Opinion
H042964
08-13-2018
THE PEOPLE, Petitioner and Respondent, v. WILLIAM OFFICER, Respondent and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS071631A)
I. INTRODUCTION
A jury found appellant William Officer to be a sexually violent predator within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). The trial court ordered appellant committed to the Department of State Hospitals for an indeterminate term.
All further statutory references are to the Welfare & Institutions Code unless otherwise indicated.
On appeal, appellant contends the trial court erred by (1) allowing case-specific hearsay to be related to the jury through the expert witnesses (see People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez)); and (2) admitting documents without redacting portions that contained inadmissible hearsay. Appellant further contends he received ineffective assistance of counsel to the extent his trial counsel failed to raise adequate hearsay objections to the challenged evidence, and he contends there was cumulative prejudice.
For reasons that we will explain, we will reverse the order finding appellant to be an SVP and committing him to the Department of Mental Health.
Defendant's appellate counsel has filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
II. BACKGROUND
A. Commitment Petition and Probable Cause Hearing
On April 20, 2011, the District Attorney filed a petition to commit appellant under the SVPA. The petition alleged that appellant was serving a prison sentence for a 2008 conviction of violating Penal Code section 4501.5 (battery committed by a state prisoner) and that in 2002, appellant had been convicted of two sexually violent offenses: a violation of Penal Code section 286, subd. (c)(2) (forcible sodomy), and a violation of Penal Code section 286, subdivision (f) (sodomy of an unconscious person). The petition further alleged that two experts had been appointed to evaluate appellant and that both experts had concluded that appellant met the criteria for commitment under the SVPA.
At a hearing held on June 22, 2011, the trial court found probable cause to believe that appellant was likely to engage in sexually violent predatory criminal behavior upon his release. (See § 6602, subd. (a).) Appellant was ordered to be detained in Coalinga State Hospital.
B. Witnesses for the People
A jury trial began on October 26, 2015. During motions in limine, appellant's trial counsel stipulated to "foundational aspects of various documents that are being proffered as exhibits and may be ultimately admitted as evidence." The People presented three expert witnesses and two lay witnesses.
1. Dr. Michael Musacco
Licensed clinical psychologist Michael Musacco conducted an initial evaluation of appellant in April 2011. In preparation for the evaluation, Musacco reviewed 29 different documents, including arrest reports, a probation report, prior psychological evaluations, prison records, and medical records. Musacco then interviewed appellant, asking him about his background and his sexual and criminal history. Musacco did a mental status examination and scored appellant on some risk assessment instruments, and then he wrote a report.
After looking at court records, Musacco found that appellant had been convicted of a sexually violent criminal offense. Musacco testified about the facts and circumstances underlying appellant's 2002 sodomy convictions—i.e., the qualifying sexually violent offenses. The victim, referred to as John Doe, was homeless. Appellant had offered Doe a place to stay, but he had then propositioned Doe and later sexually assaulted him. Specifically, after Doe had fallen asleep, appellant had grabbed Doe, choked him, and forcibly sodomized him, resulting in bruising and redness to his anus.
Appellant told Musacco that he had been sexually abused as a child and that he had engaged in sexual relationships with both men and women. Although appellant acknowledged having had more male sexual partners than female sexual partners, he identified himself as heterosexual. Appellant explained he had decided to stop having sexual relationships with men because "there had been too many occasions where persons had accused him of engaging in behaviors that were not true," i.e., rape or attempted rape.
Musacco asked appellant about his arrest on sex crimes, including sodomy, in 1982. Appellant told Musacco that he had not engaged in "any intentional assaultive behaviors."
Musacco testified about a January 1990 incident. According to criminal records, the complaining witness was a homeless person who appellant had invited to his home. Appellant had offered a back rub to the victim, and then "grabbed him sexually." When the victim tried to resist, appellant choked him and punched him, resulting in injuries that required medical treatment.
In March 1990, two men reported having been victims of attempted sexual assault by appellant. When officers went to appellant's home to investigate, they spoke with "several young men" who reported that appellant had sodomized them against their will. The victims all reported that appellant had invited them to his home, offering a place to stay and food to eat.
In 1992, another man reported that appellant had sodomized him against his will. Appellant had invited the man over, apparently to stay the night. The man woke up to find appellant "on top of him with a knife held to his neck." The man struggled, but appellant sexually assaulted him. At the time, appellant denied committing an assault and claimed there had been a consensual sexual relationship. Appellant also told Musacco that the relationship had been consensual and that the assault allegations were false.
In 2002, a man reported another sexual assault by appellant. Appellant had invited the man to his home and propositioned the man for sex. The man returned the following day to retrieve some belongings, at which time appellant physically and sexually assaulted him. As police investigated that report, two other men came forward and reported having been sexually assaulted by appellant under similar circumstances: they had been sleeping, and they woke up to find appellant committing sexual crimes against them.
The 2002 sodomy offenses were the only incidents leading to any criminal convictions. While appellant was in prison for those convictions, he engaged in a fight with a correctional officer and was convicted of battery by a prisoner.
Appellant told Musacco that at some point, he had been charged with a "prostitution crime," of which he was innocent. Musacco believed that this may have occurred in appellant's home state of Indiana or in Oregon.
Musacco did not find anything to suggest that appellant had any "traditional mental health problems like depression or bipolar disorder," and appellant had never been prescribed psychotropic medication. Musacco did, however, diagnose appellant with paraphilia, specifically "nonconsensual paraphilia," meaning that appellant was sexually aroused by forcing someone else into a sexual act. A paraphilia—or sexual behavior disorder—must involve a deviant arousal pattern that occurs for at least six months. Musacco's paraphilia diagnosis was based on the fact that over 20 years, multiple victims had reported appellant committing forcible sexual assaults using a similar modus operandi.
In Musacco's opinion, appellant presented a serious and well-founded risk of committing a sexually violent crime if released to the community. Musacco first used the Static-99R instrument to determine that appellant was in the "moderate-high risk category." Appellant's age was a factor reducing his likelihood of reoffense, but his score increased due to his "more than six charges for sexual offense behaviors" and the fact that the victims were unrelated to him. Appellant's score of five on the Static-99 was associated with a 15 to 21 percent recidivism rate.
In further assessing appellant's risk, Musacco also examined some dynamic risk variables. Appellant had "a lot" of dynamic risk variables, including an unstable relationship history.
Appellant told Musacco that if released, he planned to return to Indiana and start a moving company, and that that he did not believe he needed any sexual behavior treatment. Appellant's insistence on not needing treatment also increased his risk of sexual reoffense.
Appellant refused to be reinterviewed by Musacco in 2012 and 2013. When Musacco reviewed appellant's hospital records in 2013, he saw that appellant had been involved in verbal altercations with others and had slapped another patient.
Musacco did interview appellant again in 2014, pursuant to a court order, and he had reviewed hospital records. Appellant had been enrolled in sexual offender treatment programs, but his participation had been "kind of hit and miss," and Musacco did not think the treatment had provided appellant with any appreciable benefit. A patient reported that appellant had attempted to solicit sex from him, and appellant had engaged in a fight with another patient. During one altercation, appellant had pulled down his pants and told the other patient to "kiss my black ass" and "suck my big black dick."
In early 2015, a hospital psychologist told Musacco that appellant was "very high maintenance and a manipulative person." The psychologist indicated that appellant was believed to have been "peeping on other patients as they were showering" and that appellant "had difficulty accepting responsibility for his behaviors or his circumstances." The psychologist told Musacco she believed that appellant had "a long way to go in treatment."
When Musacco reevaluated appellant's risk of sexual reoffense in 2015, he found that appellant's score was the same as during the initial evaluation. One change was appellant's age—he was 57 years old at the time of trial. Research has consistently shown that a person's risk of reoffense declines "by the age of 60." However, this did not change Musacco's opinion that appellant still met the SVPA criteria. Appellant had not exhibited any change following treatment, and he was in "physically good shape."
2. Dr. Monica Felix
Monica Felix, Ph.D., a psychologist at Coalinga State Hospital, had been on appellant's treatment team for about five months at the time of trial. Appellant had requested to participate in a different sex offender treatment group. He had concerns about keeping up with the rest of the group and a concern that the group facilitator was not a psychologist. Appellant also believed the other group members were "trying to get him angry on purpose" and that one particular patient was targeting him. Appellant was, however, continuing to complete assignments and participating in the group.
3. Dr. Marianne Davis
Marianne Davis, a licensed psychologist, evaluated appellant in 2011, when he was in prison. She reviewed probation reports, police reports, prison records, and appellant's health records. She then interviewed appellant.
Davis reviewed a probation officer's report to determine that appellant's 2002 qualifying offenses involved the use of force, violence, and fear. Her recitation of the facts of those offenses was substantially similar to Musacco's testimony.
Davis also recited appellant's criminal history. She described how in 1982, appellant was charged with unlawful sexual intercourse and forcible sodomy. Davis noted that appellant was charged with sexual battery and false imprisonment in 1990, after a young transient reported that appellant had invited him back to his house, offered a back rub, and then forcibly assaulted him. Davis described how, in March 1990, two young men reported that appellant had invited them to his house and tried to have sex with them. Davis described how further investigation at that time led police to speak with other young men at appellant's residence who reported that appellant had sodomized them against their will. Davis recited the facts of the January 1992 incident in which appellant held a knife to a victim and then forcibly sodomized him.
Davis described two 2001 incidents that Musacco had not described, based on "a Court of Appeals document" that was not introduced. Appellant had met two young men at a temporary employment agency. He propositioned one of them for sex, found the man some work, and persuaded the man to stay at his residence. The man woke up to find appellant orally copulating him. The other young man stayed with appellant for several days. He woke up to find appellant sodomizing him.
During his interview with Davis, appellant denied committing any sexual offenses, claiming all of the allegations arose out of either consensual sexual relationships or from people who wanted money from him. Appellant did admit that he should have woken up the 2002 victim before engaging in sodomy with him, however.
Like Musacco, Davis diagnosed appellant with "paraphiliac disorder, nonconsent." She also found him to have narcissistic and antisocial traits, based on the fact he had been engaging in criminal behavior for many years and based on his lack of empathy and manipulation of other people.
Davis opined that appellant posed a substantial and well-founded risk of reoffense. She did not believe that appellant could be safely treated on an outpatient basis in the community; he needed to be in the restricted environment of a state hospital.
Davis used the Static-99R to assess appellant's risk and found that appellant scored a six, which indicated appellant fell into the high range for risk of recidivism. The factors contributing to appellant's score included (1) he had a male victim and (2) he had been charged with six prior sex offenses. A score of six put appellant into the 94th percentile and indicated his risk of reoffense was "four times the rate of your typical sex offender."
Davis found that some dynamic risk factors applied to appellant. Appellant had admitted being "highly sexually preoccupied," he had never been in a long-term intimate relationship, he believed things were "always somebody else's fault," and he had demonstrated "considerable impulsivity over the years." Appellant was also resistant to rules and regulations, as demonstrated by his "multiple rules violations" in prison and "multiple behavioral incidents" in the state hospital. Appellant also did not have particularly good problem-solving skills.
Davis, like Musacco, did not find appellant's age to be a "protective factor." She explained that "age is really a proxy for a number of other variables," such as physical health and sexual interest. Appellant was healthy and "still quite physically fit." Moreover, appellant had typically assaulted victims when they were asleep, and there was "no reason why at the age of 57 he couldn't pin a sleeping man down as easily as he could when he was 37." Further, appellant's last sexual offense had occurred when he was 43, which showed he was not "a typical sex offender."
Davis provided details about appellant's behavior while in prison. He had been disciplined for minor offenses such as not going to work, not going to class, and being disrespectful towards staff. He had also committed battery on peace officers, despite the fact that he had been taking an anger management class at that time.
Davis interviewed appellant again in 2012. He continued to deny having forced anyone to have sex with him. At the time, appellant was in sex offender treatment, so it concerned Davis that appellant continued to deny having committed any sex offenses. Appellant did admit he had been "selfish and self-centered" because he had sodomized the 2002 victim while he was sleeping. Appellant told Davis he was still attracted to men, but that he wanted to have a relationship with a woman when he got out of the hospital. Appellant claimed he would continue treatment after his release if his doctors recommended it.
Also in 2012, Davis reviewed the records of appellant's participation in treatment at the state hospital. Appellant was initially described as showing some insight and being honest. However, staff also observed that appellant was having difficulty "digesting the materials" and that appellant would get defensive and confrontational. It was reported that appellant had slapped a peer after the peer accused appellant of making sexual advances. Appellant had also engaged in a physical confrontation with his dorm mate, and he had attempted to kiss another peer. Additionally, appellant had been found walking with a mentally disordered offender patient, which raised concern "about his intentions." Finally, appellant had been found with a peer from another unit "in his bed area."
Davis next interviewed appellant in 2013. Appellant was still attending sex offender treatment, but he was not attending other groups his treatment team had recommended. Appellant said he was learning empathy and learning to manage his emotions. Appellant claimed to have realized that he had gotten into relationships with young men that he wanted to "fix" when he was the one that needed fixing. He asserted that he presented no risk of reoffense and that he did not require additional sex offender treatment.
Davis's review of hospital records revealed a report that appellant had tried to solicit a peer for sex in March 2013. That same month, appellant admitted having gone to another unit to "visit his lover." Peers had also complained about appellant "peeping" at them. In addition, appellant had been verbally aggressive towards both staff and his peers, and he had been violating hospital rules about reselling items from the canteen.
Davis interviewed appellant again in 2014. Appellant indicated he had been in a relationship with another patient at the hospital, but that the other man had betrayed his trust by sleeping with other people while saying he wasn't ready to have sex with appellant. Appellant made statements indicating that the reports about his behavior problems were not true, and that he believed staff members were making up the reports because they did not like him. Appellant told Davis that if released, he could go back to Indianapolis, where his parents had left him a home, and where he could get financial help from friends.
Appellant had been attending sex offender treatment "sort of sporadically." According to appellant's psychologist, appellant had "sometimes gone as long as six months without attending his treatment groups." At the time Davis spoke with the psychologist, appellant seemed focused on doing his treatment work, and his behavior in the treatment group had improved.
Davis next interviewed appellant in January 2015. Appellant claimed he was not involved in a relationship, that he was too busy working on his treatment program to think about sex, and that he "could hardly get an erection any longer." However, appellant still did not acknowledge that he had committed sex offenses.
Appellant claimed—as he had when Davis first interviewed him—that three of his brothers had molested him. They all sodomized him every night from the time he was 12 years old until he was 15 years old. Appellant tried to tell his mother, but she would not listen to him.
Appellant claimed that his brother Emanuel had molested him, but he also claimed to be closer with Emanuel than any of his other siblings. Appellant claimed that he and Emanuel had talked about the molestations at some point, which made their relationship stronger.
Between 2014 and 2015, appellant had been transferred to a more restrictive unit because of behavioral issues. One of appellant's treatment providers told Davis that appellant had been skipping treatment groups; she believed his "marginal participation" was a risk factor for reoffense. That treatment provider also told Davis that appellant had been "trying to manipulate his roommate into having sex with him." Appellant had also violated the rule against leaving his unit.
Davis believed appellant had "a considerable degree" of sexual preoccupation at the time of his offenses. He admitted that at the time he was having sex with men at night, he was also having sex with a woman who he lived with. Appellant had the opportunity to attend a group designed to address sexual preoccupation, but he had not enrolled.
Davis did another evaluation of appellant just before trial, in October 2015. She reviewed appellant's hospital records, which described appellant's agitation during a risk assessment and appellant's "considerable need for improvement" in the areas of "sexual offense responsibility, emotional management, problem solving, sexual risk management, criminal and rule breaking attitude." Nothing changed her opinion that appellant met the criteria of the SVPA.
4. Bryan S.
Bryan S. was the victim of appellant's 2002 sodomy offenses (the qualifying offenses). He had been homeless at that time. He was not gay and had not been appellant's lover. He had met appellant a few days prior to the offenses at a "day-labor place." Appellant had never apologized to him for what he did.
5. Emanuel Officer
Appellant's brother, Emanuel, agreed that he was closer to appellant than to any of their other siblings. He had not seen appellant since about 1997. Appellant was a part-owner of their now-deceased parents' home in Indiana and could live there if released.
Emanuel did not know why appellant had gone to prison, but he assumed that appellant had "hurt somebody really bad." He was surprised to hear that appellant's crime was forcible sodomy.
According to Emanuel, their father was "a drunk" who would "beat" their mother. Their father was also "very abusive" to appellant and their other siblings. Emanuel acknowledged that, as children, he and his brothers "did touching things" to each other. He had also heard that one or more of their brothers had sodomized appellant.
C. Witnesses for Appellant
Appellant presented two expert witnesses on his behalf. Appellant did not testify.
1. Dr. Robert Owen
Clinical psychologist Robert Owen evaluated appellant in 2007. He reviewed documents related to appellant's convictions and appellant's prison and medical files. He also attempted to interview appellant, but appellant did not consent. At that time, he did not find that appellant met the SVPA criteria, in that he found no "clear indication" that appellant, "an aging sex offender," was likely to reoffend.
Owen explained that as to all criminal offenses, the rate of reoffense declines with age. As to sex offenses—particularly rape, this occurs because testosterone, "the basis of the male sexual drive," declines with age.
Owen did, however, diagnose appellant with a paraphiliac disorder and found he had "an elevated Static-99 score," which was "a big concern." However, appellant's score would "go down considerably" when he turned 60.
Owen noted that appellant's prior arrests for sex offenses had not deterred him from reoffense, but that appellant had never before served a prison term for a sex offense. Owen further noted that about 3 percent of sex offenders who are released from prison actually reoffend.
2. Dr. Christopher Fisher
Christopher Fisher, Ph.D., a licensed psychologist, first evaluated appellant in 2013. He reviewed some records and then interviewed appellant. Fisher did not believe appellant had a diagnosed mental disorder as defined by the SVPA, i.e., one that predisposed him to future sexual violence.
Based on research and literature, Fisher did not believe that "rape behavior" was a mental disorder unless there was "like a script that the offender forces the victims to comply with" or the offender had rape fantasies. While appellant had an "MO," or modus operandi, his offenses did not involve a script and did not appear to be based on a fantasy. There was evidence that appellant wanted to have consensual sex with his victims and only decided to "take what he wanted" after they rebuffed him. Fisher believed appellant was an "opportunistic rapist" rather than someone with a mental disorder that compelled him to commit rapes.
Fisher acknowledged that he might have found that appellant had suffered from volitional impairment in the past. However, there was "nothing to suggest" that appellant, who was "an aging man," currently had serious difficulty controlling his sexual behavior. Fisher found no evidence that appellant had engaged in any sexually inappropriate behavior in prison or at the state hospital.
Fisher conducted an updated evaluation the month before appellant's trial began. The evaluation "confirmed and strengthened" his original opinion that appellant did not meet the criteria of the SVPA because two more years had gone by, during which appellant had not been "acting out inappropriately in a sexual way" and during which appellant had gone to treatment. Fisher acknowledged that appellant had "had some attendance issues" but noted that he also had some positive feedback from the treatment providers.
Fisher determined that appellant scored a five on the Static-99R but acknowledged that appellant possibly should have been scored as a six. Fisher further acknowledged that a five is considered "moderate" and a six is considered "high," but he did not believe the Static-99R could accurately predict whether appellant was actually likely to reoffend. Fisher himself believed that appellant was "not likely to reoffend in a sexually violent predatory manner."
D. Rebuttal Witness
In rebuttal, Davis testified, based on hospital records, about incidents in which appellant had engaged in sexually-related or other inappropriate behavior. Based on interdisciplinary notes, Davis again described in the incident in which appellant attempted to kiss a peer, the incident in which appellant slapped someone who he claimed to have had a romantic relationship with, and other incidents.
E. Exhibits
At the end of appellant's trial, the parties stipulated to the admission of certain documentary exhibits, which were provided to the jury. The exhibits were: the experts' reports and curricula vitae (CV's) (Exhibits 1-18), a Penal Code section 969, subdivision (b) packet from the Department of Corrections and Rehabilitation regarding appellant's 2002 sodomy convictions and his 2008 conviction of battery by a prisoner (Exhibit 19), Felix's progress notes (Exhibit 20), a District Attorney Investigator's reports of interviews with Bryan S. and members of appellant's family (Exhibit 22), arrest reports and incident reports from January 1990, March 1990, January 1992, and July 2001 for appellant's sex offenses that did not lead to convictions (Exhibits 23-26), the probation report from appellant's 2002 sodomy offenses (Exhibit 27), a 2015 treatment plan from the Department of State Hospitals (Exhibit 28), a document describing the Association for the Treatment of Sexual Abusers (Exhibit 29), and a page from a 2012 treatment plan from the Department of State Hospitals (Exhibit 30).
F. Verdict and Commitment
On November 4, 2015, the jury found the allegations of the petition true, and the trial court ordered appellant committed to the Department of State Hospitals for an indeterminate term.
III. DISCUSSION
Relying on Sanchez, supra, 63 Cal.4th 665, appellant contends the trial court erred by allowing the prosecution to present case-specific hearsay through the expert witnesses. He also contends the trial court erroneously admitted hearsay in the documentary evidence. Appellant asserts that these evidentiary errors not only violated state law, but his due process rights. To the extent that his trial counsel failed to properly preserve these arguments, appellant claims he received ineffective assistance of counsel.
A. Overview of the SVPA
"Under the SVPA, the state can civilly commit individuals found to be SVPs after they conclude their prison terms. [Citation.]" (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646.) A " '[s]exually violent predator' " is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person 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).) "Under the [SVPA], a person is 'likely' to engage in sexually violent criminal behavior (i.e., reoffend) if he or she 'presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.' [Citation.]" (People v. McKee (2010) 47 Cal.4th 1172, 1186.)
A person alleged to be an SVP is entitled to a jury trial (§ 6603) at which the attorney petitioning for commitment must prove, "beyond a reasonable doubt, [that] the person is a sexually violent predator" (§ 6604). If the person is found to be an SVP, he or she "shall be committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment and confinement in a secure facility designated by the Director of State Hospitals." (§ 6604.)
B. The Sanchez Case
"At the time of appellant's trial, the general rule was that 'out-of-court statements offered to support an expert's opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert's opinion.' [Citation.]" (People v. Burroughs (2016) 6 Cal.App.5th 378, 405 (Burroughs).)
However, the not-for-the-truth rule was subsequently rejected by our Supreme Court in Sanchez, supra, 63 Cal.4th 665. In Sanchez, the court clarified the evidentiary rules applicable to expert witnesses who rely on hearsay for purposes of their expert opinions. The court explained that while an expert may "rely on hearsay in forming an opinion, and may tell the jury in general terms that he [or she] did so" (id. at p. 685), an expert cannot "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" (id. at p. 686).
The Sanchez court further explained that because "the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion," a limiting instruction "that such testimony should not be considered for its truth" cannot be effective. (Sanchez, supra, 63 Cal.4th at p. 684.) "If an expert testifies to case-specific out-of-court statements to explain the bases for his [or her] opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay." (Ibid.)
In this case, the trial court instructed the jury on expert witnesses pursuant to CALCRIM No. 332 as follows: "Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. [¶] In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion and the fact or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable or unsupported by the evidence. [¶] . . . [¶] If the expert witnesses disagreed with one another, you should weigh each opinion against the others, you should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the expert's qualifications."
Although Sanchez was decided after appellant's trial, "the rule of Sanchez applies to this appeal, rather than the law governing the admission of hearsay testimony by experts prevailing at the time . . . ." (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507 (Jeffrey G.); see also Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1284 [assuming "Sanchez is fully retroactive in any context where liberty interests are at stake."].)
C. Admissibility of Hearsay in SVP Cases
Section 6600, subdivision (a)(3) specifies that an alleged SVP's prior convictions "may be shown with documentary evidence." The statute further specifies that the exception covers "[t]he details underlying the commission of an offense that led to a prior conviction" and that the documentary evidence may include, but is not limited to, "preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals." (§ 6600, subd. (a)(3).) The exception covers hearsay statements in such documents: "By permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." (People v. Otto (2001) 26 Cal.4th 200, 208 (Otto).) "[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 percipient witnesses would no longer be available." (Ibid.)
Thus, section 6600, subdivision (a)(3) "allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted." (Otto, supra, 26 Cal.4th at p. 208, italics added.) Reports that contain details of sex offenses that did not result in conviction, however, are not admissible under that statute. (Burroughs, supra, 6 Cal.App.5th at p. 410.)
D. Forfeiture/Invited Error
The Attorney General asserts we need not reach the merits of appellant's challenges to the expert testimony and documentary evidence because he did not object below, invited the error, and stipulated to the admission of the exhibits. As we shall explain, under the circumstances of this case, we find it proper to consider the merits of appellant's claims.
The Attorney General contends appellant's hearsay challenge to the expert witness testimony is forfeited because he failed to object to that testimony during the trial. Appellant acknowledges that his trial counsel "rarely" objected to the case-specific hearsay he now challenges, but he contends any further objections would have been futile because his trial predated Sanchez, which effected "a significant change" in the law. (See Jeffrey G., supra, 13 Cal.App.5th at p. 508; Sanchez, supra, 63 Cal.4th at pp. 683 & 686, fn. 13 [disapproving People v. Gardeley (1996) 14 Cal.4th 605].) We agree with appellant that hearsay objections to the experts' testimony were likely to have been overruled in light of the existing state of the law at the time of appellant's trial, which permitted expert witnesses to relate case-specific facts that served as the basis for the experts' opinions. (See Jeffrey G., supra, at pp. 506, 508.) Thus, we will not find forfeiture with respect to appellant's hearsay challenge to the expert witness testimony.
The Attorney General also claims the invited error doctrine bars appellant's challenge to the presentation of hearsay testimony through the People's experts, pointing out that appellant himself elicited hearsay when examining those experts. However, appellant elicited hearsay from the experts only after the People had already elicited hearsay from the experts. (Cf. People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 [invited error barred defendant's evidentiary claim because defendant was the first party to elicit the challenged evidence].) Thus, the invited error doctrine does not bar appellant's hearsay challenge to the expert witness testimony.
Finally, the Attorney General contends appellant may not challenge the admission of the exhibits because appellant's trial counsel stipulated to admission of those documents at the end of trial. As previously noted, at the time of appellant's trial, the law permitted expert witnesses to relate case-specific facts that served as the basis for the experts' opinions. (See Jeffrey G., supra, 13 Cal.App.5th at pp. 506, 508.) As appellant notes, his trial counsel may have chosen to stipulate to admission of the documents because most of the information in the documents had already been presented through the experts. Since the expert testimony and documentary evidence went hand in hand, we determine that trial counsel's stipulation to admission of the exhibits did not forfeit appellant's hearsay challenge to those documents.
In sum, we decline to find forfeiture or invited error, and we will proceed to address the merits of appellant's claims.
E. Sanchez Error/Expert Testimony
Appellant identifies numerous items of case-specific hearsay related through the People's experts. Generally, the challenged evidence falls into three categories: (1) the facts of appellant's 2002 sodomy convictions; (2) facts about appellant's other criminal history that came from documents such as arrest reports; and (3) facts about appellant's behavior in prison and the state hospital that came from documents such as hospital records.
The Attorney General contends that there was no Sanchez error because "nearly all of the complained of hearsay was independently proven by competent evidence or covered by a hearsay exception."
We find no Sanchez error with respect to the first category of challenged expert testimony: the facts of appellant's 2002 sodomy convictions. The facts of those offenses were shown by the probation report, which was admissible under section 6600, subdivision (a)(3). Further, the victim of those offenses, Bryan S., briefly testified. Because the facts underlying appellant's sodomy convictions were independently proven by admissible evidence, "the experts were permitted to relate those facts to the jury as the basis for their opinions. [Citation.]" (People v. Roa (2017) 11 Cal.App.5th 428, 450 (Roa); see also Burroughs, supra, 6 Cal.App.5th at p. 403.)
With respect to the second category of challenged expert testimony—facts about appellant's offenses that did not result in convictions—we do find Sanchez error. The experts testified to case-specific out-of-court statements to explain the bases for their opinions. Those statements were "necessarily considered by the jury for their truth, thus rendering them hearsay." (Sanchez, supra, 63 Cal.4th at p. 684; Roa, supra, 11 Cal.App.5th at p. 452 [error to admit expert testimony relating case-specific facts about alleged SVP's prior offenses].) For instance, when Musacco testified about the January 1990 assault incident, the March 1990 attempted sexual assault investigation, and the 1992 sexual assault, he related information from criminal records. Davis likewise recited facts about appellant's uncharged sex offenses that came from criminal records. Thus, the experts "relate[d] as true case-specific facts asserted in hearsay statements," which was improper under Sanchez. (See Sanchez, supra, at p. 686.)
The Attorney General asserts that the information about appellant's offenses that did not result in convictions came from appellant himself and thus was "covered by the party admission hearsay exception (Evid. Code, § 1220)." (See Sanchez, supra, 63 Cal.4th at p. 686 [expert may relate case-specific facts if "they are . . . covered by a hearsay exception"].) The record does not support this claim, however. Appellant consistently denied having had nonconsensual sex with each of the victims. Thus, the party admission hearsay exception does not apply to the expert testimony relating facts about appellant's offenses that did not result in convictions.
Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity."
We also find Sanchez error with respect to the expert testimony about appellant's behavior in prison and the state hospital. Again, the experts testified to case-specific out-of-court statements to explain the bases for their opinions, which were "necessarily considered by the jury for their truth, thus rendering them hearsay." (Sanchez, supra, 63 Cal.4th at p. 684.) For instance, Musacco testified about appellant's "hit and miss" participation in sexual offender treatment programs, based on hospital records. Also based on hospital records, Musacco testified about several incidents in which appellant had engaged in sexually inappropriate behavior in the hospital. Davis testified about appellant's behavior while in prison, based on prison records, and she testified about appellant's participation in treatment, based on hospital records. Again, the experts "relate[d] as true case-specific facts asserted in hearsay statements," which was improper under Sanchez. (See id. at p. 686.)
We disagree with the Attorney General's claim that the expert testimony about appellant's behavior in prison and the state hospital was admissible because the underlying records were admissible under the business records hearsay exception. (See Evid. Code, § 1271 ; Burroughs, supra, 6 Cal.App.5th 407 [if experts rely on documentary evidence that is "independently admissible," expert testimony about those case-specific facts is proper].) The Penal Code section 969, subdivision (b) packet (Exhibit 19) was the only prison record introduced, and it did not contain the case-specific facts about appellant's prison behavior that the experts testified about. Similarly, the experts' testimony about appellant's behavior in the state hospital was not limited to facts in the two treatment plans from the Department of State Hospitals (Exhibits 28 and 30) that were admitted into evidence. Moreover, the record does not establish that the treatment plans were admissible as business records, since nothing in those documents indicates that they were made "at or near the time of the act, condition, or event," and there was no testimony about the preparation of those documents by a "custodian or other qualified witness." (Evid. Code, § 1271, subds. (b) & (c).)
Evidence Code section 1271 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
In sum, we agree with appellant that the experts related case-specific hearsay to the jury in violation of Sanchez. We will discuss whether admission of that evidence was prejudicial after addressing appellant's challenge to the admission of the exhibits.
F. Exhibits
Appellant challenges the admission of many of the documentary exhibits, contending that some exhibits should have been redacted and that some exhibits should have been excluded because they contained inadmissible hearsay. We agree that much of the documentary evidence "was hearsay that was not shown to fall within a hearsay exception." (Burroughs, supra, 6 Cal.App.5th at p. 411.) In particular, the portions of the experts' reports that contained hearsay about appellant's uncharged sex offenses and behavior in prison and in the state hospital were not admissible.
Initially, based on an apparent misreading of the record, appellant challenged only the admission of Exhibits 1 through 9, 14, 15, 17, 20, and 29. In response to our requests for supplemental briefing, appellant subsequently challenged the admission of Exhibits 10 through 13, 16, 18, and 21 through 28. Appellant does not challenge the admission of Exhibit 19, the Penal Code section 969, subdivision (b) packet, nor the admission of Exhibit 30, a page from a December 2012 treatment plan. And, while appellant challenges the admission of the experts' CV's (Exhibits 7, 14, 18), he acknowledges that their admission was harmless.
Appellant first challenges the admission of Davis's reports (Exhibits 1-6). Appellant acknowledges that some portions of Davis's reports were admissible—for instance, the reports contain statements by appellant that were likely admissible under Evidence Code section 1220. Appellant also acknowledges that Davis testified that she was a state employee at the time she prepared Exhibits 3 through 6 and thus that portions of those reports were potentially admissible as official records under Evidence Code section 1280.
Evidence Code section 1280 provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness." --------
However, as appellant points out, Davis's reports contain numerous inadmissible hearsay statements—in particular, statements describing appellant's uncharged sex offenses, appellant's performance while in treatment, and appellant's behavior in the state hospital. For instance, Exhibit 1 contains a table of appellant's adult criminal history and repeats statements from a 1990 probation report about the incident leading to appellant's arrest for sexual battery. Exhibit 1 also contains a table of appellant's institutional behavior that appears to have been taken from CDCR documents that Davis reviewed. Exhibit 2 repeats statements from hospital records about appellant's treatment progress and incidents such as the time appellant tried to kiss a peer. The hearsay statements in these reports have not been shown to be admissible. (See Burroughs, supra, 6 Cal.App.5th at pp. 410-411 [documents containing hearsay about alleged SVP's criminal history were inadmissible].)
The same analysis applies to Musacco's reports (Exhibits 8-13), Owen's report (Exhibit 15), and Fisher's reports (Exhibits 16-17). For instance, one of Musacco's reports (Exhibit 8) contains facts, taken from police reports, about appellant's prior sex offenses that did not result in convictions. That same report also recites facts from CDCR rules violation reports and facts from other evaluators' reports. Likewise, Owen's report contains hearsay statements from police reports and probation reports as well as prison documents. Fisher's reports similarly contain hearsay about appellant's prior uncharged sex offenses, appellant's disciplinary records from prison, and appellant's conduct at the state hospital. These hearsay statements have not been shown to be admissible. (See Burroughs, supra, 5 Cal.App.5th at pp. 410-411.)
Appellant next challenges the admission of portions of the progress notes prepared by Felix, the hospital psychologist (Exhibit 20). Appellant acknowledges that some portions of the notes were admissible as official records because Felix was a state employee and the notes were written "at or near the time of the act, condition, or event" being described. (See Evid. Code, § 1280.) Appellant also acknowledges that the notes contain some of his own statements, which would be admissible. However, as appellant argues, other portions of the notes fail to meet those criteria. For instance, a July 2015 note describes appellant's "verbal and physical aggression" during an October 2014 incident.
Appellant contends that "multilevel hearsay" is contained in Exhibits 21 and 22, which are both District Attorney's Office reports. Those exhibits recount conversations the investigator had with members of appellant's family and with the victim of appellant's qualifying offenses. The hearsay statements in the reports include statements indicating that many of appellant's claims about his family were false. The Attorney General does not argue that these hearsay statements were admissible, and we agree with appellant that there has been no showing of any applicable hearsay exception. (See Burroughs, supra, 6 Cal.App.5th at p. 411.)
Appellant next challenges the admission of Exhibits 23 through 26, which are arrest and incident reports from his arrests for sex offenses that did not lead to convictions. Exhibit 23 is a January 1990 arrest report for sexual battery and other offenses. Exhibit 24 is a March 1990 incident report for sodomy plus an April 1990 follow-up report. Exhibit 25 is a January 1992 incident report for sodomy plus a February 1992 arrest report and follow-up reports. Exhibit 26 is a 2001 arrest report for criminal threats. These documents contain hearsay statements concerning offenses that were not alleged as predicate offenses, and they have not been shown to fall within a hearsay exception. (See Burroughs, supra, 6 Cal.App.5th at p. 411.) Thus, they were inadmissible.
Appellant acknowledges that portions of Exhibit 27, which contains the probation report and incident report from appellant's 2002 sodomy offenses, was partially admissible. (See § 6600, subd. (a)(3); Burroughs, supra, 6 Cal.App.5th at pp. 409-410.) However, appellant contends—and we agree—that the probation report should have been redacted because it " 'also contained information about appellant's prior record,' " which was not admissible under section 6600, subdivision (a)(3). (See Burroughs, supra, at p. 410.)
Appellant contends that Exhibit 28, a July 2015 treatment plan from the Department of State Hospitals, was mostly inadmissible because while it met some of the criteria for admission as a business record or an official record (Evid. Code, §§ 1271, 1280), it was prepared in anticipation of litigation because appellant's SVP trial began shortly afterwards (see People ex rel. Owen v. Media One Direct, LLC (2013) 213 Cal.App.4th 1480, 1484-1485). We find the anticipation of litigation claim to be speculative, but we do agree that portions of the report contain inadmissible hearsay. For instance, the report describes a November 2013 incident during which appellant "reportedly ingested hydrogen peroxide by accident." The report also lists some of appellant's prior criminal charges and incidents in which appellant displayed "verbal aggression/threats."
Exhibit 29 is a document describing the Association For The Treatment of Sexual Abusers. Appellant contends that there was no showing that the document fell within any hearsay exception. We agree.
In sum, we agree with appellant that many of the documentary exhibits contained "hearsay that was not shown to fall within a hearsay exception." (Burroughs, supra, 6 Cal.App.5th at p. 411.) We turn to a discussion of whether appellant was prejudiced by admission of hearsay through the expert testimony and the exhibits.
G. Prejudice
Appellant contends the evidentiary errors were prejudicial. He asserts that in determining the effect of the erroneously admitted evidence, we should apply the standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman), because admission of the hearsay violated his constitutional right to confrontation under the due process clause. (See People v. Carlin (2007) 150 Cal.App.4th 322, 343 [reliance on hearsay evidence to prove a sexually violent offense violated SVP's due process rights].)
As explained in Sanchez, the improper admission of hearsay ordinarily constitutes "statutory error under the Evidence Code." (Sanchez, supra, 63 Cal.4th at p. 685.) Thus, the Attorney General contends we should evaluate the effect of the error under the state law standard for prejudice articulated in People v. Watson (1956) 46 Cal.2d 818 (Watson), under which reversal is required only if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id. at p. 836.) Appellant contends reversal is required even under the Watson standard.
We need not decide which standard to apply here, as the evidentiary errors were prejudicial under either standard.
Similar evidentiary errors were found to be prejudicial in People v. Landau (2016) 246 Cal.App.4th 850, in which the defendant had petitioned for unconditional release after previously being found to be an SVP. At the trial on the petition, the expert improperly related hearsay from hospital records, which were not introduced into evidence. (Id. at pp. 875-877.) The hearsay included details about the defendant's behavior while in the state hospital, which the expert relied on in opining that the defendant was obsessive compulsive and continued to have difficulty maintaining personal relationships. The appellate court explained why admission of the expert's testimony was prejudicial under the Watson standard: "Convincing a jury that one who has previously been found to be an SVP is ready to be released back into society is no easy task even in the best of cases for an SVP. The inadmissible evidence admitted in this matter cast appellant in a most unfavorable light as someone who will not follow rules, demonstrates no concern for others, and engages in some form of violence. That made the task impossible, regardless of the properly admitted evidence." (Id. at p. 877; see also id. at p. 866.)
The introduction of hearsay documents and expert testimony was likewise found prejudicial in Burroughs. In that case, "[t]he documents and expert testimony described, in lurid detail, numerous sex offenses that appellant was not charged with or convicted of committing, including the repeated sodomy of a young boy and the use of a knife to penetrate a woman." (Burroughs, supra, 6 Cal.App.5th at p. 412.) The evidence thus invited the jury to punish the alleged SVP for past offenses and "substantially enhanced the credibility of the experts' conclusions about appellant's mental state and likelihood of reoffending." (Ibid.) The appellate court found that "the evidentiary errors were prejudicial even under the lower Watson standard." (Ibid.)
We agree with appellant that in this case, the admission of hearsay through the expert testimony and documentary evidence was prejudicial. The hearsay consisted of descriptions of numerous violent sex offenses for which appellant was not convicted or punished. The experts testified that appellant's multiple prior sex offenses contributed to his score on the Static-99R instrument. The prosecutor relied on appellant's entire criminal history during argument to the jury, describing it as "important" to the diagnosis of paraphilia. The prosecutor also described appellant's "problem behaviors in prison," referring to a list of incidents contained in Davis's report. The prosecutor emphasized that appellant had engaged in criminal sexual acts "over a 20-year span beginning in 1982 and ending finally with a conviction in 2002."
Thus, the improperly admitted hearsay evidence was important to the prosecution's case. In considering the prejudicial effect of admitting that evidence, we also find it significant that two defense experts testified that they did not believe that appellant met the criteria for commitment as an SVP.
On this record, we are compelled to conclude that reversal is required. The People's experts related a significant amount of case-specific hearsay to the jury, and the documentary evidence contained further inadmissible hearsay. In light of the significance of that evidence to the People's case, we cannot find the error harmless under the "reasonably probable" standard of Watson, supra, 46 Cal.2d at page 836 or the "beyond a reasonable doubt" standard of Chapman, supra, 386 U.S. at page 24.
IV. DISPOSITION
The order finding appellant to be an SVP and committing him to the Department of Mental Health is reversed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.