest[ed]" he "did not want to be tried" and instead "hoped to take advantage of the delay in which he acquiesced, and thereby obtain a dismissal of the charges." (Id. at p. 535.) It was only after Barker "lost his gamble" and realized dismissal was not likely, that he began to object to continuances. (Id. at p. 536.)
In rejecting Barker's speedy trial claim, the court noted that it was not holding that "there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances," but added that "barring extraordinary circumstances, [the court] would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial." (Barker, supra, 407 U.S. at p. 536, italics added.)
B. Brillon
In Vermont v. Brillon (2009) 556 U.S. 81 (Brillon), the United States Supreme Court revisited the balancing test established by Barker, finding no speedy trial violation in a nearly three-year delay in bringing defendant to trial. (Brillon, at pp. 84, 89.) In reversing the Vermont Supreme Court, the high court established a "general rule" that "delays sought by [assigned defense] counsel are ordinarily attributable to the defendants they represent," not to the state. (Id. at pp. 85, 94.) Applying this rule, the court concluded that the extensions and continuances sought by Brillon's attorneys "must . . . be attributed to Brillon as delays caused by his counsel," and concluded that "[t]heir 'inability or unwillingness . . . to move the case forward,' [citation] may not be attributed to the State simply because they are assigned counsel." (Id. at pp. 92-93.)
In so concluding, the court explained: "A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic." (Brillon, supra, 556 U.S. at p. 93.) The court cautioned, however, that this "general rule . . . is not absolute." (Id. at p. 94.) Delay caused by a "systemic 'breakdown in the public defender system' " or "institutional problems" could be chargeable to the state. (Ibid.) However, in Brillon, "the Vermont Supreme Court made no determination, and nothing in the record suggest[ed] that institutional problems caused any part of the delay in Brillon's case." (Ibid.)
C. Williams
In People v. Williams (2013) 58 Cal.4th 197 (Williams), the California Supreme Court employed a Barker analysis to address a speedy trial claim involving a seven-year pretrial delay. (Williams, at p. 234.) The court's principal focus was on the reason for the delay, which it acknowledged was "the 'flag all litigants seek to capture.' " (Id. at p. 239.) In analyzing this factor, the court found the defendant responsible for periods in which he had acquiesced in continuances, waived time, and engaged in self-representation in a dilatory fashion. (Id. at p. 240.) The court also identified a roughly four-year period during which "the lion's share of delay resulted from defense counsel's lack of progress in preparing this case for trial." (Id. at p. 241.) Since the record did not contain evidence of a " 'systemic "breakdown in the public defender system," ' " the court concluded that under Brillon it must, "as a matter of law, charge the delay resulting from defense counsel's lack of progress to defendant." (Williams, at p. 241.)
(iii) The SVPA timely trial cases
A. Litmon and Landau
In Litmon, supra, 162 Cal.App.4th 383, the appellate court applied the Mathews and Barker balancing tests and concluded the defendant's right to due process had been violated for failure to bring him to trial in a timely manner. (Litmon, at pp. 389-406.) There, the critical delay occurred after a mistrial. (Id. at pp. 391-392.) One month after the mistrial, Litmon's counsel said she was ready to retry the matter immediately, that defendant did not want any delay in his trial, and that her witnesses would be available within two weeks. (Id. at p. 392.) The court, however, set the trial nine months off, in part to allow the district attorney time to secure his witnesses. (Ibid.) After the nine months had passed and just days before trial, the district attorney successfully moved for a continuance for two more months because he had not subpoenaed his witnesses in a timely fashion, and some were unavailable. (Id. at pp. 393-394.) The appellate court concluded the justification for the delays was inadequate and reversed the SVP commitment order. (Id. at pp. 405, 412.) Thus, in Litmon, all the delay was attributable to the prosecution, and none to the defendant, and the defendant expressly and promptly asserted his right to a speedy trial.
In Landau, supra, 214 Cal.App.4th 1, the appellate court applied the Mathews and Barker balancing tests and concluded that a seven-year delay from the filing of the SVPA petition to Landau's third trial (after two mistrials) did not violate his due process rights. (Landau, at p. 27.) In so concluding, the court observed that while the almost six-year delay preceding Landau's first trial was "extreme" when considered as a whole, "the reason for delay was, for the most part, because appellant either asked for it or stipulated to it, often with what were purported to be time waivers." (Id. at p. 37.) In light of this, the court rejected Landau's assertion that the delay in his case was more egregious than that in Litmon, noting that the small periods of "unconsented-to-delay" in Landau's trial did not come close to the 11-month delay in Litmon. (Landau, at p. 38, italics added.) Landau acknowledged the general principle that "the court and the district attorney bear ultimate responsibility for providing a timely trial to a person against whom an SVP petition has been filed" (id. at p. 41), but explained that this did not mean a person subject to potential SVPA commitment can "seek to continue his trial over and over again and then be heard to complain the court violated due process by granting his requests." (Id. at pp. 37, 41.)
B. Vasquez, DeCasas, and Butler
In Vasquez, supra, 27 Cal.App.5th 36, the appellate court affirmed the trial court's dismissal of an SVPA proceeding based on violation of Vasquez's due process right to a speedy trial. Applying Mathews and Barker, the appellate court concluded the 17-year delay in bringing the case to trial was caused in part by a "systemic breakdown in the public defender system" (Vasquez, at p. 74), resulting from "dramatic staffing cuts in the office" of the Los Angeles County Public Defender. (Id. at p. 72.) In so determining, the court attributed the first 14 years of delay to Vasquez, explaining that while neither of Vasquez's first two attorneys "made significant progress in moving Vasquez's case toward trial" there was "no evidence that this delay resulted from a breakdown in the public defender system." (Id. at p. 70.)
As to Vasquez's third attorney who took over the case in June of 2012, the court noted that counsel "made diligent progress" over the next two years—obtaining new evaluations and a new probable cause hearing (Vasquez, supra, 27 Cal.App.5th at p. 70)—and that Vasquez expressly agreed to a 10-month continuance between June of 2013 and April of 2014 to allow counsel to vindicate his legal rights. (Id. at pp. 47-48, 70.)
The appellate court did not consider a written waiver of speedy trial rights, purportedly executed by Vasquez and submitted on appeal, noting the trial court could not locate any such documents in its files and neither counsel produced such a document at the hearing. (Vasquez, supra, 27 Cal.App.5th at p. 46.)
However, beginning in October 2014, defense counsel "repeatedly raised with the trial court her inability to prepare for trial given the 50 percent cut in her office's staff and her increased workload." (Vasquez, supra, 27 Cal.App.5th at p. 71.) Counsel subsequently sought continuances, explaining she was juggling several cases and her lack of progress was exacerbated by the loss of her paralegal. (Id. at p. 71.) Counsel again complained in early 2016 that the staffing cuts hampered her ability to work on the case, and then in September—shortly before the scheduled trial date—she was transferred out of the SVP unit. The public defender appointed to take over the case subsequently requested the trial court vacate the trial date. At this point, Vasquez objected, stating " '[e]nough is enough.' " (Id. at p. 71.) After a Marsden hearing, the trial court substituted counsel. New counsel then filed a speedy trial motion on Vasquez's behalf. (Vasquez, at p. 71.)
Under People v. Marsden (1970) 2 Cal.3d 118, a defendant may request that the trial court replace appointed counsel upon a showing that he or she has been denied effective representation of counsel. (Id. at pp. 123-124.)
On appeal, the court explained that "the public defender's office had a responsibility when [defense counsel] assumed representation of Vasquez in June 2012 diligently to bring his aging case to trial." (Vasquez, supra, 27 Cal.App.5th at pp. 71-72.) But instead of focusing resources on this task, defense counsel was hampered in her preparation by dramatic staffing cuts that limited the time she could spend on the case. Thus, starting at the end of 2014 "there was at best sluggish progress in moving Vasquez's then 14-year old case to trial" (id. at p. 72), which was then further exacerbated when counsel was finally ready to proceed, but was removed from the case "on the eve of trial." (Id. at p. 73.)
The appellate court concluded that in light of this record, the trial court did not err in finding that the dysfunctional manner in which the public defender's office handled Vasquez's case " 'was precisely the type of systemic or institutional breakdown contemplated by Brillon and Williams' " and thus " 'the reason for the delay in bringing the case to trial should be attributed to the state, and not to Mr. Vasquez.' " (Vasquez, supra, 27 Cal.App.5th at p. 73.)
In People v. DeCasas (2020) 54 Cal.App.5th 785 (DeCasas), the trial court determined that a 13-year delay following the filing of an SVPA petition mandated dismissal under Vasquez. The public defender assigned to the case testified that budget cuts in early 2014 severely hampered his ability to bring the case to trial. (DeCasas, at pp. 801-802, 810.) DeCasas concluded that the case could not be "meaningfully distinguished" (id. at p. 12) from Vasquez in light of the testimony and evidence presented at the evidentiary hearing. As in Vasquez, the deputy public defender assigned to the case testified about the "deleterious effects of the staffing cuts" on his clients. (DeCasas, at p. 810.) Defense counsel further admitted he waived time without DeCasas's permission, while the attorney who subsequently took over the case testified she found paralegal notes indicating that, starting in 2010, DeCasas stated he wanted to be released from the hospital, and had complained to her that his prior attorneys had not done work on his case while it dragged on for years. (Id. at p. 798.) Thus, there was substantial evidence to support the trial court's finding that, beginning in 2014, a systemic breakdown in the public defender's office caused the delays. (Id. at p. 810.)
Finally, in In re Butler (2020) 55 Cal.App.5th 614 (Butler), the appellate court affirmed a grant of habeas relief following a 13-year delay in bringing an SVPA detainee to trial. Following an evidentiary hearing, the habeas court concluded that Butler had been denied due process and that the blame for the delay was shared by the prosecution, the defense, and the trial court by varying degrees—with the ultimate responsibility falling on the trial court. (Id. at pp. 636-637.) The habeas court found, inter alia, that Butler made repeated demands for a speedy trial starting shortly after the petition was filed in his case (documented by letters sent to the trial judge and his attorneys) and that Butler's attorneys never conveyed his request to the court—instead waiving time and his appearance on his behalf. (Id. at p. 635.)
On appeal, Butler concluded that both parties and the court bore responsibility for the delay, and then addressed the legal question of whether, where responsibility overlapped, the delay had to be attributed to the defendant for purposes of speedy trial analysis. (Butler, supra, 55 Cal.App.5th at p. 661.) The court answered the question in the negative, noting that the public defender's repeated failure to honor Butler's speedy trial demands—and " 'breakdown with the management of [the] case' "—created an exception to the "agency" principle announced in Brillon. (Butler, at p. 662.) Accordingly, the appellate court could not conclude that the habeas corpus court erred (either under Mathews or Barker) in finding that the state was more to blame for the delay than Butler. (Id. at pp. 662, 664.)
b. Allen cannot prevail on his claim
We summarily reject Allen's contention that if the current record is insufficient to grant him outright relief, we must remand the matter for an evidentiary hearing on his motion to dismiss. Our high court in Williams did not remand for such a hearing, but instead reviewed the matter on the appellate record before it. (Williams, supra, 58 Cal.4th at p. 249.) In this case, we find the appellate record sufficient.
(i) Allen is responsible for the continuances obtained by his counsel or with his consent
In Williams, our high court concluded that it was "readily apparent from the record" that defendant was responsible for any delays in which he "acquiesced in continuances" sought by his counsel, and during periods in which "he consistently waived time." (Williams, supra, 58 Cal.4th at p. 240.) Similarly, in Landau, the court, in denying relief, pointed out that "the reason for the delay was, for the most part, because appellant either asked for it or stipulated to it, often with what were purported to be time waivers." (Landau, supra, 214 Cal.App.4th at p. 37.) The same is true here, in that the record supports the conclusion that the vast majority of delays are attributable to Allen.
First, between 2003 and 2006, Allen's attorney (Deputy Public Defender Wong) requested to continue the matter eight times. Three additional continuances proceeded by stipulation of both parties. Although the reporter's transcripts are not available for these hearings, the clerk's transcripts are sufficient to establish that Allen, through his counsel, either requested or consented to all continuances. (See Landau, supra, 214 Cal.App.4th at p. 39 [stating that while no reporter's transcripts were available for certain periods, there was "nothing in the court's minutes indicating appellant was opposed to the continuance date or that appellant requested the setting of a trial date"].)
Second, after public defender Thomas took over in January 2007, the matter was continued to May 2007 to allow him time to review the case file. A subsequent set of continuances between May 2007 and April 2008 ensued after the prosecutor informed the court that recent evaluations had resulted in a split of opinion, and new experts would have to be appointed and new evaluations issued. Thomas stipulated to all of these continuances, and, in turn, required his own set of continuances from April 2008 through November 2009 to locate experts and have them prepare evaluations. Finally, both parties stipulated to continuances on November 30, 2009 and March 2, 2010, to allow the prosecution's evaluations to be updated in preparation for a final "pre-trial" hearing and trial-setting date. Thus, these continuances were necessitated by the legitimate need to obtain additional or updated evaluations, an appropriate reason for the delay, and were not attributable to any "systemic breakdown" in the public defender's office.
At the next hearing, on April 8, 2010, Thomas informed the court he had received updated evaluations, but Allen requested another probable cause hearing pursuant to Ronje, supra, 179 Cal.App.4th 509. Thomas told the court that while it was his position that they should "send the matter out to trial," Allen "ha[d] a different idea of how he want[ed] to proceed." Thomas told the court he would visit Allen the following week to explain the consequence of delaying his trial and obtain a time waiver from him.
Thereafter, on April 28, 2010, Allen successfully moved pursuant to Ronje for a new probable cause hearing. He also executed a waiver of his right to a timely trial under "the federal and state Constitutions and the SVPA", as delineated in Litmon, supra, 162 Cal.App.4th 383. In the waiver, Allen expressly stated he would "notify the court and/or [his] counsel when [he] desire[d] to have a trial." Allen did not, however, make such a demand until January 29, 2018—a week before trial was set to begin.
The time waiver was executed on April 12, 2010, and filed with the court on May 26, 2010.
To the extent Allen points to comments by public defender Terry Shenkman on November 10, 2015 as a "clear demand for a speedy trial," we disagree. On that date, Shenkman informed the court that Allen told her he wanted to be brought to court to express his dissatisfaction with "the attorney changes and the delay" but once she indicated to him that she intended to try the case in early 2016, he withdrew his request. Shenkman expressly stated that the issue was "resolved." Moreover, when Shenkman subsequently declared a conflict and withdrew from the case, Allen was personally present in court. He raised no speedy trial concerns at that time, nor did he make any complaints about counsel. Instead he expressly waived his presence for any future hearings. (Cf. Vasquez, supra, 27 Cal.App.5th at p. 71 [defendant asserted speedy trial rights in open court and complained about counsel's performance, prompting Marsden hearing and subsequent speedy trial motion].)
Given the periods of delay attributable to Allen, it is clear that Allen cannot prevail on his due process claim absent a showing of systemic breakdown in the public defender's office or the type of egregious facts that would support shifting the responsibility to either the prosecution or the trial court. (See Brillon, supra, 556 U.S. at p. 94; Williams, supra, 58 Cal.4th at p. 241; Vasquez, supra, 27 Cal.App.5th at pp. 72-75; DeCasas, supra, 54 Cal.App.5th at pp. 810-811.)
As explained below, Allen cannot satisfy his burden on this record. (Williams, supra, 58 Cal.4th at p. 233 [burden of demonstrating speedy trial violation lies with defendant].)
(ii) There is no evidence any delay was caused by a "systemic breakdown" in the public defender's office
In Williams, our high court observed "[i]t is possible that the 'revolving door' of appointed counsel" was "indicative of 'institutional problems,' " but concluded that "in the absence of evidence identifying systemic or institutional problems" (as opposed to mere "problems with individual attorneys"), the court was unable to attribute the delay to "a breakdown in the public defender system." (Williams, supra, 58 Cal.4th at pp. 248-249.)
In Vasquez, the court concluded that all of the first 14 years of delay (including 11 years in which both of Vasquez's public defenders requested continuances but "neither . . . made significant progress in moving Vasquez's case toward trial") were attributable to Vasquez because there was "no evidence that this delay resulted from a breakdown in the public defender system." (Vasquez, supra, 27 Cal.App.5th at p. 70.) It was only the final three years—wherein Vasquez's third public defender "repeatedly raised with the trial court her inability to prepare for trial" due to budget cuts, and she and another public defender testified to the same—that supported the trial court's finding of a systemic breakdown. (Id. at pp. 53, 71, 73, italics added.)
Here, the record before us is positioned similarly to that in Williams and the initial years in Vasquez. Allen's first three public defenders (Wong, Thomas, and Lewis) never expressed any inability to prepare for trial due to being overworked by their office or other similar issues, while Allen's fourth public defender, Terry Shenkman, informed the court of budget cuts in her office at her initial appearance in November 2014 (in seeking time to familiarize herself with the case) but did not raise the issue again. Nor did she complain that she was unable to move Allen's case forward due to any such problems. Instead, she litigated a number of issues, including bringing a statutory challenge to the replacement of a prosecution evaluator, filing a motion challenging the prosecution's purported jury trial waiver, and seeking a protective order to prevent non-assigned experts from accessing and reviewing Allen's records. (See Vasquez, supra, 27 Cal.App.5th p. 70 [attributing delay of defense counsel's first two years to defendant because counsel filed two motions, including a motion to replace evaluators, which qualified as "diligent progress"].)
Although Shenkman ultimately declared a conflict and was relieved in early April of 2016, her time as Allen's counsel is not demonstrative of a systemic breakdown. That is, not only did she make diligent progress in the case, but she did so while Allen's speedy trial waiver remained in effect. (cf. Vasquez, supra, 27 Cal.App.5th at p. 70 [attributing period to Vasquez for 10-month period in which he expressly agreed to continue proceedings to allow counsel to evaluate whether to appeal denial of motion].) Moreover, unlike in Vasquez, where Vasquez's public defender was transferred out of the unit on the "eve of trial" over her protest to the head deputy public defender about problems in the public defender's office, defense counsel here declared a conflict after a lengthy discussion regarding issues relating to the protective order and waivers of privilege. In withdrawing from the case, Shenkman made no comments or statements suggesting a "systemic breakdown" in the public defender's office and Allen, who was present at the hearing, made no assertion of his speedy trial rights, nor did he raise any complaints against counsel. Instead, Allen told the court he wanted to waive his appearance for all future proceedings and have his newly appointed counsel represent him at the proceedings.
Finally, while Allen's new counsel, bar panel attorney Arlene Binder, ultimately filed a speedy trial motion on his behalf a week before trial (in January 2018), at a hearing on October 30, 2017—when Binder stated she would not be ready for the trial date set for November 2, 2017—she expressly told the court that Allen was not "requesting to rush" the matter "at all."
Directly before making this statement, Binder commented, "[t]he reality is the older he gets the more likely he is to get a report. Perhaps this next evaluation—." (Cf. Hunter v. King, 2016 U.S. Dist. Lexis 69455 [rejecting due process challenge where petitioner did not object to defense counsel's repeated requests for continuances and failed to address argument that delays inured to his benefit because once he reached the age of 60, it was less likely he would meet the SVP criteria]; Butler, supra, 55 Cal.App.5th at p. 635 [public defender testified at habeas evidentiary hearing that he advised petitioner "to pursue a strategy of challenging the SVP petition by legal motion rather than trial"].)
Based on this record, we are unable to find that the delay resulted from a systemic breakdown in the public defender system. (Brillon, supra, 556 U.S. at p. 94; Williams, supra, 58 Cal.4th at p. 241.)
(iii) There is no evidence the delay was attributable to either the prosecution or the trial court
A. The prosecution
The record here reveals no grounds for blaming the prosecution for the delay. First, not a single continuance was solely attributable to the prosecution; all continuances were either at the request of defense counsel or by stipulation of counsel. Second, the only significant continuance period requested by the prosecution occurred after two evaluators disagreed and the DMH appointed two new experts to evaluate Allen. The fact that defense counsel subsequently required a longer period to secure his own experts and updated evaluations supports the conclusion that the continuance sought by the prosecution was reasonable—and certainly gives no indication of the opposite. (See Landau, supra, 214 Cal.App.4th at p. 43 [noting delay not unreasonable given complexity of case, number of experts involved, and fact that reports had to be read and digested].) Third, the prosecution attempted to push the matter to trial: it announced it was ready for trial in November 2008 while Allen was represented by Thomas; again stated it was ready to proceed in 2013, after Allen had obtained his second probable cause hearing and was represented by Lewis; and again in early 2016 when Allen was represented by Shenkman.
To the extent Allen asserts the prosecution "deliberately delayed [his] trial by asserting a right to a jury trial," that contention is baseless. (Italics added.) While it is true that the prosecution asserted its right to a jury trial—and disputed Allen's claim that it had previously waived that right—the trial court ultimately agreed with the prosecution after reviewing the relevant transcripts. In any event, Allen's assertion that the prosecution's conduct was a deliberate attempt to delay the trial is pure speculation and unsupported by any evidence in the record. (See Landau, supra, 214 Cal.App.4th at p. 34 [claim that prosecutor intentionally delayed trial until his departure from office not supported by record].)
B. The trial court
Nor does the record suggest the trial court bears responsibility for the delay.
Vasquez criticized the trial court for failing to take "meaningful action to set deadlines or otherwise control the proceedings and protect Vasquez's right to a timely trial," but ultimately concluded that it could not find the trial court " 'directly responsible' " for the delay in the case. (Vasquez, supra, 27 Cal.App.5th at pp. 75, 81.) Vasquez reasoned that "[t]he trial court . . . has a responsibility absent a written time waiver to inquire of a defendant whether he or she agrees to the delay" and thus "[h]ad the trial court inquired of Vasquez during this first 14-year period, we would know whether Vasquez was seeking a speedy trial, or was content to let his case be continued so long as the evaluations supported his commitment." (Id. at p. 75.)
In DeCasas, the trial court "enabled and compounded the delays resulting from the [public defender's office] staffing cuts" by failing to set deadlines and hold the parties accountable to them. Defense counsel failed to obtain a time waiver as suggested by the court, and instead waived time without DeCasas's permission. (DeCasas, supra, 54 Cal.App.5th at pp. 792, 806, 810-811.)
In addition, an evaluation submitted by a court-appointed psychologist stated that DeCasas (a previously diagnosed schizophrenic) " 'was most likely not competent to comprehend issues of speedy trial through counsel, or to assist or meaningfully authorize counsel to handle legal proceedings on his behalf.' " (DeCasas, supra, 54 Cal.App.5th at p. 800.)
The record here stands in stark contrast to Vasquez and DeCasas. That is, Allen executed a written waiver of his speedy trial and due process rights, and counsel filed the waiver with the court. Moreover, Allen appeared in court either in person or via video multiple times during the ensuing years, and never once asserted his right to a timely trial before the trial court. The trial court actively set trial dates and sought to move the case along, informing the parties at various junctures that numerous pretrials had taken place and stressing that the case needed to proceed to trial. Defense counsel, however, continued to litigate collateral issues and—when the court expressed frustration with the delays—told the court that Allen was not seeking to rush the case.
The periods Allen appeared in person or via video include May 24-25, 2011, August 18, 2011, September 28, 2011, November 29, 2011, January 11, 2012, May 9, 2012, August 16, 2012, November 27, 2012, December 17, 2012, July 12, 2013, October 11, 2013, December 6, 2013, January 24, 2014, February 13, 2014, March 11, 2014, and April 5, 2016. At no time did he express his desire to proceed with trial or object to any continuances.
On this record, we cannot find the trial court responsible for the delay in this case. (Williams, supra, 58 Cal.4th at pp. 250-251 [noting that even though the trial court "repeatedly indulged defense counsel's requests for continuances due to lack of preparation," it did not abuse its discretion in granting the continuances, nor was the trial court directly responsible for the delay]; cf. Vasquez, supra, 27 Cal.App.5th at p. 81.)
iv. Conclusion
In sum, the vast majority of the delays between 2003 and 2010 were either attributable to Allen, or were necessitated by the need to obtain updated evaluations. Thereafter, Allen executed a speedy trial waiver, and did not assert his speedy trial right until shortly before trial transpired. He cannot now be heard to complain about his speedy trial right during the period the waiver was in effect. The record before us does not suggest that the delays were due to a systemic breakdown at the public defender's office, nor does it suggest that the prosecution or the trial court were responsible for the pretrial delay. While the time between filing the petition and trial was lengthy, we discern no violation of Allen's due process or speedy trial rights.
4. Alleged evidentiary errors
Allen contends that the trial court improperly excluded certain categories of expert testimony by incorrectly assuming it constituted prohibited hearsay under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). As explained below, we conclude the trial court did not abuse its discretion in excluding the contested testimony—either under Sanchez or other relevant evidentiary rules and principles—and that any purported error would be harmless in any event.
a. Applicable legal principles
(i) Standard of review
We review the trial court's evidentiary rulings—including those that turn on the hearsay nature of the evidence—for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. Waidla (2000) 22 Cal.4th 690, 725.) A trial court abuses its discretion when, among other things, it makes an error of law. (People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Yates (2018) 25 Cal.App.5th 474, 484-485.) Any error in the exclusion of testimony pursuant to ordinary rules of evidence is reviewed under the state law error standard announced in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 (Fudge); People v. Stoll (1989) 49 Cal.3d 1136, 1163 (Stoll).)
Both parties agree that Watson is the appropriate standard here.
(ii) Experts, hearsay, and the Sanchez rule
Hearsay is generally inadmissible, unless it falls under an exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez, supra, 63 Cal.4th at p. 676.)
Except as otherwise provided by statute, the Evidence Code applies in all actions other than those before a grand jury. (Evid. Code, § 300.) This includes SVPA proceedings. (In re Kirk (1999) 74 Cal.App.4th 1066, 1071-1073.)
Although expert witnesses frequently acquire knowledge in their field of expertise from hearsay sources, "[t]he hearsay rule has traditionally not barred an expert's testimony regarding his general knowledge in his field of expertise." (Sanchez, supra, 63 Cal.4th at p. 676.) Thus, an expert witness may offer opinions based on any matter, including special knowledge, skill, experience, training, and education, "whether or not admissible, that is of a type that reasonably may be relied upon" by experts in the field. (Evid. Code, § 801, subd. (b).) Prior to Sanchez, an expert witness was also permitted to relate case-specific hearsay to the jury, as long as the jury was instructed that it could only consider the expert's recitation of such information for its effect on the expert's opinion, and not for its truth. (People v. Bell (2007) 40 Cal.4th 582, 608, overruled by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13; People v. Montiel (1993) 5 Cal.4th 877, 918-919, overruled by Sanchez, supra, at p. 686, fn. 13; People v. Coleman (1985) 38 Cal.3d 69, overruled by Sanchez, supra, at p. 686, fn. 13.)
In Sanchez, our Supreme Court abandoned the "not-admitted-for-its-truth rationale" with respect to case-specific hearsay. (People v. Stamps (2016) 3 Cal.App.5th 988, 994, citing Sanchez, supra, 63 Cal.4th at p. 678-679.) Sanchez preserved an expert's ability to rely on and cite background information "regarding his knowledge and expertise and premises generally accepted in his field" and to "tell the jury in general terms" "the kind and source of the 'matter' upon which his opinion rests." (Sanchez, at pp. 685-686.) But an expert's recitation of case-specific facts, which Sanchez defined as "those relating to the particular events and participants alleged to have been involved in the case being tried," was deemed a different matter. (Id. at p. 676.) Sanchez held that an expert is prohibited from testifying to such facts if they are outside the expert's personal knowledge, do not fall under an exception to the hearsay rule, or have not been independently established by competent evidence. (Id. at pp. 676-677, 686.)
Although Sanchez was a criminal case, subsequent courts have applied its holding to cases arising under the SVPA. (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 878 ["Sanchez has repeatedly been held to apply in SVP proceedings"]; People v. Yates, supra, 25 Cal.App.5th at p. 483 [noting cases]; cf. People v. Bona, supra, 15 Cal.App.5th at p. 520.)
b. Allen fails to show any of the trial court's evidentiary rulings constituted reversible error
Allen contends the trial court erred by excluding or limiting three areas of expert testimony: (1) information on sexual recidivism and recidivist studies; (2) state hospital patients' behavior; and (3) defense criticism of the People's expert testimony. We address each category below.
(i) Sexual recidivism and recidivist studies
A. Defense Cross-Examination of Prosecution Expert, Dr. Sims
During defense counsel's cross-examination of prosecution expert Dr. Sims, counsel sought to elicit testimony regarding what other nontestifying experts, namely Drs. First and Francis, would say about using the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to predict future criminal conduct. The prosecutor objected, noting the opinions of other experts were inadmissible and argued that providing the names of specific or prominent experts created "a false imprimatur of the opinions of those individuals who are not testifying witnesses." The trial court agreed. After defense counsel explained she was hoping to elicit testimony "that there was a change from the DSM-IV to the DSM-V to correct this mistake," the court responded by explaining counsel could ask Dr. Sims "if there was a change from one version of the DSM to the other," but that counsel could not ask him "specifically what this other expert or other doctors say." This was entirely appropriate. (People v. Pearson (2013) 56 Cal.4th 393, 448-449; People v. Landau (2016) 246 Cal.App.4th 850, 875 [expert may not testify to opinions of other experts].)
Drs. First and Francis were authors and contributors to the DSM-IV, published by the American Psychiatric Association.
Moreover, in earlier testimony, Dr. Sims acknowledged the DSM-V includes the caveat that the information contained therein is not intended for forensic use. Nonetheless, because there is no equivalent publication geared for forensic use, testifying psychiatrists and psychologists typically rely upon it. Dr. Sims also testified that it is not possible to predict whether someone will act criminally in the future, but an expert can only give "an estimate of the person's sex offense recidivism risk." Accordingly, even assuming arguendo that the trial court erred, no prejudice is apparent. (Fudge, supra, 7 Cal.4th at pp. 1102-1103; Stoll, supra, 49 Cal.3d at p. 1163.)
The same principles hold true with regard to defense counsel's query as to whether the originator of the Static-99R had stated that the risk of offending when one is 60 to 70 years old is "truly exceptional." The court appropriately sustained a hearsay objection to the question. Moreover, both the People's expert and the defense expert testified that it was well established that the older a person gets, the less likely he is to commit another sexual offense—a fact that served to reduce Allen's Static-99R score.
The Static-99 is an actuarial risk assessment scale. (See generally People v. Shazier (2014) 60 Cal.4th 109, 118-119.)
The court also sustained a hearsay objection when defense counsel later asked the same question of defense expert, Dr. Fisher.
B. Examination of Defense Expert Dr. Fisher
Allen argues the trial court erroneously struck testimony from his expert, Dr. Fisher, regarding studies indicating that offenders similar to Allen did not have a re-offense rate higher than 11.9 percent if released back into the community. However, the trial court subsequently allowed Dr. Fisher to testify to that figure after Fisher confirmed he actually relied on such studies in forming his opinion. Dr. Fisher was further permitted to testify that, in his opinion, 11.9 percent was the highest figure that could apply to Allen, and that other studies would predict even a lower risk for him. In light of this testimony, we discern no prejudicial error from the trial court's initial rulings. (Fudge, supra, 7 Cal.4th at pp. 1102-1103; Stoll, supra, 49 Cal.3d at p. 1163.)
At another point, Dr. Fisher testified, without objection, that after using the Static-99R, reviewing age and other SVP-related data, the highest risk category for Allen would be 11.9 percent, and the lowest prediction would be "under 5 percent."
C. Juror question regarding SRAFV
Prosecution expert, Dr. Sims, testified that in assessing Allen's risk factor with the Static-99R, he also considered non-static (or "dynamic") variables not encompassed in the Static-99R, but identified in an instrument called the Structured Risk Assessment Forensic Version (SRAFV). Dr. Sims noted, however, that the SRAFV only adds "incremental value." Defense expert, Dr. Fisher, opined that the SRAFV was neither a reliable nor helpful instrument, because, inter alia, similarly trained psychologists using it could arrive at different scores, and it did not take into account the offender's age.
During a break in Dr. Fisher's testimony, the jury submitted the following question: "You referred to a research study on the SRAFV that questioned its validity/value. Please tell us how many patients were involved and for how long the patients were followed[?]" The court felt that question would elicit inadmissible hearsay and the prosecutor agreed. Defense counsel submitted on the issue.
On appeal, Allen argues the jury's question "asked for general background information of which an SVP expert should be aware" and defense counsel's failure to preserve the issue by objecting to the court's ruling resulted in ineffective assistance of counsel. We disagree. To establish ineffective assistance of counsel, a defendant must show not only that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, but also that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (People v. Bell (2019) 7 Cal.5th 70, 125.) We accord great deference to counsel's tactical decisions and presume they can be explained as a matter of sound trial strategy. (People v. Mickel (2016) 2 Cal.5th 181, 198; In re Gay (2020) 8 Cal.5th 1059, 1073.) We will reverse a conviction based on ineffective assistance grounds only if there is affirmative evidence that counsel had no rational tactical purpose for an action or omission, was asked for a reason and failed to provide one, or there could be no satisfactory explanation. (People v. Hoyt (2020) 8 Cal.5th 892, 958.)
Here, Allen fails to establish either prong of his ineffective assistance claim. Allen does not show that the queries regarding the sample size and length of the study would have yielded relevant information favorable to the defense. Without such information, he fails to show counsel lacked a tactical reason for her failure to object. (See People v. Riel (2000) 22 Cal.4th 1153, 1185 [" 'Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.' "].) And, in the absence of a showing that the excluded information would have assisted the defense, Allen fails to establish prejudice.
(ii) Limitation on questions regarding other patients' behavior
A. Additional facts
During cross-examination of prosecution expert, Dr. Sims, defense counsel asked a series of questions aimed at showing that persons detained at the hospital could act out in various ways, but Allen had not done so. Counsel asked whether patients at the hospital had been found with magazine pictures of children, whether Sims had interviewed patients who possessed pornography, and whether Sims had evaluated patients who used illicit drugs at the hospital. The trial court sustained objections to these questions on relevance or lack of personal knowledge grounds. The court asked whether Sims had personally discovered a patient's possession of pornography; he had not. Counsel was permitted to ask whether Sims had evaluated detainees who had been punished for pornography possession or who collected magazine photos of young girls; he had not.
During examination of defense expert Dr. Fisher, counsel asked how people experiencing a disorder would express "ongoing intense sexual fantasies." When Dr. Fisher responded by referencing "child porn," the prosecutor objected, asking if Dr. Fisher was testifying to something he had personally observed. Dr. Fisher stated he was relying on the files he had reviewed. The court sustained the objection, explaining that unless he had personally observed such behavior or had particular patients found in possession of pornography, the reference would be inadmissible hearsay. Defense counsel subsequently asked if Dr. Fisher was aware that hospital staff made numerous unannounced visits to detainees' rooms. The prosecutor objected for lack of personal knowledge. Dr. Fisher stated he had not seen such visits, but had read about them in records. The court struck the testimony as hearsay.
Defense expert, Dr. Abbott, testified that Allen had not shown any institutional signs of paraphilic disorder. Defense counsel asked him to clarify what he meant. Dr. Abbott stated that in his experience, detainees who suffered from pedophilic disorder continued to find ways to satisfy their sexual preference for prepubescent children even in an institution. The court overruled the prosecutor's objection. Defense counsel then asked Dr. Abbott if he had personally observed any "institutional signs of acting out." Dr. Abbott responded that he had only read about them in records and heard about them from other clients. The court stuck the testimony as hearsay. Defense counsel also attempted to elicit testimony from Dr. Abbott about a purported lockdown at the hospital. The court ruled that Dr. Abbott could not testify about it because he lacked personal knowledge of the reasons for the lockdown.
Defense counsel had previously attempted to ask questions about the purported lockdown during her examination of defense lay witness Charles DeFlanders, a Coalinga State Hospital employee who ran a book club. In seeking to ask DeFlanders about the lockdown, counsel told the court that the hospital staff had locked down the hospital in order to search for child pornography. The court ruled that absent personal knowledge, an employee such as DeFlanders could not testify as to the reasons behind the lockdown. Given that counsel proffered no foundational facts regarding DeFlanders's employment status that warrant a contrary conclusion, we discern no error in the trial court's ruling.
B. Discussion
Allen contends that the trial court erred by prohibiting defense counsel's questions on hearsay and foundational grounds. He asserts that information the doctors gathered from their experience working at the hospital, review of records, and conversations with hospital staff is background information, to which an expert is permitted to testify under Sanchez.
Analogizing to People v. Ochoa (2017) 7 Cal.App.5th 575, the People counter that the questions called for case-specific hearsay. They assert that, for example, evidence of another patient's pornography possession was related to the events in this case, and was not simply background information.
We need not resolve the question of whether defense counsel's questions impermissibly called for case-specific hearsay, because even assuming arguendo the trial court erred by limiting counsel's questions, any error is harmless.
During her cross-examination of prosecution expert Dr. Sims, defense counsel was able to elicit, without objection, that it was not "uncommon" for staff to confiscate pornography held by detainees. Dr. Sims further acknowledged that there are patients who have touched female staff members in a sexual manner. Sims also confirmed that he had found no record of any similar transgressions by Allen either in his prison or hospital records.
Prosecution expert, Dr. Goldberg, testified that based on his review of all records, Allen had never been written up for any kind of violation, and observed that Allen is a "rule follower" not a "rule violator." Goldberg opined that Allen is not inclined to collect child pornography, and lacked that inclination even during the periods when he committed his sexual offenses. Dr. Goldberg pointed out that even though Allen did not engage in any inappropriate behavior during his first prison term, he committed additional sexual offenses when released. He further testified he found Allen to present a risk in light of his expressed intention to live with, or nearby, his granddaughter, who had reportedly been acting out sexually, and because he remained convinced that his stepdaughter was partially responsible for the fact he forcibly raped her because purportedly she "came on to him." Dr. Goldberg also noted Allen's admission that "once you get into those situations they're hard to break away from."
Defense expert Dr. Fisher testified that he had consulted on "multiple cases" where people had possessed child pornography or possessed hand-drawn pictures of children engaged in sex. He further testified that during his tenure at Napa State Hospital, he and staff "were constantly engaged in . . . discussions with our patients about what kinds of pictures of children should be allowed in their possession" and that "child pornography" was a "rampant problem at the state hospital." During a break in Dr. Fisher's testimony, the jury submitted the following question: "How do you know that Mr. Allen has not had sexual fantasies besides not having obvious possession or talking about sexual desires and/or paraphilia?" In response, Dr. Fisher testified that in assessing that question, "behavioral evidence becomes important." Compared with persons who "are continuing to show behavioral signs, who are acting out their deviancy," the fact Allen had not engaged in such behaviors "gives us some evidence that he's probably not having those fantasies." Dr. Fisher further testified that, in his opinion, if a person had a mental disorder that compromised his ability to control himself there would be some type of behavioral evidence during the prolonged institutional detention.
Based on the testimony outlined above, it is apparent the jury heard that: (1) detainees have been known to possess pornography at Coalinga State Hospital, (2) Allen was not one of those detainees, and (3) Allen, in fact, had a spotless behavioral record during his time of incarceration and institutionalization. The jury also heard experts offer differing opinions as to what, if any, bearing these facts should have in assessing Allen's potential risk factors. In light of this record, Allen cannot show that the court's rulings prejudiced his case. (Fudge, supra, 7 Cal.4th at pp. 1102-1103; Stoll, supra, 49 Cal.3d at p. 1163.)
(iii) Limitation on questions about the People's experts' testimony
Allen next complains that the trial court improperly limited his questioning about the People's experts' testimony.
Defense counsel asked Dr. Abbott's opinion about Dr. Goldberg's testimony that Allen exhibited a serious difficulty controlling sexually violent tendencies because he was not in treatment. The prosecutor objected, arguing that the question mischaracterized Dr. Goldberg's testimony. The court agreed, finding that was only one reason for Dr. Goldberg's opinion. The court told counsel that if she "want[ed] to ask [Dr. Abbott] about whether he agrees with Dr. Goldberg, [she had] to state fully what Dr. Goldberg said. It's only fair." We discern no error in the trial court's ruling. (See Evid. Code, § 765 [trial court must exercise reasonable control over the mode of interrogation of a witness so as to effectuate the ascertainment of truth]; Pen. Code, § 1044 ["It shall be the duty of the judge to . . . limit the introduction of evidence . . . to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved"].)
Defense counsel twice attempted to ask Dr. Abbott if Dr. Goldberg had "provided evidence" that Allen exhibited serious difficulty controlling sexually violent behavior. The court ruled this was a question for the jury. The court made the same ruling when defense counsel sought to elicit Dr. Abbott's opinion as to whether Dr. Sims "had established" that Allen exhibits "serious difficulty controlling sexually violent behavior." The court explained, "[y]ou can ask Dr. Abbott whether he agrees with the conclusions of Dr. Sims, but not whether Dr. Sims established, x, y, or z." Although Allen argues that the trial court's rulings prevented counsel from critiquing the "opinions of the government's expert," the trial court was simply seeking to ensure that the province of the jury to resolve the matter was not infringed.
Under the SVPA, the People must prove that the offender suffers from a mental disorder "affecting [his] emotional or volitional capacity that predisposes [him] to the commission of criminal sexual acts" (§ 6600, subd. (c)), and that he "will likely engage in sexually violent criminal behavior due to the diagnosed mental disorder. (§ 6600, subd. (a)(3.)" (People v. Yates, supra, 25 Cal.App.5th at p. 478.) While the testimony of the mental health experts assists the jury, the determination as to whether this element has been established by the evidence is exclusively within the province of the jury. (§ 6604 ["The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator"]; cf. People v. Spence (2012) 212 Cal.App.4th 478, 508 [an expert must not usurp the function of the jury to decide the matter].) We discern no error.
With no context or preamble, Allen concludes his reply brief by stating: "Respondent appears not to have made any effort to address . . . the trial court's ruling excluding [Dr. Abbott's] fish simile." Allen's opening brief, however, contains no argument—let alone any reference—to Dr. Abbott's "fish simile." Accordingly, we do not address the issue. (People v. Tully (2012) 54 Cal.4th 952, 1075 ["It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party."].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P.J. We concur:
EGERTON, J.
DHANIDINA, J.