Opinion
F072867
11-13-2018
THE PEOPLE, Plaintiff and Respondent, v. RICKIE SILGUERO CORONADO, Defendant and Appellant.
Rudolph Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
MODIFICATION OF OPINION ON DENIAL OF REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on November 13, 2018, be modified as follows:
On page 21, in the partial paragraph at the top of the page, at the end of the sentence ending "the jury's verdict," add as footnote 7 the following footnote:
7 We do not hold the experts were constrained to assign Coronado a score of 3, only that, absent inadmissible hearsay, the jury reasonably could have concluded the evidence supported only a score of 3.
This modification requires the renumbering of all subsequent footnotes. Except for the modification set forth, the opinion previously filed remains unchanged.
The modification does not effect a change in the judgment.
Respondent's petition for rehearing filed on November 28, 2018 is denied.
/s/_________
SNAUFFER, J. I CONCUR: /s/_________
LEVY, Acting P.J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF085450-02)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge. Rudolph Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
Rickie Silguero Coronado was committed to the custody of the California Department of State Hospitals (DSH) for an indeterminate term after a jury found he was a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA or the Act) (Welf. & Inst. Code, § 6600 et seq.). On appeal, he argues the trial court committed prejudicial error in permitting expert witnesses to testify to case-specific facts that constitute inadmissible hearsay under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Coronado also challenges testimony regarding the effect of his actions on his victims and the admission of certain documents and portions of documents. Finally, in supplemental briefing and a related request for judicial notice, he states that the parole term on his underlying conviction was stayed pursuant to Penal Code section 3000, subdivision (a)(4) as a result of his adjudication as a sexually violent predator, and contends that this stay violates his constitutional rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
We conclude the trial court erred by permitting the experts to recite case-specific hearsay, and that the error was prejudicial under People v. Watson (1956) 46 Cal.2d 818 (Watson). Accordingly, we reverse the judgment. In light of this disposition, we do not address Coronado's remaining contentions. We remand the matter to the trial court for further proceedings consistent with this opinion, which may include retrial on the petition.
PROCEDURAL AND FACTUAL BACKGROUND
In 2004, Coronado was sentenced to 10 years in prison after pleading no contest to one count of sodomy by use of force (Pen. Code, § 286, subd. (c)), and two counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)). In 2011, while Coronado was in custody, the Tulare County District Attorney filed a petition to commit Coronado as a sexually violent predator under the SVPA.
A jury trial on the petition commenced on November 16, 2015. At trial, the People sought to prove Coronado's status as a SVP through the testimony of three of his victims, A.A., G.S., and M.C. The People also elicited expert testimony from Laljit Sidhu, Psy.D., and Eric Simon, Ph.D. Coronado elicited expert testimony from Theodore Donaldson, Ph.D.
To protect the victims' privacy, we refer to them by initials only. No disrespect is intended.
I. Victim Testimony
A. A.A.
Coronado is A.A.'s uncle. He molested A.A. on multiple occasions, the first such incident occurring when A.A. was five or six years old. Coronado took A.A. to an empty apartment, pulled down A.A.'s pants and underwear, rubbed his penis on A.A.'s anus, and grabbed A.A.'s penis. Coronado told A.A. not to tell anyone or Coronado would hurt A.A.'s mother and father. A.A. believed him and was scared.
After that, Coronado moved away from the area and A.A. did not see him again until A.A. was 13, when he visited Coronado with his family. During the trip, Coronado made sexually suggestive gestures to A.A. while the rest of the family was sleeping. A.A. was uncomfortable and scared.
At some point thereafter, Coronado moved back to Tulare County to live with his father, A.A.'s grandfather. A.A. would often deliver food to his grandfather's apartment and would encounter Coronado every time he did so. Multiple incidents of molestation occurred during this period, while A.A. was between 13 and 16 years old.
In one incident, Coronado grabbed A.A., pushed him against a wall, and performed oral sex on him. In another incident, Coronado grabbed A.A., pushed his face into the wall, and sodomized him. In yet another incident, another boy held A.A. on the bed while Coronado got on top of A.A. and forced A.A. to perform oral sex. Coronado then told the other boy it was his turn, but A.A.'s grandfather came home and they let A.A. go. On another occasion, Coronado tried to make A.A. sodomize him while they were in a public restroom for residents of the apartment complex, and also tried to sodomize A.A.
Coronado was convicted in relation to these three incidents.
Coronado tried to grab A.A. every time A.A. saw him. This happened two to three times per week until A.A. was 15 or 16. As A.A. got older, the sexual acts became more intense. A.A. did not want his family to know what happened because Coronado had threatened to hurt them. Coronado would also hit A.A. on the back of the head with an open hand when he told A.A. not to talk.
On one occasion, A.A. saw a journal belonging to Coronado. A.A. saw five pages of the journal with names on every line. Coronado told A.A. that it was a list of kids he had molested.
A.A. was in special education classes at school and described himself as being more shy and weak than his younger siblings.
B. G.S.
Coronado is G.S.'s uncle. When G.S. was 13, Coronado took him into a public bathroom and performed oral sex on him. He also made G.S. perform oral sex on Coronado. The incident was interrupted by G.S.'s mother's boyfriend.
Another incident occurred when G.S. was 14 and Coronado made him perform oral sex while the two were in the back seat of a car. Coronado also performed oral sex on G.S. Another incident occurred when they were in a parked car near a public park and Coronado masturbated with G.S.
G.S. feared Coronado. Coronado told him not to tell his family what they were doing. Coronado attempted to molest G.S. every time he saw him.
G.S. took special education classes in school.
C. M.C.
M.C. is Coronado's younger brother. His first childhood memory is of being sexually abused by Coronado. When M.C. was four or five years old, Coronado performed oral sex on M.C. and made M.C. do the same in return. When M.C. was eight or nine, he would fall asleep in his own bed but wake up in Coronado's bed, where Coronado had carried him. Coronado would then perform oral sex on M.C. and make M.C. do the same. This occurred nearly every night until M.C. was 12 or 13. Coronado also sodomized M.C. and made M.C. sodomize Coronado. At one home where they lived, Coronado would pick the lock on the bathroom door and sodomize or perform oral sex on M.C. while M.C. was in the shower, and would make M.C. do the same in return. Coronado told M.C. not to tell anyone.
M.C. was afraid of Coronado because Coronado physically abused him. However, when M.C. was 13, he told Coronado that he was going to tell their mother about the abuse. Then, the abuse stopped. In a separate incident around the same time, Coronado grabbed M.C.'s hair and shook him, but M.C. picked up a two-by-four and swung it at Coronado, stating that Coronado wouldn't be hurting M.C. anymore.
At the time of Coronado's SVP trial, M.C. was incarcerated at Mule Creek State Prison, serving a term of 45 years to life for fondling his girlfriend's six-year-old son.
II. Expert Testimony
A. Laljit Sidhu, Psy.D.
Dr. Sidhu is a clinical psychologist with experience in forensic psychology. He is employed by the DSH and has completed nearly 600 SVP evaluations. In approximately 11 percent of those evaluations, he found the evaluation "positive for SVP."
Dr. Sidhu was assigned to Coronado's case in January 2011. He contacted Coronado in 2011 but Coronado declined to speak with him. He did update evaluations in February 2012, September 2013, and January 2015, but Coronado only agreed to speak with Dr. Sidhu on the last of these dates. Dr. Sidhu reviewed various documents relating to Coronado's criminal case and other offenses he had been accused of, screenings performed by the California Department of Corrections and Rehabilitation (CDCR) and the DSH, medical records, DSH treatment records, and Coronado's disciplinary history. Through his review of police reports and a trial transcript from Coronado's criminal trial, Dr. Sidhu learned the details of Coronado's offenses against A.A., G.S., M.C., and two other victims, M.S. and P.F.
Dr. Sidhu opined that Coronado was convicted of a sexually violent offense based on his convictions for sodomy and oral copulation by force in relation to his offenses against A.A. Dr. Sidhu explained that the predicate sexually violent offense must be committed through the use of force, fear, or duress, and he opined that these elements were present in the offenses against A.A. Dr. Sidhu explained that the offenses themselves were described as involving force. Dr. Sidhu also found relevant that Coronado was physically stronger and more capable than A.A., A.A. reported being afraid of Coronado, and Coronado was A.A.'s uncle and therefore an authority figure. Additionally, at least one of the offenses involved another individual holding A.A. down.
Dr. Sidhu also testified that Coronado was convicted of oral copulation of someone under 18 in relation to his actions against P.F. This offense is a misdemeanor. At the time of the offense, P.F. was 17 and had a pervasive developmental disorder, which Dr. Sidhu explained as "essentially a type of autism so he's mentally disabled." Dr. Sidhu stated that P.F. had the mindset, emotions, and psychology of an 11 year old. P.F. was attending a party at a public park when he encountered Coronado in front of a restroom. Coronado convinced P.F. to enter the restroom under the pretext that the restroom had a "peeping hole" into the women's restroom. Once in the restroom, Coronado orally copulated P.F., stuck his finger in P.F.'s anus, and kissed P.F. P.F. reported he didn't know how to say no to Coronado. Police reports indicated that Coronado asked for P.F.'s address, which P.F. gave to Coronado.
Dr. Sidhu testified that other police reports reflected that Coronado had engaged in additional, uncharged offenses, including a continuous pattern of molestation, masturbation, and oral copulation of another of his nephews, M.S., while M.S. was between nine and seventeen years old. M.S. also brought the police magazines that he found under the couch that depicted young-looking males and reported that the magazines belonged to Coronado.
Dr. Sidhu drew parallels between the offenses against M.S. and A.A. based on information he read in police reports. He explained that both victims were members of Coronado's family, were victimized on multiple occasions, and the victimization began at an early age and continued past post-adolescence.
Dr. Sidhu stated that the reports of Coronado's actions and of his victims reflected a pattern of behavior of targeting meek boys of similar age. From this, Dr. Sidhu diagnosed Coronado with "other specified paraphilic disorder with both pedophilic and hebephilic traits." Dr. Sidhu arrived at this diagnosis after considering Coronado's molestation of multiple victims over an extended period, his failure to establish a "normative intimate relationship," and his keeping of a journal detailing his victims.
Dr. Sidhu stated that a disorder is something that causes the individual distress or problems. He explained that someone with a paraphilic disorder has sexual interest in something specific that is outside the norm. However, Coronado does not have one of the specified paraphilias contained in the current Diagnostic and Statistical Manual (DSM-V), such as voyeurism or pedophilia. Instead, Dr. Sidhu opined, Coronado's diagnosis was "other specified paraphilia," meaning his particular paraphilia is not listed in the DSM-V. Dr. Sidhu added the description, "pedophilic and hebephilic traits," to further explain Coronado's paraphilia.
Dr. Sidhu did not diagnose Coronado with pedophilia because that disorder involves molestation of children under the age of 13 and thus did not adequately capture Coronado's pathology. Coronado continued to molest his victims as they got older, and this sexual fascination with the post-pubescent body is called hebephilia. Dr. Sidhu acknowledged that hebephilia is not a diagnosis contained in the DSM-V, but stated that it is accepted within the psychiatric community. Dr. Sidhu opined that a paraphilia does not change, and that Coronado's paraphilic disorder with pedophilic and hebephilic traits will always exist.
Dr. Sidhu concluded that Coronado's mental disorder makes him a danger to the health and safety of others and that Coronado is likely to engage in sexually violent predatory criminal behavior. He explained that Coronado had exhibited predatory behavior in molesting A.A. and G.S. every time he saw them. He also evaluated Coronado's risk of reoffending by using the Static-99R, an actuarial test for assessing risk of repeated sexual offense. The highest score possible on the Static-99R is a 12, and the lowest is a negative 3. Coronado scored a 5, which reflects a "moderate high" risk of reoffending. Out of 100 sex offenders who score a 5, 15 will reoffend within five years.
The Static-99R evaluates 10 items. Coronado received a score of negative one for age, which reduced his risk of reoffending. He received one point for his lack of intimate relationships. He received one point for having had a prior sex offense, i.e., the offense involving P.F. He received one point for having had four or more sentencing occasions within the legal system. He received one point for having had a victim who was not related to him, i.e., P.F. He also received one point for having had a victim who was a stranger to him, again P.F. Finally, he received one point for having had male victims, given that all his victims were male. Coronado was given a score of zero on each of the following metrics: involvement of non-sexual violence in his last offense of conviction, prior convictions for non-sexual violence, and convictions for non-contact offenses.
Dr. Sidhu also assessed Coronado's risk of reoffending by considering dynamic factors using the Sexual Violence Risk-20 (SVR-20) measure. This measure looks at 20 items to determine whether there are any variables that increase the individual's risk of reoffending. Dr. Sidhu found several such variables relevant to Coronado's risk. Specifically, he found the presence of sexual deviance based on Coronado's diagnosis of paraphilic disorder. He also found the presence of general criminality. Coronado also lacked close relationships with family, friends, or intimate partners; engaged in high- density offending, in that he had multiple victims he molested on a consistent basis; and was a diverse offender, in that he molested his nephews as well as an older stranger, i.e., P.F. Coronado also engaged in psychological coercion, as demonstrated by his victims' acquiescence to the molestation and failure to immediately report it. Additionally, Coronado denied the offenses. Dr. Sidhu explained that denial is a risk factor because it prevents Coronado from realizing he has a problem or avoiding situations that put him at risk. It also reflects a negative attitude toward treatment and intervention, and Dr. Sidhu noted that Coronado did not attend sex offender treatment while in the custodial setting. Coronado also exhibited a negative attitude toward supervision. Although he had "follow[ed] the rules" while in the state hospital, he had committed his offense against A.A. while under supervision for the offense against P.F. Dr. Sidhu also found it relevant that Coronado characterized himself as a loner and lacked a social support system. Finally, Dr. Sidhu considered protective factors could that reduce the risk of offending, but none applied to Coronado.
B. Eric Simon, Ph.D.
Dr. Simon is a clinical and forensic psychologist who has completed approximately 700 initial SVP evaluations and at least 100 update evaluations.
Dr. Simon evaluated Coronado three times. He reviewed a variety of documents, including DSH screenings, a probation officer's report, an abstract of judgment, a felony complaint, information regarding Coronado's mental health symptoms while he was in CDCR custody, and investigation reports from the district attorney's office.
Dr. Simon explained that Coronado had approximately six or seven victims in his known offending career, and he opined that Coronado's convictions for the offenses against A.A. constituted qualifying predicate criminal offenses under the SVPA. He explained that Coronado sodomized and orally copulated A.A. against his will, pushed A.A.'s face into the wall, and threatened to harm A.A. if he told anyone of the molestation. He also stated that A.A. feared Coronado.
Dr. Simon also testified about the offense against P.F. He described P.F. as having mild mental retardation and pervasive developmental disorder, and functioning at the mental age of 11. Dr. Simon explained that P.F. and Coronado were strangers and encountered each other in a public park. Coronado and P.F. went into the bathroom together and Coronado fondled and orally copulated P.F. P.F. feared Coronado would harm him if he didn't permit Coronado to do these acts. Dr. Simon stated that Coronado was convicted for his offense against P.F. and was on probation when he committed the offenses against A.A. He opined that Coronado's commission of new offenses after being detected and criminally prosecuted suggested he acted out of compulsion. Dr. Simon therefore opined that Coronado committed the offenses due to his mental condition.
Dr. Simon also considered Coronado's acts against G.S. Dr. Simon explained that G.S. is "a little bit mentally retarded" which makes him a more vulnerable victim. He testified that G.S. reported to the police that Coronado tried to unzip G.S.'s pants when G.S. was five but that G.S.'s mother walked in. Also when G.S. was five, Coronado orally copulated G.S. and was caught by G.S.'s mother's boyfriend. Despite being detected, Coronado then tried to orally copulate G.S. and to get G.S. to orally copulate him when G.S. was 13. G.S. reported that he feared Coronado and thought Coronado would hurt him. When G.S. was 14, Coronado forced G.S. to orally copulate him. When G.S. was 18, Coronado forced G.S. to masturbate him twice, and at least one of these occasions occurred while G.S.'s grandfather was in the car with them. G.S. also reported that Coronado molested two of G.S.'s brothers, but this claim was not corroborated by the brothers themselves.
Dr. Simon also considered Coronado's acts against his younger brother, M.C. M.C. reported being molested by Coronado a few times per week beginning when M.C. was five until he was 13 or 14. This included fondling, oral copulation, and anal sex. M.C. reported that Coronado also molested M.C.'s younger friend and another boy M.C.'s age, and had orally copulated yet another friend while that friend was asleep. These incidents were not corroborated by the victims.
Dr. Simon also considered a victim named R.T., who had assisted Coronado in molesting A.A. Dr. Simon explained that R.T. held A.A. down while Coronado abused him, then the two took turns "gang raping" A.A. Dr. Simon read that R.T. was either 14 or 16 at the time of this offense. Dr. Simon acknowledged that R.T. testified in A.A.'s trial that this incident never occurred.
Dr. Simon testified Coronado possessed a photograph of a group of boys in swimming briefs. Dr. Simon suspected Coronado possessed the photo because he found it sexually arousing.
Dr. Simon diagnosed Coronado with pedophilia, alcohol use disorder, and "other specified personality disorder with antisocial traits." His diagnosis of pedophilia was based on Coronado's sexual interest in prepubescent children, which caused dysfunction and impairment in Coronado's life. Coronado's continued attraction to older children could still be relevant to his pedophilia if the children appeared more childlike. However, Dr. Simon thought Coronado also met the criteria for hebephilic disorder.
Dr. Simon opined that Coronado is likely to reoffend in a sexually violent predatory manner. Dr. Simon evaluated Coronado's likelihood of reoffending by using the Static-99R, on which Coronado scored a 5. Dr. Simon's scoring was based on the same factors as Dr. Sidhu's. Dr. Simon also considered Coronado's dynamic risk factors. These included his demonstrated interest in coercive sex, his sexual interest in children under 14, his lifestyle impulsivity as demonstrated by his use of alcohol and stimulants, his absence of sustained relationships, his demonstrated social deviance, and his extensive criminal history, including numerous probation violations. Additional risk factors included his alcoholism, his "extreme degree of fixation as a pedophile," his compulsivity, and his continued offenses after having been caught. Additionally, Dr. Simon testified Coronado had been assessed to have borderline intellectual functioning and that this presented an additional risk factor. He was not aware of Coronado having participated in any sex offender treatment.
C. Dr. Theodore Donaldson
Dr. Donaldson is a self-employed psychologist. He has conducted over 500 SVP evaluations in California and additional evaluations in Washington. In preparation for his evaluation of Coronado, Dr. Donaldson reviewed a variety of documents and interviewed Coronado once.
Dr. Donaldson acknowledged Coronado had been convicted of a qualifying predicate offense. However, he opined that Coronado did not qualify as a SVP because his offenses were opportunistic, rather than caused by a mental disorder or illness. Dr. Donaldson did not find sufficient evidence that Coronado has a mental disorder that predisposes him to sexual violence. He concluded Coronado did not meet the requirements for a diagnosis of paraphilia or pedophilia. He preferred the definition of pedophilia used in an earlier version of the DSM, the DSM-III, which required that the individual only be aroused by children. He opined that there is "no such thing" as hebephilia. He opined that Coronado does not have difficulty controlling his sexually dangerous behavior.
Dr. Donaldson scored Coronado a 5 on the Static-99R. However, he opined that this score reflected very little about Coronado's actual risk of reoffending due to the broad confidence interval inherent in the Static-99R. He did not consider any dynamic factors. He opined that dynamic factors were not useful because (1) there was very little information regarding Coronado's behavior in the community due to his lengthy incarceration, and (2) dynamic factors increase statistical variance, leading to increased uncertainty and diminished accuracy. He expressed skepticism about the utility of these measures in predicting recidivism.
III. Documentary Evidence
Immediately prior to closing argument, the court admitted into evidence the following exhibits: a probation report from 2004 in relation to Coronado's conviction for the offenses against A.A. (exhibit 3); a certified conviction from 2004 for the offenses against A.A. (exhibit 4); a "969b packet" (exhibit 5); a certified rap sheet (exhibit 6); a certified conviction for Coronado's failure to register as a sex offender (Pen. Code, § 290) (exhibit 7); a District Attorney's Office Bureau of Investigations report of M.S.'s statement (exhibit 8); and a transcript of testimony by A.A., P.F., and G.S. from the trial of Coronado's offenses against A.A. (exhibit 9).
"For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution, or has been convicted of an act in any other state, which would be punishable as a crime in this State, and has served a term therefor in any state penitentiary, reformatory, county jail or city jail, or has been convicted of an act declared to be a crime by any act or law of the United States, and has served a term therefor in any penal institution, the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence." (Pen. Code, § 969b.)
IV. Verdict
On November 20, 2015, the jury returned a verdict finding Coronado qualified as a sexually violent predator as alleged in the petition. That same day, the trial court ordered Coronado committed to the DSH for an indeterminate term.
DISCUSSION
I. The Sexually Violent Predator Act
To frame our analysis, we briefly review the law applicable to this proceeding.
The SVPA allows for the involuntary commitment of sexually violent predators following the completion of their prison terms. (People v. Roberge (2003) 29 Cal.4th 979, 984.) A sexually violent predator 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." (§ 6600, subd. (a)(1).) The qualifying mental disorder must be "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others." (§ 6600, subd. (c).) Additionally, the finding of future dangerousness must derive from "a currently diagnosed mental disorder characterized by the inability to control dangerous sexual behavior." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1158.)
The SVPA contains a broad hearsay exception that permits the People to establish the existence of a qualifying predicate offense through "documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the [DSH]," as well as multiple level hearsay contained in such documents. (§ 6600, subd. (a)(3); People v. Otto (2001) 26 Cal.4th 200, 208 (Otto); People v. Roa (2017) 11 Cal.App.5th 428, 443-444 (Roa).) The People will generally present expert testimony to establish that the alleged SVP has a qualifying mental disorder and is likely to reoffend. (§ 6603, subd. (c)(1); Roa, at pp. 444-445.)
SVPA proceedings are civil in nature. (Moore v. Superior Court (2010) 50 Cal.4th 802, 818 (Moore).) The alleged sexually violent predator is entitled to a trial by jury, and the People must prove beyond a reasonable doubt that the alleged SVP qualifies for commitment under the Act. (§§ 6603, 6604; People v. Shazier (2014) 60 Cal.4th 109, 126.) Once a petition under the Act is found true, SVPs may be confined and treated "until their dangerous disorders recede and they no longer pose a societal threat." (Moore, at p. 815.)
II. Hearsay Testimony Offered by Expert Witnesses
While this appeal was pending, the California Supreme Court issued its opinion in Sanchez, supra, 63 Cal.4th 665, which announced changes in the law governing the use of case-specific hearsay in expert testimony. Coronado relies on Sanchez to challenge 12 instances of hearsay testified to by Dr. Sidhu, 23 instances of hearsay testified to by Dr. Simon, and one instance of hearsay testified to by Dr. Donaldson. The People concede this testimony constitutes case-specific hearsay, but argue that some of the testimony was nonetheless proper and none of it was prejudicial.
Broadly stated, Coronado challenges Dr. Sidhu's testimony regarding the existence of, and facts and circumstances surrounding, Coronado's offenses with A.A., G.S., M.S., M.C., and P.F.; his criminal convictions; his possession of homosexual magazines; his keeping of a journal with the names of victims; lifestyle and sexual history factors discussed in relation to the Static-99R and SVR-20 measures; Coronado's failure to participate in sex offender treatment; his misconduct while on parole, probation, and while a Penal Code section 290 registrant; and his health history. He challenges Dr. Donaldson's testimony regarding Coronado's victims and offenses against them. He challenges Dr. Simon's testimony regarding the facts and circumstances of Coronado's sexual offenses against A.A., P.F., G.S., G.S.'s two brothers, M.C., and R.T.; the number of his known victims; patterns exhibited in Coronado's offenses; Coronado's mental health history while in CDCR custody; his possession of pornographic and other pictures or magazines; his arrest and conviction history; reports that Coronado was drunk when he committed some of the offenses; his participation in alcohol treatment; factors considered in evaluation of the Static-99R and other dynamic factors; and assessments of Coronado's intellectual functioning.
As we explain, we conclude that Coronado was prejudiced by the admission of inadmissible, case-specific hearsay.
A. Applicable Law
Hearsay is defined as an out-of-court statement, made by someone other than the testifying witness, and offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b); Sanchez, supra, 63 Cal.4th at p. 674.) Documents like reports, criminal records, hospital records, and memoranda—prepared outside the courtroom and offered for the truth of the information they contain—are usually hearsay and may contain multiple levels of hearsay, each of which is inadmissible unless covered by an exception. (Sanchez, at pp. 674-675.)
Until recently, experts could testify about out-of-court statements upon which they relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. (E.g., People v. Bell (2007) 40 Cal.4th 582, 608.) Case law held that such evidence was not offered for its truth, but to identify the foundational basis for the expert's testimony. (E.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620.) Pursuant to this rationale, appellate courts deemed such use of out-of-court statements to be compliant with the hearsay rule. (People v. Valadez (2013) 220 Cal.App.4th 16, 30.)
However, in Sanchez, supra, the California Supreme Court determined that a trier of fact must necessarily consider expert basis testimony for its truth in order to evaluate the expert's opinion, which in turn implicates the hearsay rule. (Sanchez, supra, 63 Cal.4th at p. 684.) "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Id. at 686.) Factual assertions are "case- specific" if they relate to "the particular events and participants alleged to have been involved in the case being tried." (Id. at 676.) Courts have extended the Sanchez ruling regarding case-specific hearsay to SVPA proceedings. (See Roa, supra, 11 Cal.App.5th at p. 442; People v. Flint (2018) 22 Cal.App.5th 983, 998-999 (Flint).)
Sanchez also considered the circumstances under which such testimony violates the Confrontation Clause. (Sanchez, supra, 63 Cal.4th at p. 687, citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford).) As Coronado concedes, this aspect of Sanchez is not at issue here because Crawford "has not been extended to civil proceedings" like proceedings under the SVPA. (Sanchez, supra, 63 Cal.4th at p. 680, fn. 6; see People v. Fulcher (2006) 136 Cal.App.4th 41, 55.)
Thus, following Sanchez, case-specific hearsay an expert relates to the jury as true is, like any other hearsay, inadmissible unless a proper foundation has been laid for its admission under an applicable hearsay exception. "Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684.)
The erroneous admission of hearsay that does not implicate the Confrontation Clause is a state law error, which is assessed for prejudice under Watson, supra, 46 Cal.2d 818. (Crawford, supra, 541 U.S. at p. 68; People v. Duarte (2000) 24 Cal.4th 603, 618-619.) That standard requires us to evaluate whether the appealing party has demonstrated that it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, at p. 836; People v. Hernandez (2011) 51 Cal.4th 733, 746 [holding that it is "the defendant's burden under Watson ... to establish a reasonable probability that error affected the trial's result"].)
B. Forfeiture
Coronado did not object below to hearsay testimony by expert witnesses. "[A]s a general rule, 'the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal.' " (In re Seaton (2004) 34 Cal.4th 193, 198.) However, reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. (People v. Welch (1993) 5 Cal.4th 228, 237.) Coronado argues that, here, an objection to expert hearsay testimony would have been futile. The People concede futility on the present record. We accept the concession. We therefore address the merits of Coronado's challenge to the experts' testimony.
C. "Independently Proven" Case-Specific Hearsay
It is undisputed that all of the challenged testimony constitutes case-specific hearsay. However, the People contend that some of this testimony was nonetheless admissible under Sanchez, so long as the same facts were otherwise independently proven by competent evidence. Specifically, the People contend that the experts could permissibly testify to the facts of the predicate offenses against A.A. consistent with A.A.'s testimony and documentary evidence, facts of the offenses against G.S. and M.C. consistent with their own testimony, and Coronado's criminal history consistent with his certified rap sheet.
Sanchez held, "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.) Relying on these statements, some courts have held that, absent a hearsay exception, an expert may not testify to case-specific facts of which he has no personal knowledge, even if those facts are independently proven. (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413 ["testimony about case-specific facts of which [the expert] does not have personal knowledge is inadmissible, even if specific facts are independently proven by other evidence"]; People v. Stamps (2016) 3 Cal.App.5th 988, 996 ["If it is a case-specific fact and the witness has no personal knowledge of it, if no hearsay exception applies, and if the expert treats the fact as true, the expert simply may not testify about it."]; see Flint, supra, 22 Cal.App.5th at pp. 999-1000 ["The correct analysis, in our view, boils down to harmless error. It seems to us that even if the admission of expert testimony reciting as true case-specific hearsay that was independently proven through other witnesses technically constituted error, at most such error would be harmless on this record."].)
However, elsewhere in Sanchez, our Supreme Court stated, "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686, first italics in original, second italics added.) Many courts have relied on this language to conclude that an expert may relate case-specific hearsay for its truth, absent any hearsay exception, so long as there is other competent evidence of the same facts. (See, e.g., People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 506 [Sanchez bars expert hearsay testimony "unless there is direct evidence of the matter discussed or the hearsay evidence has been admitted under an appropriate exception"]; Roa, supra, 11 Cal.App.5th at p. 450 ["The limitation on expert testimony imposed by the Supreme Court in Sanchez applies to case-specific facts that are not independently proven or covered by a hearsay exception."]; People v. Burroughs (2016) 6 Cal.App.5th 378, 407 (Burroughs) ["Under Sanchez, admission of expert testimony about case-specific facts was error—unless the documentary evidence the experts relied upon was independently admissible."].)
The reference in Sanchez to hearsay statements that are "independently proven by competent evidence" creates an ambiguity. On the one hand, Sanchez mandates that hearsay is inadmissible absent a hearsay exception. On the other hand, Sanchez suggests that hearsay is admissible so long as other evidence proves the same facts. However, there is no hearsay exception for facts independently proven, and the court in Sanchez abandoned the proposition that such testimony is not offered for its truth. (Sanchez, supra, 63 Cal.4th at p. 684.) It therefore is not apparent that permitting experts to testify about case-specific facts, outside the context of a hypothetical question, comports with the Sanchez holding that such testimony is subject to a "traditional hearsay inquiry." (Id. at p. 680.)
Ultimately, however, we need not resolve this issue. Even assuming this testimony was proper, much of the other hearsay testimony was prejudicial, warranting reversal.
D. Prejudice
The People utilized expert witnesses to bring a substantial amount of inadmissible hearsay before the jury. The improperly admitted hearsay provided evidentiary support for the expert's opinions and strengthened crucial aspects of the People's case. We conclude it is reasonably probable that Coronado would have achieved a more favorable result absent this error. (Watson, supra, 46 Cal.2d at pp. 836-837.)
Perhaps most significant is the experts' testimony regarding the facts underlying Coronado's offense against P.F. This testimony was based entirely on inadmissible hearsay. No competent evidence was admitted regarding these facts, yet they played a substantial role in the experts' opinions regarding Coronado's likelihood of reoffending. Facts regarding the offense against P.F. accounted for two of the five points in Coronado's Static-99R score: the fact P.F. was unrelated to Coronado and the fact he was a stranger. There is a reasonable probability that the jury would have reached a different conclusion regarding Coronado's likelihood of reoffending had hearsay evidence not been offered to support Coronado's score. Indeed, Dr. Simon testified Coronado originally received a score of four on the Static-99R due to Dr. Simon having incomplete information and, based in part on that lower score, Dr. Simon originally thought Coronado was unlikely to reoffend in a sexually violent predatory manner. This suggests that a score of three would have substantially affected the expert's conclusions and thereby the jury's verdict. We therefore cannot conclude with any certainty that the jury would have reached the same result had it not accepted as true the inadmissible hearsay regarding P.F.
Facts regarding the offense against P.F. were also admitted through documentary evidence of P.F.'s testimony in the trial for Coronado's offense against A.A. The parties agree there is little likelihood this evidence affected the verdict because the jury's brief deliberations indicate the jury did not read the documentary evidence. Additionally, although the People contend Coronado forfeited his objections to most of the documentary evidence by failing to object below, the People also acknowledge that facts relating to offenses other than the qualifying predicate offenses against A.A. were improperly admitted under section 6600, subdivision (a)(3) and Otto, supra, 26 Cal.4th at page 208. For these reasons, we do not find that the documentary evidence diminished the prejudice from the expert testimony.
The experts also testified to additional sex offenses Coronado was not charged with or convicted of committing: those against M.S., two of G.S.'s brothers, and several of M.C.'s friends or acquaintances. Dr. Sidhu drew parallels between the offenses against M.S. and A.A. based on information he read in police reports. He also concluded that reports of Coronado's actions and of his victims reflected a pattern of behavior of targeting meek boys of similar age. Dr. Simon likewise opined that there were some similarities among the various victims, and these similarities affected Dr. Simon's view that Coronado's conduct was predatory. Thus, the improperly admitted hearsay testimony regarding these victims significantly enhanced the People's argument that Coronado has a dangerous propensity to commit sexual offenses. It also invited the jury to punish Coronado for uncharged offenses. Courts have reversed a jury's SVP finding in similar circumstances. (Burroughs, supra, 6 Cal.App.5th at p. 412; Roa, supra, 11 Cal.App.5th at p. 454; People v. Yates (2018) 25 Cal.App.5th 474 (Yates).)
Dr. Simon also testified to two incidents that occurred when G.S. was 5 years old. However, G.S. himself testified only to incidents that occurred when he was 13 or older. Additionally, Dr. Simon's testimony regarding the details of the incidents that occurred after G.S. turned 13 differed from G.S.'s own testimony.
We also find significant the People's concession of error in the admission of expert testimony relating facts from Coronado's DSH records, including his lack of participation in sex offender treatment. These facts were relied on by the experts in finding a likelihood that Coronado would reoffend. When viewed in combination with other improperly admitted hearsay, it is reasonably probable that Coronado would have achieved a more favorable result absent this testimony.
We recognize that the extensive, direct testimony from Coronado's victims sets this case apart from others in which prejudice has been found. (Burroughs, supra, 6 Cal.App.5th at p. 412; Roa, supra, 11 Cal.App.5th at p. 454; Yates, supra, 25 Cal.App.5th 474.) A.A., G.S., and M.C. testified in emotional detail regarding Coronado's repeated molestations. We do not discount the importance of their testimony. However, this is not a case where the expert's recitation of case-specific hearsay was brief, irrelevant, or primarily duplicative of other admissible evidence. (See Flint, supra, 22 Cal.App.5th at pp. 1004-1005.) Instead, the hearsay testimony brought substantial incompetent evidence before the jury, and that evidence formed the basis of expert opinion on critical aspects of the People's case. We conclude there is a reasonable probability that Coronado would have achieved a more favorable result had this testimony been excluded.
Because the admission of case-specific hearsay was prejudicial, we reverse. We therefore do not consider Coronado's separate argument that the erroneous admission of hearsay also violated due process and his right to a fair trial.
IV. Remaining Claims
Coronado argues he was prejudiced by the improper admission of documents or portions of documents. He acknowledges that these documents likely did not affect the verdict, but brings this challenge to prevent this court from resorting to improperly admitted documentary evidence to find that case-specific hearsay related by expert witnesses was not prejudicial. Because we do not so find, we need not, and do not, address this issue.
Coronado also argues trial counsel was ineffective for failing to object to testimony by A.A. and M.C. regarding the effect of Coronado's molestations on their lives. Because we reverse on other grounds, we do not address this argument.
Finally, in supplemental briefing Coronado challenges the tolling of the parole term for his underlying criminal conviction. In a related request, Coronado asks that we take judicial notice of a March 6, 2017 letter from CDCR, which states that Coronado's parole period was tolled pursuant to Penal Code section 3000, subdivision (a)(4), because of his commitment to DSH as a sexually violent predator.
When Coronado was released from CDCR custody, Penal Code section 3000, subdivision (a)(4) provided: "The parole period of any person found to be a sexually violent predator shall be tolled until that person is found to no longer be a sexually violent predator, at which time the period of parole, or any remaining portion thereof, shall begin to run." (Former Pen. Code, § 3000, subd. (a)(4), as amended by Prop. 83, § 17, eff. Nov. 8, 2006.) Coronado is subject to this provision. (Pen. Code, § 3000, subd. (a)(5) ["Persons released by the Department of Corrections and Rehabilitation prior to January 1, 2012, shall continue to be subject to the law governing the tolling of parole in effect on December 31, 2011."].)
Although there is some dispute regarding Coronado's precise release date, there is no dispute that he was released prior to January 1, 2012.
As an initial matter, we have substantial doubt that this issue is properly before us in this appeal of Coronado's commitment under the SVPA. The issue was not raised in the trial court and, in any event, the parole term at issue arises out of a separate criminal proceeding. The determination by CDCR that the parole term must be stayed is not itself an appealable order. (See In re Daniel K. (1998) 61 Cal.App.4th 661, 671 ["appeal lies only from a final judgment"]; Code Civ. Proc., § 904.1, subd. (a)(1).) Furthermore, Coronado asks that we "issue an order making it clear that appellant has been on parole throughout the entire time since his release from [CDCR]." However, he cites no authority that would permit us to issue such a freestanding order directed at an entity not a party to the instant action. Instead, it appears this matter is more properly brought in a petition for writ of habeas corpus or a petition for writ of mandate. (Cf. People v. Picklesimer (2010) 48 Cal.4th 330, 337-340 [holding that constitutional challenge to sex offender registration requirement could not be brought in "long-since-final" criminal case, and must instead be brought in a petition for writ of mandate because " '[t]here is no statutory authority for a trial court to entertain a postjudgment motion that is unrelated to any proceeding then pending before the court' "].)
Regardless, however, our reversal of the judgment that purportedly formed the basis of the stay moots the present challenge. We therefore decline to reach the issue.
Because we do not reach Coronado's constitutional contentions, his request that we take judicial notice of material bearing on those issues is denied.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further proceedings consistent with this opinion, which may include retrial on the petition.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.