Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Bernardino County, John B. Gibson, Judge, Super. Ct. No. FBABS05997
NARES, Acting P. J.
Norman James Hubbs appeals from a judgment entered on April 13, 2006, recommitting him to Atascadero State Hospital for a two-year period (July 1, 2005 to July 1, 2007) for treatment and confinement as a sexually violent predator (SVP) under the provisions of the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) (SVP Act) following a jury finding that he is an SVP.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Hubbs contends (1) his trial counsel provided ineffective assistance of counsel by failing to retain expert witnesses to testify on his behalf or otherwise prepare for trial; (2) the court deprived him of his right to effective assistance of counsel by failing to rule on his pretrial motion to replace his court-appointed counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (3) the court erroneously granted his request to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta); (4) the court erroneously permitted the prosecution's experts, Dr. Robert Owen and Dr. Dana Putnam, to testify to a "large quantity" of inadmissible hearsay; (5) the court erroneously excluded relevant evidence that would have permitted him to challenge the purportedly predatory nature of his prior convictions; and (6) the court erroneously instructed the jury with a modified version of CALJIC No. 2.50.01 that, in effect, told the jury they could use his prior sex offenses to demonstrate he has a propensity to commit such acts in the future, thereby eliminating the requirement that the prosecution prove its case beyond a reasonable doubt.
Hubbs specifically cites 38 instances with regard to Owen's testimony and 15 instances with regard to Putnam's testimony.
We conclude Hubbs has met his burden of showing the judgment recommitting him to the Atascadero State Hospital must be reversed on the ground his trial counsel provided prejudicially ineffective assistance of counsel, and the matter must be remanded for a new trial.
FACTUAL BACKGROUND
A. Hubbs's Underlying Convictions of Sex Offenses Against Five Boys
The following brief history of Hubbs's prior sexual offense convictions is taken from this court's unpublished opinion in his prior appeal (People v. Hubbs (Oct. 11, 2005, D043625), hereafter referred to as Hubbs I).
In the underlying criminal prosecution (People v. Hubbs (Super. Ct. San Bernardino County, 1991, No. BCR-2641), a jury convicted Hubbs of a total of 11 counts of committing lewd and lascivious acts upon, and three counts of engaging in oral copulation with, five boys under the age of 14 years in violation of Penal Code sections 288, subdivision (a), and 288a, subdivision (c), respectively.
B. The Prosecution's Case
The prosecution presented the testimony of two experts, Drs. Owen and Putnam. Owen, a licensed clinical psychologist, testified he first met with Hubbs in August 2001 and saw him again in May 2003 and January 2005. Owen diagnosed Hubbs as suffering from pedophilia with a sexual attraction to boys, and a personality disorder not otherwise specified with antisocial traits. Owen described pedophilia as a sexual disorder involving a sexual attraction to children, generally under the age of 16, that persists for at least six months. The first circumstance that Owen relied upon was a report of an incident in 1977 in Indiana that indicated Hubbs had sodomized a nine-year-old boy named Guy D. The resulting criminal charges were dismissed in 1979. In another incident, in 1979, Hubbs sodomized an 11-year-old boy named Frank B. Charges were filed against Hubbs, who pleaded guilty to battery. The next incidents, which occurred in 1984 or 1985, involved fondling boys in California.
Owen opined that Hubbs's sexual disorder, pedophilia, is a disorder that does not go away. Owen learned that Hubbs had sexually abused 13 boys over the course of 13 years, and his acts ranged from fondling to oral copulation to sodomy. Hubbs is volitionally impaired and cannot control his urges to reoffend with boys. He refused for years to receive treatment, and had been in Atascadero State Hospital for six years. Owen opined that Hubbs needs treatment in custody for his disorder.
Putnam, a clinical and forensic psychologist, testified he met with Hubbs in January 2005. He concluded that Hubbs meets the criteria for an SVP. Putnam found that Hubbs had committed the necessary predatory sexual offenses; that he suffered from a diagnosed mental disorder, pedophilia, in that he was attracted sexually to male children; and that there was a serious and substantial risk Hubbs would reoffend if not treated.
The prosecutor called Hubbs to testify on behalf of the People. Hubbs admitted he was convicted of 14 counts of molesting children. He acknowledged he declined treatment for his pedophilia, stating, "I have declined treatment for something I feel doesn't apply to me." Hubbs also stated, "I do not want to engage in treatment for pedophilia."
C. The Defense
Hubbs testified in his own defense. He denied sodomizing Frank B. The molestation charges against him relating to Guy D. were dismissed for insufficient evidence. Hubbs admitted he did not participate in the sex offender treatment program at Atascadero State Hospital, stating such participation could be viewed as inconsistent with his claim he was not an SVP.
Tom Carter, a farmer in the Newberry Springs area, stated he had known Hubbs for approximately 27 years. He testified about working with Hubbs in the farming business and said he found him trustworthy and honest. It was very likely that Hubbs would have children with him when he went over to Carter's house or field.
Lillian Hargrove, Hubbs's mother, testified she never saw any sign that he had mistreated any children.
The jury saw a videotaped deposition of Victor W., one of the children Hubbs considered his own, in which Victor W. stated Hubbs did not molest him, and he never witnessed Hubbs molest anyone else.
OVERVIEW OF THE SVP ACT
The SVP Act, which took effect in 1996 and is set forth in section 6600 et seq., provides for the involuntary civil commitment in the custody of the California Department of Mental Health (DMH) of those persons identified as SVP's. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1142, 1143-1144 (Hubbart).) In describing the underlying purpose of the SVP Act, "the Legislature expressed concern over a select group of criminal offenders who are extremely dangerous as the result of mental impairment, and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes. The Legislature indicated that to the extent such persons are currently incarcerated and readily identifiable, commitment under the [SVP Act] is warranted immediately upon their release from prison. The Act provides treatment for mental disorders from which they currently suffer and reduces the threat of harm otherwise posed to the public. No punitive purpose was intended." (Hubbart, supra, 19 Cal.4th at pp. 1143-1144, fn. omitted.)
"A person must be committed as an SVP if the People prove beyond a reasonable doubt that the person currently suffers from a mental disorder that seriously impairs the person's ability to control his or her sexually violent behavior and creates a substantial danger that the person will commit a sexually violent offense if released." (People v. Shields (2007) 155 Cal.App.4th 559, 562 (Shields), citing §§ 6600 & 6604; People v. Williams (2003) 31 Cal.4th 757, 776; People v. Roberge (2003) 29 Cal.4th 979, 988; Hubbart, supra, 19 Cal.4th at p. 1162.)
"Prior to the 2006 amendment of section 6604, an SVP was committed to a two-year term, and the People were required to obtain a new order determining the person to be an SVP for each successive two-year commitment. 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).) The change in section 6604 from a two-year term to an indeterminate term was accomplished by the Legislature's amendment of the statute effective September 20, 2006, and again by the California voters' approval of Proposition 83 (known as "Jessica's Law") effective November 8, 2006. (See Historical and Statutory Notes, 73D West's Ann. Welf. & Inst.Code (2007 supp.) foll. § 6604, pp. 125, 131; Prop. 83, § 27, approved Nov. 7, 2006, eff. Nov. 8, 2006.)" (Shields, supra, 155 Cal.App.4th at p. 562, fn. omitted.)
Former section 6604 provided in part: "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health, and the person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment . . . ."
As already noted, in the April 2006 recommitment judgment challenged in this appeal the court ordered Hubbs recommitted to the DMH for a two-year period running from July 1, 2005 to July 1, 2007. Thus, the recommitment judgment at issue here was entered before the amendment to section 6604 took effect.
DISCUSSION
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Hubbs contends his trial counsel provided ineffective assistance of counsel by failing to retain expert witnesses to testify on his behalf or otherwise prepare for trial. For reasons we shall explain, we conclude Hubbs has met his burden of showing the judgment of recommitment to the Atascadero State Hospital must be reversed on the ground his trial counsel provided ineffective assistance of counsel.
A. Background
Hubbs's former counsel, James Kearney, was first appointed to represent him in May 2004, when the court relieved the deputy public defender during the annual review hearing. In March 2005 the San Bernardino County District Attorney filed its petition to commit Hubbs as an SVP, and Kearney represented Hubbs at the June 2005 probable cause hearing. Before the prosecution called its witnesses, Owen and Putnam, Hubbs made a motion under Marsden, supra, 2 Cal.3d 118, to relieve Kearney as his appointed counsel and to be appointed new counsel. The court heard the motion outside the presence of the jury.
During the Marsden hearing, Hubbs stated that he and Kearney had "a lack of communication" and explained that he had wanted Kearney to file a demurrer to the petition and to bring a motion to "dismiss" Owen as one of the People's experts because Hubbs had sued Owen, and Owen had "a grudge" against him. Kearney responded, "I do fear at this point that our relationship is beginning to deteriorate. The reason being is when he's constantly writing letters, and making calls that . . . I believe are disparaging, it is becoming more and more difficult for me to successfully advocate his motions." The court denied Hubbs's Marsden motion and continued with the probable cause hearing.
At the conclusion of the probable cause hearing, the court ruled that probable cause existed and indicated its desire to set a trial date. When the prosecutor indicated she was uncertain as to whether Hubbs would have experts, Kearney responded, "That was one of the issues I was hoping to address with the Court before we left this afternoon, the appointment of experts and appointment of an investigator . . . ." The record contains nothing further on either subject during the rest of that hearing.
Kearney represented Hubbs at the March 10, 2006 status conference. Kearney requested, and the court granted, a continuance of the trial date after Kearney stated the defense was not ready because he had just handled two murder trials and his father had suffered a slight heart attack.
On March 20, 2006, the new trial date in this matter, the court heard pretrial motions. Kearney informed the court that Hubbs was asking to be named as cocounsel. In response, the court stated it would permit Hubbs to represent himself "assuming he passes muster under Marsden. And based on what I [have] seen of Mr. Hubbs at the last trial we had here, I think [he] undoubtedly qualifies under Mardsen to represent himself. But I am not going to appoint him as cocounsel." Immediately thereafter, the following exchange took place between Hubbs and the court:
We presume the court meant to refer to Faretta, supra, 422 U.S. 806.
"[HUBBS]: I elect to--for another Marsden motion or to exercise my Far[]etta right.
"THE COURT: You want to represent yourself and fire Mr. Kearney?
"[HUBBS]: Yes, sir.
"THE COURT: Okay.
"[HUBBS]: But I want all of my records available for me for this trial.
"THE COURT: I'll tell Mr. Kearney to turn over all discovery, and you can represent yourself. There will be no delay in this trial."
Shortly thereafter, another exchange took place between Hubbs and the court:
"THE COURT: . . . [¶] Now, let's go back to your motion to fire Mr. Kearney.
"[HUBBS]: Okay.
"THE COURT: You understand that you will be held to the same standards as an attorney?
"[HUBBS]: Yes, sir.
"THE COURT: Do you understand you don't have the skills of an attorney?
"[HUBBS]: Yes, sir.
"THE COURT: You understand that you are basically tying both hands behind your back?
"[HUBBS]: My hands have been tied. Mr. Kearney has had no communication with me. I had no idea why I was coming to court. I have been given a copy of none of the documents or motions. I have had no input, other than what I've been able to put in his ear. Mr. Kearney has not seen me or answered my letters or taken any of my phone calls. Now, I can't see how I could be shackled wors[e] than that."
Before the court ruled on Hubbs's Faretta motion to represent himself, it counseled Hubbs to speak to Kearney during a brief break, at the end of which Hubbs told the court, "I am ready to represent myself, your Honor." The court admonished Hubbs about courtroom procedures that would apply if Hubbs represented himself. The following exchange then took place among the court, Hubbs, the prosecutor and Kearney, revealing that Kearney had not retained an investigator or an expert witness:
"THE COURT: You're not going to have investigative services unless there's already been an investigator appointed.
"[HUBBS]: I don't know if I have one.
"THE COURT: I don't believe you do.
"[HUBBS]: So I'm being denied that?
"THE COURT: Do you understand that?
"[HUBBS]: Yes, sir.
"THE COURT: Then, absent some other inquiry by the People, I'm going to grant his motion. [¶] . . . [¶]
"[PROSECUTOR]: Did you present any witnesses prior to today's date?
"[HUBBS]: I haven't had the opportunity, and I don't know what my prior counsel has--
"[PROSECUTOR]: You have no experts and no witnesses, so you're proceeding without them.
"[HUBBS]: I don't believe that.
"[KEARNEY]: I did put a doctor on my witness list and intended to call him at this trial; although, after further consultation with Mr. Hubbs, I was intending to call a different doctor, but I did intend on calling a doctor.
"THE COURT: Have you provided the name to the People?
"[KEARNEY]: I have, and [the] People have previous reports.
"[PROSECUTOR]: Counsel is well aware of the civil discovery requirements pursuant to [Code of Civil Procedure section] 2034. Demands have been made repeatedly on Mr. Kearney--
"THE COURT: Mr. Kearney, show me the document where you noticed the People.
"[KEARNEY]: I don't have a document. I orally noticed. I don't have their [Code of Civil Procedure section] 2034 demand either. I don't know if I can speak about--
"THE COURT: You haven't been relieved.
"[KEARNEY]: In that case, [the prosecutor] knows that I shipped Mr. Hubbs out to a doctor who indicated they did not wish to be involved. I did tell her about Mr. Vicory. After speaking with Mr. Hubbs, I know there are two other doctors that have done reports, and [the prosecutor] has their reports. It is Mr. Hubbs's intention to call one or both.
"THE COURT: Are either of these doctors under subpoena?
"[KEARNEY]: No.
"THE COURT: What makes you think you can get these doctors here, assuming the People didn't object in the time that we're set for trial?
"[KEARNEY]: If we can't, we can't, but I believe we can.
"[PROSECUTOR]: Your Honor, he's never prepared any documents that indicate that Dr. Vicory was going to be their expert, or that he's reviewed the medical records and has a current opinion on Mr. Hubbs'[s] condition. Clearly, the doctors that he may be referring to--and I'm just speculating--are the two doctors that were previously called by Mr. Lowery at the trial, which included Dr. Parks and Dr. Anderson. I don't even know if I'm speculating correctly. It's all speculation.
The record shows that at the May 7, 2004 annual review hearing, the court relieved Jeff Lowery, a deputy public defender, as Hubbs's counsel and appointed Kearney to represent Hubbs.
"THE COURT: That's my understanding. It's the two doctors that previously testified.
"[PROSECUTOR]: If so, I'm not privy to any medical reports or any examination that they've done of Mr. Hubbs . . . that are current and relevant to the proceedings before this Court." (Italics added.)
When the court indicated it might not allow Hubbs to call any witnesses, the following exchange occurred:
"[HUBBS]: I believe the Constitution says that I have [the] right to call witnesses, and [section] 6600 says I have [the] right to experts.
"THE COURT: You understand you might not be allowed to call witnesses if you haven't noticed the People of the witnesses you intend to call.
"[HUBBS]: I understand that could be your ruling. However, I do believe that because I have not had that opportunity that would be [a] denial of my due process rights.
"THE COURT: I'm asking you a yes or no question.
"[HUBBS]: I understand that. [¶] . . . [¶]
"THE COURT: What I intend to do is grant Mr. Hubbs'[s] petition to represent himself, and I'm going to appoint Mr. Kearney as advisory counsel. That means, Mr. Kearney, you will not sit at counsel table. If Mr. Hubbs needs to speak to you, he can ask to have a moment to confer with you. You are not being appointed as cocounsel. [¶] Do you understand?
"[KEARNEY]: Yes, your Honor.
"THE COURT: Is that agreeable, Mr. Hubbs?
"[HUBBS]: I am entitled to assistance of counsel.
"THE COURT: You're not entitled to it. I am doing this because I think it will make for a smoother proceeding.
"[HUBBS]: I was relying on the Welfare and Institution[s] Code. I thought that's what we were dealing with.
"THE COURT: You're not entitled to it. I think it will make for a smoother proceeding." (Italics added.)
B. Applicable Legal Principles
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) A person subject to the SVP Act also has a statutory right to the assistance of counsel. (§ 6603, subd. (a) ["A person subject to this article shall be entitled . . . to the assistance of counsel"].)
The right to counsel "entitles the defendant not to some bare assistance but rather to effective assistance." (Ledesma, supra, 43 Cal.3d at p. 215, italics omitted.) A defendant claiming ineffective assistance of counsel has the burden to show: (1) Counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); Ledesma, supra, at pp. 216, 218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
Further, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442, italics added.) "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569, italics added.)
Although the SVP Act provides for the involuntary civil commitment in the custody of the DMH of those persons identified as SVP's (Hubbart, supra, 19 Cal.4th at p. 1142), the standards that apply to evaluating ineffective assistance of counsel claims in criminal cases also apply to SVP cases. (See In re Wright (2005) 128 Cal.App.4th 663, 674.)
C. Analysis
The record shows that Hubbs was denied the right to effective assistance of counsel. The statutory framework shows that SVP commitment petitions are generally decided on the basis of expert testimony. (See People v. Angulo (2005) 129 Cal.App.4th 1349, 1358 [the SVP Act "expressly authorizes the appointment of experts for indigent litigants"].) Because he was named as the respondent in a petition for commitment under the SVP Act, under section 6603, subdivision (a) Hubbs had "the right to retain experts or professional persons to perform an examination on his . . . behalf" In the event he could not afford to pay for the services of such experts, the court was required, upon his request, to "assist [him] in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf." (§ 6603, subd. (a) , see fn. 7, ante.)
Section 6603, subdivision (a) provides in full: "A person subject to this article shall be entitled to a trial by jury, to the assistance of counsel, to the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf." (Italics added.)
A person who has been found to be an SVP and has been committed to the custody of the DMH also has the statutory right to be evaluated by experts in connection with an order to show cause hearing set by the court on that person's petition for conditional release. Section 6605, subdivision (d) provides in part: "The committed person . . . shall have the right . . . to have experts evaluate him or her on his or her behalf. The court shall appoint an expert if the person is indigent and requests an appointment." (Italics added.)
Here, Hubbs has demonstrated that his court-appointed counsel, Kearney, did not obtain funding to retain an expert on Hubbs's behalf. The record shows that on June 2, 2006, the court heard Hubbs's unsuccessful motion for new trial, which was based in part on "counsel's pretrial deficiencies." Hubbs complained that Kearney "failed to even request funding for experts." The court granted a request by both the prosecutor and Hubbs that Kearney be given an opportunity to testify under oath for the record. After Kearney stated he had spoken with two doctors—Dr. Vicary and Dr. Verna Thomas—about potentially representing the defense at trial, but both doctors said they were not willing to participate in the trial, Hubbs asked Kearney: "[P]rior to the day of [March 20, 2006], when my trial was to begin, what . . . efforts had you made to secure funding for these experts . . . on my behalf?" Kearney replied, "I had already spoken to the Court. I can't remember if [it was] formally or informally, about getting funding for an expert, should we get one." (Italics added.) Kearney's testimony shows he did not obtain any such funding.
The record also shows that although he intended to present the testimony of an expert witness, Kearney did not retain or subpoena any expert witnesses on Hubbs's behalf prior to the March 2006 trial, even though he had represented Hubbs since the May 2004 annual review hearing when the court appointed him. On the day of trial, as the court was considering Hubbs's request to represent himself, Hubbs replied, "I don't believe that," when the prosecutor told him he had no experts and he was proceeding without them. Kearney then stated he had put the name of a doctor on his witness list and intended to call him at trial, but then intended to "call a different doctor." When the court asked Kearney to produce a document showing he had provided the name of that doctor to the prosecution, Kearney replied he had no such document because he had given oral notice to the prosecution. Kearney informed the court that he knew of two other doctors that had done reports, the prosecutor had those reports, and Hubbs intended to call one or both of them at trial. The prosecutor speculated that these were the doctors who had testified on behalf of Hubbs at a prior trial, and the court expressed its understanding that these were "the two doctors that previously testified." Kearney acknowledged he had not subpoenaed either of those doctors, but stated he believed he could get them to testify on Hubbs's behalf. It is undisputed that no expert testified on behalf of Hubbs during the recommitment trial at issue in this appeal.
Dr. Raymond Anderson and Dr. Larry Park.
The People suggest that Hubbs's claim of ineffective assistance of counsel is unavailing because he has failed to meet his burden of showing prejudice. They assert that Hubbs "is unable to point to named expert witnesses who should have or could have been called." However, as already discussed, Kearney told the court on the day of trial that he knew about the two doctors who had previously testified on Hubbs's behalf. The appellate record supporting Hubbs's current appeal contains the reporter's transcript of testimony those two defense expert witnesses─Dr. Anderson and Dr. Park─gave on his behalf during the June 2003 trial proceedings that were the subject of Hubbs I. This court's October 11, 2005 unpublished opinion in Hubbs I summarized the expert testimony that Anderson and Park gave. We take judicial notice of the fact that both experts testified they were licensed psychologists who had evaluated Hubbs, and both opined that for stated reasons Hubbs did not meet the SVP criteria set forth in the SVP Act. In Hubbs I we noted Anderson's testimony that he interviewed Hubbs on three occasions and administered 16 tests to determine whether he was a preference mediated or situationally mediated offender. Anderson opined that Hubbs "definitely" did not have a diagnosed mental disorder within the meaning of the SVP Act, and there was not enough evidence to support a diagnosis of pedophilia. Anderson also opined that Hubbs did not present a serious and well-founded risk of committing predatory sex offenses because of his situationally mediated offender status, his age, the time he spent in prison and at Atascadero State Hospital, and his primary sexual orientation to consenting adult females.
We also noted in Hubbs I that Park had opined, based on the tests he administered and his clinical assessment of Hubbs, that Hubbs did not have a mental disorder that "predispose[d] him to the likelihood of future sexual offending," and he disagreed with the opinions of two DMH evaluators that Hubbs was a pedophile because "over the last 12 years or so there has been no indication of intense sexual fantasies, urges, or behaviors that would indicate that he now suffers from pedophilia." The record also shows that when Park was asked on cross-examination whether he agreed it was "likely that based on his mental disorder" Hubbs would "continue engaging in this behavior, even though he has been punished in state prison," Park testified, "No, he's not likely to repeat." Based on the foregoing, we conclude Hubbs has met his burden of showing that Kearney's ineffective assistance was prejudicial.
In support of this appeal, Hubbs asserts that on February 21, 2007, in case No. S148955, the California Supreme Court ordered Kearney disbarred effective March 23, 2007. Hubbs maintains that "an examination of the specific findings made by the State Bar Court reveal that the errors Kearney committed in [Hubbs's] case were similar to the errors that got him disbarred." We take judicial notice of the fact that the California Supreme Court ordered Kearney disbarred effective March 23, 2007.
Because there is no doubt Hubbs was denied his right to present a defense based on expert witness testimony (§ 6603, subd. (a)) due to Kearney's prejudicially ineffective assistance, and because there is no showing of any rational tactical purpose for Kearney's failure to obtain funding for, and to timely retain, experts on Hubbs's behalf, the judgment must be reversed and the matter remanded for a new trial. In light of our conclusion, we need not reach the merits of Hubbs's remaining claims on appeal.
DISPOSITION
The judgment is reversed; the matter is remanded for a new trial.
WE CONCUR: HALLER, J., O'ROURKE, J.