Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. ZM004471, Elizabeth A. Lippitt, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Juan Cordero was found by a jury to be a sexually violent predator within the meaning of Welfare and Institutions Code section 6600 et seq. Pursuant to stipulation, the trial court ordered appellant committed to the Department of Mental Health for a term of two years.
Appellant appeals from the judgment adjudicating him a sexually violent predator, contending that the trial court erred in preventing his experts from testifying about the scientific basis for their opinions and preventing his counsel from cross-examining the People's experts on the scientific basis for their opinions. We affirm the judgment.
Facts
Appellant has previously been convicted of forcible rape in violation of Penal Code section 261.2 and forcible oral copulation in violation of section 288 in 1988 and sexual penetration by a foreign object in violation of section 289 in 1997.
At the trial of this matter, the People presented the expert testimony of Dr. Srvenbasa and Dr. Arnold to show that appellant was a sexually violent predator.
Dr. Srvenbasa evaluated appellant in 2000 and 2005. She attempted to update her evaluations in 2008 and 2009, but appellant refused to cooperate. Based on her earlier evaluations, she determined that appellant met the criteria for sexually violent predator commitment. One criterion of such a commitment is a diagnosed mental disorder that affects volitional capacity. Dr. Srvenbasa diagnosed appellant with a substance abuse disorder and paraphilia involving non-consenting persons. Dr. Srvenbasa used a number of actuarial tools to assess the likelihood that appellant would re-offend, including the penile plethysmograph ("PPG") and the STATIC-99.
Dr. Arnold evaluated appellant in 2000. He also was unsuccessful in updating his evaluation in 2008 and 2009. Dr. Arnold also determined that appellant met the criteria for sexually violent predator commitment and also diagnosed appellant with a substance abuse disorder and paraphilia.
Appellant presented the testimony of four experts, Dr. Frackiewicz, Dr. Anderson, Dr. Abbott and Dr. Castellano. These experts did not believe that appellant met the criteria for sexually violent predator commitment, and criticized the findings of the People's experts in various ways.
Appellant also testified on his own behalf. He stated that he became addicted to pain killers after a high school sports injury, then began using alcohol and marijuana and then cocaine. He was intoxicated at the time of his prior offenses. Appellant had not had any alcohol since being taken into custody in 1996. He had no present desire for alcohol or drugs because he believed that they would kill him.
Discussion
1. Cross-examination of Dr. Srvenbasa
Appellant contends that the trial court erred in restricting his cross-examination of Dr. Srvenbasa. Specifically, appellant contends that he should have been permitted to question Dr. Srvenbasa about revisions to the STATIC-99 by Dr. Hanson, one of the developers of the test, regarding reductions in the test score as a result of the subject's age. He also contends that he should have been permitted to question Dr. Srvenbasa, based on an article she co-authored on paraphilia, about whether paraphilia was a recognized diagnosis or had been developed by one psychologist, Dr. Doran.
Evidence Code section 721 provides that a witness testifying as an expert may be cross-examined to the same extent as any other witness and in addition may testify about the matter upon which his or her opinion is based. (Evid. Code, § 721, subd. (a).) If the witness testified in the form of an opinion, he or she may only be cross-examined about the content or tenor of a scientific, technical or professional publication if the witness referred to, considered, or relied upon such publication in forming her opinion or the publication has already been admitted into evidence or the publication has been established as reliable authority. (Evid. Code, § 721, subd. (b).)
a. STATIC-99
Appellant is correct that the trial court did not permit him to cross-examine Dr. Srvenbasa about Dr. Hanson's article on age specifically. The prosecutor represented that Dr. Srvenbasa told him that she had not seen the article or relied on it. Appellant's counsel represented that Dr. Srvenbasa told him that she had seen a Powerpoint presentation on the article. The trial court did not further inquire into this issue, because the trial court mistakenly believed that Evidence Code section 721, subdivision (b)(3) required the article to be established as a reliable authority even if it was relied on, referred to or considered by the expert.
Subdivision (b) lists three circumstances in which an expert may be cross-examined about the content of publications. Any one of the circumstances is sufficient. (Evid. Code, § 721, subd. (b).) Thus, reliance by the expert would suffice.
We see no prejudice to appellant from the trial court's ruling, however. The court allowed appellant to question Dr. Srvenbasa about the underlying research on age.
Initially, counsel was able to ask Dr. Srvenbasa: "Wasn't there some indication to you most recently that age is such a protective factor, 50 or above, that on our scoring sheet you, in fact, have to give [appellant] a minus point because he is 50 or over; correct?" Dr. Srvenbasa: "Yes." Counsel also asked: "And now you're getting guidelines that, in fact, you have to subtract one because he is 50 or over; right?" Dr. Srvenbasa: "For the revised version, yes." Dr. Srvenbasa also explained: "The STATIC-99R subtracting a point for [appellant's] age would still place him at the risk label of moderate high."
Following the discussion with the court about Dr. Hanson's article, appellant's counsel was again able to question Dr. Srvenbasa about the substance of that article. Counsel asked: "Isn't it the case that recently research was disclosed that the original STATIC-99 did not fully account for age at release?" Dr. Srvenbasa: "Yes." Counsel "Okay. And because of that, then these new guidelines were distributed, correct, the guidelines of minus one, minus three?" Dr. Srvenbasa: "Yes." Counsel: "And you don't dispute that notion, do you, that sexual recidivism declines with age, do you?" Dr. Srvenbasa: "No."
Appellant has not explained why he believes it was necessary for him to refer to Dr. Hanson by name or to his article specifically, and does not explain what additional information he expected to obtain if he had been permitted to refer to Dr. Hanson and his article. Dr. Srvenbasa agreed with appellant's counsel that age reduced the risk and that the reduction for appellant's age group was one point. Thus, we see no meaningful restriction on appellant's ability to cross-examine Dr. Srvenbasa. The court's minor restriction was harmless.
b. Paraphilia
Appellant is correct that the trial court did not permit him to question Dr. Srvenbasa about Dr. Doran, specifically. The court found Dr. Doran's identity to be irrelevant. Appellant did not explain in the trial court and does not explain on appeal how the fact that paraphilia NOS nonconsent was conceptualized by Dr. Doran is relevant to his defense. Accordingly, we see no error in the trial court's ruling prohibiting mention of Dr. Doran by name.
The court made repeated efforts to obtain an explanation from appellant's counsel about his belief that he needed to use Dr. Doran's name. For example, the court asked appellant's counsel: "People agree with it, and people don't agree with it. Isn't that the point here? Who cares who came up with the idea? I am struggling why – why is it so critical with this particular person where you have all kinds of people on both sides? Isn't that the point? Isn't that why there is this controversy?" Appellant's counsel did not directly respond to the court's questions, but simply replied that all he wanted was to show where the idea came from. The court again asked: "Who cares who came up with it? I mean, isn't the point it was developed at some point, evidently recently, and some people go with it and some people don't?" Appellant's counsel did not explain why Dr. Doran's identity was important. Eventually appellant's counsel stated: "Well, I think it's important for the jury to know that one person came up with it, that it's not in the diagnosis manual where you have all these paraphilias. You have all of these other diagnoses that you can use." The court replied: "And you can ask that."
Before the above-quoted conference, appellant's counsel had asked questions about paraphilia NOS nonconsent and had elicited agreement that paraphilia NOS nonconsent was not in the DSM and there were no set guidelines and criteria for it. After the conference, appellant was further able to question Dr. Srvenbasa about the problems with a diagnosis of paraphilia NOS nonconsent. Counsel asked: "[Y]ou indicate that in general [paraphilia NOS nonconsent] is, 'an inherently weak construct given the lack of set defined criteria.' Correct?" Dr. Srvenbasa agreed. Counsel then asked follow-up questions related to the lack of consensus on the diagnosis of the paraphilia. Appellant did not ask when the diagnosis was conceptualized, or by how many people.
Appellant was well able to show on cross-examination that there was significant disagreement on the diagnosis of paraphilia NOS nonconsent. Thus, even if we were to assume for the sake of argument that the trial court erred in preventing him from asking questions specifically about Dr. Doran, we would find any error harmless.
2. Direct examination
Appellant contends that the trial court erred in restricting his direct examination of his two experts, Drs. Anderson and Abbott. The claimed areas of restriction involved the opinions of other experts about the PPG and STATIC-99 tests and the difficulty of diagnosing paraphilia NOS nonconsent.
"A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." (Evid. Code, § 802.)
"[B]ecause Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter... upon which it is based, ' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618-619.) The result is that often the expert may testify to evidence even though it is inadmissible under the hearsay rule. (Id. at p. 619; [quoting McCormick on Evidence].) This is so because the hearsay is not offered for the truth of the matter asserted. (Ibid.)
An expert witness does not have an absolute right to testify about the inadmissible evidence he or she relied on, however. "A trial court... has discretion 'to weigh the probative value of inadmissible evidence relied upon by an expert witness... against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' [Citation.] This is because a witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact. [Citation.]" (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.)
Further, "[a]lthough it is appropriate for a physician to base his or her opinion in part upon the opinion of another physician [citations], it generally is not appropriate for the testifying expert to recount the details of the other physician's report or expression of opinion. [Citations.]" (People v. Catlin (2001) 26 Cal.4th 81, 137-138, citing People v. Campos (1995) 32 Cal.App.4th 304, 308.)
Here, it appears that the trial court relied on People v. Campos, supra, in making the rulings of which appellant complains. The trial court's reliance was misplaced. The court in Campos was considering the narrow category of opinions of doctors who had examined the defendant and formed an opinion about whether the defendant met the criteria of a mentally disordered sex offender. The testimony which appellant sought from Dr. Anderson and Dr. Abbott did not involve the opinions of other doctors about appellant's mental health. We see no prejudice to appellant from the trial court's misplaced reliance.
a. Dr. Anderson
Appellant contends that the trial court refused to permit Dr. Anderson to testify regarding the basis for the nonacceptance of the PPG test by certain aspects of the psychological community in 2001 (when it was administered to appellant) and the inability to conclusively determine the validity of the test at that time.
We see no meaningful restrictions on appellant's examination of Dr. Anderson in this area. The prosecutor did make a number of objections to the questions in this area which were sustained by the trial court, but they did not prevent appellant from eliciting testimony that the test was not accepted by everyone in the scientific community and also testimony about problems with the test.
Appellant's counsel was able to ask: "Well, in the scientific community, you indicated that some accept [the PPG] and some didn't accept it." Dr. Anderson replied: "Yes." Appellant's counsel then asked: "Was there certain problems with the PPG that you were aware of at the time?" The prosecutor objected but was overruled. Dr. Anderson gave a detailed answer about problems with lack of standardization in stimuli and variability in lower and mid-range responses preventing the generation of reliable statistics. Dr. Anderson also explained that he did not use the PPG at all today because he found that it gave about one-third false positives. Dr. Anderson was also able to explain that the PPG test was not helpful in making a diagnosis because it was equivocal and it "was uncertain what it was indicating." Dr. Anderson was also able to explain that "many sexually normal persons" show some arousal to non-consensual sex images.
In context, the question clearly referred to the views of the scientific community in 2001 when Dr. Anderson administered the test to appellant.
Appellant also contends that the trial court erred in preventing Dr. Anderson from testifying about the reasons why paraphilia was difficult to diagnose, including the fact that psychologists commonly rely on statements made to them by the individual and on the lack of consensus in the scientific community about the existence of paraphilia. We see no meaningful restriction on appellant's examination of Dr. Anderson in this area.
Asked about the difficulty of diagnosing paraphilia Dr. Anderson testified: "It's not impossible, but it's very difficult. We're reliant – there is a lot of reliance on the individual's statements." The prosecutor objected to the use of "we, " and this objection was sustained. However, the statement "there is a lot of reliance on the individual's statements" remained. Appellant then asked: "You indicated, for example, your reliance on statements. What were you referring to?" Dr. Anderson began to answer: "There is great reliance –" The prosecutor objected that it was hearsay, and the court sustained the objection. It is not clear that Dr. Anderson's answer would have involved hearsay. Appellant made no attempt to explain why the answer would not be hearsay, or would fall within an exception to the hearsay rule, however. Appellant also did not make any attempt to ask the question in a clearer manner, for example to ask: "What is the problem with relying on an individual's statements?" Appellant does not explain on this appeal what Dr. Anderson's answer would have been.
Dr. Anderson was able to testify that paraphilia NOS nonconsent was not in the DSM, that there was no external guidance to make a diagnosis of it, that there was no consensus on the diagnosis and that there was "significant controversy" over whether or not the diagnosis existed. Thus, any slight restriction on the examination of Dr. Anderson was not prejudicial.
b. Dr. Abbott
Appellant contends that the trial court erred in preventing him from questioning Dr. Abbott on revisions to the STATIC-99. We do not agree.
We see no meaningful restriction on appellant's examination of Dr. Abbott concerning revisions to the STATIC-99. Appellant's counsel pointed out that Dr. Srvenbasa used the STATIC-99 and asked: "Is that appropriate?" Dr. Abbott answered: "No, it's not appropriate. The test developer has released a revised instrument called the STATIC-99R that they released October – excuse me – September 30th of 2009 and have instructed clinicians to use these –" The prosecutor's hearsay objection was sustained and the answer stricken. Appellant's counsel re-asked his question: "So it's not appropriate to use that STATIC-99; correct?" Dr. Abbott replied: "Correct. It's considered obsolete." Appellant's counsel asked: "And is it appropriate to use the 2002R?" Dr. Abbott replied: "Yes. The 2002R is appropriate to use. That's the current version of the instrument." Appellant's counsel asked: "And what about the STATIC-99R?" Dr. Abbott: "That's the appropriate version of the instrument to use at this point in time." Dr. Abbott was able to explain that he did not agree with prosecution expert Dr. Arnold's testimony that there was no real difference between the STATIC-99 and the STATIC-99R and to explain why the STATIC-99R was significantly different from the STATIC-99. This explanation included the fact that the current version considered the effects of aging and had "a whole new process of interpretation rules and recidivism tables that need to be applied that are different than the previous version." Dr. Abbott was also permitted to testify that the STATIC-99 was considered obsolete and that it was not ethical to use an obsolete test.
Apart from the initial question about appropriateness, appellant was not prevented from asking Dr. Abbott any questions about revisions to the STATIC-99. Dr. Abbott was able to testify about the score he gave appellant using the STATIC-99R. He also testified in considerable detail about how scoring worked for the STATIC-99R, including point deductions for age. Appellant does not explain on appeal what additional information he was prevented from eliciting from Dr. Abbott. Any minor restriction was harmless.
Appellant also contends that the trial court erred in preventing him from questioning Dr. Abbott about errors made by Dr. Srvenbasa in scoring the SORAG. We do not agree.
We see no restrictions at all on appellant's examination of Dr. Abbott concerning Dr. Srvenbasa's scoring of the SORAG. When appellant's counsel initially asked about the over-scoring, the prosecutor objected that she had not received discovery on this issue. The court deferred a ruling on the issue until the jury was in recess. During the subsequent conference, appellant's counsel explained: "It was a critique of her scoring." The court replied: "I understand. Okay. Which he can - Dr. Abbott can do." Appellant's counsel was then able to question Dr. Abbott about the scoring on redirect. Dr. Abbott explained in detail the reasons he believed that Dr. Srvenbasa scored appellant incorrectly on the SORAG. For example, he explained that Dr. Srvenbasa gave appellant a score of 0 because she had not diagnosed him with a paraphilia or sexual sadism but that the proper score under such circumstances was minus 1. Since there were no restrictions, appellant's claim fails.
Disposition
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.