Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C129362
JONES, P.J.
Scottie Hampton appeals from an order extending his commitment to the State Department of Mental Health (DMH) as a sexually violent predator (SVP) pursuant to the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He contends the order must be reversed because (1) the trial court could not validly commit him to an indeterminate term, (2) the court abused its discretion when it refused his request to preclude the use of the term “sexually violent predator” during trial, (3) the court erred when it declined to exercise its discretion to determine whether certain courtroom security measures were appropriate, (4) the court erred when it excluded evidence that was critical of the medical facility where he had been treated, and (5) the court erred when it allowed psychological experts to testify to certain facts. We conclude the court did not commit any prejudicial errors and will affirm.
Unless otherwise indicated, all further section references will be to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In July 1984, appellant committed sodomy by force or violence. (Pen. Code, § 286, subd. (c)(2).) He was sentenced to nine years in prison.
In August 1992, appellant committed rape by force or violence, (Pen. Code, § 261, subd. (a)(2)) kidnapping, (Pen. Code, § 207, subd. (a)) and oral copulation by force or violence (Pen. Code, § 288a, subd. (c)(2)). He was sentenced to three years in prison.
In January 1997, a petition was filed to declare appellant an SVP. Appellant stipulated to the petition and the court ordered that he be committed to the DMH for two years. In June 2002, appellant stipulated that his commitment could be extended until July 2003.
In May 2003, a petition was filed to extend appellant’s commitment for two years. Before that petition could be resolved, in July 2005, a second petition was filed to extend appellant’s commitment for an additional two years. Then in June 2007, before either petition could be resolved, a third petition was filed to commit appellant for an indeterminate term.
The court consolidated the petitions, and the case proceeded to a jury trial. Three mental health experts testified. All agreed that appellant suffered from a diagnosed mental disorder. All agreed that as a result of appellant’s diagnosed mental disorder, it was likely he would engage in sexually violent predatory criminal behavior if he was not committed to a secure facility.
The jurors considering this evidence found that appellant was a sexually violent predator. After the court committed appellant to the custody of the DMH for an indeterminate period, he filed this appeal.
II. DISCUSSION
A. Whether Appellant Could be Committed to an Indeterminate Term
In 1999, when appellant first stipulated that he came within the scope of the SVPA, a person determined to be an SVP was committed to the custody of the DMH for a period of two years. He could not be kept in custody after the initial commitment expired unless a new petition to extend the commitment was filed. (See former § 6604; Stats. 1995, ch. 763, § 3, p. 5925.)
In 2006, former section 6604 was amended to eliminate the two-year term provision and to provide for an indeterminate term of confinement, subject to the SVP’s right to petition for release. (§§ 6604, 6605, subd. (b), 6608, subd. (a).) This change was accomplished in two ways. First, the Governor signed Senate Bill No. 1128, the Sex Offender Punishment, Control, and Containment Act of 2006. It amended the SVPA to provide that the initial commitment under section 6604 was for an indeterminate term. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280 (Bourquez).) Then in November 2006, the voters of this state approved Proposition 83, “The Sexual Predator Punishment and Control Act: Jessica’s Law.” (Id. at p. 1281.) It too required that SVPs be committed to an undetermined period rather than the two-year period that was required under the prior law. (Ibid.) Both Senate Bill No. 1128 and Proposition 83 eliminated references in the controlling statutes to “extended commitments.” (Id. at pp. 1280-1281.)
Appellant now contends that “since [Senate Bill No.] 1128 and [Proposition] 83 repealed the extension provisions of the SVPA, there is no jurisdiction to bring a petition to extend commitment unless there is a savings clause.” (Italics in original.) He relies on the principle that “when a pending action rests solely on a statutory basis . . . ‘a repeal of such a statute without a saving clause will terminate all pending actions based thereon.’” (Governing Board v. Mann (1977) 18 Cal.3d 819, 829.)
Appellant candidly concedes that his argument has been rejected by every court that has considered it. (See, e.g., People v. Whaley (2008) 160 Cal.App.4th 779, 794-796; People v. Carroll (2007) 158 Cal.App.4th 503, 508-510; Bourquez, supra, 156 Cal.App.4th at pp. 1283-1288; People v. Shields (2007) 155 Cal.App.4th 559, 563-564.) We reject it too. As the Bourquez court explained, the purpose of the changes enacted by Senate Bill No. 1128 and Proposition 83 was “to strengthen punishment and control of sexual offenders . . . .” (Bourquez v. Superior Court, supra, 156 Cal.App.4th at p. 1287.) “By providing for indeterminate terms of commitment, it cannot reasonably be concluded that the voters, by passing Proposition 83, or the Legislature in enacting Senate Bill [No.] 1128, intended to release those previously committed as [SVPs]. Indeed, such a conclusion would ‘ascribe to the Legislature [and voters] an intent that the very purpose of the amendment demonstrates could not have existed.’” (Bourquez, supra, 156 Cal.App.4th at p. 1287, quoting Sekt v. Justice’s Court (1945) 26 Cal.2d 297, 309.) “‘To imply a saving clause in such a situation is simply to give effect to the obvious intent of the Legislature [and voters].’ [Citation.] [¶] . . . Having ascertained the intent of the Legislature and the voters was to continue and strengthen the provisions for commitment of those found to be [SVPs], we find an implied saving clause to permit proceedings to extend commitments.” (Id. at pp. 1287-1288.) We find this reasoning to be persuasive and adopt it as our own.
B. Use of the Term “Sexually Violent Predator”
Prior to trial, appellant moved in limine to preclude the use of the term “sexually violent predator” during trial. He argued the term was so inherently prejudicial that the parties should be precluded from using it.
The prosecutor opposed the motion as follows: “‘Sexually violent predator’ is a term of art. Not only is it used in the Petition, but it is also used throughout the Sexually Violent Predator Act. It is one that the Legislature has used to describe individuals who are in the same position as the respondent. It is in fact a term that is used nationwide. [¶] In addition, if the court is to grant this motion, it would have to make a number of modifications to not only the Petition in this case but also to the jury instruction which describes sexually violent predator. [¶] It also defines the term for the jury and asks the jury to determine if the respondent meets the criteria of a sexually violent predator by use of terms in the statute. [¶] I believe if the court were to grant this motion, it would create confusion, and I don’t believe that the prejudice asserted by [appellant] is all that great.”
The trial court agreed with the prosecutor and denied appellant’s motion explaining, “It is what it is. It’s a legal definition of a defined term that’s been passed by the Legislature . . . .”
Appellant now contends the trial court erred when it denied his request to preclude the use of the term “sexually violent predator” during trial.
A trial court has broad discretion to determine the admissibility of evidence and its rulings will be reversed on appeal only where the court abused its discretion. (People v. Williams (1997) 16 Cal.4th 153, 197.) We find no abuse here.
The petitions at issue alleged appellant was a sexually violent predator. The controlling statutes set forth and define that term. The jurors were being asked to determine whether appellant was a sexually violent predator. We do not hesitate to conclude the trial court did not abuse its discretion when it allowed the parties to use a term that was the very foundation of the issues that were being tried.
C. Security Measures
Before appellant took the stand, the court and counsel engaged in the following exchange outside the presence of the jury:
“[The Court] Apparently, [appellant] is going to be called to testify. The jury is not present. It’s the bailiff for security reasons normally, when a person is in custody, sits with him. You object.
“[Defense Counsel] I object to that, yes. It’s not necessary in this instance.
“[The Court] Easy for you to say, but that’s not part of your job. It’s his full-time job. Those are decisions . . . basically for him, for the custodial staff.”
Subsequently the jurors returned to the courtroom and the court stated as follows:
“Good morning, Mr. Hampton. The jury will note that the bailiff is by himself today and is sitting with Mr. Hampton. [Defense Counsel] raised some concern about that, fearing that some inference might be drawn from that.
“There is no inference that should be drawn from that. The bailiff, as I said, is the security officer of the court. He has his instructions about what he is supposed to do, and as long as they are within a realm of reason, I have no problem with it. I don’t get involved in security issues.
“But we have a second bailiff who is sauntering in at this point.
“But I don’t get involved in the court security business. If they feel security measures appropriately, [sic] and its not singling out Mr. Hampton, it happens with almost every in-custody person, the bailiff sits up here if the person is in custody.”
Appellant now contends the trial court “erred by not exercising its discretion to decide whether the courtroom security measures put into effect . . . were proper . . .” We will assume, for purposes of this argument, that the court did err as appellant has alleged. Therefore we turn to the issue of prejudice.
Because the court did not exercise its discretion or order otherwise, certain heightened security measures were employed while appellant was testifying. Appellant argues those security measures were so prejudicial that they violated his right to a fair trial.
The issue of whether security measures are so prejudicial so as to deny a defendant the right to a fair trial must be determined on a case by case basis. (People v. Hayes (1999)21 Cal.4th 1211, 1269.) A court must determine whether the security practices presented an “‘unacceptable risk’” that impermissible factors will come into play. (Ibid., quoting Holbrook v. Flynn (1986) 475 U.S. 560, 570(Holbrook).) A court should look “‘at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.’” (Ibid.,quoting Holbrook, supra, at p. 572.) When making that determination, we must keep in mind the fact that the presence of security officers has become common in modern society. “‘The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers’ presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. . . . Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm.’” (Ibid.,quoting Holbrook, supra, at p. 569.)
Here, appellant has not shown actual prejudice and we see nothing inherently prejudicial about the security measures employed. While apparently there were two bailiffs in the courtroom when appellant testified, one of whom sat near appellant, that did not necessarily convey to the jurors that appellant was somehow in need of special security. As our Supreme Court noted, it is possible the jurors would “not infer anything at all from the presence of the guards . . . .” (Hayes, supra, 21 Cal.4th at p. 1268.) Moreover, the court was careful to tell the jurors that they should not draw any negative inference from the presence of the bailiffs, and the court told the jurors specifically that appellant was not being singled out and that the same security measures were used with almost all in-custody witnesses. We conclude appellant was not unduly prejudiced. And any possible error the court may have committed when it declined to exercise its discretion was harmless beyond a reasonable doubt. (People v. Quartermain (1997) 16 Cal.4th 600, 621.)
Appellant also argues he was prejudiced by the court’s description of him as being “in custody.” The issue is forfeited because appellant did not object in the court below. (People v. Anderson (1990) 52 Cal.3d 453, 468.) Furthermore, we see no prejudice. The jurors were well aware that appellant was in custody through hospital records that were admitted at trial and through appellant’s testimony.
D. Exclusion of Evidence
As we have noted, three mental health experts testified that appellant suffered from a diagnosable mental condition and that he had a high risk of reoffending if he was not committed to a secured facility. One of those experts was appellant’s former psychiatrist, Dr. Gabrielle Paladino, who treated appellant at Atascadero State Hospital (ASH).
During cross-examination, defense counsel sought to question Dr. Paladino about a report that was prepared by the Federal Department of Justice (DOJ). Apparently the DOJ visited ASH for a one-week period in November 2005 and prepared a report in May 2006. The report was critical of ASH and identified what it believed to be deficiencies in the assessments and diagnoses of persons being treated there. The court expressed some uncertainty about the relevance of the report because it focused on ASH as a whole, not the SVP program at ASH to which appellant had been committed. Nevertheless, the court decided to conduct an Evidence Code section 402 hearing to determine the admissibility of the report.
At the section 402 hearing Dr. Paladino testified that the DOJ’s evaluation was cursory, and that it focused on other aspects of ASH and not the SVP program. She said the evaluators were not concerned with the SVP program at ASH because the entire program was moving to another facility. Dr. Paladino acknowledged that changes had been made at ASH as a result of DOJ’s criticisms. However, she said “the vast majority of the consent decree that was signed by the [S]tate Department of Mental Health doesn’t apply to the sexual offenders, the sexually violent predators . . . .” According to Dr. Paladino, “how we write our reports, in terms of my discharge summaries, my assessments, are unchanged.”
After hearing this evidence, the trial court ruled the DOJ’s report to be inadmissible. Applying an Evidence Code section 352 analysis, the court said that since the report did not deal with the SVP unit, it was not relevant to the issues being tried, and might confuse the jury.
Appellant now contends the trial court erred when it excluded the report.
The exclusion of evidence as more prejudicial, confusing or distracting than probative under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Cornwell (2005) 37 Cal.4th 50, 81.) We find no abuse here. As the trial court noted, the report at issue was only minimally probative. It focused on ASH generally not the SVP unit within ASH. Indeed, according to Dr. Paladino, the DOJ investigators were not even concerned with the SVP unit because they knew it was moving to another facility. The trial court could reasonably conclude that allowing the defense to examine witnesses about a report that did not focus on the portion of the hospital to which appellant had been committed would be confusing and might lead to undue consumption of time. We conclude the court did not abuse its discretion.
Appellant suggests that even if the court’s Evidence Code section 352 ruling technically was correct, that ruling must bow to his constitutional right to present a complete defense. However, as our Supreme Court has stated repeatedly, state court’s application of ordinary rules of evidence—including the rule stated in Evidence Code section 352—generally does not infringe upon an accused’s state or federal right to present a defense. (Cornwell, supra, 37 Cal.4th at p. 82.)
E. Expert Testimony
The prosecutor presented testimony from three mental health experts who testified that appellant met the criteria for being declared an SVP. Specifically, the experts testified that appellant suffered from a diagnosed mental disorder and that as a result of appellant’s mental disorder, it was likely he would engage in sexually violent predatory criminal behavior if he was not committed to a secure facility
Appellant now contends the trial court erred “in allowing prosecution witnesses to testify that [he] qualified as an SVP.” According to appellant, doing so invaded the province of the jury.
An expert may provide an opinion on the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805, see also Simons, Cal. Evidence Manual (2008) § 4:14, p. 285.) However, expert opinion that does nothing more than express a general belief on how the case should be decided is improper. (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) As a general rule, “admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved . . . .” (People v. Wilson (1944) 25 Cal.2d 341, 349.) Here, the jurors were being asked to determine whether appellant could validly be characterized as an SVP. To determine that issue, the jurors had to evaluate complex mental health diagnoses and the testimony of experts who were called on to predict, based on sometimes complex criteria, whether it was likely appellant would commit additional sexual crimes in the future. The trial court reasonably could conclude that the issues the jurors were being asked to decide were “sufficiently beyond common experience that the opinion of an expert would assist” them. (Evid. Code, § 801, subd. (a).) We conclude the court did not abuse its discretion when it admitted the evidence in question. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.)
In arguing the court erred, appellant focuses primarily on a passage where one of the mental health experts, Dr. Dale Arnold, was describing the differing standards that can be used to evaluate mental disease. Specifically, Dr. Arnold testified that the definition of mental disease set forth in the standard text, the DSM-IV, does not necessarily correspond to the legal definition of mental disease:
“I do the DSM-IV-TR diagnoses, and that’s the standard of care. We always do that, and that’s the way to communicate to each other and to make sure that we are looking at everything.
“And then I, after I have looked at that, I essentially looked at whether or not the person meets the legal definition of ‘mental disorder.’ If their condition – because there are times I will find a person suffers from a paraphilia and they may not – in my opinion meet the threshold requirement in the law.
“But when someone has, somebody has the sexual deviance present, they have the impulsivity present, you know, obviously problems with emotional, volitional control, it’s really clear that in this instance he, at least in my opinion, he appears to meet this legal definition of a mental disorder.
“Q. [Prosecutor] So, paraphilia NOS meets both the DSM-IV-TR definition as well as the legal definition contained in the SVPA in your opinion?
“A. Right, it’s the underlying behavior that meets the paraphilia, and that underlying behavior also meets the definition of a mental disorder. It’s two different blends.” (Italics added.)
Appellant now focuses on the portion of Dr. Arnold’s testimony that we have italicized and argues that Dr. Arnold invaded the province of the jurors by telling them how they should vote on the legal issues they were being asked to decide. We are unpersuaded. Dr. Arnold simply was explaining to the jurors that the definition of mental disease set forth in the standard text is not the same as the legal definition, and that a person who qualifies under one definition does not necessarily qualify under the other. The trial court reasonably could conclude that the jurors being asked to decide the case would be assisted by knowing that Dr. Arnold believed appellant qualified under both standards. (Evid. Code, § 801, subd. (a).) Again, we conclude the court did not abuse its discretion. (Piscitelli v. Friedenberg, supra, 87 Cal.App.4th at p. 972.)
III. DISPOSITION
The order committing appellant is affirmed.
We concur: SIMONS, J. NEEDHAM, J.