Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
San Luis Obispo County, Super. Ct. No. F328947.
Jean F. Matulis, 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, Linda C. Johnson, Supervising Deputy Attorney General, James William Bilderback II, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
James Riley Hicks appeals the judgment recommitting him to the California Department of Mental Health for treatment as a sexually violent predator (SVP). (Welf. & Inst. Code, § 6600 et seq.) We conclude, among other things, that the trial court did not err by admitting a police report containing a child victim's statements or by allowing expert testimony on ultimate issues. Admitting probation reports with sentencing information was not reversible error. Hearsay permitted in SVP proceedings does not violate the Sixth Amendment. The SVP Act (SVPA) is not an ex post facto law and does not violate equal protection. We affirm.
FACTS
In 1985 and 1994 Hicks was convicted of committing lewd acts with children. (Pen. Code, § 288 subd (a)(c).) After serving a prison term he was committed as an SVP. The district attorney petitioned to extend his commitment. Hicks requested a jury trial.
Dr. Craig Updegrove, a clinical psychologist, testified that Hicks is an SVP who suffers from pedophilia and meets the requirements for recommitment. Hicks was convicted in 1985 of committing two counts of oral copulation with Tanya, an 11-year-old girl. He had molested her since she was four years old.
In 1994 Hicks was convicted of lewd conduct with Wendy, a four-year-old girl. Hicks took photographs of her vagina and told Dr. Undegrove that he used them to help him masturbate. He said he "started having sexual thoughts about [Wendy] three or four weeks after meeting her . . . ." His offense with Wendy involved "substantial sexual conduct." He put "his finger in her vagina."
When Hicks was released from custody he violated his parole conditions by looking for children. In 1992 he went to Clovis, contacted children, asked them about their "personal activities," watched them play, invited them home and wrestled with them. After his release on parole in 2002, he went to a preschool in Pismo Beach.
Dr. Jesus Padilla, a clinical psychologist, testified that Hicks is an SVP. Hicks told Dr. Padilla that he had molested Tanya multiple times. In the Clovis incident Hicks denied that he planned to molest the children. But he told the authorities "six months from now who knows what I would have done."
In the defense case Dr. Raymond Anderson, a clinical psychologist, testified that Hicks does not suffer from pedophilia. Dr. Anderson said he "assumed" Hicks committed sexually violent offenses against two victims, but claimed this issue is "better answered by legal experts than by psychologists." He noted that in the Clovis incident "none of those children claim to have been molested" by Hicks.
Dr. Theodore Donaldson, a clinical psychologist, testified that in 1994 he concluded that Hicks was a pedophile, but in 2002 he was not sure. He said, "I do not think at this point one could conclude that he is a pedophile with any high degree of confidence." "I don't see any indication that he has a sexual preference for children." Dr. Donaldson said that while Hicks was on parole "he's been around children," but "there were no indications he made any sexual advances."
The1994 Police Report
Hicks objected to hearsay statements in a police report involving his 1994 conviction. In that report officer R. L. Wightman said Wendy "would not talk to [him] and did not disclose any act of sexual [molestation] during [his] initial interview with her on 11-23-93 . . . ." But on February 16, 1994, he received a fax from Child Protective Services (CPS) reflecting that Dr. Bryl Davis, Wendy's therapist, told CPS that during a counseling session Wendy said Hicks "touched her vagina" and "smelled his finger."
Wightman interviewed Wendy at Dr. Davis's office. Wightman noted that after making "Wendy feel comfortable with the conversation, Dr. Davis asked her if she remembered what the two of them talked about on their last session and Wendy said 'yes.'" Wendy told Wightman that Hicks "put his finger inside of her" vagina and "smelled his finger." Wendy's grandmother told Wightman that she saw Wendy touching herself in the vaginal area when bathing. She asked her why. Wendy replied "like he did, Jim, the bad man." She said that Wendy demonstrated "several times how [Hicks] touched her vagina with his hand and then smelled it."
The court overruled Hicks' objection and admitted the report.
DISCUSSION
I. Admissibility of the 1994 Police Report
Hicks notes that at the time of trial, the prosecution had to prove that Hicks' lewd conduct offense with Wendy (Pen. Code, § 288, subd. (a)) involved "substantial sexual conduct." (See former Welf. & Inst. Code, § 6600.1 [penetration of the vagina, etc.].) The prosecution used the 1994 police report to prove such conduct. Hicks contends admission of the report was error because it contained multiple hearsay, lacked reliability, impeded his right to confront witnesses and contravened due process. We disagree.
In SVP proceedings the "details underlying the commission of an offense . . . may be shown by documentary evidence . . . ." (§ 6600, subd. (a)(3).) That includes hearsay contained in probation and sentencing reports. (Ibid.) Multiple hearsay is admissible because the Legislature did not want victims to have to testify about crimes for which the defendant had already been convicted. (People v. Otto (2001) 26 Cal.4th 200, 206-208.) The SVPA therefore "allows the People to prove that a defendant has committed sexually violent offenses through . . . victim hearsay statements contained in probation reports," (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 140), and police reports. (Otto, at p. 211.)
But victim hearsay statements implicate constitutional considerations. (People v. Otto, supra, 26 Cal.4th at p. 214.) "'[B]oth the federal and state Constitutions confine the express right of confrontation to criminal defendants.'" (Ibid.) SVPA proceedings are not criminal, but principles of due process apply. (Ibid.; Allen v. Illinois (1986) 478 U.S. 364, 374.) "[D]ue process under the SVP Act is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings." (People v. Superior Court (Howard), supra, 70 Cal.App.4th at p. 154; see also Allen, supra, at p. 374.)
Under the SVPA "hearsay statements must contain special indicia of reliability to satisfy due process." (People v. Otto, supra, 26 Cal.4th at p. 210.) "The most critical factor demonstrating the reliability of the victim hearsay statements is that [the defendant] was convicted of the crimes to which the statements relate." (Id., at p. 211.) "As a result of such conviction, some portion, if not all, of the alleged conduct will have been already either admitted in a plea or found true by a trier of fact after trial." (Ibid.) Other reliability factors include "the circumstances surrounding the making of the statement . . . spontaneity and consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of similar age, lack of motive to fabricate, and whether the hearsay statement was corroborated." (People v. Otto, supra, 26 Cal.4th at p. 211.)
Here Wendy's remarks were sufficiently reliable. Hicks' conviction under Penal Code section 288, subdivision (a) establishes that he touched her with lewd intent and this corroborates "some portion" of Wendy's statement. (People v. Otto, supra, 26 Cal.4th at p. 211.) Wendy's remarks about Hicks touching her vagina were unambiguous. She was a young child with no motive to lie. ( Ibid .) What she told the police is consistent with what she said to her grandmother.
Her statements occurred at a session with a therapist when Wendy felt comfortable. A child Wendy's age would not know about the sexual conduct she described unless she had experienced it. (People v. Otto, supra, 26 Cal.4th at p. 211.) Dr. Davis, Wendy's therapist, reported the incident to CPS showing he believed her. The police report was an official record of Hicks' criminal case. (Ibid.)
Wendy touched her vagina and told her grandmother she did "like he did, Jim, the bad man." This is similar to the child victim's remarks that were properly admitted in In re Lucero L. (2000) 22 Cal.4th 1227, 1250. There our Supreme Court said, "Lucero's foster mother, after observing her rubbing her genital area, asked her, 'Who showed you that?' Lucero replied, 'Daddy did it.' Lucero's language . . . was age appropriate and her statements had the mark of being made in her own words, without evidence of prompting." (Ibid.) That is also true here. Wendy's statements were also consistent with trial testimony. Hicks told Dr. Updegrove about his fascination with her vagina. He had a pattern. He also molested Tanya when she was four.
The Attorney General has not raised the issues of collateral estoppel or law of the case. But in 2004 we decided the same issue which Hicks now raises in his prior SVP appeal and held that Wendy's statements were properly admitted to establish his SVP predicate offenses. (People v. Hicks (August 5, 2004, B167522) [nonpub. opn.].)
II. Admissibility of the Prosecution's Expert Testimony
Hicks contends the trial court should have excluded expert testimony on "whether [Hicks] had prior qualifying convictions." He claims expert testimony on ultimate issues invades "the province of the . . . jury." But in SVPA cases experts may testify on whether a crime is a predicate offense. (People v. Otto, supra, 26 Cal.4th at p. 214; People v. Martinez (2001) 88 Cal.App.4th 465, 476-477; see also People v. Miller (1994) 25 Cal.App.4th 913, 917 [expert could consider probation report and testify the "underlying offense" involved force].) They mayopine on whether the defendant is an SVP. (People v. Ward (1999) 71 Cal.App.4th 368, 374.) Their testimony is "sufficiently reliable." (Otto, supra, at p. 214.)
Hicks contends that the court erred by allowing prosecution experts to testify about incidents which did not lead to convictions and are derived from reports containing hearsay. But "'[a]n expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably . . . be relied upon" for that purpose. . . .'" (People v. Carpenter (1997) 15 Cal.4th 312, 403.)
The 1992 and 2002 events involved Hicks' attraction for children. They are part of his medical history. Prosecution and defense experts evaluated them for their medical assessments and testified about them. The events were relevant to Hicks' proclivity to re-offend. Moreover, excluding them would not change the result. They were not entirely negative. Hicks' experts claimed they showed Hicks did not molest children who were available to him. They were far less inflammatory than his seven-year history of molesting Tanya and his sexual obsession with Wendy.
III. Exclusion of Defense Witnesses
Hicks claims the trial court erred by preventing him from calling defense witnesses. We disagree. The court noted that Hicks' witness list included several Atascadero State Hospital (ASH) employees. Hicks' counsel said they were not doctors. They were staff who could testify that Hicks "hasn't had any kind of violations for sexual incidents" at ASH.
The court asked whether the doctors who would be testifying could discuss this issue. Hicks' counsel said Dr. Padilla may be able to do so. The prosecutor said, "I'll concede there haven't been sexual problems." Hicks did not call these witnesses. The court did not prevent him from doing so. Hicks' counsel apparently concluded they were unnecessary. A court may exclude cumulative evidence. (People v. Lewis (2001) 26 Cal.4th 334, 374-375; People v. Ayala (2000) 23 Cal.4th 225, 301.)
Hicks claims the court prevented him from calling Don Blum, a parole officer. We disagree. Hicks subpoenaed Blum, but he did not appear. The court asked Hicks' counsel, "what do you want me to do?" She said, "I'm not going to ask the court to send somebody to get him." She did not call Blum as a witness.
Hicks contends the court discouraged him from calling Blum because it had earlier ruled that part of his testimony was inadmissible. Hicks was arrested for going to a preschool. He claimed he did not know children were there. Hicks did not testify, but he wanted Blum to testify that he believed Hicks' story. The court ruled this was "improper opinion evidence."
Deciding the qualifications of the witnesses who may render opinions "rests in the sound discretion of the trial court." (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) Blum was not a medical expert and Hicks' offer of proof did not show his qualifications to render the opinion. Hicks' counsel conceded that Blum was not qualified to testify about Hicks' state of mind. The trial court did not abuse its discretion. Moreover, Hicks has not shown how Blum's testimony would change the result. It would not explain why Hicks was at a preschool.
IV. Admission of Probation Reports
Hicks notes that the trial court admitted statements from a probation report over his objection. He suggests that, except for victims' statements, probation reports are inadmissible. But the SVPA "expressly permits the use of probation and sentencing reports" and they are sufficiently reliable as evidence. (People v. Otto, supra, 26 Cal.4th at p. 207.)
Hicks claims the court erred by denying his request to redact the sentencing recommendations in the probation reports. But any error is harmless. The court admitted the judgments containing Hicks' sentences. When Dr. Updegrove testified about Hicks' prison terms, Hicks did not object. Given his egregious history of molesting Tanya, Hicks has not shown how the result would change with redacting.
V. Crawford v. Washington
Hicks claims the hearsay statements which the prosecution introduced from police and probation reports contravene Crawford v. Washington (2004) 541 U.S. 36. But Crawford held that in a criminal case testimonial hearsay is inadmissible unless the declarant is unavailable and the defendant had the opportunity for cross-examination. Crawford does not extend "the Sixth Amendment right of confrontation to civil proceedings[,]" such as the SVPA. (People v. Fulcher (2006) 136 Cal.App.4th 41, 55.) But "due process is preserved . . . because the proceedings mandated by the Act are adequate to enable a defendant to challenge the People's documentary evidence." (People v. Superior Court (Howard), supra, 70 Cal.App.4th at p. 154.)
VI. Ex Post Facto Law and Equal Protection
Hicks contends the SVPA violates the constitutional prohibitions against ex post facto laws and equal protection. But the California courts have repeatedly rejected these contentions. (Hubbard v. Superior Court (1999) 19 Cal.4th 1138, 1170, 1175; People v. Starr (2003) 106 Cal.App.4th 1202, 1207-1208; People v. Poe (1999) 74 Cal.App.4th 826, 833.) Hicks' remaining contentions are without merit.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J., Christopher H. Money, Judge, Barry T. LaBarbera, Judge.