Opinion
C086830
05-29-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES DANIEL MARTIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. C171773)
Defendant James Daniel Martin challenges his commitment as a sexually violent predator. He argues the trial court erred in admitting case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). He further argues his trial counsel provided ineffective assistance in failing to object to such evidence. Defendant largely forfeited his first claim by failing to object below on Sanchez grounds, and we reject his claim of ineffective assistance. Accordingly, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, the People filed a petition seeking defendant's commitment as a sexually violent predator (SVP). Before an individual may be civilly committed under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), the prosecution must prove three elements beyond a reasonable doubt: "(1) the person has suffered a conviction of at least one qualifying 'sexually violent offense,' (2) the person has 'a diagnosed mental disorder that makes the person a danger to the health and safety of others,' and (3) the mental disorder makes it likely the person will engage in future predatory acts of sexually violent criminal behavior if released from custody." (People v. Yates (2018) 25 Cal.App.5th 474, 477 (Yates); see also §§ 6600, subd. (a)(1), 6604.) The SVPA contains a broad hearsay exception that permits the People to establish the existence of a qualifying predicate offense through "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," as well as multiple level hearsay contained in such documents. (§ 6600, subd. (a)(3); People v. Otto (2001) 26 Cal.4th 200, 207-208.)
Undesignated statutory references are to the Welfare and Institutions Code.
A. Evidence at trial
During the February 2018 trial, defendant admitted a prior conviction for a sexually violent offense, namely, an August 2010 conviction for committing a lewd or lascivious act upon a child under the age of 14. (Pen. Code, § 288, subd. (a).) Other evidence offered at trial included: (1) testimony from two prosecution experts and two defense experts, and (2) a stipulation regarding evidence that would have been provided by a correctional officer had he testified. No documentary evidence was introduced or admitted.
Drs. John Hupka and Dale Arnold testified as experts for the prosecution, while Drs. Natalie Brown and Brian Abbott testified as experts for the defense. In addition to testifying about defendant's 2010 conviction, Drs. Hupka, Arnold, and Abbott each testified about other sex-related crimes committed by defendant, which they learned of from probation reports, police reports, and prison files, as well as interviews with defendant. Those other crimes included: (1) a 1998 juvenile adjudication for misdemeanor child molestation (Pen. Code, § 647.6, subd. (a)); (2) a 2002 conviction for misdemeanor child molestation (ibid.); and (3) a 2013 conviction for possession of child pornography. (Pen. Code, § 311.11, subd. (b).) None of these three convictions qualifies as a sexually violent predicate offense for purposes of the SVPA. (§ 6600, subd. (b).)
1. Dr. Hupka
Dr. Hupka, a self-employed, licensed clinical psychologist who had performed approximately 800 SVP evaluations, testified that he evaluated defendant in January 2016. In performing his evaluation, Dr. Hupka reviewed defendant's prison "central file," including probation officer reports, police reports, and trial court materials. Dr. Hupka also reviewed defendant's prison medical file, including four SVP evaluations from 2012 (two of which concluded defendant qualified as an SVP), and records of treatment in, or prior to, prison. Dr. Hupka also interviewed defendant for approximately 90 minutes.
With respect to defendant's 1998 offense, Dr. Hupka testified that defendant, who was 12 years old at the time, took a three-year-old boy into a bathroom and touched the boy's penis. He further testified that a juvenile petition was sustained against defendant for molesting the boy.
In regard to the 2002 child molestation offense, Dr. Hupka testified, "I don't know the circumstances," and he did not provide additional details other than it occurred while defendant was in juvenile hall. He therefore did not consider it in his analysis.
With respect to defendant's 2010 conviction, Dr. Hupka testified that defendant molested a 10-year-old boy. Defendant knew the boy, and they were sitting together on a couch when defendant put his vibrating cell phone on the boy's penis. Defendant then touched the boy's penis. Defendant was convicted and sentenced to prison.
Regarding defendant's 2013 conviction, Dr. Hupka testified that "not too long after" defendant was released from prison for his 2010 conviction, he was charged with possessing child pornography. Defendant had 32 photos on his phone with "naked young males," including at least one five or six year old lying naked and facedown in the shower, with his buttocks exposed. Defendant also stated in text messages on his phone that he would "love to have 'a picture of a 7-year old sucking you off and a picture of you [having anal sex]" with such a boy. Defendant was convicted (he was 27 years old at the time) and sentenced to prison.
During his interview, defendant denied "all of his sex offense history," just as he had done with other evaluators. Dr. Hupka testified that defendant also had other criminal instances of "behavioral mis-control," including assaulting his adoptive mother and forging a check from her bank account.
Defendant's adoptive mother will hereafter be referred to as his mother.
Dr. Hupka testified that defendant's sex offenses happened in the "context" of defendant's "very difficult and unfortunate history." When he was five years old, defendant was diagnosed with fetal alcohol syndrome (FAS) because his biological mother had abused alcohol while she was pregnant with him. FAS often causes individuals to fail to "develop optimal brain functioning," including impaired intellectual and reasoning ability, and reduced emotional and impulse control. Dr. Hupka testified that FAS was a risk factor for pedophilia because it can lead to "aberrant sexual development."
In addition, by the time he was three years old, defendant had been removed from his biological mother's care and placed in foster care. Dr. Hupka testified that being removed from a biological mother typically "interferes with normal social development, emotional development." Defendant was adopted when he was three years old, but at age 12 defendant was placed in foster homes and then juvenile hall because he was "acting out" and eventually engaged in criminal behavior.
Dr. Hupka testified that defendant received services from the Regional Center for Developmental Disability to help address his developmental disability. However, he was unable to graduate from school and was "teased" due to a speech disorder. Also, defendant had "never been able to maintain any kind of [sexual] relationship." Instead of engaging in "normal, healthy . . . , age appropriate" relationships, defendant "repeatedly turned to children."
Based on his interview with defendant and his review of defendant's records, Dr. Hupka opined that defendant suffered from pedophilia, or sexual attraction to prepubescent children. This opinion was based on defendant's convictions in 1998, 2010, and 2013. The 2013 conviction involving child pornography "reveal[ed] those fantasies and urges that [defendant] has around young boys." Dr. Hupka further opined defendant had a neurocognitive disorder due to his FAS. Defendant also suffered from a speech sound disorder, meaning he had impaired speech due to his neurocognitive disorder. Finally, defendant suffered from a personality disorder, based on his impaired ability to function in daily life, limited interpersonal and social skills, and reduced emotional functioning and impulse control.
Dr. Hupka did not conduct an independent cognitive or intellectual assessment of defendant. He instead relied on the FAS diagnosis and neuropsychiatric conclusions reached by defense expert Dr. Brown in her report.
Dr. Hupka acknowledged that he originally diagnosed defendant in 2016, two years before trial. Although he would have preferred to evaluate or reevaluate defendant closer to the time of trial, Dr. Hupka saw "no reason for these diagnoses to have changed." Defendant had been incarcerated for the two years preceding trial, and the diagnoses were "chronic conditions." In addition, Dr. Hupka was under the impression that defendant was not participating in treatment for his conditions during his jail term.
Moreover, Dr. Hupka found "nothing whatsoever" in the reports of Drs. Brown and Abbott, who evaluated defendant in August 2017 and May 2017, respectively, that would alter his conclusion. Dr. Hupka especially noted there was "[n]o indication" in the defense expert reports that defendant was receiving treatment while in custody.
Dr. Hupka opined defendant was "likely to re-offend." Defendant scored in the "highest risk range" on the Static-99R test, an analysis that is commonly used to determine a defendant's risk of committing another sexual offense. Under the Static-99R analysis, defendant had a greater risk for reoffense because he was young at the time of his offenses, had no history of intimate relationships, had a history of prior nonsexual violence (his assault on his mother), had two prior sex offense convictions, and at least four prior sentencing dates (including defendant's juvenile adjudications), had convictions for noncontact sex offenses, had prior sexual victims who were unrelated, and had prior male victims. In addition, defendant's only social support was his mother, making his network "very weak." Defendant also had poor self-regulation abilities and problem solving skills, and had not participated in treatment, suggesting he had not yet "changed in some way." In sum, Dr. Hupka opined defendant met the criteria for being an SVP.
2. Dr. Arnold
Dr. Arnold, a forensic psychologist employed by the State Department of State Hospitals who had performed 623 SVP evaluations, evaluated defendant in February 2016. Dr. Arnold reviewed the probation officer's reports from 2010 and 2013, defendant's abstracts of judgments, the four SVP evaluations from 2012, defendant's prison mental health records, a police report from 2013, and defendant's prison file. Dr. Arnold interviewed defendant for two hours and 40 minutes.
In reviewing defendant's records, Dr. Arnold found "most significant" that defendant "started getting into trouble at a relatively early age." Defendant's first arrest (for the 1998 offense) occurred when he was 12 years old, and he had been arrested a total of 13 times. Eight of the 13 arrests involved defendant's "sexuality." Four of the arrests involved "contact offenses," and two of those involved children. Defendant also was arrested for possessing child pornography, stealing pornography from a store, and violating probation by downloading pornography while at school. Dr. Arnold based this information on the 2010 probation officer's report.
Dr. Arnold testified about the details of defendant's 1998 offense, explaining that a father had found defendant pulling up his three-year-old son's pants in a library bathroom. Defendant had touched the boy's penis twice. Defendant was ultimately convicted, placed on probation, and given treatment. Dr. Arnold learned this information from a 2010 probation officer's report.
With respect to defendant's 2010 conviction, which Dr. Arnold also learned about from the probation report, he testified that defendant, who was 23 years old, was sitting next to his friend's 10 year-old brother playing video games. Defendant asked the boy to come closer and put a blanket over them. Defendant then placed his phone close to the boy's penis and caused it to vibrate twice. Defendant next put the phone inside the boy's pants, caused it to vibrate a third time, and touched the boy's penis. Defendant then talked about having "morning wood," which Dr. Arnold assumed meant having an erection. While defendant was in prison for this offense, he was evaluated by four psychologists to determine whether he might be eligible for civil commitment as an SVP. Two of the psychologists opined that defendant met the SVP criteria, the other two disagreed.
With respect to defendant's 2013 conviction, Dr. Arnold testified that child pornography was discovered on defendant's phone shortly after his release from prison for the 2010 conviction. There were at least three or four photos of children ages five to six. Another was three years old. In text messages, defendant asked, "I wonder how hard a three-year-old gets." Defendant also made statements about having a seven-year-old boy orally copulating a male's penis. Defendant further described a seven year old as "having a sweet ass," and stated he would like to sodomize him. Dr. Arnold testified that defendant told police about the "bad pictures" on his phone, and said he "wasn't supposed to have any pictures of children" under his parole conditions. According to Dr. Arnold, this was significant because it meant defendant's sexual urges toward children were intense enough that he was "willing to risk his freedom" in order to see the pictures.
In apparent reference to defendant's 2002 conviction, Dr. Arnold further testified there were "a few" incidents while defendant was in juvenile hall, including defendant touching another male on his genitals. The record did not indicate the victim's age. Defendant also grabbed a female adult in a group home in a sexual way. Dr. Arnold testified he only considered these incidents "in terms of risk." These incidents showed defendant's "impulsivity" and "sexual preoccupation."
Dr. Arnold testified he reviewed the four SVP evaluations from 2012. He also reviewed defendant's prison medical records, but there "wasn't much" information other than treatment for mood disorder and depressive disorder. Dr. Arnold also read about defendant's childhood history in the 2010 probation report, including his FAS and disabilities.
During his interview, Dr. Arnold asked defendant about his social history, education, sexual history, prior relationships, criminal history, substance abuse, and future plans. Defendant told Dr. Arnold that the incidents that lead to his sexual offense convictions were "not sexually motivated," and were "either accidental or didn't happen."
Dr. Arnold testified that only 50 percent of people who commit child molestation "warrant" a diagnosis of pedophilic disorder under the following criteria: first, for more than six months a person has "intense recurrent fantasies, urges, or behaviors related to sexual contact with prepubescent children." Second, the person must have either acted upon the urges or been distressed by them. And third, the person must be at least 16 years old at the time of diagnosis and more than five years older than the child. Conduct and behavior prior to age 16 can be considered. Dr. Arnold testified pedophilic disorder is chronic and there is no "cure." Suffering FAS is a risk factor for developing pedophilic disorder.
Dr. Arnold testified that it was "really clear and convincing" that defendant suffered from pedophilic disorder because he had an early onset of sexual interest in children, had received treatment for at least two years from two very skilled providers after the 1998 offense, and then reoffended twice. Defendant had been convicted for having sexual contact with a three-year-old boy at age 12 and a 10-year-old boy at age 23, and for possessing pornography involving children aged three to seven years old. Dr. Arnold testified that it was "significant" that defendant had reoffended after his offenses as a juvenile. According to Dr. Arnold, less than five percent of juvenile sex offenders reoffend. In addition, defendant had gone through treatment but still reoffended.
Dr. Arnold based this information on his interview with defendant and an unspecified "probation officer report."
When Dr. Arnold asked defendant what he was going to do to make sure he did not reoffend, he said defendant had "no plan." Dr. Arnold opined defendant was "likely to re-offend in a sexual manner." Defendant scored 10 on the Static-99R test, or "well above average," and Dr. Arnold testified that 53 percent of people with the same score were charged or convicted of a new sexual crime after five years in the community.
Dr. Arnold also noted that defendant had suffered "a lot of abuse early in life" and had an attachment disorder. Dr. Arnold testified that having difficulty bonding with others is a "problem for [defendant]," because those with a close-knit family group or love for others "tend to do less bad things" in their lives. Defendant was also impulsive, had "poor" problem solving skills, and "doesn't plan very well." FAS "interferes with his ability to manage the pedophilic disorder," and "makes him even more dangerous than the Static-99-R would indicate."
Dr. Arnold acknowledged that he evaluated defendant two years before trial. Although he would have preferred to interview defendant closer to the time of trial, Dr. Arnold was "confident" that his conclusions about defendant were still valid. Nothing in the reports from Drs. Brown or Abbott changed his mind, especially since there was no indication that defendant had received treatment.
3. Dr. Natalie Brown
Dr. Natalie Brown, a clinical and forensic psychologist, was called as an expert for the defense. Her "specific task" was to assess defendant's "lifetime behavior to determine if it was consistent with the FAS diagnosis he received as a child." Dr. Brown had treated between 300 and 500 sex offenders over her career, including approximately 200 developmentally disabled sex offenders, and approximately 100 intellectually disabled sex offenders. In evaluating defendant, Dr. Brown reviewed prior evaluations, records from the 1990's, and records provided by defendant's mother. She also tested defendant for a total of six and a half hours in August 2017 (including a 90-minute interview) and interviewed defendant's mother for approximately two and a half hours. She also reviewed defendant's criminal history as described in the reports of other evaluators.
Dr. Brown testified that FAS was the "most serious" condition under the fetal alcohol spectrum disorder (FASD). It can be diagnosed either with confirmation of maternal drinking during pregnancy or via characteristic facial abnormalities. Dr. Brown testified that FASD causes an individual's brain to be "much slower to develop," meaning it "takes far longer" for individuals with FASD to "mature and grown up."
Dr. Brown opined defendant suffered from neurodevelopmental disorder associated with prenatal alcohol exposure (NDPAE) or FASD. Defendant's mother reported to Dr. Brown that defendant's biological mother told her that she drank "regularly" during her pregnancy with defendant, and defendant had birth defects associated with FAS. Defendant also showed developmental delay at age two, and he was diagnosed with FAS at age three. An MRI at the time showed defendant suffered brain damage in areas typically affected by FAS. Defendant also was diagnosed at age four with a seizure disorder, which is common in those with FAS.
The scan showed damage to defendant's occipital lobe (which controls visual activity), and frontal lobe (which controls executive functions such as self-regulation and impulse control).
Defendant continued to exhibit developmental delay throughout childhood, including communication, motor skills, and self-regulation skills. Defendant also had difficulty in school and only finished 10th grade, but he did work periodically. In Dr. Brown's opinion, defendant's history of misconduct and criminality starting at age 12 were a result of his FAS and executive function problems. In her opinion, defendant had difficulty foreseeing consequences, solving problems, and controlling his moods and emotions. Dr. Brown also identified defendant as having impairments in all 10 neuropsychological domains she tested, including "significant[]" impairment of his executive functioning and adaptive skills.
With respect to defendant's sexual history, Dr. Brown testified that when defendant was three to four years old he would engage in sexualized behavior after visiting with his birth mother. Dr. Brown opined such behavior indicated he might have been sexually abused by his biological mother or one of her boyfriends when he was young. Defendant's mother told Dr. Brown that, as a teenager, defendant received counseling for five years, including counseling with Jerry Blasingame, a "renowned" researcher and "one of the best" treatment providers in the United States for developmentally delayed sex offenders.
Dr. Brown testified that individuals with FASD are "at risk" of sexually inappropriate behavior, especially during childhood and as young adults. She further testified that FAS is not a risk factor for pedophilia or paraphilia. In addition, defendant was not a "significant risk" to reoffend sexually because there was "robust" research that individuals with FAS have a "reduced risk" of sexual reoffense. Dr. Brown testified that defendant's 2010 conviction, as described by the prosecutor, appeared to involve "very juvenile behavior," making it consistent with FASD.
4. Dr. Abbott
Dr. Abbott, a licensed clinical psychologist and social worker who had treated and evaluated sex offenders for nearly 40 years, testified as an expert for the defense in forensic psychology as it relates to sexual offenders. In evaluating defendant, Dr. Abbott interviewed defendant's mother for 90 minutes. He also interviewed defendant for seven hours in May 2017 and reviewed "several" police reports, defendant's childhood medical records, the SVP evaluations performed in 2012 and 2016, a 2006 psychological evaluation, and Dr. Brown's report and test results. In addition, Dr. Abbott relied on probation reports as described in the reports prepared by Dr. Hupka and Dr. Arnold.
Dr. Abbott opined defendant did not suffer from pedophilic disorder, but rather committed his sexual offenses because of poor impulse control, reasoning, and judgment, due to his FASD. Defendant's inappropriate sexual behavior was "relative[ly] infrequen[t]." Dr. Abbott was not aware of any research that supports the conclusion that someone with FAS was prone to being sexually violent.
Dr. Abbott testified that based on his review of available records, there was no evidence that defendant was sexually aroused during the incident leading to the 1998 conviction. In addition, young individuals sometimes touch other children sexually "for other reasons," such as cognitive development delays or due to their own sexual trauma. In Dr. Abbott's opinion, the incident was more consistent with defendant's FASD and resulting developmental immaturity and cognitive impairment.
Dr. Abbott found it significant that between the 1998 and 2010 convictions, defendant faced no sexual allegations involving children. Defendant had been caught with pornography between 2000 to 2003, but it was adult pornography. Although defendant had touched a male's genitalia in 2002, the victim was peer-aged. The more than 10-year gap between offenses indicated defendant did not have a sexual preference for prepubescent children.
With respect to defendant's 2013 child pornography conviction, Dr. Abbott reviewed the police report. Overall, Dr. Abbott opined there was a lack of information as to whether the photos were motivated by pedophilic arousal, or by defendant's poor reasoning and lack of judgment. In all, the police report noted that defendant had 40 images on his phone, and only two or three were of prepubescent children. The rest were adults or teenagers. Because the majority of the photos were not of prepubescent children, Dr. Abbott opined the conviction did not suggest that defendant suffered from pedophilic disorder.
Dr. Abbott also noted that defendant had never reported being sexually aroused by prepubescent children, or having urges or fantasies toward them. And although defendant did show sexual interest in prepubescent males during testing administered by Dr. Abbott, the interest did not exceed his sexual interest in age-appropriate sexual partners. Although Dr. Abbott concluded that defendant suffered from FAS, he opined defendant did not quality as an SVP.
5. Correctional Deputy Fritz
The parties stipulated via an offer of proof that, if called as a witness, Correctional Deputy Fritz would testify that defendant (who was currently incarcerated) had little to no opportunity during visiting hours to "observe or have contact with prepubescent children."
B. Evaluation reports submitted before trial
In support of the petition, the People filed two section 6600 evaluation reports, one from Dr. Hupka and the other from Dr. Arnold. These reports were not introduced or admitted at trial. In his written report, Dr. Hupka stated that he spoke with defendant about the details underlying his 2010 conviction, but defendant denied putting his cell phone down the victim's pants. Dr. Hupka also spoke with defendant about his 1998, 2002, and 2013 convictions. With respect to the 1998 conviction, defendant told Dr. Hupka that he was in the bathroom with the victim but said he did not molest the victim. With respect to the 2002 offense, defendant told Dr. Hupka that he was sitting at the same table as a similarly aged peer in juvenile hall; defendant denied any sexual contact between himself and the victim. With respect to the 2013 offense, defendant acknowledged police had found child pornography on the phone he was using, but he claimed the pornography must have been from the person who previously used the phone. Defendant also talked with Dr. Hupka about the criminal history during his teenage years, saying he had been arrested for trespass and forgery. Defendant also told Dr. Hupka about his psychosocial history, including his sexual and relationship history, and his mental health history. Defendant said he had been sexually abused by his biological mother, although he did not remember the details. Defendant denied being sexually attracted to children, and he denied molesting any children. Defendant and Dr. Hupka also discussed plans to prevent reoffense.
Dr. Arnold's report stated that he spoke with defendant about his social history, including his sexual history. Defendant denied having sexual interest in children or looking at child pornography. Defendant talked with Dr. Arnold about the details of his 1998 conviction, although he denied the incident was sexually motivated. Defendant and Dr. Arnold also discussed the details of defendant's 2010 and 2013 convictions. Defendant said he had inadvertently touched the 2010 victim's genitals while trying to get his phone back, and he was not responsible for the child pornography on the phone in 2013. Defendant also spoke with Dr. Arnold about the details of his other arrests as a teen, including for stealing pornography. Defendant also talked about his arrest for violating probation by downloading pornography while at school, although he said his adoptive brother had given him the pornography. In addition, defendant discussed the incidents that occurred while he was in juvenile hall and denied inappropriately touching the female adult or the peer. Defendant also told Dr. Arnold that he had participated for five years in a Sexual Offender Treatment Program (SOTP) with at least two different providers. The two also discussed defendant's plan to avoid reoffense.
C. Defense counsel objections to expert testimony
Before trial, defendant objected generally to testimony from the prosecution experts regarding his 1998, 2002, and 2013 convictions. Counsel argued the testimony about prior convictions would be based on hearsay not covered by the exceptions in section 6600. In addition, counsel argued the evidence was prejudicial and lacked probative value under Evidence Code section 352.
The trial court ruled in pertinent part: "[T]o the extent that [section] 6600 does allow experts to review probation reports, it sounds like that's what they reviewed, and I suppose if that's not the case, we can take it up at the time. I don't have those facts before me now." Thus, the court "overruled and denied" appellant's "352 and the other objections." It added that "[t]he evidence would be or could be relevant to the experts opining their conclusions in the case."
The parties subsequently stipulated defense counsel's objections would be made "as if they were made on the record during the trial as well." Defense counsel did not object on Sanchez grounds before or during trial.
During trial, defense counsel made only three hearsay objections. First, defense counsel objected based on hearsay and relevance to Dr. Arnold's testimony in connection with defendant's 2010 conviction that there was a "report that [defendant during the crime] talked about having morning wood, which I'm assuming means getting an erection." The trial court overruled the objection. Later, defense counsel objected based on hearsay and prejudice to Dr. Arnold's testimony that, during his arrest for his 2013 crime, defendant told the officer that he knew there were "bad pictures" on his phone, and that he knew he was not supposed to have photos of children on his phone. The trial court overruled that objection too. Finally, defense counsel objected to Dr. Arnold's testimony that he had "information from [the prosecutor's] office" that defendant had not participated in any treatment during his current incarceration. Defense counsel did not renew his objection after the prosecutor rephrased his question to clarify that such information was based on the defense experts' evaluations of defendant.
D. Verdict and commitment
After deliberating, the jury found the petition true and the trial court ordered defendant committed to the custody of the State Department of State Hospitals.
DISCUSSION
I
Defendant contends the trial court erroneously admitted case-specific hearsay. (Sanchez, supra, 63 Cal.4th at p. 686.) Under Sanchez, an expert may rely on and cite "background information accepted in [his or her] field of expertise," and hearsay. (Id. at p. 685.) However, experts are prohibited from testifying to case-specific facts, if such facts are outside the expert's personal knowledge and do not fall under an exception to the hearsay rule, or if they have not been independently established by competent evidence. (Id. at pp. 676-677.)
To the extent the People argue that Sanchez is confined to criminal cases, we join other courts in concluding that the opinion relative to hearsay applies to SVP proceedings. (See Yates, supra, 25 Cal.App.5th at p. 483 [Sanchez applies to SVP proceedings]; People v. Roa (2017) 11 Cal.App.5th 428, 450 [applying Sanchez to SVP proceedings] (Roa); People v. Burroughs (2016) 6 Cal.App.5th 378, 406 [same] (Burroughs).)
A. Forfeiture
We turn first to the People's claim that defendant has forfeited his claim of error. [T]he failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted." (People v. Stevens (2015) 62 Cal.4th 325, 333; see also Evid. Code, § 353, subd. (a).) " 'The reason for the [objection] 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.' [Citation.]" (People v. Partida (2005) 37 Cal.4th 428, 434.)
Aside from defense counsel's three hearsay objections during trial, the only other time he raised hearsay-based objections to the prosecution experts' testimony was his argument before trial that the details of defendant's 1998, 2002, and 2013 convictions were inadmissible because they fell outside section 6600's hearsay exception. Although the parties agreed that defendant's pretrial objections would be made "as if they were made on the record during the trial as well," the trial court had already stated that, to the extent the experts testified based upon hearsay evidence outside the scope of section 6600's exception, "we can take it up at the time. I don't have those facts before me now."
Given the court's statement that it lacked adequate facts or a record on which to rule on defendant's general objection, defense counsel would have reasonably understood that he still needed to make specific objections during trial, which he did in three instances. "A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself. [Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 133; see also Evid. Code, § 353, subd. (a); People v. Morris (1991) 53 Cal.3d 152, 190 [a motion in limine will satisfy the requirements of Evid. Code, § 353, subd. (a) and preserve an issue for appeal only if: "(1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context."], disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) The limited scope of defendant's pretrial objection did not preserve for appeal the issue of whether the experts' testimony contained hearsay that would be inadmissible on any ground. Accordingly, we are not persuaded that defendant's pretrial objection preserved the broad hearsay claims he seeks to pursue on appeal.
We further note that although Sanchez was decided more than 18 months before trial, defendant did not raise a confrontation clause argument, the possibility that any of the experts' testimony constituted testimonial hearsay, or Sanchez. The failure to raise an objection based on the confrontation clause generally forfeits the argument on appeal. (People v. Redd (2010) 48 Cal.4th 691, 730.) Thus, while we conclude defendant preserved for appellate review the three hearsay objections he made during trial, we conclude that he has forfeited the remainder of his claims. (See Yates, supra, 25 Cal.App.5th at p. 487 [forfeiture found where "defense counsel did not once object under Sanchez or, except on two occasions, on any hearsay ground at all"].)
B. Preserved hearsay claims
To the extent the trial court erred in overruling the hearsay objections made during Dr. Arnold's testimony, we conclude defendant was not prejudiced. We review the erroneous admission of hearsay evidence under state law pursuant to People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Under that standard, reversal is not warranted unless "it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error." (Watson, at p. 836.) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration.' " (People v. Beltran (2013) 56 Cal.4th 935, 956.)
It is not reasonably likely that defendant would have achieved a more favorable outcome given the limited nature of each of the statements at issue. Defendant's comment to the victim from his 2010 conviction about having an erection in the morning was not particularly inflammatory, especially when compared to defendant's other actions during the crime. Defendant's statement to the arresting officer in 2013 also was not especially inflammatory, particularly given that he had already been convicted and punished for the crime. Finally, evidence that defendant had failed to participate in treatment during his most recent incarceration was cumulative of similar testimony the jury had already heard from Dr. Hupka. We further note that Dr. Hupka's testimony was based on the defense experts' reports, and defendant did not object during Dr. Hupka's testimony. Accordingly, defendant was not prejudiced by the admission of the testimony at issue.
C. Ineffective assistance of counsel
Anticipating forfeiture, defendant next argues his trial counsel's failure to object constituted ineffective assistance under Burroughs, Roa, and Yates. To establish his claim, defendant must show that counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) He must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.) On review, the "court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) "An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 540.)
In Burroughs, the defendant refused to meet with the expert clinical forensic psychologist, so she had to rely upon documentary evidence to assess whether the defendant satisfied the statutory criteria to be deemed an SVP. (Burroughs, supra, 6 Cal.App.5th at p. 384.) The Court of Appeal concluded the trial court erroneously admitted hearsay evidence that was not otherwise admissible, including portions of probation reports containing information about offenses for which the defendant was not convicted, personal and health history, and terms and conditions of probation. (Id. at p. 410-412.) In addition, the experts were erroneously allowed to testify regarding the contents of this inadmissible hearsay, including uncharged offenses and the defendant's behavior while in state custody. (Id. at p. 404, 411.) Significantly, the "exceedingly inflammatory" evidence included details regarding the defendant's repeated sodomy of a young boy, his use of a knife handle to penetrate a woman, and his gang affiliation while incarcerated. (Id. at pp. 404, 412.) During trial, defense counsel had only objected to portions of the inadmissible evidence. (Id. at pp. 408-409.) Although the appellate court ultimately reversed the judgment because the trial court's error with respect to the objected to portions of the inadmissible hearsay evidence was prejudicial under Watson, it found the defendant had failed to establish his trial counsel provided ineffective assistance for failing to object to all the challenged evidence. (Burroughs, at p. 408, fn. 8 & pp. 412-413.) The appellate court reasoned that the defendant had failed to demonstrate that his counsel's "inherently tactical decision as to which exhibits to object to constituted deficient performance or prejudiced him in any way." (Id. at p. 408, fn. 8.)
The court in Roa also considered whether the trial court erred in admitting case-specific hearsay during an SVP hearing. (Roa, supra, 11 Cal.App.5th at p. 455.) As in Burroughs, the defendant in Roa refused to be interviewed by the expert witnesses, so the experts testified as to the details of the defendant's two qualifying SVP offenses (sexual assaults) based on the descriptions in probation officer and police reports, medical records, and prison disciplinary reports. (Roa, at pp. 435-441.) During testimony, the two prosecution expert witnesses and one defense expert witness each also relayed the contents of two district attorney investigator's reports that provided details about (1) the defendant's prior offenses (sexual assault and attempted rape) and (2) an interview with the defendant's ex-wife that suggested the defendant suffered from sexual sadism. (Id. at pp. 434-440.) Although the Court of Appeal ultimately reversed the jury's determination that the defendant was an SVP because the trial court's admission of case-specific hearsay was prejudicial under Watson (Roa, at p. 455), the court rejected the defendant's claim of ineffective assistance based on his trial counsel's failure to object to some of the challenged evidence. (Id. at p. 454.) The court reasoned that some of the evidence was otherwise admissible under section 6600, subdivision (a)(3) and Penal Code section 969b, and the remaining challenged evidence was irrelevant and therefore "not prejudicial." (Roa, at p. 454.)
Penal Code section 969b permits the admission of records or certified copies of records "of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which" a defendant has been imprisoned to prove that they have been convicted of a crime. --------
In Yates, the Court of Appeal likewise considered whether the trial court had erroneously admitted case-specific hearsay during an SVP hearing via expert testimony which conveyed the content of documents that were "never admitted into evidence and never shown to meet the prerequisites for admission under an applicable hearsay exception." (Yates, supra, 25 Cal.App.5th at p. 484.) Unlike Roa and Burroughs, the defendant in Yates had talked to the prosecution's experts (there were no defense experts), but he made only "a few admissions" during the interviews. (Yates, at pp. 481, 485-486, 487.) Although these statements from the defendant were admissible as party admissions, the remaining case-specific facts related by the experts were drawn from documents such as the defendant's criminal records. (Id. at p. 485.) These underlying documents were not admitted into evidence, and they were not otherwise admissible. (Ibid.) Still, the defendant had forfeited the issue on appeal because his counsel had failed to object to the case-specific hearsay. (Id. at p. 487.) The appellate court ultimately reversed the judgment, reasoning defense counsel had provided ineffective assistance because there was "no satisfactory explanation for defense counsel's failure to object," to evidence that was "unquestionably prejudicial" and not otherwise "independently established by competent evidence." (Id. at pp. 486-488.)
Because we can conceive of more than one satisfactory explanation for defense counsel's failure to object to the experts' testimony in this case, we find that defendant has not met his burden to establish that his trial counsel provided ineffective assistance.
We turn first to the reports from Drs. Hupka and Arnold. Although these reports were not admitted, they provide additional details about the experts' sources for the facts that they relayed to the jury. As such, they are instructive as to whether defense counsel could reasonably have believed an objection was unwarranted because the evidence relating to his prior convictions was otherwise admissible. As detailed in the reports, and unlike Burroughs, Roa, and Yates, defendant spoke at length with each of the prosecution's experts: 90 minutes with Dr. Hupka and two hours and 40 minutes with Dr. Arnold. Defendant's candid statements during those interviews, including about his prior treatment in a SOTP, his plan to avoid sexual reoffense, his criminal, mental health, social, and sexual history, duplicated much of the information contained in the probation reports and prison documents and would have been admissible as party statements.
Significantly, and unlike in Yates, defendant's own expert witnesses relied upon and testified—without objection—about defendant's criminal and social history, and many of the same events and facts (from some of the same sources) as Drs. Hupka and Arnold. It is reasonable to conclude that defense counsel allowed case-specific hearsay evidence to come in via testimony from the prosecution experts because the defense experts intended to use the same evidence as a platform to support their conclusions that defendant did not suffer from pedophilic disorder or otherwise qualify as an SVP under section 6600, subdivision (a)(1). For example, with respect to defendant's 2013 child pornography conviction, defense expert Dr. Abbott testified that only two or three of the 40 images found on defendant's phone were of prepubescent children, suggesting defendant did not suffer from pedophilic disorder. He also testified, based on defendant's criminal history and police reports, that there was no evidence that the crimes were sexually motivated, and there had been a significant gap between sexual offenses involving children between 1998 and 2010.
Defense counsel also could reasonably have concluded that if he had objected, and some of the testimony was excluded, the prosecutor would have sought to introduce evidence of the details of defendant's SVPA qualifying offense via probation reports, other documents admissible under section 6600, or live witnesses. It would have been reasonable for defense counsel to prefer to introduce such evidence via expert testimony, especially since defense counsel could challenge the reliability and credibility of Drs. Hupka and Arnold because two years had elapsed between trial and their evaluations of defendant.
Moreover, trial counsel could rationally believe that it would be better for the jury to hear the factual details provided by Drs. Hupka and Arnold, as well as his own experts, particularly Dr. Brown. There was sympathetic information regarding defendant's background, work history, prior treatment, difficult childhood, and history of sexual abuse. For example, the details of defendant's non-SVPA sexual offenses could help the jury to understand that those offenses were not as severe as the incident underlying the 2010 conviction. Defendant's 1998 conviction involved an offense committed when he was only 12 years old, his 2002 sexual offense was committed against a peer and similarly aged individual, and his 2013 conviction involved possession of child pornography. Defense counsel could also have reasonably wanted the jury to know that although two experts in 2012 had determined that defendant qualified as an SVP, two other experts disagreed and concluded that he did not meet the criteria.
In sum, we find defendant's claims of ineffective assistance to be without merit.
DISPOSITION
The judgment is affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. RENNER, J.