Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara James F. Rigali, Judge Super. Ct. No. SM080090
Rudy Kraft, 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, Lawrence M. Daniels, Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Phillip L. Harmon to be a sexually violent predator (SVP) within the meaning of Welfare and Institution Code section 6600. We affirm.
All further references are to this code unless otherwise stated.
FACTS
In 1977, Harmon raped a 15-year-old girl and a 19-year-old woman at gunpoint during a series of robberies. He pled guilty to two counts of rape and five counts of robbery and was committed to Atascadero State Hospital (ASH) as a mentally disordered sex offender. Harmon remained at ASH from February of 1978 until March of 1983.
Dr. Dana Putnam, a clinical psychologist, conducted the current SVP evaluation of Harmon. Putnam opined that Harmon suffers from paraphilia and pedophilia. Putnam described paraphilia as interest, arousal and behaviors involving nonconsensual sexual activities with adolescent and adult females.
Putnam said Harmon's history reveals an interest in nonconsensual sex. Putnam pointed to Harmon's rape convictions. In addition, Harmon reported that he had broken into a house and raped a girl in Sacramento. Moreover, in a 1992 probation report, Harmon's wife reported that she had not had sex with Harmon for months in spite of her desire to do so. When she had a hysterectomy and told him she could not have sex, he became aroused. He forced her to have sex with him causing injuries that took six months to heal. Putnam testified that Harmon denied the report.
Putnam described pedophilia as an interest in sexual activities involving prepubescent children. Putnam's diagnosis of pedophilia relates to Harmon's 1992 conviction for continuous sexual abuse of a minor. The victim was a nephew by marriage. It was reported that the molestation began as early as 1987, just four years after Harmon's release from ASH.
In evaluating Harmon's risk to reoffend, Putnam administered the STATIC-99 test. Harmon scored in the highest risk category. This category has a sexual offense reconviction rate of 39 percent in five years, 45 percent in 10 years, and 52 percent in 15 years. The SORAG test showed a projected reconviction rate of 45 percent in seven years and 59 percent in 10 years. Finally, the SOSTR test placed Harmon in the highest category for reconviction with a six-year rearrest rate of 57 percent. Putnam opined that Harmon was likely to reoffend.
Dr. Jeremy Coles, a clinical psychologist, also evaluated Harmon. Coles initially diagnosed Harmon with paraphilia and pedophilia. Later, Coles dropped pedophilia as part of the diagnosis. Coles believes Harmon's problem is his urge to have sex with nonconsenting people, some of which include children. Tests administered by Coles showed Harmon to be in the medium high range for reoffending. Coles opined Harmon represented a significant risk, enough to warrant his detention.
Defense
Dr. Miles Estner, a forensic psychiatrist, testified that Harmon does not presently suffer from paraphilia and never suffered from pedophilia. Estner said Harmon suffered from paraphilia in the past, but tests show his sex drive has diminished and his response to abnormal stimuli was negligible. Estner opined Harmon does not represent a danger to the community and is unlikely to reoffend. Estner criticized the tests given to Harmon by Putnam and Coles as not scientifically valid when applied to an individual.
Harmon testified on his own behalf. He said he had an abusive childhood. There was sexual violence in his family. His mother did not want him and abandoned him in a motel room when he was almost 14. He became a ward of the state and entered foster care. There was sexual violence in his foster home as well.
Harmon said he committed two rapes at age 22, pled guilty and was sent to ASH. At ASH he met a woman whom he married when he was released. He worked and supported his family until 1993, when he was arrested for molesting his nephew. He was sentenced to 21 years but only served 11 years due to his good conduct. On his release from prison, he was sent to ASH as an SVP. He participated in a treatment program. He acknowledges that he suffers from depression. He said he used to suffer from paraphilia, but now he has it under control.
DISCUSSION
Harmon contends the trial court erred in allowing the state's expert to testify to highly prejudicial hearsay.
Over Harmon's objection, Dr. Putnam testified: "There was a report by [Harmon's] wife that had been discussed in, I believe, the probation officer's report, as well as a declaration in support of arrest in 1992, which was not in relation to rape convictions, but in relation to a child molestation, . . . and at that time, his wife reported that she had not had sex with him for months at a time, despite the fact that she was desiring it, but then she had a hysterectomy and came home and told him she could not have sex. This aroused him and then he forced her to have sex with him and caused injuries that took six months to heal and this was something that she had reported at that time. [¶] Now, I guess it's reasonable to add that I did interview Mr. Harmon about this and that he did tell me that this was not the case, in his opinion; that he did not believe that it happened as it was reported." The prosecution referenced the reported incident in its argument to the jury.
An expert can give an opinion that is based on hearsay. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) The materials on which the expert bases his or her opinion are not elicited for the truth of their contents. (Ibid.) Instead, they are examined to assess the weight of the expert's opinion. (Ibid.)
Harmon relies on People v. Catlin (2001) 26 Cal.4th 81, 137. There our Supreme Court stated: "'. . . On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, "'under the guise of reasons,'" the expert's detailed explanation "'[brings] before the jury incompetent hearsay evidence.'" [Citations.] In this context, the court may "'exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.'" [Citation.] [¶] Nonetheless, '[b]ecause an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment.' [Citation.]"
Harmon argues evidence of his wife's statement is unreliable as triple hearsay. He claims the first level of hearsay occurred when his wife made the statement to a police officer; the second level occurred when the officer incorporated the statement into his affidavit; and the third level occurred when the expert testified.
Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).)
Wife's statement to the police officer is not "evidence of a statement." Instead, wife was relating her direct observations. As such, it does not constitute hearsay. Wife's statement as it appears in a probation report and an arrest warrant affidavit is clearly hearsay. Section 6600, subdivision (a)(3), however, allows the use of a multiple hearsay contained in probation reports to prove predicate offenses for the purpose of SVP hearings. (People v. Otto (2001) 26 Cal.4th 200, 208.) It is true there is no specific statutory provision expressly allowing probation reports to be used as a foundation for an expert's opinion. But if multiple hearsay contained in a probation report is sufficiently reliable as direct proof of a predicate offense, it should be sufficiently reliable for an expert to rely on in forming his or her opinion. That is not to say that all multiple hearsay contained in a probation report will automatically be deemed sufficiently reliable. But where, as here, the hearsay consists of the report of a crime by an identified victim, there is a sufficient indicia of reliability to uphold the trial court's determination of admissibility.
Harmon claims that the hearsay was introduced for the truth of the matter stated. But any expert's opinion is only as good as the truthfulness of the information on which it is based. (See People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427.) That does not mean the information must be excluded from evidence. (Ibid.)
Harmon argues the trial court should have excluded the evidence under Evidence Code section 352. Under Evidence Code section 352, the trial court has broad discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. Undue prejudice is not synonymous with damaging evidence. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Instead, it refers to evidence that "'uniquely tends to evoke an emotional bias against defendant' without regard to its relevance on material issues. [Citations.]" (Ibid.)
Here evidence of wife's report that Harmon raped her is clearly probative of whether Harmon continues to suffer from paraphilia. But the evidence is not unduly prejudicial. The emotional bias the evidence may evoke against Harmon is not without regard to its relevance on the material issue whether he continues to suffer from paraphilia. In fact, any bias is directly relevant to that material issue. The trial court did not abuse its discretion in admitting the evidence.
In any event, if the trial court erred, the error was harmless. In addition to pleading guilty to two counts of rape at gunpoint, Harmon was convicted of continuous sexual abuse of a child. Harmon argues the spousal rape was the only evidence that he continues to suffer from paraphilia. But Dr. Coles testified that Harmon's sexual abuse of a child was not pedophilia, but another manifestation of paraphilia; that is, Harmon's urge to have nonconsensual sex. Even Harmon's own expert testified Harmon is not a pedophile. Moreover, no matter how Harmon's child abuse conviction is characterized, it demonstrates he does not have his sexual urges under control. There is no reasonable probability Harmon would have obtained a more favorable result had the evidence of spousal rape been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.