Opinion
D077636
11-04-2024
THE PEOPLE, Plaintiff and Respondent, v. NORMAN JAMES HUBBS, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Bernardino County No. FBABS700108 Lorenzo R. Balderrama, Judge. Reversed and remanded with directions.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General for Plaintiff and Respondent.
O'ROURKE, ACTING P. J.
Norman James Hubbs appeals a judgment committing him to the Department of State Hospitals in Coalinga, California for an indeterminate term for treatment and confinement as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA; Welf. &Inst. Code, § 6600 et seq.) following a court finding that he is an SVP.
Undesignated statutory references are to the Welfare and Institutions Code.
Hubbs does not challenge the sufficiency of the evidence supporting the finding that he is an SVP. Instead, he contended in his original brief: (1) the long delays in bringing his case to trial violated his due process rights and his counsel provided ineffective assistance by failing to file a motion to dismiss the petition based on the delays; (2) the trial court violated his due process right to counsel by denying his April 2019 motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (3) the court abused its discretion by admitting into evidence "tens of thousands of pages of exhibits without addressing or evaluating [his] objections," thus violating his rights to due process and a fair trial; (4) the court erred by admitting into evidence casespecific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and counsel provided ineffective assistance by failing to object to such evidence; (5) the court erred by denying his equal protection claim that the principles set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) to the commitment of persons found not guilty of crimes by reason of insanity (NGI's) in Penal Code section 1026.5, subdivision (b)(7), should also apply to SVPA proceedings; and (6) there was cumulative error.
We previously addressed these contentions and affirmed the judgment in an unpublished opinion that Hubbs appealed to the California Supreme Court, which granted the petition but held the case pending its decision in Camacho v. Superior Court (2023) 15 Cal.5th 354 (Camacho). It subsequently remanded the matter to this court, directing us to vacate our decision and reconsider the cause in light of the Camacho case, which addressed only the speedy trial issue.
While this case has been on remand, the California Supreme Court decided People v. Carter (2024) 15 Cal.5th 1092 (Carter), involving a defendant who brought both a Marsden motion and a motion to dismiss under People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36 (Vasquez). We requested and received the parties' supplemental briefing regarding Carter's applicability.
We find merit in Hubbs's request under Carter, supra, 15 Cal.5th 1092 that we conditionally reverse the trial court's finding that he is an SVP and remand the matter for further proceedings. In view of this determination, we do not address those issues that fall within the scope of our remand.
FACTUAL AND PROCEDURAL BACKGROUND
This court grants Hubbs's request filed June 21, 2024, to take judicial notice of the records in his prior appeals: People v. Hubbs (Feb. 20, 2008, D048607) (Hubbs II) and People v. Hubbs (Dec. 19, 2014, D063955) (Hubbs III), nonpublished opinions.
In July 1999, the People filed a petition to commit Hubbs as an SVP under former provisions of the SVPA. In July 2003, a jury found Hubbs to be an SVP and the trial court committed him to a state hospital for a two-year term. This court affirmed the commitment on direct appeal, concluding "overwhelming evidence based on the qualifying predicate sex offenses of which Hubbs was indisputably convicted in 1991 supported [the People's two experts'] opinions that Hubbs met the statutory SVP criteria." (People v. Hubbs (Oct. 11, 2005, D043625) [nonpub. opn.] (Hubbs I).)
In March 2005, the People filed a petition to recommit Hubbs as an SVP under the former provisions of the SVPA. On April 13, 2006, a jury found Hubbs to be an SVP and the trial court recommitted him to a state hospital for another two-year term. In February 2008, this court reversed the commitment and remanded the case for a new trial, finding that Hubbs's counsel provided ineffective assistance by failing to request funding for and timely retain defense experts. (Hubbs II, supra, D048607.)
In March 2007, the People filed another petition to recommit Hubbs as an SVP for two more years. Over the course of eight hearings held during 2007, Hubbs requested substitution of counsel. A new attorney, James Gass, eventually was appointed to represent Hubbs in December 2007.
In 2008, the trial court held six hearings following this court's reversal and remand on Hubbs's second petition. Attorney Gass joined in a motion on Hubbs's behalf regarding the use of underground regulations in SVP assessment protocols, and the case was continued for that purpose.
In May 2008, based on a change to the SVPA, the People amended that petition to request an indeterminate term, and moved to consolidate the second and third petitions. That same month, following this court's reversal of the 2006 judgment, the trial court granted the motion to consolidate.
In 2009, the trial court continued the case a number of times in an attempt to accommodate Hubbs's request that he appear at the hearings telephonically. On October 27, 2009, the People indicated they were ready for the matter to proceed to trial; however, Attorney Gass informed the court Hubbs wished to delay it because "he ha[d] a lawsuit pending against [San Bernardino C]ounty, and he [did not] want to come back to county jail until his lawsuit" was over. Both parties also stated they had not yet secured their expert witnesses. In early November 2009, the court set trial for February 2010.
In January 2010, the court vacated the scheduled jury trial because Attorney Gass requested more time in order to secure an expert. Attorney Gass subsequently filed a motion for new evaluators in June 2010, pursuant to In re Ronje (2009) 179 Cal.App.4th 509, claiming Hubbs was entitled to new evaluations conducted under a valid protocol. At a July 2010 hearing, the trial court granted the motion, finding Hubbs was entitled to new evaluations and a new probable cause hearing. The court found probable cause at a hearing in January 2011. In December 2011, Attorney Gass stated he was not ready for trial as his request for funds to hire an expert was denied.
The court held in In re Ronje, supra, 179 Cal.App.4th 509 that the assessment protocol used to evaluate the subjects of SVP commitment petitions was an invalid underground regulation. The appropriate remedy was to order new evaluations using a valid protocol and to conduct a new probable cause hearing based on the new evaluations. (Id. at p. 514.) The California Supreme Court later held "that relief arising from use of an invalid protocol in an SVP evaluation should depend on a showing that the error was material," and disapproved of Ronje to the extent it "omitted the materiality requirement[.]" (Reilly v. Superior Court (2013) 57 Cal.4th 641, 655.)
At a March 2012 hearing, Attorney Gass stated Hubbs had undergone multiple hip replacement surgeries and did not want to proceed to trial until his rehabilitation was completed. The court set trial for December 2012; however, at a November 2012 status hearing, Attorney Gass stated Hubbs was still dealing with medical issues and was on an intravenous antibiotic. Attorney Gass requested the trial be continued or conducted telephonically. The People indicated readiness for trial.
In the subsequent hearings leading up to the March 2013 trial, the court continued the case for various reasons, including Attorney Gass's engagement in a murder trial and Hubbs's unwillingness to proceed to trial because of his medical issues. The court also denied Hubbs's request to delay his trial another "six or eight months."
In March 2013, the matter went to trial, after which the court found Hubbs was an SVP and ordered him committed to a state hospital for an indeterminate term. Hubbs appealed, contending, among other things, that the court erroneously consolidated the SVP petitions filed in March 2007 and May 2008, following amendment of the SVPA. Hubbs also contended there were cumulative errors.
In December 2014, this court reversed the recommitment, finding cumulative error rendered the 2013 trial unfair; specifically, the trial court failed to conduct a proper Marsden hearing; it erroneously informed Hubbs that California law prohibited him from representing himself; and it improperly permitted a waiver of jury trial without Hubbs's consent. We added, "Although we are unable to determine that Attorney Gass was constitutionally ineffective, we remain very concerned that [he] did not retain an expert despite his representations to the court that he had consulted with multiple experts. Also, we do not discount the fact that it took over six years after the original, current petition was filed to get the matter to trial." We remanded for a new trial. (Hubbs III, supra, D063955.)
In Hubbs III, we also concluded Hubbs's contention regarding the consolidation of the petitions lacked merit: "In the instant matter, there were no delays caused by the consolidation of the previous and current petitions. The current petition had not been set for trial. Since the remittitur, the previous petition had not been set for trial. Accordingly, the consolidation of the two petitions did not run afoul of the holding of Litmon [v. Superior Court (2004)] 123 Cal.App.4th 1156. The 'delay' Hubbs complains of occurred because we reversed the judgment recommitting him as an SVP in Hubbs II. The reversal is not a delay of the type that the court warns trial courts to be careful of in Litmon [v. Superior Court], supra, 123 Cal.App.4th 1156.
Indeed, instead of a delay, the reversal in Hubbs II is simply Hubbs's prior petition running its course. After remittitur, a new trial would have to be set in any event. As a trial had not been set, it was not delayed by the consolidation with the current petition." (Hubbs III, supra, D063955.)
The court in Litmon v. Superior Court held: "Although we are convinced that trial courts have the inherent power to consolidate recommitment petitions, we are also convinced that, unless an SVP consents to it, resort to consolidation should rarely be necessary. If a recommitment petition is tried at or near the commencement of the commitment period to which it relates, there will be no overlapping petition and thus no need for consolidation. If, for some compelling reason, the first recommitment petition cannot be tried before a second recommitment petition is also ready to be tried by both sides, it may well be that consolidation does not violate this legislative intent. However, when the trial on the earlier petition can be held within the two-year commitment period to which it relates, and the SVP has announced ready for trial and has objected to consolidation or a continuance, consolidation appears to be at odds with the legislative intent codified in the SVPA. The SVPA is designed to ensure that the continued confinement of an SVP is justified, if at all, at least every two years. The legislative scheme's emphasis on frequent justification for the confinement of each SVP demands that an SVP not be confined without an adjudication of the justification for that confinement, solely because judicial resources will thereby be conserved." (Litmon v. Superior Court, supra, 123 Cal.App.4th at pp. 11751176.)
In February 2015, we issued our remittitur.
In April 2015, the San Bernardino County Public Defender's Office took over Hubbs's representation and Deputy Public Defender Charlene McKinley-Powell was assigned to the case. Between August 2015 and May 2016, Hubbs executed three waivers of his speedy trial right under People v. Litmon (2008) 162 Cal.App.4th 383. His waivers stated: "I understand that this request may affect my rights and remedies of due process under [People v. Litmon]. Specifically, I understand that I have a right to a speedy trial. However, by requesting postponement of my case, I understand that I waive my right to a speedy trial under [People v. Litmon]. I authorize my attorney to waive time on my behalf to prepare for trial and obtain witnesses and records." In August 2015, Hubbs signed such a waiver agreeing to delay his hearing for six months. In January 2016, he signed another such waiver delaying his hearing for three months. In May 2016, Hubbs agreed to a third waiver for an "indefinite" amount of time.
In December 2016, the court held a status conference and set trial for July 2017. In April 2017, McKinley-Powell told the court Hubbs had agreed that "sometime in the fall" would be a "more realistic date" and the court therefore scheduled trial for October 2017. Between September 2017 and February 2019, the court continued Hubbs's trial date for various reasons, including McKinley-Powell's involvement in another trial and the need for updated reports and evaluations on Hubbs.
In March 2019, Hubbs sent a letter to the court, requesting it dismiss the SVP petition under Vasquez, supra, 27 Cal.App.5th 36, or replace Mckinley-Powell and appoint an attorney to file a Vasquez motion on his behalf. He alleged he had suffered delays in bringing his case to trial as well as a breakdown of the public defender's system. He further stated he had spoken to McKinley-Powell about filing a Vasquez motion, but she had advised him that he lacked a basis because of his two prior trials. Hubbs claimed McKinley-Powell advised him that if he raised the Vasquez issue, she could not represent him because she would have a conflict of interest. As a result, the court might appoint a new attorney from the conflicts panel, and this would not benefit him given his previous difficulties with an attorney from that panel.
In Vasquez, a person was detained in state hospitals for over 17 years while awaiting a trial on an SVPA commitment petition. (Vasquez, supra, 27 Cal.App.5th at p. 40.) Sixteen years after the petition was filed, the trial court granted the detainee's motion to relieve the public defender's office as counsel and appointed a bar panel attorney to represent him. (Id. at p. 41.) Eight months later, the detainee's new counsel filed a motion to dismiss the SVPA petition for violation of the detainee's due process right to a speedy trial. (Ibid.) The trial court granted the motion, and the Court of Appeal upheld the dismissal. (Vasquez, supra, 27 Cal.App.5th at p. 41.) The appellate court concluded that although a substantial portion of the delay resulted from the failure of individual appointed attorneys to move the case forward, "the extraordinary length of the delay resulted from 'a systemic "breakdown in the public defender system,"' and must be attributed to the state." (Ibid.) The detainee had never objected to the many continuances of the trial date but had told his attorney he wanted to go to trial. (Id. at p. 62.) Although the extreme length of the delay in bringing the SVPA petition to trial (17 years) was not dispositive, it was significant that dramatic staffing cuts in the public defender's office was a cause of a substantial amount of the delay. (Id. at pp. 69, 77.) In addition, "the trial court failed Vasquez" by not considering whether to remove the public defender's office. (Id. at p. 77.)
Hubbs asserted in the letter that after the second reversal, "four years has passed and [Deputy Public Defender Mckinley-Powell] has not yet retained a defense mental health expert to evaluate me.... [¶] . . . She informed me that she could not raise the Vasquez issue because she would have a conflict." Hubbs argued that Mckinley-Powell "after four years is making the same mistake" as his prior attorneys "by not yet obtaining a mental health expert on my behalf." He added, "In my view, the attorney assigned to my case following the first two reversals should have immediately hired a defense mental health expert and brought my case to trial as expeditiously as possible.... [¶] . . . [T]he government has essentially put me in the position of sticking with a conflicted attorney who I believe has not performed adequately on my behalf or having my trial delayed by a new attorney ...."
In April 2019, the trial court held a Marsden hearing to address Hubbs's request. A supervising deputy public defender appeared along with McKinley-Powell and argued Hubbs did not present a valid Vasquez claim. The court denied the request.
In February 2020, Hubbs waived his right to a jury trial.
In June 2020, the trial court found that Hubbs was an SVP and ordered him committed to a state hospital for an indeterminate term. Hubbs appeals from that judgment.
DISCUSSION
I. Marsden Claim
Hubbs contends that Carter governs this case because he made a Marsden motion to replace his appointed counsel, who refused to file a motion to dismiss the case for due process violations under Vasquez. McKinley-Powell insisted she could not file a motion to dismiss on his behalf because doing so would pose a conflict of interest. Hubbs claims the supervisor "failed to recognize his obligation to investigate this past representation [of Hubbs by other attorneys] and raise the issue in a motion to dismiss or to withdraw from the case, if there really was a conflict of interest."
The People contend Carter, supra, 15 Cal.5th 1092 is factually distinguishable and has no bearing on this appeal: "Unlike the Carter defendant, [Hubbs] had been brought to trial on his commitment petition twice by the time he raised his Vasquez/Marsden claims, and had been responsible for most of the continuances during the time period at issue.... Accordingly, . . . the public defender here was prevented from filing a dismissal motion because Vasquez was simply not applicable."
A. Background
At the hearing on Hubbs's request to replace his attorney, McKinley-Powell's supervising attorney personally appeared and explained that Hubbs's concern as stated in his letter "focuse[d] on the structure of the Public Defender's office as opposed to the relationship between Mr. Hubbs and [McKinley-Powell]." The supervisor opined that Hubbs had experienced "structural breakdowns" in his past legal representation; however, he concluded there was no basis for granting a motion to dismiss: "[T]he issue in Vasquez is whether or not . . . a complete breakdown of the public defender's office structurally has impaired Mr. Hubbs's ability to get to trial. I think that Mr. Hubbs has suffered structural breakdowns. The court knows Mr. Hubbs went to trial twice with two different attorneys, twice was committed, and twice the appellate court overruled and determined and made the decision, which is quite unusual; that in both instances, Mr. Hubbs was denied effective assistance of counsel which, as the court knows, is that not only was the representation defective, the defective representation impacted the results in the two-prong [Strickland v. Washington (1984) 466 U.S. 668, 686-687] test. So I'm empathetic to the situation Mr. Hubbs has experienced as a result of past representation."
However, the supervising attorney explained that Hubbs had a serious medical condition "that needs surgery to correct. He's no doubt in a great deal of discomfort, and there are other medical procedures that he's wanting to take advantage of from Coalinga [State Hospital] and to do that, we can't be on the trial track.... Mr. Hubbs has requested that we not pursue trial because of that, and so therefore, the writ procedures, the health issues, and so on is what contributed to the delay." The supervising attorney therefore concluded Vasquez was inapplicable as "there's no reason to say there's a breakdown in the public defender's office prohibiting the trial."
The court ruled from the bench: "It appears to me that a Vasquez motion wouldn't arise given the fact that you've been tried before, there have been health issues, there's been writs done, and there have been Litmon [waivers] previously filed. So I'm going to respect[fully] deny your Marsden motion on the basis of Vasquez." Its minute order states: "The Court holds a Marsden hearing in a closed courtroom .... Marsden is DENIED."
Hubbs subsequently filed a petition for writ of mandate in this court, requesting we order the trial court to grant his Marsden motion. The People filed an informal response to the petition. We summarily denied the petition.
B. Applicable Law
" 'A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.'" (People v. Panah (2005) 35 Cal.4th 395, 431.) "Individuals subject to SVP petitions have a due process right to a Marsden hearing. [Citation.] '[S]ubstitute counsel should be appointed when . . . necessary under the Marsden standard, that is whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel ....' [Citation.]
'Essentially, a claim of conflict of interest constitutes a form of ineffective assistance of counsel.'" (People v. Carter, supra, 15 Cal. 5th at p. 1099.) We review the denial of a Marsden motion for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.)
In Carter, supra, 15 Cal.5th 1092, the defendant was committed to Coalinga State Hospital for 12 years pending trial on a petition to commit him as an SVP. He filed a Marsden motion and a motion to dismiss the petition in light of Vasquez, supra, 27 Cal.App.5th 36. (Carter, at pp. 10951096.) The trial court denied the Marsden motion, reasoning the public defender had diligently moved the case forward. But it declined to rule on the motion to dismiss, based on the public defender's representation that she did not breach her ethical duties and in fact fought for a speedy trial. (Id. at p. 1097.) The trial court allowed that the defendant could still pursue the motion to dismiss on his own, specifying the public defender would not represent him because of a conflict of interest. (Id. at pp. 1097-1098.) The Court of Appeal majority affirmed that decision. (Id. at p. 1098.)
The California Supreme court conditionally reversed the Court of Appeal's decision, concluding that "[h]aving both motions before it, the trial court should have considered Carter's Marsden motion in the context of his proposed motion to dismiss. In other words, the trial court should not have simply determined whether [his attorney] had 'done her job' up to that point but should have asked whether a conflict of interest would have prevented [her] from effectively investigating and potentially litigating Carter's motion to dismiss." (Carter, supra, 15 Cal.5th at p. 1101.) It stated: "[f]ocusing on this relationship was essential to adequately evaluating the Marsden motion," as the inquiry requires both consideration of past performance and consideration of whether the attorney could provide effective representation in the future. (Ibid.) The Supreme Court further explained that "[r]egardless of whether [Carter's counsel] had 'done her job,' other factors may have been relevant to Carter's motion to dismiss[,]" including Carter's attempt to show an institutional breakdown. (Id. at p. 1102.) It was unclear from the record whether the delay caused by Carter's previous attorney had been "a 'tactic' or whether Carter 'had previously assented to' it." (Id. at p. 1103.) The Supreme Court also noted that, with the exception of" 'pro se motions regarding representation, including requests for new counsel,'" " '[m]otions and briefs of parties represented by counsel must be filed by such counsel.'" (Id. at p. 1103.) It therefore "conclude[d] that the trial court abused its discretion in denying Carter's Marsden motion without an adequate inquiry and further erred in denying Carter the assistance of counsel in determining whether to file a motion to dismiss." (Carter, supra, 15 Cal.5th at p. 1103.)
C. Analysis
Here, the circumstances demonstrating an abuse of discretion are more compelling than in Carter, because the public defender's conflict of interest was manifest when the supervisor acted adversely to Hubbs's interest and informed the court that Hubbs's proposed motion to dismiss under Vasquez lacked merit. The court should have granted the Marsden motion and appointed counsel to assist Hubbs in determining whether to file a motion to dismiss.
As in Carter, supra, Hubbs "attempted to show an institutional breakdown like those identified in Vasquez" (Carter, supra, 15 Cal.5th at p. 1102) by pointing out he had twice received ineffective assistance of counsel, causing this court to reverse the findings that he was an SVP. Even the public defender supervisor conceded Hubbs had suffered from a "structural breakdown" in the system for appointing attorneys from the conflicts panel in San Bernardino County. The trial court opined that this case did not fall within the ambit of Vasquez, supra, 27 Cal.App.5th 36. The trial court "compounded its error when it left [Hubbs] to prove his motion to dismiss without the assistance of counsel." (Carter, supra, at p. 1103.) Accordingly, the trial court's "denial of the Marsden motion rests on error of law, constituting an abuse of discretion." (Carter, supra, 15 Cal.5th at p. 1102.)
Carter provides guidance for the relief available to Hubbs under these circumstances. Based on the procedural posture in Carter, under the Supreme Court's remand, the trial court was directed to "reconsider" the Marsden motion consistent with the Carter opinion. (Carter, supra, 15 Cal.5th at pp. 1104-1105.) The different facts in Hubbs's case warrant our conclusion that on remand the court must vacate its order denying the Marsden motion, enter a new order granting it, and appoint new counsel for Hubbs that is unaffiliated with the San Bernardino Public Defender's Office. If a speedy trial motion to dismiss is filed and granted, then the court should address whether dismissal of the People's petition for recommitment is the appropriate remedy. (Carter, supra, 15 Cal.5th at p. 1104; Camacho, supra, 15 Cal.5th at p. 382, fn. 5.) If a motion to dismiss is not filed, or if it is filed and denied, the court should reinstate the June 2020 recommitment order.
II. Evidentiary Claims
Hubbs contends the court violated his due process right to a fair trial by admitting into evidence inadmissible hearsay contained in tens of thousands of pages of exhibits, without addressing or evaluating his objections. He elaborates: "The trial court's ruling caused several distinct problems. First, by failing to consider the merits of [Hubbs's] objection, the trial court admitted a massive amount of inadmissible hearsay. Second, the trial court's ruling, considered in light of the sheer length of the exhibits, deprived [him] of any ability to know what evidence was being used against him. Third, the sheer length of the exhibits has effectively deprived [him] of full appellate review because it was functionally impossible for [him] to file a brief identifying and analyzing each inadmissible piece of evidence, especially in just 32,000 words. Fourth, the admission of these exhibits effectively without limitation negated the prohibition on case-specific hearsay under Sanchez[, supra, 15 Cal.5th 354] because the expert's testimony, even when it included inadmissible hearsay, was testimony based upon documents that were admitted into evidence.... [¶] Given the trial court's ruling, we do not know what evidence the trial court considered when deciding [his] case. The trial court took three months to reach its decision. This gave it time to review any, if not all, of the exhibits. Therefore, [he] must assume that the trial court could have considered any part of any exhibit."
Hubbs specifically challenges the trial court's admission of exhibit Nos. 1 through 7, 9 through 12, 15 and 21, arguing that although partially admissible, the documents contained inadmissible hearsay that did not fall within any hearsay exception.
A. Background
1. The Challenged Exhibits
Exhibit No. 1 is Hubbs's certified record of arrest and prosecution. Exhibit No. 2 is a San Bernardino Sheriff's Department certified police report. Exhibit No. 3 is a certified packet of Department of Corrections and Rehabilitation documents prepared under Penal Code section 969b. Exhibit No. 4 contains Barstow Police Department reports for Hubbs's offenses. Exhibit No. 5 is Hubbs's probation report dated October 1991. Exhibit No. 6 is a certified copy of Hubbs's Indiana criminal history. Exhibit No. 7 is a certified copy of Hubbs's Indianapolis prior case No. CR-78-181b, pertaining to charges of child molestation of victim G.D. Exhibit No. 9 is a certified copy of Indianapolis prior case No. CR80-454C, pertaining to charges of child molestation of victim F.B. Exhibit No. 10 is a certified copy of Indianapolis prior case No. CR80-058B, pertaining to charges of child molestation against victim F.B. Exhibit No. 11 is a certified copy of Indianapolis prior case No. C80-429C, pertaining to Hubbs's failure to appear on the child molestation charges. Exhibit No. 12 includes interdisciplinary notes (IDN's) from various dates. Exhibit No. 15 contains Hubbs's medical records, including IDN's from various dates. Exhibit No. 21 includes IDN's from June 5, 2008.
Penal Code section 969b provides that to prove prior felony convictions or service of prison terms, "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."
2. Trial Testimony
At the 2020 trial, the prosecutor's experts were clinical psychologists Robert Owen and Steven Jenkins, who testified Hubbs satisfied the criteria of an SVP. Dr. Owen evaluated Hubbs nine times between 2001 and 2019, and Dr. Jenkins evaluated him in 2018 and 2019. The doctors reviewed Hubbs's criminal history, medical records and state hospital records.
Both doctors considered Hubbs's criminal history from Indiana. In 1978, Hubbs was charged with molesting a nine-year-old boy (G.D.); however, the charges were not sustained. In 1980, Hubbs was charged with sodomy and oral copulation of an 11-year-old boy (F.B.) but Hubbs pleaded guilty to misdemeanor battery.
Exhibit No.8, the transcript of G.D.'s deposition, was not admitted into evidence. Dr. Owen briefly referenced the transcript when testifying about Hubbs's criminal history from Indiana. Dr. Jenkins did not reference the transcript, but instead referenced the court record showing that Hubbs was charged with but not convicted of an offense involving G.D. Dr. Jenkins noted that he asked Hubbs about the allegations involving G.D. in his 2018 interview.
Both doctors reviewed Hubbs's state hospital records and testified he was caught concealing electronic devices, such as thumb drives, on which information could be stored. The records indicated that Hubbs was found watching movies depicting partially naked children and tortured children, and he had received numerous photographs depicting partially naked children.
Based on their interviews with Hubbs, evaluations, and assessment of his criminal background and risk scores, Drs. Owen and Jenkins opined Hubbs's pedophilia affected his volitional control and predisposed him to committing sexual offenses, and he would likely reoffend in a sexually violent predatory manner if released. They concluded he met the criteria for commitment as an SVP.
Hubbs did not call any trial witnesses. In opening arguments, Hubbs's counsel clarified she was not contesting the first prong of the SVP statute dealing with Hubbs's criminal convictions: "Now, the District Attorney is going to go into detail about Mr. Hubbs's offenses. Does he have convictions for sex offenses? Yes. We're not contesting the first criterion. That's not why we're here. What we are contesting is the third criterion, 'whether or not Mr.
With no citation to legal authority, Hubbs argues: "Exhibit No. 8 was neither admitted nor admissible. Yet, it was used along with the other Indiana documents to support the claim that [he] had sexually assaulted [G.D.] This was entirely improper. An exhibit that was not introduced into evidence cannot be the basis for case-specific hearsay testimony; nor could it be properly considered by the trier of fact." As Hubbs provides no citation for his claim the trial judge considered the deposition transcript in its ruling, we regard this argument as forfeited. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must "support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) Hubbs poses a serious and well-founded risk to reoffend in a sexually violent predator manner.'"
3. Evidentiary Rulings
McKinley-Powell did not object to the admission of exhibit Nos. 1 through 7, stating they were certified records admissible under state law. She did not object to exhibit No. 21 because it was a single IDN that was referred to and identified at trial.
With defense counsel's agreement, the court elected to treat all evidentiary objections raised in the in limine proceedings as standing objections: "I know that there will probably be some objections based on motions in limine. You're certainly free to object, of course, but . . . if you want, I can consider those objections as continuing objections, particularly as to the Sanchez issues, that they're continuing objections, and that further objections would be futile."
McKinley-Powell objected to exhibit Nos. 9, 10 and 11, arguing they were inadmissible because they pertained to non-qualifying offenses. The prosecutor argued that they were certified court records of Hubbs's Indiana convictions and relevant to events and victims about which Drs. Owen and Jenkins had testified. After considering both parties' arguments, the trial court admitted exhibit Nos. 9, 10 and 11.
McKinley-Powell also objected to exhibit Nos. 12 and 15, both of which contained IDN's. She argued that, if admitted in their entirety, exhibit Nos. 12 and 15 could contain multiple levels of inadmissible hearsay, and therefore she requested the trial court limit the exhibits to only the IDN's used during trial. The prosecutor argued that these exhibits were certified medical records obtained under subpoena, and the experts had testified about the content of the IDN's. The trial court ruled that exhibit Nos. 12 and 15 would be received into evidence "to the extent that they were testified about, and I did make notes of what the testimony is."
4. Forfeiture as to Exhibit Nos. 1 through 7 and 21
Evidence Code section 353 provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion ...." Thus, a"' "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.'" (People v. Partida (2005) 37 Cal.4th 428, 433.)" 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.'" (Id. at p. 434.)
Additionally," 'where evidence is in part admissible, and in part inadmissible, "the objectionable portion cannot be reached by a general objection to the entire [evidence], but the inadmissible portion must be specified." '" (People v. Burroughs (2016) 6 Cal.App.5th 378, 410-411 (Burroughs).)
As McKinley-Powell expressly stated she did not object to exhibit Nos. 1 through 7 or exhibit No. 21 on any ground, any evidentiary challenge to these exhibits is forfeited. Hubbs argues that his counsel's decision not to object amounted to ineffective assistance of counsel. We point out that McKinley-Powell was not asked about her tactical reasons for not objecting to exhibit Nos. 1 through 7 and 21. However, there were hearsay exceptions applicable to the certified court records from California and Indiana, and therefore, no basis for an objection. (Evid. Code, § 1280.) Evidence Code section 452.5, subdivision (b)(1) states, in part: "An official record of conviction certified in accordance with subdivision (a) of [Evid. Code, s]ection 1530 . . . is admissible under [Evid. Code, s]ection 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record." Evidence Code section 452.5 "creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred," and the language of the provision "is clear and unambiguous." (People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461 (Duran).) Exhibit Nos. 1 through 7 and 21 were admissible under Evidence Code section 452.5, subdivision (b): "[C]ertified records of conviction fall within the definition of official records contained in Evidence Code section 1280 (the official records exception to the hearsay rule), and are per se admissible as such." (Duran, at p. 1461.) As stated, counsel is not ineffective for omitting meritless or futile objections.
5. Exhibit Nos. 9 through 11 (Indiana Records)
Hubbs contends that because no Indiana offense was a qualifying offense under the SVPA, exhibit Nos. 9 through 11 were not admissible under section 6600, subdivision (a)(3). He adds: "As a result, the only information from the Indiana documents that was admissible is the fact that [he] was convicted of a misdemeanor battery in Indiana. That information could be used to prove the existence of the conviction and that [he] committed a battery on F.B. However, battery is not a sex offense. Yet, the government's witnesses and [the prosecutor] used these documents to claim that [he] committed sex offenses on both [F.B. and G.D.]. The experts testified that they were aware of the accusations against [Hubbs] from Indiana and relied upon those accusations."
Hubbs further speculates: "On this record, it appears likely that the only reason the trial court admitted into evidence these exhibits in their entirety was because of its mistaken belief that section 6600, subdivision (a)(3), extends to nonqualifying offenses." Hubbs also argues his trial counsel provided ineffective assistance by failing to object to the Indiana records on Evidence Code section 352 grounds.
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.)" 'Relevant evidence' means evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
" 'Hearsay evidence' 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).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) "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 themselves hearsay and may contain multiple levels of hearsay, each of which is inadmissible unless covered by an exception." (People v. Yates (2018) 25 Cal.App.5th 474, 482 (Yates), citing Sanchez, supra, 63 Cal.4th at p. 675.) A trial court's decision to admit or exclude evidence, along with its determination of issues concerning the hearsay rule, is reviewed for abuse of discretion and will not be disturbed on appeal unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Wall (2017) 3 Cal.5th 1048, 1069; People v. Clark (2016) 63 Cal.4th 522, 590.)
The certified records of charges in exhibit Nos. 9 through 11 were admissible as official court documents under Evidence Code section 1280, subdivision (a), which "recognizes an exception to the hearsay rule for writings 'made by and within the scope of duty of a public employee.' Most such documents are like business records in that they are prepared to provide a chronicle of some act or event relating to the public employee's duty." (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225.)
As to Hubbs's ineffective assistance of counsel claim, we point out that contrary to Hubbs's argument on appeal, trial counsel did object to these records under Evidence Code section 352. Defense counsel made a blanket Evidence Code section 352 objection to all records: "[W]ith regard to the hospital records, as with all of the records I'm challenging, are that . . . they're more prejudicial than probative. There are just tons of completely irrelevant information in these records." This objection provides a reasonable explanation for counsel's decision not to further object to this testimony. As she had already objected to the evidence, any further objection would be futile in light of the court's standing order regarding the in limine objections. Further, because the trier of fact was the judge who could evaluate the evidence under the proper evidentiary law, there was even less reason for an additional objection. (People v. Garcia (2020) 46 Cal.App.5th 123, 171; People v. Ochoa (2017) 7 Cal.App.5th 575, 589, fn. 10; People v. Rauen (2011) 201 Cal.App.4th 421, 425; People v. Wesson (2006) 138 Cal.App.4th 959, 968.) "It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court." (People v. Mendoza (2000) 78 Cal.App.4th 918, 924.)
6. Exhibit Nos. 12 and 15 (State Hospital Records)
Hubbs contends that not all the documents contained in exhibit Nos. 12 and 15 were IDN's, and points to some portions of those documents that contained inadmissible hearsay. He argues, "By admitting this massive amount of hearsay, without examining the evidence in advance and actually ruling upon [his] objection, the trial court violated [his] due process rights." Citing to no aspect of the court's ruling, he contends, "The trial court must have relied on some of the inadmissible evidence in making its decision, but it is impossible to know exactly upon which documents it relied....[T]he trial court relied on [the People's] description of the exhibits. [That] cannot substitute for or eliminate the judge's obligation to exercise his discretion and rule upon the admissibility of the exhibits from a position of knowledge, not ignorance. By proceeding in this fashion, the trial court abused its discretion."
The hospital records were admissible under the public records exception and the business records exception under Evidence Code sections 1271 and 1280. They were made by public employees having an official duty to accurately record statements during the normal course of business, thereby providing an exception to the hearsay rule. (People v. George (1994) 30 Cal.App.4th 262, 273-274.) We reject Hubbs's claims of evidentiary error as to these exhibits.
III. Claim of Sanchez Error
Hubbs argues the court committed Sanchez error: "Although the trial court recognized the applicability of Sanchez[, supra, 63 Cal.4th 665] to this case it ruled that some case-specific hearsay would be admitted. This error was highly prejudicial, not just because it admitted a significant amount of inadmissible evidence, but also because, as a result this ruling [sic], [he] waived his right to a jury trial."
A. Background
Hubbs moved in limine to exclude certain exhibits because they contained hearsay in violation of Sanchez, supra, 63 Cal.4th 665. Defense counsel specifically objected to exhibit No. 11, claiming it included documents from a case in which there was no arrest and no conviction; therefore it would become more prejudicial than probative under Evidence Code section 352: "Its probative value is quite minimal under the circumstances. It also would invite the trier of fact to speculate what else could be the case? What else was done? How many other victims?"
As to exhibit No. 9, defense counsel argued: "[W]e're dealing with several counts which were dismissed in [Hubbs's] 1991 case." "With regard to hospital records, . . . they do not qualify under the business records or official records exceptions, that-as is very thoroughly known, that Coalinga State Hospital is a forensic institution, and in fact the state evaluators are considered forensic evaluators, and something that's forensic by definition is investigatory, that it is researching and documenting in order to . . . preserve details for purposes of litigation."
Regarding the IDN's that documented searches of Hubbs's belongings for suspected child pornography and other contraband, defense counsel argued: "[M]ost of those searches were conducted by the hospital police . . . and there's nothing in there that can remotely be called treatment.... And even in the cases where a psychiatric technician or other staff perform the search, it still would be inadmissible hearsay because they're in effect acting as agents of the police when they go in there looking for evidence of, you know, criminal activity, illegal items, and not just contraband items, but specifically ones that are illegal."
The court in its ruling demonstrated its understanding of Sanchez, supra, 63 Cal.4th 665 and the scope of that case's exclusion of case-specific hearsay. It concluded the challenged exhibits were admissible under the following hearsay exceptions: "Evidence Code sections 1270 and 1271, official or public employee records under Evidence Code sections 1280 . . . and 1561, I believe, admission of a party opponent under Evidence Code section 1220, some spontaneous statements, Evidence Code section1240, state of mind, Evidence Code section 1250, and physical state, Evidence Code section 1251, and in particular in SVP cases under Welfare and Institutions Code section 6600[, subdivision] (a)(3), the existence of any prior conviction may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim may be shown by documentary evidence[.]"
B. Applicable Law
"Under the SVPA, an offender who is determined to be an SVP is subject to involuntary civil commitment for an indeterminate term' "immediately upon release from prison." '" (People v. Putney (2016) 1 Cal.App.5th 1058, 1065.) To establish an offender is an SVP, the prosecution must prove, beyond a reasonable doubt, the offender (1) has been convicted of a sexually violent offense against one or more victims, and (2) has a diagnosed mental disorder that makes him or her 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 SVPA is designed' "to provide 'treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior"' and to keep them confined until they no longer pose a threat to the public." (Putney, at p. 1065.)
Through section 6600, the Legislature has expanded the scope of admissible hearsay in SVP proceedings. Subdivision (a)(3) of that section provides: "Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a[n] [SVP], but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals."
Section 6600, subdivision (a)(3) thus creates a broad hearsay exception for documentary evidence to prove the existence and details underlying the commission of the offenses leading to prior convictions and to the defendant's predatory relationship with the victim. (People v. Otto, supra, 26 Cal.4th at pp. 206-207 [section 6600, subd. (a)(3) "authorizes the use of hearsay in presentence reports to show the details underlying the commission of a predicate offense"].) "By permitting the use of presentence reports at the SVP proceeding to show the details of the crime," the California Supreme Court has explained, "the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." (Otto, at p. 208.) However, portions of otherwise admissible reports containing information that does not pertain to the defendant's qualifying conviction are not made admissible by section 6600, subdivision (a)(3). (Burroughs, supra, 6 Cal.App.5th at pp. 410-411.)
"A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." (Evid. Code, § 802.) Under Evidence Code section 801, subdivision (b), an expert witness may offer an opinion based on any matter, whether or not admissible, that is of a type upon which experts in the field may reasonably rely.
In Sanchez, the California Supreme Court explained: "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests." (Sanchez, supra, 63 Cal.4th at pp. 685-686.)
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.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) "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 p. 686.) The Sanchez rule regarding hearsay applies in SVP trials. (See, e.g., People v. Roa (2017) 11 Cal.App.5th 428, 452; Yates, supra, 25Cal.App.5th at p. 483.)
C. Analysis
1. Exhibit Nos. 9 Through 11
Hubbs's contentions regarding the admissibility of the California and Indiana court records are unavailing as they are certified copies of court records and thus properly admitted under the hearsay exception set forth in Evidence Code section 452.5, subdivision (b)(1). (People Taulton, supra, 129 Cal.App.4th at p. 1225; Duran, supra, 97 Cal.App.4th at p. 1461.)
2. Exhibit Nos. 12 and 15
As exhibit Nos. 12 and 15 consist of Hubbs's state hospital records, the IDN's therein are admissible under Evidence Code sections 1271 and 1280, the business and public records exceptions to the hearsay rule. (People v. Nelson (2012) 209 Cal.App.4th 698, 710; People v. Dean (2009) 174 Cal.App.4th 186, 197; Bhatt v. State Dept. of Health Services (2005) 133 Cal.App.4th 923, 929-930.)
Hubbs contends: "Before admitting the exhibits, the trial court should have confirmed that [the prosecutor] had redacted the documents appropriately so they did not contain inadmissible material and then reviewed the redacted documents in light of McKinley-Powell's objections." However, Hubbs does not cite to the record where he requested that the court undertake that course of action, and the court's response to the request. To the contrary, as stated, his counsel requested the court limit its consideration of the records to the extent they were brought up in the experts' testimony.
Hubbs contends four pages in exhibit No. 12 are not IDN's, and exhibit No. 15 contains "massive amounts of documents" that are not IDN's. He argues that aside from the IDN's, the records in exhibit Nos. 12 and 15 contained inadmissible hearsay. We point out the court granted McKinley-Powell's request to limit exhibit Nos. 12 and 15 to the relevant IDN's about which the experts testified. The court specified it had made notes regarding Drs. Owen and Jenkins's testimony about the state hospital records. Hubbs fails to show that, based on the court's narrow ruling, it relied on any inadmissible evidence.
To the extent the court erred, it was an error of state law only, and Hubbs is required to establish a reasonable probability of a more favorable result absent the error under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (See Yates, supra, 25 Cal.App.5th at p. 487 [applying Watson standard to review claim of error in admitting expert's inadmissible hearsay testimony].) He has not done so.
Drs. Owen and Jenkins interviewed Hubbs and therefore did not base their opinions solely on documentary evidence. Rather, they were able to personally assess whether Hubbs met the SVP criteria and they relied extensively on those interviews in forming their opinions.
Furthermore, as this was a bench trial, there is little likelihood Hubbs was prejudiced by any inadmissible hearsay. (See People v. Miranda (2000) 23 Cal.4th 340, 351 [" 'A judge, unlike a jury, is presumed to be able to avoid the risks of prejudice' posed by testimony of limited or questionable value"]; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1408 ["The California courts also presume that a professional jurist is capable of weighing admissible evidence without being prejudiced by extraneous matters"].) Hubbs rejects this claim: "The trial court did not understand the relevant rules of evidence. Therefore, there is no reason to assume that it properly excluded inadmissible evidence in making its decision. The trial court thought that Burroughs[, supra, 6 Cal.App.5th 378] allowed the admission of multilevel hearsay to establish the existence of all criminal offenses, including offenses that did not result in convictions. It was not possible for the judge to recover from this error. Undoubtedly, the trial court considered, for their truth, all of the allegations against appellant, no matter how unproven they might be. The problem was compounded by the trial court's mysterious belief that it had no obligation to review exhibits before admitting them into evidence."
Hubbs adds that "in combination the two rulings meant that anything the witnesses said and any evidence that related in any way to what the witnesses said would be considered for its truth. Since the experts stated that they had reviewed [his] state hospital file and had relied on it in forming their opinions, that meant that the trial court, given its ruling, could have considered anything in the exhibits. Certainly, there is no way for [him and his] counsel, or this court to figure out which records the trial court considered."
We agree with Hubbs that the record does not permit us to identify which records or portions of the record the trial court considered. However, as we have stated, it is Hubbs's burden to show prejudicial error. Absent that showing, we must presume that official duties have been regularly performed. (Evid. Code, § 664.) This presumption applies to the actions of trial judges in admitting evidence. (See Duran, supra, 97 Cal.App.4th at pp. 1461-1462, fn. 5.)
IV. Equal Protection Claim
Hubbs contends that in light of the fact the Legislature by statute has extended confrontation clause rights to NGI's in Penal Code section 1026.5, subdivision (b)(7), SVPs should have a similar right based upon equal protection principles. He relies on Hudec v. Superior Court (2015) 60 Cal.4th 815, 829 [recognizing a statutory right against compelled testimony in NGI commitment extension trials], People v. Curlee (2015) 237 Cal.App.4th 709, 712 [addressing an SVP's equal protection claim that he could not be compelled to testify in his commitment trial] and People v. Dunley (2016) 247 Cal.App.4th 1438, 1443 [addressing an MDO's statutory right not to be compelled to testify in commitment proceedings].)
Penal Code section 1026.5, subdivision (b)(7) provides that in the case of a person committed to a state hospital, "[t]he person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees."
A. Contentions
Hubbs "acknowledges that the evidence admitted to establish the existence and circumstances of the qualifying offense under . . . section 6600, subdivision (a)(3), arguably would be inadmissible under Crawford[, supra, 541 U.S. 36]." He further recognizes that the California Supreme Court in People v. Otto, supra, 26 Cal.4th at page 208 explained the rationale for that statute: "[T]he Legislature apparently intended to relieve victims of the burden and trauma of testifying about the details of the crimes underlying the prior convictions. Moreover, since the SVP proceeding may occur years after the predicate offense or offenses, the Legislature may have also been responding to a concern that victims and other precipitant witnesses would no longer be available." However, Hubbs reasons that the above argument "does not apply to the application of Crawford to other evidence. The Legislature has expressed no preference that other evidence would be more admissible in an SVP case than in an NGI case. More importantly, the other evidence of misconduct by an alleged SVP is frequently evidence that has never resulted in a conviction .... Thus the Legislature did not find a compelling interest in being able to present such evidence."
Hubbs contends Crawford protections should apply in SVP cases: "When an evaluator writes an evaluation of an alleged SVP, that report serves very much the same purpose as a police report in a criminal case. It was not prepared for use in a criminal case, but it is still testimonial in the SVP context." He recognizes that the repercussions of his proposal are extreme: "This expansion of the Crawford rule hearing beyond what the criminal context is [is] necessary given the existence of a Legislatively created expansion of criminal constitutional rights into the civil commitment context. Under this analysis, appellant's confrontation/Crawford claim would require the exclusion of any statements elicited or made in the context of any investigation of [his] criminal behavior or SVP status. Most clearly, this analysis would exclude all evaluations prepared as part of the SVP evaluation and commitment process unless the evaluator testified. [¶] Similarly, statements elicited during the course of an investigation conducted by hospital police must be excluded because those statements would have been elicited in the course of both a criminal investigation and SVP litigation. In [this] case, Crawford[, supra, 541 U.S. 36] would also implicate most of the information coming from Indiana about appellant's purported criminal activities there. [¶] The most complicated question concerns appellant's state hospital file. Because [his] ongoing status as an SVP was pending throughout his time at the state hospital, virtually everything written about him there was testimonial in light of the upcoming litigation process."
B. Background
Pretrial, Hubbs argued that "equal protection mandates that persons facing civil commitment are entitled to the statutory equivalence of rights guaranteed by the federal and state Constitutions for criminal proceedings including the equivalent Sixth Amendment right to confront and crossexamine witnesses and the requirements of Crawford[, supra, 541 U.S. 36]." The court rejected the argument, finding "Crawford does not apply" to SVP proceedings. It did not find "an extension of the Sixth Amendment Crawford rights by way of equal protection."
C. Analysis
The California Supreme Court in Conservatorship of Eric B. (2022) 12 Cal.5th 1085 (Eric B.) addressed whether, under equal protection principles, the right to not give compelled testimony at trial that the Legislature granted by statute to those committed persons found guilty of crimes by reason of insanity should extend to those facing conservatorship due to an inability to care for themselves under the Lanterman Petris-Short Act (LPS). (Eric B., at p. 1092.)
On this court's request, the parties provided supplemental briefing regarding the applicability of Eric B., supra, 12 Cal.5th 1085 and People v. Cannon (2022) 85 Cal.App.5th 786, review granted February 15, 2023, S277995 to this contention. In Cannon, the appellant, an SVP, contended his constitutional right to equal protection was violated by the court's failure to advise him of his right to a jury trial or to elicit his personal waiver of this right. The People conceded SVP's are similarly situated to MDO's and NGI's for purposes of the jury trial laws in question. (Cannon, at p. 796.) The court concluded the rational basis standard governed. (Id. at p. 798.) It remanded the matter for a determination of whether the disparate treatment could be constitutionally justified. (Id. at p. 801.)
The California Supreme Court reiterated that as a matter of constitutional law, the right against compelled testimony "does not apply in commitment proceedings that arise in connection with criminal charges." (Eric B., supra, 12 Cal.5th at p. 1098.) Citing to a United States Supreme Court case and to People v. Leonard (2000) 78 Cal.App.4th 776, 792-793, the court reasoned "the proceedings were designed only to determine the subjects' status, including the potential for danger and need of mental health treatment, and that their testimony offered reliable evidence on these issues." (Eric B., supra, 12 Cal.5th at pp. 1098-1099.)
The Eric B. court nevertheless analyzed the issue on statutory grounds and equal protection principles:" 'Because of the fundamental interests at stake, equal protection principles are often invoked in civil commitment cases to ensure that the statutory scheme applicable to a particular class of persons has not treated them unfairly in comparison with other groups with similar characteristics.' [Citation.] An equal protection analysis has two steps. '" 'The first prerequisite . . . is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.'"' [Citation.] If the groups are similarly situated, the next question is whether the disparate treatment can be justified by a constitutionally sufficient state interest." (Eric B., supra, 12 Cal.5th at p. 1102.)
Eric B. concluded as to the first prong of the above test, "despite their differences, we conclude NGI's and traditional LPS conservatees 'are sufficiently similar to bring into play equal protection principles that require a court to determine" 'whether distinctions between the two groups justify the unequal treatment.'" '" (Eric B., supra, 12 Cal.5th at pp. 1106-1107.) Specifically, both NGI's and LPS conservatees "are subject to involuntary confinement that could be extended indefinitely, and both are committed for the dual purposes of mental health treatment and public protections." (Id. at pp. 1102-1103.)
As to the next prong, the court held: "Decisions from the Courts of Appeal have reached differing conclusions about the level of scrutiny appropriate for assessing claims of disparate treatment in civil commitments. [Citations.] Because the courts below did not reach this prong of the equal protection analysis, arguments have not been well developed here concerning the proper degree of scrutiny or whether the government can demonstrate a sufficient justification for granting the testimonial privilege to NGI's but not traditional LPS conservatees." (Eric B., supra, 12 Cal.5th at p. 1107.)
The California Supreme Court has subsequently modified the analysis in such equal protection cases and held that "when plaintiffs challenge laws drawing distinctions between identifiable groups or classes of persons, on the basis that the distinctions drawn are inconsistent with equal protection, courts no longer need to ask at the threshold whether the two groups are similarly situated for purposes of the law in question. The only pertinent inquiry is whether the challenged difference in treatment is adequately justified under the applicable standard of review. The burden is on the party challenging the law to show that it is not." (People v. Hardin (2024) 15 Cal.5th 834, 850-851.) This change does not affect our analysis here.
The Eric B. court recognized that there was no basis for relief: "Ordinarily, we would remand to the trial court for a hearing at which the Public Guardian would have an opportunity to show why the differential treatment is constitutionally justified. [Citation.] However, the Court of Appeal determined the error in this case was harmless under either the state (. . . Watson, supra, 46 Cal.2d at p. 836) or federal (. . . Chapman supra, 386 U.S. at. p. 24) standard for harmless error." (Eric B., supra, 12 Cal.5th at p. 1107.) The court concluded: "Whether the government can justify its differential treatment of traditional conservatees with regard to this right must await decision in another case." (Id. at p. 1108.)
Likewise, here, we have applied the more stringent Chapman standard and concluded all of Hubbs's claimed errors were harmless. We have pointed out that he does not make a sufficiency of the evidence claim; his trial counsel conceded that she was not challenging the fact that he had prior convictions for sex offenses; and the testifying doctors examined Hubbs themselves and did not rely exclusively on any submitted evidence for their conclusions that Hubbs has a diagnosed pedophilic disorder. Accordingly, following Eric B., supra, 12 Cal.5th 1085 we need not remand the matter to the trial court for its determination of whether the government can justify its differential treatment.
V. Cumulative Error
Hubbs asserts: "The combined prejudicial effect [of the court's errors] was significant but hard to argue specifically because [he] cannot determine in advance which allegations of error this court will endorse." He reiterates his arguments that two errors "infected the entire" case: the court's decision to allow the prosecution "to do a massive document dump instead of presenting only admissible evidence" and his representation by a public defender who had a conflict of interest.
Under the cumulative error doctrine, while a number of errors may be harmless taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) As we are reversing the trial court's judgment on other grounds, and have set forth our ruling on Hubbs's other claims of error, we need not address his claim of cumulative error further.
DISPOSITION
We reverse the judgment and direct the trial court (1) to conditionally vacate its June 2020 order finding Hubbs a sexually violent predator within the meaning of Welfare and Institutions Code section 6600 et seq., (2) to vacate its March 2010 order denying Hubbs's motion under Marsden, supra, 2 Cal.3d 118, and enter a new order granting the Marsden motion, (3) to appoint new counsel for Hubbs that is unaffiliated with the San Bernardino Public Defender's Office, (4) if a speedy trial motion to dismiss is filed and granted, address whether dismissal of the People's petition for recommitment is the appropriate remedy, and (5) if a motion to dismiss is not filed, or if it is filed and denied, to reinstate the June 2020 recommitment order.
WE CONCUR: DO, J., BUCHANAN, J.