Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Mark C. Kim, Judge, Los Angeles County Super. Ct. No. ZM004526
Vanessa Place, under appointment by the Court of Appeal, for Respondent and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Susan Sullivan Pithey, Deputy Attorneys General, for Petitioner and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found that appellant Hernan Orozco is a sexually violent predator within the meaning of the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600, the SVPA). On appeal, he makes the following contentions: First, there is insufficient evidence he has a mental disorder that falls under the SVPA. Second, the trial court erred when it admitted hearsay evidence. Third, the trial court erred in admitting evidence of the Static-99, a tool used to predict the likelihood of reoffending. Fourth, CALJIC 4.19, with which the jury was instructed, violates substantive due process. Finally, the SVPA violates constitutional proscriptions against ex post facto laws and violates the federal equal protection clause. We reject each contention, and we therefore affirm the judgment.
BACKGROUND
I. The petitions for recommitment.
The People filed three petitions to recommit Orozco under the SVPA (Welf. & Inst. Code, § 6600). The petitions were consolidated, and the matter proceeded to a jury trial.
All further undesignated references are to the Welfare and Institutions Code.
The petitions were filed on April 12, 2001, March 18, 2003, and January 25, 2005.
II. The People’s case.
A. Orozco’s criminal history: Predicate offenses and other criminal history.
1. The predicate offenses.
Orozco had two predicate offenses, one in 1978 and the second in 1982. In 1978, Orozco was convicted of the rape of Linda Y., a 15-year-old girl. Linda Y.’s car had broken down and Orozco stopped to help her. He later went to her house, and he took Linda Y. and a five-year-old child who was with her to his garage. Linda Y. refused to kiss him. Orozco offered Linda Y. money for sexual favors. When she refused, Orozco grabbed her, choked her, threatened to kill her, and raped her in the backseat of a car, all in the young child’s presence. Orozco served time in prison after his conviction for raping Linda Y.
After serving his time and while on parole, Orozco, from June 1982 to February 1983, lived with his girlfriend and her 14-year-old son, Dean M. During that time, Orozco repeatedly sodomized and orally copulated Dean M. At times, Orozco would attempt to put Dean M. in a “comfort zone,” for example, by play wrestling; but Orozco would then sodomize him. Orozco was convicted of 10 separate counts of sodomy and copulation of Dean M.
Dean M. testified at Orozco’s recommitment trial.
2. Orozco’s other criminal history.
Orozco’s criminal history began in 1975 with a battery on an officer. In 1977, he was acquitted of kidnapping and raping a 17-year-old girl. While in jail pending trial on those charges, Orozco was charged with petty theft and forced oral copulation of a fellow inmate. He was found guilty of the petty theft, but not of the oral copulation. Also in 1977, Orozco pled guilty to assault with a deadly weapon. In November 1977 he pled guilty to a DUI.
Orozco’s trial counsel had a continuing objection to this testimony.
While in prison after being convicted of raping Linda Y., he received prison “write-ups” for threatening the life of another inmate and for “securing sexual favors” from that inmate. While out on bail for raping Linda Y., he was arrested for raping Lori W. in January 1979. Orozco asked Lori W. out and, on the way home, he stopped the car. When she refused to have sex with him, Orozco choked, orally copulated, and raped her. Lori W.’s rape was consolidated with Linda Y.’s case, but, under a plea agreement, the charges of rape against Lori W. were dismissed.
Shortly after being paroled in 1982, he had a parole violation for possession of a knife. He thereafter was charged with and convicted in 1983 of the crimes against Dean M., and, after serving about nine years, he was paroled in 1992. He had a parole violation in 1994 for failing to register as a sex offender. He had another parole violation in May 1994 arising out an incident in which he was on a boat with a woman. He hit and forced her to orally copulate him. The sexual charges were dropped because the victim couldn’t be located, but Orozco received a parole violation for operating a boat while intoxicated. He again violated his parole in 1995 by violating sex offender registration requirements.
Dr. Robert Owen read from the parole violation report: “After the subject and the victim went below, the subject, mearning Mr. Orozco, ordered the victim to remove her clothing, which she did in fear of her safety. The subject removed his clothing and instructed the victim to perform copulation on him. The victim told the subject no, at which time the subject slapped the victim on her face. The victim in fear of her safety performed oral copulation on the subject, at which time the subject ejaculated in the victim’s mouth and the victim threw up. The subject then became angry at the victim [and] slapped her again and demanded that the victim perform oral copulation: Perform oral sex on him again. The subject continued to slap the victim numerous times then attempted to strangle the victim about the neck.”
B. Expert testimony.
Dr. Robert Owen, a clinical psychologist, and Dr. Dawn Starr, a psychologist, separately evaluated Orozco in 2001, 2004, and 2005. Dr. Owen interviewed Orozco in 2004, but Orozco refused to talk to Dr. Starr. According to Dr. Owen, a “ ‘diagnosed medical disorder’ ” is a congenital or acquired condition that affects a person’s volitional or emotional capacity to the extent that they pose a menace to the community. Drs. Owen and Starr both diagnosed Orozco with two mental disorders: 1. paraphilia not otherwise specified (NOS)/nonconsenting persons and 2. personality disorder with narcissistic and antisocial features.
1. Paraphilia NOS/nonconsenting persons.
Paraphilia is generally sexual deviance. Paraphilia lasts at least six months, and it tends to be chronic. It involves behaviors, fantasies or urges, which, in Orozco’s case, are directed toward nonconsenting persons. There is a thinking component and a behavioral component to Orozco’s paraphilia. Orozco has a distorted way of thinking; he has a sense of entitlement, he believes he is special and can take whatever he wants, and he views women as sexual objects. His emotions are shallow; he is aggressive and callous. His criminal behavior, including his conduct while on parole, shows he doesn’t care for rules and he doesn’t want to be supervised in the community as a sex offender. After reviewing Orozco’s criminal background, Dr. Starr said she “couldn’t see any other possible explanation [other than paraphilic disorder] as to how somebody would have nonconsensual sex with so many people over time, particularly in light of the fact that during these times when he was out in the community he was working, he had girlfriends, available consensual sexual partners, yet” preferred nonconsensual sex.
Paraphilia is in the Diagnostic and Statistical Manual of Mental Disorders, or DSM-IV, which the American Psychiatric Association publishes. The DSM-IV represents the consensus of health care professionals regarding what are mental disorders. Rape was rejected as a specific paraphilia.
Orozco’s behavioral problems continued while he has been at Atascadero State Hospital, where he has been written up every couple of months or sooner for inappropriate behavior, including write-ups for vulgar and abusive language addressed usually against women. His sexualized language reflects his underlying anger and rage toward women.
By way of more specific examples, in 2000, Orozco, while at Atascadero, said, “I swear on my father’s grave I did not cuss out you stupid lazy fucking bitch. Let me tell you something, that fucking bitch can take it up her fucking ass and her faggot husband too.” Also in 2000, he was noted to have a pattern of asking female staff to go to secluded areas, where he would complain about other staff. He also didn’t participate in treatment, was abusive to staff, and picked on weaker patients.
That Orozco has been in Atascadero does not mean his diagnosis has gone away. Although paraphilia tends to be chronic, it is a problem the person can learn to control. Orozco, however, has refused treatment and no significant factors have intervened. His pattern of sexual deviance thus continues unabated by consequence.
2. Personality disorder with narcissistic tendencies and antisocial behavior.
Drs. Owen’s and Starr’s second diagnosis, personality disorder with narcissistic tendencies and antisocial behavior, is characterized by Orozco’s ability to think only of himself, his obliviousness to other’s needs, and feelings of entitlement, aggression, and irritation if his needs are not met. He lacks empathy for his victims, and his attitude is he’s better than other people. Both doctors cited his past criminal history, including his rape of Linda Y. and the incident with the woman on the boat, as evidence of his narcissism and of his antisocial nature: He refuses to take no for an answer. His sarcasm to Atascadero’s staff, quick annoyance, and demeaning attitude are also narcissistic traits. In fact, he is one of the more “problematic patients” Dr. Starr has encountered at Atascadero in terms of patients who have problems with staff and patients.
Like paraphilia, the personality disorder is also a chronic problem. In Dr. Owen’s words, “This is who a person is. It’s the essence of their personality.”
3. Orozco is likely to reoffend.
In addition to diagnosing Orozco with mental disorders, Drs. Owen and Starr both opined that Orozco is likely to reoffend. His past indicates he is likely to reoffend, and nothing has occurred that would stop him from reoffending. Namely, he has refused treatment, and he does not have an appropriate release plan. His behavior at Atascadero shows that his mental disorders are current. According to Dr. Starr, Orozco has certain “dynamic risk” factors—factors he has the ability to change—that make him a risk. For example, he has difficulty sustaining a meaningful emotional relationship, problems with self-regulation, negative sexual attitudes, problems following rules, and narcissistic and antisocial personality disorders.
If Dr. Owen ignored Orozco’s criminal history other than those crimes for which he was convicted, he would probably come to the same conclusion.
To determine whether Orozco is likely to re offend, Dr. Owen and Dr. Starr also scored Orozco on the Static-99. The Static-99 is an actuarial tool that is based on a study of 20,000 sex offenders. It looks at what traits those offenders have that makes them likely to re offend. The Static-99 is a moderate predictor of whether people are going to re offend sexually. The Static-99 uses 10 predictors: age, whether the person has ever lived with a lover, nonsexual violence, prior nonsexual violence, prior sex offenses, prior sentencing dates, convictions for non contact sex offenses, unrelated victims, stranger victims, and male victims. Dr. Owen gave Orozco a score of eight on the Static-99, while Dr. Starr gave him a score of nine. Both scores put him in the high risk category. For example, with a score of eight he has a 39 percent risk of reoffending over a five-year period.
III. Orozco’s case.
A. Raymond Anderson.
Dr. Raymond Anderson, a psychologist, evaluated Orozco. In addition to reviewing records, Dr. Anderson performed personality functioning tests on Orozco. For example, he gave Orozco a penile plethysmograph examination, which measures arousal to sexual scenarios. Orozco had only a mild response on the examination.
Dr. Starr testified that the Association for Treatment of Sexual Abusers recommends using actuarial risk assessment and not using psychological testing for measuring risk.
But, according to Dr. Starr, Orozco’s response to the test showed a statistically significant level of sexual arousal.
Dr. Anderson found that Orozco has no major psychiatric disorder and no sexual psychopathology. He does not currently suffer from a mental disorder of the type that would qualify him to be listed as a sexually violent predator. Orozco is a situational offender rather than a preferential one. A situational offender does not have a particular affiliation or drive to have coerced sex, but, nevertheless engages in it for a variety of reasons. A preferential offender is someone who is driven internally to have sex in a specifically defined way. There is no evidence Orozco’s rape of Linda Y. was motivated by a preferential arousal to forced sex. To the contrary, Orozco first tried to have consensual sex with her by offering to pay for sex, and he only used force when she refused. Similarly, the Dean M. incidents do not show that Orozco has a preference for coercive sex. Rather, Orozco’s attempts to make Dean M. comfortable show that Orozco wanted sex, not coerced sex.
Dr. Anderson would not normally diagnose paraphilia NOS/nonconsenting persons, because there are no guidelines for it in the DSM-IV. Nevertheless, there are diagnoses outside the DSM-IV. For example, he has diagnosed paraphilic rape, although it is not in the DSM-IV. Paraphilia NOS is primarily reserved for rarely occurring conditions.
The Static-99 is a poor predictor of serious sexual reoffense. It is primarily a measure of reoffense for minor sexual offenses. Also, there is no known research showing that profane language, such as that Orozco has directed against the staff at Atascadero, is a marker for future violent sexual behavior. Orozco’s age—54 at the time of trial—is a circumstance in favor of finding he is not likely to reoffend.
B. Orozco’s testimony for the prosecution in a murder trial.
To counter the prosecution’s evidence that Orozco is narcissistic and lacks empathy, Dinko Bozanich, a former prosecutor, testified on behalf of the defense. Bozanich prosecuted a murder case against Donald Joseph Luebbers. In 1982, Orozco was in a jail cell with Luebbers, who told Orozco that the police would never find the victim’s body. Orozco informed officers about his conversation with Luebbers, and, at Luebbers’s 1986 murder trial, Orozco testified about the conversation. Orozco was not offered any inducement or benefit to testify.
C. Dr. Kaushal Sharma.
Dr. Sharma is a forensic psychiatrist, but he did not give an opinion whether Orozco has a currently diagnosable mental disorder. “Paraphilia NOS” is a catch-all diagnosis. A person who cannot get aroused unless he is fantasizing about overpowering a person has paraphilia. In the absence of a coercive element, the person is simply a rapist. Rape, however, is not a paraphilia. To be diagnosed with a paraphilia under the SVPA, there must be current proof of the disorder. No proof for a sufficient length of time is the absence of a diagnosis.
IV. Procedural background.
Trial was by jury. On September 22, 2005, the jury found that Orozco has a diagnosed mental disorder for the period from May 2001 to then. The jury further found that this diagnosed mental disorder makes Orozco a danger to the health and safety of others in that it is likely he will engage in sexually violent predatory criminal behavior within the meaning of section 6600, subdivision (a). That same day, September 22, the trial court issued its judgment of recommitment, and Orozco was therefore committed for a six-year term, commencing May 13, 2001.
DISCUSSION
I. Sufficiency of the evidence.
On September 22, 2005, the third day of deliberations, the jury sent out the following note: “The jury unanimously agrees that Mr. Orozco suffers from a personality disorder with antisocial and narcissistic traits and he is likely to re-offend due to this condition. Dr. Starr’s testimony indicated that he is [a] previously committed SVP with a personality disorder only. We cannot unanimously agree that Mr. Orozco suffers from paraphilia NOS/NVP. [Is] the unanimity of our decision regarding the presence of a personality disorder consistent with court’s direction for commitment under SVP law[?]” The trial court responded to the jury’s question, and, shortly thereafter, the jury reached its verdict.
Over the defense’s objection, the court responded: “ ‘The jury must agree unanimously and beyond a reasonable doubt that Mr. Orozco has either a personality disorder or paraphilia N.O.S in determining whether or not Mr. Orozco has a current diagnosed mental disorder. Diagnosed mental disorder includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to the commission of sexual[ly] violent predator criminal acts in a degree constituting the person a menace to the health and safety of others. The diagnosed mental disorder must presently render the person either unable to control his dangerous behavior or suffering serious diffcult[y in] controlling his dangerous behavior. [¶] The definition of severe mental disorder is broad and only requires that the disorder be either an illness or disease or condition which grossly impairs behavior. The law requires the finding of future dangerousness and then links that finding to the existence of mental abnormality or personality disorder that makes it difficult, if not impossible, for the person to control his dangerous behavior.’ ”
Based on the jury’s question indicating it could not unanimously agree that Orozco suffers from paraphilia NOS/nonconsenting persons, but that it did unanimously agree he suffers from a personality disorder with antisocial and narcissistic traits, Orozco assumes the jury believed he only had a personality disorder with antisocial and narcissistic traits. Based on that assumption, Orozco essentially makes the following two contentions: First, he does not have a “mental disorder” that can be the basis for commitment under the SVPA. In other words, personality disorder with antisocial and narcissistic traits is not a “mental disorder” for the purposes of the SVPA. Second, even if we assume it is a qualifying mental disorder, there is insufficient evidence of it.
The People note that this is not necessarily a correct assumption.
We distilled Orozco’s argument that there are various “problems” with the judgment into those two contentions. Orozco characterizes the “problems” with the judgment in the following manner: (1) A diagnosis of personality disorder with antisocial and narcissistic trains is not a proper personality disorder diagnosis under the DSM-IV; (2) there is no evidence that Orozco’s personality disorder—by itself—is sufficient for recommitment; (3) a personality order NOS with antisocial and narcissistic traits cannot be conflated into antisocial personality disorder for commitment purposes; and (4) even if Orozco’s antisocial behavioral traits could be gerrymandered into a full-blown antisocial personality disorder diagnosis, this diagnosis cannot by itself be the basis for a SVP commitment.
A. Personality disorder with antisocial and narcissistic traits can be a mental disorder for the purposes of the SVPA.
The SVPA defined a sexually violent predator as a person who has been convicted of a sexually violent offense against two or more victims and who has a mental disorder that makes the person a danger to the health and safety of others in that it is likely he or she will engage in sexually violent criminal behavior. (Former § 6600, subd. (a)(1).) A “diagnosed mental disorder” includes “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c); see also Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144 (Hubbart).)
Proposition 83, which voters passed on November 7, 2006, made substantive changes to the SVPA. For example, section 6600 now requires the People to prove a sexually violent offense against only one or more victims. (§ 6600, subd. (a)(1).)
In Hubbart, the appellant argued that the SVPA should be limited to persons suffering from “mental illness,” which he defined as a “ ‘serious cognitive, perceptual or affective dysfunction.’ ” (Hubbart, supra, 19 Cal.4th at p. 1152.) The appellant contended that the definition of a “ ‘diagnosed mental disorder’ ” is flawed because it “permits commitment based on a range of diagnosed mental impairments broader than what is constitutionally allowed, including mental disorders characterized primarily by an inability to control sexually violent impulses and behavior.” (Ibid.) The court rejected this contention and stated, “Nothing requires the Legislature to express this impairment as ‘mental illness’ or to use any other terms . . . .” (Id. at p. 1157.)
Hubbart also rejected the suggestion that the SVPA must be struck down because antisocial personality disorders or other conditions characterized by an inability to control violent antisocial behavior, such as paraphilia, are not expressly excluded from the definition of a “diagnosed mental disorder.” (Hubbart, supra, 19 Cal.4th at p. 1158.) The court observed that there was nothing in controlling United States Supreme Court authority that “purports to limit the range of mental impairments that may lead to the ‘permissible’ confinement of dangerous and disturbed individuals.” (Id. at p. 1161.) By refusing Hubbart’s request to strike down the SVPA because it does not expressly exclude antisocial personality disorders or other conditions characterized by an inability to control violent antisocial behavior, such as paraphilia, from being categorized as a “diagnosable mental disorder,” the court necessarily found that these conditions can be mental disorders under the SVPA.
The California Supreme Court was referencing Foucha v. Louisiana (1992) 504 U.S. 71, which the appellant in Hubbart cited as support for the proposition that a diagnosed antisocial personality disorder can never be used as a basis for civil commitment.
We therefore decline Orozco’s similar request that we find that a personality disorder with antisocial and narcissistic traits cannot be a “mental disorder” for the purposes of the SVPA. Hubbart indicates there is no limit on the mental disorders that may serve as the basis for civil commitment under the SVPA. (See also People v. Williams (2003) 31 Cal.4th 757, 768 [“we explained (in Hubbart) that ‘civil commitment is permissible as long as the triggering condition consists of “a volitional impairment rendering (the person) dangerous beyond their control.” (Citation.)’ ”].)
Also, nothing in Hubbart indicates that the “mental disorders” referred to in the SVPA are only those listed in the DSM-IV, as Orozco suggests. In fact, Orozco’s own expert, Dr. Anderson, testified that there is nothing wrong with making a diagnosis outside the DSM-IV. Moreover, Dr. Anderson believes that paraphilic rape should be in the DSM-IV, although it was intentionally excluded from inclusion. Dr. Sharma also said that paraphilia NOS and personality disorder with narcissistic and antisocial traits are proper diagnoses.
Because Orozco’s personality disorder with narcissistic and antisocial traits can be a mental disorder under the SVPA, Orozco’s argument that his diagnosis cannot be “conflated with” or “gerrymandered into” an antisocial personality disorder fails. There is simply no need to “conflate” or “gerrymander” Orozco’s diagnosis into an alternative diagnosis when his personality disorder with narcissistic and antisocial traits is a proper diagnosis under the SVPA. In any event, an antisocial personality disorder also can be a “mental disorder” within the meaning of the SVPA. (See, e.g., People v. Burris (2002) 102 Cal.App.4th 1096, 1108-1109 [amendment to SVPA deleting reference to “personality disorder” was not intended to prevent a personality disorder from qualifying as a mental disorder within the meaning of the SVPA]; see People v. Williams, supra, 31 Cal.4th at pp. 761-762, 778 [appellant whose control was impaired by mental disorders such as paraphilia NOS/nonconsenting persons, paraphilic rape, psychosis NOS, and severe antisocial personality disorder was subject to civil commitment under the SVPA].)
Dr. Owen could not diagnose Orozco with an antisocial personality disorder because he didn’t have access to Orozco’s juvenile history.
B. There is sufficient evidence Orozco has a personality disorder with antisocial and narcissistic traits, which makes him a danger to the health and safety of others in that it is likely he will engage in sexually violent criminal behavior.
Having concluded that a personality disorder with antisocial and narcissistic traits can be a mental disorder under the SVPA, we turn to the next issue Orozco raises: Is there sufficient evidence that Orozco suffers from that disorder? In reviewing the sufficiency of the evidence of a commitment under the SVPA, we review the entire record in the light most favorable to the judgment to determine if substantial evidence supports the determination below. Substantial evidence must be “ ‘ “of ponderable legal significance . . . reasonable in nature, credible and of solid value.” ’ ” (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) We must draw all reasonable inferences in favor of the judgment, and are not free to redetermine witnesses’ credibility or reinterpret the evidence. (Id. at pp. 466-467.) All evidentiary conflicts are resolved in the judgment’s favor. (People v. Poe (1999) 74 Cal.App.4th 826, 830.)
Here, Dr. Owen and Dr. Starr each diagnosed Orozco with a personality disorder with narcissistic tendencies and antisocial behavior. Both doctors went over Orozco’s criminal background in detail, pointing out specific instances of conduct evidencing his personality disorder. For example, his refusal to take “no” for an answer from Linda Y. and the woman on the boat evidenced his narcissism and antisocial nature. Both doctors also went over in detail Orozco’s behavior at Atascadero and discussed how his language, quick annoyance, and demeaning attitude are narcissistic traits. Dr. Starr also testified that Orozco’s personality disorder is “sufficiently severe” to make it likely he will reoffend. This evidence is sufficient to support Orozco’s recommitment under the SVPA.
II. Hearsay.
In reaching their conclusions that Orozco is a sexually violent predator, Drs. Owen and Starr relied on statements concerning Orozco’s uncharged offenses and offenses for which he was not convicted, and on statements concerning his behavior at Atascadero. Orozco contends that this evidence was inadmissible hearsay, and that its admission violated his constitutional rights under the Sixth and Fourteenth Amendments. We disagree.
Before trial, Orozco filed motions in limine to exclude expert witness testimony and to exclude hearsay.
Evidence Code section 801 permits an expert witness to give an opinion that is related to a subject sufficiently beyond common experience and which is based on matter, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which the expert’s testimony relates, unless the expert is precluded by law from using such matter as a basis for the opinion. “A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter . . . upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” (Evid. Code, § 802.)
Expert testimony may be “premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions.” (People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley).) This material must be reliable. (Ibid.) If the threshold requirement of reliability is met, “even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (Ibid.) Thus, “an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion.” (Ibid.)
A trial court “ ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.] This is because a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into ‘independent proof’ of any fact.” (Gardeley, supra, 14 Cal.4th at p. 619.) In sum, Gardeley held that reliable hearsay may be admitted to establish the basis for an expert’s opinion.
In a different context, our California Supreme Court addressed the admissibility of hearsay in SVPA proceedings. Specifically, documentary evidence containing multiple levels of hearsay is admissible to prove predicate offenses in a SVPA proceeding. (People v. Otto (2001) 26 Cal.4th 200, 206 (Otto); § 6600, subd. (a)(3).) Otto held that a victim’s hearsay statements, to be admissible for that purpose, must bear a “special indicia of reliability.” (Otto, at p. 210.) To determine whether there exists a special indicia of reliability, a trial court may consider numerous factors, including the context in which the statements appear, indicia that defendant challenged the statements, circumstances surrounding the making of the statement (spontaneity, consistency, the declarant’s mental state, and corroboration), and, most critical to demonstrating reliability, whether the appellant was convicted of the crime to which the statements relate. (Id. at p. 211.)
Section 6600, subdivision (a)(3), provides: “Conviction of one or more crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health. . . .”
It is clear why statements admitted to establish predicate offenses should bear a “special” indicia of reliability: They are being admitted to establish the truth of the matter, i.e., that the appellant committed the offense. But it is not so clear that the same “special indicia of reliability” that must attach to such statements must also be found where, as here, we are not dealing with statements admitted to establish predicate offenses. The statements we are dealing with here were admitted to establish the basis of an expert’s opinion. For example, the first category of statements the experts relied on to form their opinion concern uncharged offenses and offenses for which Orozco was not convicted: the 1975 battery on an officer, his acquittal for the 1977 kidnap/rape/sodomy of a 17-year-old girl, his acquittal for the forced oral copulation of an inmate, his guilty plea to the 1977 knife assault, the 1978 rape of Lori W., his 1994 jail write-up for using a razor blade, and his uncharged 1994 rape of the woman on the boat.
Orozco argues, in essence, that the statements concerning these offenses and statements admitted to establish predicate offenses were admitted for the same purpose—the truth of the matter. For example, Drs. Owen and Starr, in forming their opinions, testified that they believed Orozco did rape the woman on the boat in 1994, even though the charges against him for that crime were dropped, and, even though on cross-examination, the defense elicited evidence that the encounter was consensual. The experts believed the truth of the matter asserted in the victim’s statement to reach their opinion.
The distinction between statements admitted to establish predicate offenses and statements about offenses admitted to establish the basis of an expert’s opinion may be a fine one, but, nevertheless it exists. The distinction is the experts here testified that, based on statements in, among other things, probation and police reports, they believed Orozco engaged in certain behavior because it was in keeping with behavior he has otherwise exhibited. As the jury was instructed, however, the experts’ opinions were only as good as the facts and materials upon which they were based. The jury was therefore instructed that the statements could be considered for the limited purpose of showing the information on which the medical experts based their opinions; it was not to be considered for the truth of the matter asserted. Thus, although the experts assumed the truth of the matter asserted, the jury was specifically instructed that the statements were not introduced to establish the truth of the underlying statements.
During Dr. Owen’s testimony about uncharged offenses, the trial court instructed the jury that evidence of uncharged offenses or offenses for which Orozco was not convicted was being introduced solely to show the basis for the expert’s opinion and not for the truth of the matters asserted: “Dr. Owen indicated that part of his expert opinion is based on the following . . .: Prison file, state prison abstracts, police reports, medical files, interview with respondent. These factors are offered to you for the sole purposes of the following: I’m going to instruct you that th[is] testimony is admitted to you for the purposes of determining whether or not Mr. Orozco has a diagnosable mental disorder; and two, if so, whether or not that mental disorder is a danger to the community in that defendant is likely to commit [a] sexually violent act. [¶] There will be further testimony from Dr. Owen as well as other experts that certain testimony relating to statements made by respondent in the course of examination of the respondent which was admitted for the purposes of diagnosis. These statements may be considered by you for the limited purposes of showing the information upon which the medical expert based his or her opinion. This testimony is not to be considered by you as evidence of the truth of the facts disclosed by respondent’s statement. [¶] . . . In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications, the believability of the witnesses, the facts or materials upon which each opinion is based and the reasons for each opinion. [¶] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. You’re not bound by an opinion. Give each opinion the weight you find it deserves. You may disregard any opinion you find if you find it to be unreasonable.” The trial court reminded the jury of this instruction when Dr. Starr similarly testified about Orozco’s uncharged offenses.
Under Gardeley, the experts could testify about matters underlying their opinions if the matters were reliable. Although the record is not entirely clear from what specific source information about each offense was gleaned, Dr. Owen generally testified that, under protocol established by the Department of Mental Health, he reviewed probation reports, police reports, complaints, felony complaints, abstracts of judgment, prison files, and state hospital files, in conducting his evaluation. Probation and police reports are generally considered reliable such that experts may reasonably rely on them in forming their opinions on a person’s mental status or capacity. (See People v. Miller (1994) 25 Cal.App.4th 913, 917-918 [psychiatric expert may reasonably rely on and refer to a probation report in reaching a conclusion that the defendant is a mentally disordered offender]; People v. Mazoros (1977) 76 Cal.App.3d 32, 44, fn. omitted [psychiatric expert “had the right to look at all relevant data, including reports of other offenses committed by defendant and police reports in order to make a medically acceptable diagnosis of defendant’s psychiatric condition and the People properly could question him as to the basis for his diagnosis”].) Courts “routinely rely upon hearsay statements contained in probation reports to make factual findings concerning the details of the crime” to guide, for example, a sentencing decision. (Otto, supra, 26 Cal.4th at pp. 212-213.)
Dr. Owen specified that he relied on a probation report in reciting facts about Orozco’s acquittal for oral copulation of a fellow inmate.
Probation reports and the other materials Drs. Owen and Starr relied on in forming their opinions are clearly different than the materials at issue in People v. Carlin (2007) 150 Cal.App.4th 322 (Carlin), which Orozco cites. There, the appellant pled guilty in 1991 to one count of violating Penal Code section 288, subdivision (a), lewd or lascivious act with a child under the age of 14. At appellant’s civil commitment trial in 2005 under the SVPA, the People introduced evidence to establish that conviction as one of the predicate offenses. The People introduced an investigator’s report and testimony that he talked to the victim, who gave additional details about the crimes committed against him. Namely, whereas the police report stated that the appellant had tried to fondle the victim, the victim, during his conversation with the investigator in 2001, said that more sex acts occurred than were reported, namely, appellant touched the victim’s penis, and masturbated and orally copulated him. The trial court admitted this evidence.
The Court of Appeal held that its admission violated appellant’s due process rights. (Carlin, supra, 150 Cal.App.4th at pp. 341-343.) The court found that the post-plea statements were unreliable for many reasons: they were not spontaneous, they were inconsistent with the victim’s 1991 statements, they were not corroborated, and they were not made in close proximity to the crime. Also, appellant was not convicted of a crime to which the post-plea statements related.
Here, however, there was no indication in the record that Drs. Owen and Starr relied on any material containing a victim’s statement given any substantial period of time after the alleged crime occurred or that varied from prior statements. Rather, their opinions were based on statements in probation and police reports and similar materials. A major distinguishing factor is also that the statements in Carlin were admitted to establish predicate offenses. The statements we are reviewing here were admitted to show the basis of the experts’ opinions.
Nor were other statements Drs. Owen and Starr considered concerning Orozco’s behavior at Atascadero unreliable. As an initial matter, statements Orozco made were not admitted for the truth of the matter. For example, the vulgar statements Orozco repeatedly made about women were not admitted for the truth of the matter asserted. In addition, Orozco’s statements and statements the staff made about him were in Atascadero’s records. Statements in hospital records are generally considered to be reliable to be introduced as the basis for an expert’s opinion. (See People v. Shattuck (1895) 109 Cal. 673, 678 -679 (Cal. 1895) [statements made by a patient, “when they constitute in part the basis upon which the opinion of an expert is based, and are by him declared to be necessary to enable him to form an opinion as to the nature of the disease, are admissible”]; In re Miller (2006) 145 Cal.App.4th 1228, 1240-1241 (Miller) [that a “medical professional, conducting an examination, observes certain objective facts and records them in a medical record, when properly presented to a trier of fact, may normally have sufficient indicia of reliability to establish those facts as true in a parole revocation hearing”].)
Dr. Starr testified that Orozco received a lot of “green sheets” while at Atascadero. Green sheets include verbal behavioral notes on which the staff, to the extent possible, records verbatim what the patient said, a description of what was going on at the time, and what was the resultant intervention with the patient. What the staff heard is put in quotes.
The Miller court, however, also found that a victim’s hearsay statements recorded in that same medical report do not have the same degree of reliability as the examiner’s direct observations. (In re Miller, supra, at p. 1241.)
The SVPA itself supports the conclusion that medical records are sufficiently reliable. For example, if the Department of Corrections determines that an individual in custody may be a sexually violent predator, then the individual shall be screened based on whether he or she has committed a sexually violent predatory offense and on a review of the individual’s social, criminal and institutional history. (§ 6601, subd. (b).) If as a result of this screening it is determined that the person is likely to be a sexually violent predator, then the person shall be referred to the Department of Mental Health for a full evaluation. (Ibid.) The evaluations shall be conducted in accordance with a standardized assessment protocol, which shall include assessment of such risk factors as criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder. (§ 6601, subd. (c).) Thus, the SVPA contemplates that an individual’s medical history—which, as a matter of course would include medical records—will be used in assessing an individual’s mental status.
III. The Static-99.
Orozco argues that the trial court abused its discretion by failing to apply the Kelly/Frye standard to the Static-99. We disagree.
People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly), and Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014 (Frye), stand for the proposition that the admissibility of evidence produced by a new scientific technique requires a preliminary showing that: (1) the technique is generally accepted in the relevant scientific community; (2) the witness testifying on the technique is properly qualified as an expert; and (3) correct scientific procedures were followed in the particular case. (See also People v. Stoll (1989) 49 Cal.3d 1136, 1155 (Stoll).) Although the definition of a “ ‘new scientific technique’ ” is unclear, courts will make the determination “by reference to its narrow ‘common sense’ purpose, i.e., to protect the jury from techniques which, though ‘new,’ novel or ‘ “experimental,” ’ convey a ‘ “misleading aura of certainty.” ’ ” (Id. at pp. 1155-1156, quoting Kelly, at pp. 30-32.)
Notwithstanding the ambiguity that may surround what is a scientific technique, courts have held that the Kelly/Frye reliability analysis does not apply to expert testimony about future dangerousness in SVPA cases. (See, e.g., People v. Ward (1999) 71 Cal.App.4th 368, 373-375.) “In civil commitment cases, where the trier of fact is required by statute to determine whether a person is dangerous or likely to be dangerous, expert prediction may be the only evidence available. [Citations.]” (Id. at p. 374; see also Stoll, supra, 49 Cal.3d at p 1157 [Kelly principles are not applied to expert medical testimony, “ ‘even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, . . .’ ”].) A psychological evaluation is “a learned professional art, rather than the purported exact ‘science’ with which Kelly/Frye is concerned . . . .” (Stoll, at p. 1159.)
Relying on Stoll and Ward, the court in People v. Therrian (2003) 113 Cal.App.4th 609, 611, directly addressed whether an expert’s proposed testimony about the Static-99 requires a Kelly/Frye hearing. Therrian concluded that a Kelly/Frye hearing is not required. The court explained that the experts in that case acknowledged that “the Static-99 test was not definitive and that other factors were considered in reaching an opinion.” (Id. at p. 615.) The court further noted that a reasonable juror would not view the expert’s testimony on the Static-99 test “as a source of infallible truth on the issue of defendant’s risk of reoffending.” (Id. at p. 616.)
Here too the experts did not testify that the Static-99 provides a definitive truth about Orozco’s potential for reoffending. To the contrary, Drs. Owen and Starr referred to the Static-99 as a “starting point” or a “first step” in the analysis of whether an individual is likely to reoffend. Dr. Owen also said that the Static-99 is a “moderate” predictor of whether people are going to reoffend sexually; it’s “not going to tell us absolutely if a man is going to reoffend.” Thus, the jury could not mistake the experts’ reliance on the Static-99 “as a source of infallible ‘truth’ on issues of personality, predisposition, or criminal guilt.” (Stoll, supra, 49 Cal.3d at p. 1159.)
Moreover, neither Dr. Owen nor Dr. Starr relied exclusively on the Static-99 to reach a conclusion that Orozco is likely to reoffend. Dr. Owen said that Orozco is likely to reoffend based on his “egregious past . . . with multiple victims,” diverse way of targeting boys, girls, men and women, and his reoffending even though he has been caught and sentenced to prison. Dr. Starr also looked at “protective” and “dynamic” factors to determine whether Orozco was likely to reoffend. After examining those factors, she concluded that Orozco is likely to reoffend. Thus, as in Stoll, where the expert testified he relied on things other than personality tests in forming his opinion, Drs. Owen and Starr did not rely solely on the Static-99 to form their opinion he is likely to reoffend.
IV. CALJIC 4.19.
Orozco contends that CALJIC 4.19, with which the jury was instructed, is constitutionally insufficient on substantive due process grounds because it doesn’t require the jury to find that the person’s mental disorder results in a significant lack of behavioral control. Orozco acknowledges that the California Supreme Court rejected this claim in People v. Williams, supra, 31 Cal.4th at pages 774-775. Williams held that instructions premised on the SVPA’s statutory language—i.e., persons eligible for commitment are those who have been convicted of violent sexual offenses against multiple victims and who have a diagnosed mental disorder affecting the emotional or volitional capacity that predispose them to the commission of criminal sexual acts in a degree constituting them menaces to the health and safety of others such that they are likely to engage in sexually violent criminal behavior—“inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one’s criminal behavior.” (Id. at p. 759.)
The jury was instructed with CALJIC 4.19 as follows:
We are bound by People v. Williams, and, therefore, we reject Orozco’s claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
V. Ex post facto laws and the federal equal protection clause.
Like his claim about CALJIC 4.19, Orozco’s final two claims, that the SVPA violates the constitutional proscription against ex post facto laws and that it violates the equal protection clause of the federal constitution, have been rejected by our California Supreme Court in Hubbart, supra, 19 Cal.4th at pages 1168-1179. We are bound by Hubbart, and we therefore reject these claims. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.
Dr. Owen also relied on the police report of the incident.
During a short period from August to October 2001, there were at least 18 incidents involving Orozco, including incidents of verbal staff abuse.
In June 2002, he was transferred to a different unit because of his behavior. In July 2002, he spit in another patient’s face and assaulted a sleeping patient.
In September 2003, Orozco was involved in a fight, and he was put in restraints and placed in seclusion. He was again secluded in October 2003 and in February, June, and September 2004.
In June 2005, he was argumentative and hostile. He said, “ ‘I’ll take care of you, fuckhead, fuck yourself, fuckhead. You’re a fucking asshole fuckhead. Now you want to fight me.’ ” He was confrontational with a female “lead” who told him a hot tray had been ordered for his breakfast: “ ‘You mother-fucking bitch. You think you can decide what hot meal I’m getting[?]’ ”
Also, Orozco does not appear to challenge statements he made directly to Dr. Owen.
“A petition for commitment has been filed with the Court alleging that the respondent Hernan Orozco is a sexually violent predator.
“In order to find that respondent is a sexually violent predator, the jury must agree, unanimously and beyond a reasonable doubt, that each of the following elements is true as to respondent:
“1. Respondent has been convicted of a sexually violent offense against two or more victims, specifically the following convictions: A conviction for violating Penal Code section 261(2) & (3), Forcible Rape on April 18, 1979, in Los Angeles County Superior Court; and convictions for violating Penal Code section 286(c), Sodomy, on October 6, 1983, in Los Angeles County Superior Court. Respondent has received a determinate sentence for said convictions for sexually violent offenses; and
“2. Respondent has a current diagnosed mental disorder; and
“3. This same diagnosed mental disorder makes respondent a danger to the health and safety of others in that it is likely respondent will engage in sexually violent predatory criminal behavior.
“You are instructed that it has been conclusively determined that respondent has been convicted of three sexually violent offenses against two victims for which he received two separate prison sentences. Therefore, as jurors you must determine whether the second and third part has been proven. In order to find that respondent is a sexually violent predator, the jury must agree, unanimously and beyond a reasonable doubt, that elements 2 and 3 [sic] is true as to respondent.
“The following defions apply to this instruction:
“The term ‘sexually violent predator’ means a person who, (1) has been convicted of a sexually violent offense against two or more victims; and (2) has a diagnosed mental disorder, (3) the disorder makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent predatory criminal behavior.
“The word ‘likely’ as used in this definition means the person presents a substantial danger, that is, a serious and well-founded risk that he or she will commit sexually violent predatory crimes if free in the community. However, it does not mean that it must be more probable than not that there will be an instance of re-offending.
“ ‘Sexually violent offense’ means the following acts when committed by force, violence, duress, menace, or fear of immediate, and unlawful bodily injury on the victim or another person, and that result in a conviction or a finding of not guilty by reason of insanity:
“1. A conviction for a violation of Penal Code section 261 subds. (2) & (3), rape, on April 18, 1979 in Los Angeles County Superior Court; and “2. Convictions for a violation of Penal Code section 286, subd. (c), Sodomy, on October 6, 1983, in Los Angeles County Superior Court.
“A sexually violent crime also includes an offense described above when the victim is a child under the age of fourteen years and the offending act or acts involve substantial sexual conduct. ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or offender.
“For the purposes of this proceeding, any of the following shall be considered a conviction for a sexually violent offense:
“A. A prior or current conviction that resulted in a determinate prison sentence for an offense described above.
“ ‘Diagnosed mental disorder’ includes a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.
“ ‘Danger to the health and safety of others’ does not require proof of a recent overt act while the offender is in custody.
“ ‘Recent overt act’ means any criminal act that manifests a likelihood that the actor may engage in sexually violent predatory criminal behavior.
“ ‘Predatory’ means an act is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization.
“A determinate sentence is a sentence which by statute is for a fixed term of years, although the sentencing judge may have had discretion as to which term to impose.
“This is not a criminal trial. However, the petitioner has the burden of proving beyond a reasonable doubt that the respondent is a sexually violent predator.
“Reasonable doubt in these proceedings is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction that the respondent is a sexually violent predator. In determining whether the respondent is a sexually violent predator, you should consider all of the evidence introduced in the case, including the prior conviction of one or more crimes previously listed for you. However, you may not find respondent to be a sexually violent predator based on prior offenses without relevant evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior.
“You must not be influenced by pity for or prejudice against the respondent. You must not be biased against the respondent because this petition has been filed or because a trial is being conducted. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feelings. Both parties have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach a just verdict regardless of the consequences.
“If after a consideration of all the evidence you have a reasonable doubt that the respondent is a sexually violent predator, you must find that he is not a sexually violent predator and that the allegation in the petition is untrue.
“A prior commitment or the fact that respondent has been housed at the Atascadero State Hospital under SVP law does not change the burden of the Petitioner to prove in this trial each necessary fact beyond a reasonable doubt. A person who has been previously committed under the SVP law has no burden to prove a change in circumstances or that he poses less of a risk of sexually violent reoffense than he did at the time of the previous commitment. Mr. Orozco is entitled to a fresh determination upon the evidence produced in this trial whether he presently has a qualifying mental disorder that seriously impairs his ability to control sexually violent predatory behavior. It is the intent of the law that individuals previously committed under the SVP law remain confined only so long as a qualifying mental disorder is proven to persist.”