Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 129317
Margulies, J.
After serving the sentence for his second conviction for a crime of sexual violence, defendant Paul Pedersen was civilly committed under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). In this recommitment hearing, two prosecution psychologists provided expert testimony that defendant had been convicted of qualifying sexually violent crimes, suffered from a mental disorder, and was likely to commit future sexually violent crimes if released. A defense psychologist disputed the diagnosis of a mental disorder and contended that defendant’s age made it unlikely that he would commit further sexual crimes if released. The jury found defendant to be a sexually violent predator. Defendant raises several claims of error in connection with his trial. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In this section, we provide only an abbreviated account of the events at trial. We discuss the testimony and rulings applicable to defendant’s particular arguments on appeal more fully when discussing his individual contentions.
In 1999, defendant was adjudged a sexually violent predator and civilly committed pursuant to section 6600 and former section 6604, which then specified a two-year term of commitment. (Stats. 1995, ch. 762, § 3, p. 5917.) He was recommitted once before the instant petition to extend his commitment was filed on February 13, 2004. Prior to trial on that petition, on January 24, 2006, the district attorney filed an additional petition. The two petitions were consolidated for trial.
The matter was tried to a jury. The prosecution relied on testimony by two psychologists, Jeremy Coles and Lisa Jeko. Their testimony was similar in most material respects. They described two prior incidents of violent sexual conduct by defendant that led to criminal convictions. In the first, defendant induced a six-year-old girl to approach him, grabbed her, took her behind the house where he was staying, and sexually assaulted her. In connection with that offense, defendant pled guilty to a charge of oral copulation with a child under the age of 14. In the second incident, which occurred within five months of his release from prison on the first conviction, defendant broke into a woman’s room in a boarding house and kept her confined for approximately an hour and a half, while he beat and sexually assaulted her. Defendant pleaded guilty to a series of charges in connection with that incident, including rape with a foreign object, forcible oral copulation, sodomy, and attempted rape.
On the basis primarily of these acts and a further sexual incident that occurred during defendant’s imprisonment, both psychologists diagnosed defendant as suffering from a mental illness known as paraphilia not otherwise specified. Both also opined that defendant was likely to engage in sexually violent conduct in the future if released from confinement. They based this view on the results of two psychological “instruments” used for predicting the likelihood of future sexual offenses, known as Static-99 and MNSOST-R, and on various personal characteristics and attitudes of defendant, such as his alcohol abuse, his refusal of treatment for a sexual disorder, and a personality disorder that causes him to disregard rules and lack empathy for others.
Defendant was called to testify by the prosecution. He was examined about the various sexual incidents, which he generally acknowledged. He denied, however, having a mental disorder and blamed alcohol abuse for his various acts of sexual violence.
Clinical psychologist Raymond Anderson provided expert testimony on defendant’s behalf. Dr. Anderson opined that defendant did not fit the definition for the disorder of paraphilia. Although Dr. Anderson acknowledged that some rapists suffer from a mental disorder, which he referred to as “preferential rape disorder,” Dr. Anderson did not believe defendant fit the behavior pattern for this illness. Dr. Anderson was also critical of the Static-99 test, which he believed was unreliable in predicting reoffense. Dr. Anderson estimated defendant’s likelihood of reoffense if released “in the low-single digits,” based in part on defendant’s age, nearly 55 at the time.
The jury recommitted defendant, finding true the allegation that he is a sexually violent predator as defined in section 6600.
II. DISCUSSION
“The requirements for classification as a ‘sexually violent predator’ (SVP) are set forth in section 6600, subdivision (a) and related provisions. First, . . . is that an SVP must suffer from ‘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.’ (Id., subd. (a).) A ‘diagnosed mental disorder’ is defined in its entirety as ‘includ[ing] 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.’ (Id., subd. (c).) The phrase, ‘danger to the health and safety of others,’ is accompanied by language making clear that proof of a ‘recent overt act’ or crime ‘in custody’ is not required. (Id., subds. (d) & (f).)
“Second, an SVP must have been ‘convicted of a sexually violent offense against two or more victims.’ (§ 6600, subd. (a).) A ‘sexually violent offense’ refers to certain enumerated sex crimes ‘committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.’ (§ 6600, subd. (b), citing Pen. Code, §§ 261, subd. (a)(2) [rape of nonspouse], 262, subd. (a)(1) [rape of spouse], 264.1 [rape in concert], 286 [sodomy], 288, subds. (a) & (b) [lewd acts upon children under age 14], 288a [oral copulation], 289, subd. (a) [sexual penetration by foreign object].)” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144–1145, fns. omitted.)
Section 6600, subdivision (a) now requires proof of a prior conviction against only one victim, but at the time of defendant’s hearing the statute still required proof of crimes against at least two victims.
Each element must be proved. It is not enough, for example, that there exist a risk that the person will commit further sexually violent acts; the risk must arise from a mental impairment. (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1157.) Further, the danger and mental disorder must exist at the time of the commitment hearing. (Id. at p. 1162; People v. Munoz (2005) 129 Cal.App.4th 421, 430.)
A. Consideration of Defendant’s Age
Defendant first contends that “the ‘likely to reoffend’ standard offends substantive due process” because it “guarantees his lifelong forced hospitalization absent meaningful review standards or clear standards governing release for aged patients.” Because the statute does not in any way “guarantee” defendant’s lifelong commitment, his exact legal claim on this point is vague. The claim is premised, however, on two contentions about SVPA proceedings: that they are flawed because they fail to take account of the decreasing tendency of sex offenders to reoffend as they age and that recommitment can be based on past acts and assumptions made on the basis of those acts, rather than on the present condition of a defendant. For the reasons discussed below, we find that neither of these contentions was supported by the evidence presented at trial.
Defendant lacks standing to raise the claim, which he makes in passing, that the commonly used Static-99 test is invalid for persons over the age for which it was formulated. As he acknowledges, the test’s actuarial base encompassed persons up to the age of 55. At the time of this hearing, defendant was 54. Regardless of the validity of the test for older offenders, defendant was admittedly within the actuarial base range at the time of the hearing. The purported invalidity of the test when applied to persons older than he had no impact on his recommitment. (See, e.g., People v. Garcia (1999) 21 Cal.4th 1, 11–12.)
In part, defendant contends that his recommitment was based on his past acts and assumptions made on the basis of those acts, rather than on his present condition. Because his past will not change, he argues, the SVPA will result in his lifelong commitment. The SVPA expressly proscribes an offender’s SVPA commitment solely on the basis of his or her past criminal acts. Section 6600, subdivision (a)(3) states, “Conviction of one or more [sexually violent offenses] 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. . . . Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently 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.” As noted in People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1509, “A person’s history should not be determinative of whether he or she is a danger to reoffend. ‘The requisite likelihood of reoffense is . . . a separate determination which does not inevitably flow from one’s history of violent sex offenses and a predisposing mental disorder.’ [Citation.] That history is static and will never change. As substantial time has passed, its reliability as a predictor of a defendant’s future behavior becomes more equivocal. If such static factors predominated in the assessment of whether an SVP should be given conditional release, a serious offender would never be released regardless of what events subsequent to his offenses revealed, which is contrary to the intent of SVPA, which allows conditional release even with some risk of reoffending.”
Further, defendant’s claim that he was recommitted solely on the basis of his past acts is not supported by the record at trial. It is true that the psychologists’ conclusions that defendant suffers from a mental disorder were based largely on his past acts, including forced sodomy against his wife and an incident of public masturbation in prison. The experts’ respective conclusions that a mental disorder caused him to be at significant continued risk of reoffense were not, however, based solely on the past. Although they differed somewhat about the basis for their opinions, both gave significant weight to defendant’s present attitudes and mental state. They considered both factors weighing in favor of further such crimes, such as his insistence that his acts resulted from alcohol abuse rather than any underlying sexual disorder, his refusal to participate in sexual offender treatment, the possibility of his substance abuse, which lowers inhibition, and the personality disorder that makes it more likely he will act on his urges. Likewise, the psychologists considered mitigating factors, such as his age, the fact that he does not condone sexual assault, and his increasingly cooperative attitude while in confinement. (See People v. Talhelm (2000) 85 Cal.App.4th 400, 409 [no violation of substantive due process where commitment based on results of clinical tests, interviews, and other acts, as well as past crimes].)
Nor is defendant correct in arguing that the prosecution’s psychologists failed to take account of the decreasing tendency of sexual offenders to reoffend as they grow older. Dr. Coles testified that “research shows a person’s proclivity to recidivate reduces with time after about age 25, particularly after the age of 60. [¶] The most recent research shows between 40 and 60 there is a time plateau effect. So while there is a decrease, it’s not exactly clear how much within that age range, and because of the way statistics works, there are polls from both sides where there is a really high risk under 25, and a really low risk after 60. [¶] [T]his is a protective factor for Mr. Pedersen, meaning he is definitely at less risk now to commit another sexual offense than he was when he went into prison the last time for a sex offense in 1990.” Asked whether he was “aware of studies that show that the sexual offender recidivism rate declines at age 50,” Dr. Coles responded, “[T]he most recent studies that I think are applicable are Hanson’s large study and Thornton’s large study, which show a plateau between 40 and 60. But on a total graph including all of the age ranges, you are still seeing a gradual decrease.” Dr. Jeko also discussed the impact of age, although she believed that the most recent research called into question the prevailing belief in a steep decline in reoffense with advancing age.
The jury was entitled to accept and rely on these views if they found them supported and persuasive. The experts’ views constitute substantial evidence supporting the position that defendant remains likely to reoffend if released despite his age.
This evidence also contradicts defendant’s claim that “[t]he SVPA functions to never release [defendant].”
We do not accept defendant’s argument, based on People v. Robbie (2001) 92 Cal.App.4th 1075, that the use of a sexually violent predator’s past acts and psychological history in a SVPA proceeding is akin to “profiling.” In Robbie, the court reversed a conviction for sexual assault that was based, in part, on expert testimony that the defendant’s acts were consistent with those of a rapist. The court held that profile testimony, which posits that the defendant’s conduct is consistent with the typical conduct of persons who commit a particular crime, is inadmissible to prove commission of a specific crime because it relies on “the syllogism underlying profile evidence: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People’s expert conceded here.” (Id. at p. 1085.)
This objectionable characteristic of profiling does not arise in SVPA proceedings because the matter at issue is not whether the defendant committed a past crime, but rather whether he or she is likely to commit sexually violent crimes in the future. There is no objective way to make such a prediction other than to compare the offender’s past conduct and present characteristics with those of other persons to determine whether the defendant resembles persons who are known to have reoffended. By relying on research that correlates particular conduct and characteristics with reoffense, an expert is able to offer a prediction with an objective basis. Although this type of comparison is inadmissible to prove that a defendant committed a specific past act, it is critical in providing an objective method of predicting the possibility of future conduct.
B. Expert Testimony
Defendant’s second argument is that the trial court erred in admitting certain expert testimony. We review such evidentiary decisions for abuse of discretion. (People v. San Nicolas (2004) 34 Cal.4th 614, 663.)
1. The Static-99 Instrument
Defendant’s first argument is that evidence of the Static-99 predictive tool should not have been admitted because “its predictive ability ends around age 55.” The Static-99 was described at trial as “an actuarial instrument.” Using the Static-99, an expert inputs a series of “known risk factors” for sexually violent reoffense “to come out with a level of risk” for reoffense. The Static-99 has survived prior legal challenges to its use in SVPA proceedings. (E.g., People v. Therrian (2003) 113 Cal.App.4th 609, 615.)
Defendant’s particular attack on its use in these proceedings, his claim that the Static-99 has no predictive ability for persons over the age of 55, is not supported by the record. The claim appears to be premised on the misapprehension that the algorithms used in the Static-99 have no application to persons over the age of 55 because the population of persons used to formulate the algorithms contained no persons over the age of 55. No expert at trial made this claim, nor is it supported by logic. In the absence of evidence that the incidence of reoffense changes unpredictably after the age of 55, the results of the algorithms can be extrapolated beyond that age to predict the behavior of older persons. It is simply necessary to take account of whatever changes in reoffense are observed in persons above that age. As noted above, there was testimony at trial that the likelihood of reoffense changes gradually until an individual reaches age 60, at which age reoffense declines more rapidly, although there is debate about the rate of decline.
Further, as noted above, defendant was 54 at the time the hearing occurred. Even if the test was inapplicable to those over 55, it was applicable to him. There would have been no error in its admission.
Dr. Anderson did criticize the Static-99 extensively for other reasons. Nonetheless, the trial judge acted within his discretion in relying on the testimony of the prosecution experts that the test was “moderately” reliable, allowing the jury to consider the conflicting opinions of the experts and draw its own conclusions about the weight to be given the results. There was no abuse of discretion in admitting evidence of Static-99.
2. Expert Opinion as to Defendant’s Mental Disorder
Defendant next contends that the trial judge should not have permitted the prosecution experts to testify that he suffered from a mental disorder because the diagnosis of “paraphilia not otherwise specified” is “meaningless [and] unsupported.”
As Dr. Coles testified for the prosecution, recognized psychiatric disorders are compiled in the diagnostic manual of the American Psychiatric Association, known as the DSM-IV. Dr. Coles concluded that defendant suffered from “[p]araphilia not otherwise specified with nonconsenting partners.” Dr. Coles defined a paraphilia as “recurrent, intense, sexually arousing fantasies, sexual urges or behaviors, generally involving: [1.] nonhuman objects; [2.] the suffering or humiliation of oneself or one’s partner; or [3.] children or other nonconsenting persons that occur over a period of at least six months.” In order to be diagnosed as a disorder, these urges must cause “clinically significant distress or impairment in social or occupational or other . . . important areas of functioning.” As he explained, “[t]here is no real debate in the field that parahilias exist, and there is very little debate, if not none, that something also referred to as a coercive paraphilic disorder, again, involving nonconsenting individuals exists.” As to the “not otherwise specified” label, Dr. Coles explained that “[i]t’s a coercive disorder. But there is no specific diagnosis within the DSM-IV to point to the coercive disorder independently. So we use in these cases the idea of ‘not otherwise specified,’ which basically means it doesn’t quite fit into a particular category . . . in the DSM-IV.” He further explained that paraphilic coercive disorder was excluded from the manual out of concern that labeling a compulsion to commit coercive sexual acts a disorder might provide a legal defense to prosecution for sexually violent crimes.
Defendant argues that because coercive disorder is not listed under the various examples of paraphilia not otherwise specified in the DSM-IV, it should not be considered a legitimate mental disorder. Dr. Coles’s explanation, however, adequately accounted for its absence. Particularly in light of that explanation, there was no basis for excluding testimony about the mental disorder merely because it was not specifically identified in the diagnostic manual.
The remainder of defendant’s argument is a criticism of Dr. Coles’s and Dr. Jeko’s diagnoses, with strong reliance on the opposing testimony provided by his own expert, Dr. Anderson. While defendant’s discussion certainly demonstrates that there was room for debate as to the existence of the disorder diagnosis, nothing in his criticism disqualifies admission of the prosecution experts’ testimony as a matter of law. In effect, he argues that the jury should have believed Dr. Anderson rather than Drs. Cole and Jeko. The relevant standard of review, however, is substantial evidence, and the opinions of the prosecution experts unquestionably provided substantial evidence to support the jury’s conclusion.
C. Other Evidentiary Rulings
1. Reference to Defendant’s Prior Commitment Hearings
Defendant first contends that the trial court erroneously denied a motion for mistrial made by defense counsel following prosecution questions that informed the jury that defendant had been the subject of prior SVPA commitment proceedings. “ ‘A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.’ ” (People v. Williams (2006) 40 Cal.4th 287, 323.)
We reject defendant’s contention that the standard to be applied is that applicable when pretrial publicity is claimed to have tainted a potential jury pool. (E.g., People v. Jenkins (2000) 22 Cal.4th 900, 943.) Once a jury has been empanelled, actual prejudice must be shown before the result will be reversed as a result of an evidentiary ruling. (People v. Williams, supra, 40 Cal.4th at p. 323.)
During a break in proceedings, the trial judge noted that the prosecutor intended to elicit testimony from his rebuttal psychologist that defendant had altered his behavior following earlier civil commitment proceedings. Defense counsel had objected strenuously, contending that permitting the jury to know that prior juries had found defendant to be a sexually violent predator would be prejudicial. The discussion had been occasioned by testimony by defendant in which, as the court characterized it, he had “volunteer[ed], as part of an answer, a certain scheme that let’s [sic] the [jury] know he’s been in there 10 years, and he has a right to a trial every two. [¶] . . . [¶] . . . The math is pretty simple for a juror to figure out if there is any truth to that, he’s had trials before.” From this, the court concluded, “[T]o the extent there have been references and they’re somewhat vague, now they’re not at all vague, and if what he said was taken for . . . it’s content, they would assume he’s had numerous trials . . . .” Nonetheless, from concern for prejudice, the court instructed both counsel, “[N]o result of any trial should be stated to the jury by any witness, unless I first have made it clear that [it] can come in.”
Defendant testified that he had been in the state hospital since 1996. When defendant was thereafter questioned about an attempted escape from the state hospital, he responded, “I was—it was my belief that every two years we would come in for a trial on these proceedings. Over two years had gone by on my particular case . . . and I tried to effectuate my own release to go into the community.”
During subsequent testimony, defendant denied that he had a mental disorder. In response, the prosecutor, after confirming with defendant that he had participated in two prior commitment hearings, established that during those hearings four different psychiatric professionals had testified that defendant suffered from paraphilia. Although the testimony was elicited without objection, defense counsel somewhat later noted, during a jury recess, “I was troubled by the reference that [the prosecutor] made to the other evaluators in previous trials. I don’t think that was an appropriate—given the court’s indication earlier, the fact that there have been prior hearings or trials, certainly we didn’t get to the result, but I think reference to the doctors and evaluations and conclusions that they had made . . . was inappropriate . . . .” The court noted that the testimony was probative, since “[h]e’s heard doctor after doctor say he has [a disorder], and the light is never going on.” Defense counsel sought a mistrial, objecting that, nonetheless, “it has the effect of telling the jury there were prior trials and he lost each and every one.”
Even in the retrial of a criminal proceeding, there is no absolute rule against admission of evidence that the defendant had been convicted previously, although the defense may seek to have reference to the earlier proceedings excluded as prejudicial. (See, e.g., People v. Burgener (2003) 29 Cal.4th 833, 867.) In a recommitment hearing, the potential for prejudice from such a revelation is less than in a criminal retrial. In the criminal retrial, the question before the second jury is exactly the same as the question before the first jury. There is therefore reason for concern that the second jury would be influenced by learning that a prior jury, weighing the same question, had convicted the defendant. In a recommitment hearing, the primary issue before the jury is different each time. The jury must decide whether at the present time the defendant is suffering from a mental disorder that makes him a danger. (People v. Munoz, supra, 129 Cal.App.4th at p. 430.) Implicit in the process is the presumption that a defendant can overcome such a disorder and that, as defendant points out, the tendency to reoffend declines with age. Because the possibility of such change creates a new and different question for each proceeding, there is less reason for concern that the jury will feel “ ‘pressure to conform their verdict to that of the first jury.’ ” (People v. Burgener, at p. 867.)
Moreover, the questions to which defendant now objects revealed nothing about the outcome of his prior hearings that defendant’s own volunteered testimony had not suggested earlier. In response to questioning, defendant stated that he had been committed for several years and that he understood a hearing would be held on his commitment every two years. As the trial judge noted, the jury would have assumed from these responses that defendant had already been through the commitment process at least once. The prosecutor’s questions confirmed what until then was an inference, but they added nothing more. Accordingly, we conclude that the trial judge did not abuse his discretion in concluding that the prosecutor’s questions had not unfairly prejudiced defendant’s trial.
2. Expert Testimony Regarding Convictions
Defendant next contends that the trial court erred in permitting the prosecution experts to offer the opinion that defendant had been convicted of the “sexually violent offenses” required as an element of a section 6600 commitment. We review such evidentiary decisions for abuse of discretion. (People v. San Nicolas, supra, 34 Cal.4th at p. 663.)
We note that defendant’s primary authority in support of his argument is People v. Reynolds (2006) 139 Cal.App.4th 111, a case that was depublished by the Supreme Court several months before the filing of defendant’s opening brief. Under the California Rules of Court, the case should not have been cited or argued, and we do not discuss it further. (Cal. Rules of Court, rule 8.1115(a).)
Over defense objection, the court permitted both prosecution experts to testify that defendant had suffered the required sexually violent offense convictions. After describing defendant’s offenses, Dr. Coles merely stated in a conclusory manner that the requisite convictions had occurred, without giving an explanation for his conclusion. Dr. Jeko did little more, although she did specify the Penal Code provisions that defendant had violated.
Section 6600, subdivision (b) defines “sexually violent offense” as “the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed on, before, or after the effective date of this article and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Section 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 of the Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code, committed with the intent to commit a violation of Section 261, 262, 264.1, 269, 286, 288, 288a, or 289 of the Penal Code.” In addition, at the time of the proceeding, section 6600.1 defined sexually violent offense with respect to a victim under the age of 14 as the commission of one of the listed underlying offenses if the act “involved substantial sexual conduct.” (E.g., Cooley v. Superior Court (2002) 29 Cal.4th 228, 244, fn. 7.)
Subsequent amendment has deleted the requirement that the offense involve substantial sexual conduct. (§ 6600.1.)
The Evidence Code permits expert testimony as to matters “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Whether a particular crime was committed by means of violence or coercion is not something beyond common experience, nor is expert testimony necessary to determine which statute was violated when a particular conviction occurs, since the associated documentation will reveal the statutes involved. Prior to the deletion of the requirement of “substantial sexual conduct” from section 6600.1, however, it was not unusual for psychiatric experts to opine on this issue during SVPA commitment hearings, particularly when the offense was not overtly sexual. (E.g., People v. Otto (2001) 26 Cal.4th 200, 204 (Otto).) Given the unquestionably violent and sexual nature of both of defendant’s assaults, such expert testimony was unnecessary in this proceeding. The trial court therefore abused its discretion permitting the prosecution experts to opine on the issue.
Any error, however, was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. Defendant’s prior convictions plainly qualified under section 6600 as “sexually violent offenses,” and he does not contend otherwise. He repeatedly and viciously sexually assaulted an adult woman, and he attempted to rape a child before ejaculating on her. The convictions unquestionably involved force and had substantial sexual content. Regardless of the expert’s opinions on this issue, there is no doubt that the jury would have concluded that defendant had suffered qualifying convictions.
Defendant also argues that this testimony caused the experts to describe his crimes to the jury, but those descriptions would have occurred in any event during the experts’ discussions of defendant’s disorder, since the nature of an offender’s past acts is a critical issue both in diagnosing a disorder and predicting the likelihood of reoffense.
3. Expert Testimony About Defendant’s Crimes
Defendant also contends that the trial court erred in permitting the two prosecution psychologists to testify about “lurid, repetitive details of the predicate crimes.” We review the trial court evidentiary rulings for abuse of discretion. (People v. Geier (2007) 41 Cal.4th 555, 586.)
Although defendant complains that the accounts were based on hearsay, it is well-established that experts can rely on hearsay and can repeat it in testifying to the basis for their opinions. (People v. Coleman (1985) 38 Cal.3d 69, 90.) Further, that hearsay is not otherwise inadmissible in this context since, as discussed below, section 6600, subdivision (a)(3) permits the use of hearsay to demonstrate a defendant’s sexually violent convictions.
Nor do we find any abuse in the trial court’s allowing the experts to testify to details of the crimes. As noted with respect to similar evidence in People v. Hubbart (2001) 88 Cal.App.4th 1202, 1234, “The testimony about defendant’s string of sex offenses . . . was highly probative of the two issues that the jury had to decide: whether defendant had a diagnosed mental disorder that made him a danger to the health and safety of others; and whether, due to that mental disorder, defendant was likely to engage in sexually violent behavior if released. Details about defendant’s past sexually violent conduct were important to the jury’s determination of these issues. The way that defendant targeted similar victims and committed the crimes in a similar manner showed his predatory behavior and the risk he posed if released. Although there was expert testimony on those issues, the details of the crimes were helpful for the jury’s understanding of the experts’ opinions and diagnoses. Although the details of the crimes were odious, it was necessary for the jury to learn not just that defendant had committed numerous sex offenses, but the scope and nature of his sexually predatory behavior.”
4. Documents Relating to Defendant’s Crimes
Defendant next objects to the admission of several documents related to the sexually violent crimes to which defendant pled guilty, including police reports and victim statements on grounds of hearsay. As noted, we review such questions for abuse of discretion. (People v. Geier, supra, 41 Cal.4th at p. 586.)
Section 6600, subdivision (a)(3) expressly holds that “[t]he existence of any prior convictions may be shown with 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.” The purpose of the provision is to relieve victims of the need to testify about painful incidents and to allow proof of crimes whose victims are unavailable to testify. (Otto, supra, 26 Cal.4th at p. 208.) By permitting the introduction of documents, the statute necessarily anticipates that the jury will be exposed to hearsay. Nor is it grounds for objection that the documents contain double hearsay. (Ibid.) Subdivision (a)(3) does not, however, eliminate the court’s discretion to exclude documents, or portions of documents, that it concludes are unreliable, based on the variety of factors ordinarily used in such determinations. (Otto, at p. 211.)
Initially, defendant objects to the fact that certain exhibits were read out loud to the jury, rather than merely given to the jury in redacted form for its review. We do not believe that the court erred by permitting otherwise admissible documents to be read aloud rather than submitted to the jury in written form. The prosecution is not required to conduct its case in a “sanitized” manner that would “ ‘deprive the state’s case of its persuasiveness and forcefulness.’ ” (People v. Garceau (1993) 6 Cal.4th 140, 182, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117–118.)
Defendant also contends that the mere number of exhibits was objectionable, since they necessarily contained repetitive material. We do not find the number so excessive as to have constituted an abuse of discretion by the trial court.
Finally, defendant contends that the documents contained “unreliable” hearsay. He concedes, however, that certain irrelevant or prejudicial portions of the documents were redacted. As to the remainder, he does not cite a single specific statement that he contends was unreliable, nor does he explain, using the factors set out in Otto, why any particular statement was unreliable. Under these circumstances, we have no basis for evaluating the claim of unreliability and find it to have been waived on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793 [contentions waived when there is failure to support them with reasoned argument and citations to authority].)
D. Failure to Admit Defendant’s Exhibits
During examination by his counsel, defendant testified that he had sought and obtained commitments from various organizations to treat and support him in the event he was released. He sought to introduce the letters that he wrote to several public and private agencies seeking such assistance, but the letters were excluded by the trial court as “self-serving generated hearsay.” In addition, defendant offered six photographs picturing him as a child, with his family, and with women with whom he had relationships in the past. These too were excluded, apparently on grounds of relevance. Defendant argues that exclusion of these documents and photographs denied him a fair trial.
Defendant in his brief also contends that exhibit N, a report from the defense psychologist, was also improperly excluded. In fact, defendant’s attorney told the court, “I’m not offering [exhibit N].”
Defendant claims that the letters were not hearsay because he had written them. The Evidence Code, however, contains no hearsay exception for statements of a testifying witness. While it is correct that the letters were not hearsay to the extent they were offered merely to prove that defendant contacted these groups, any statements in the letters would have been hearsay, to the extent such statements were used to prove the facts asserted. (Evid. Code, § 1200.) Because defendant was permitted to testify that he had contacted these groups, the letters themselves were unnecessary and cumulative in proving the contact. In light of the minimal evidentiary value of the letters for this non-hearsay purpose and the potential hearsay problem in admitting their contents, we find no abuse of discretion in their exclusion.
Nor do we find any error in the exclusion of defendant’s photographs. Pictures of defendant as a child or with his family had no relevance to the issues in the proceeding. While the fact that defendant had relationships with women whom he did not assault was relevant, the pictures of defendant with these women proved little, since there was no way to determine from those photographs the nature of defendant’s relationship with the women. Again, in light of the minimal evidentiary value of the photographs, we find no abuse of discretion in their exclusion.
Further, because these excluded documents and photographs had little legitimate evidentiary value, it is clear that their exclusion was not prejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.) There was no denial of due process.
E. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct during opening argument, his examination of defendant, and closing argument.
Because of “ ‘the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state,’ ” a prosecutor is held to a standard higher than that imposed on other attorneys. (People v. Hill (1998) 17 Cal.4th 800, 820.) Two separate standards govern prosecutorial misconduct, federal and state. “Prosecutorial misconduct is reversible under the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1124.)
Prosecutorial misconduct is subject to a strict rule of waiver. An incident of alleged misconduct may not be raised on appeal unless a timely objection was made to the trial court, the basis for the objection was identified, and a request was made to admonish the jury to disregard the conduct. (People v. Brown (2003) 31 Cal.4th 518, 553.) The requirement of an objection and request for admonishment is excused only if (1) objection would have been futile (ibid.); (2) admonishment would not have cured the harm caused by the misconduct (People v. Sapp (2003) 31 Cal.4th 240, 279); or (3) an objection was made and overruled. (People v. Boyette (2002) 29 Cal.4th 381, 432.)
Defendant points us to no objection or request for an admonition as to any of the alleged incidents of misconduct. For that reason, his claim of prosecutorial misconduct is waived.
Further, we find no misconduct. The alleged misconduct during opening argument occurred when the prosecutor gave the jury a fairly detailed account of defendant’s two sexually violent crimes. Defendant does not contend that any of the statements made by the prosecutor were not later supported by evidence admitted in the proceedings. Nor was the account given in inflammatory terms. As noted above, the details of these crimes were important because they are important to the determination of his disorder and dangerousness. We find no misconduct.
The alleged misconduct during defendant’s examination occurred when (1) the prosecutor took defendant through his criminal record, which included two arrests each for theft crimes and driving under influence; (2) the prosecutor asked a series of questions that defendant characterizes as “humiliating, unnecessary, and argumentative”; and (3) the prosecutor asked defendant about the details of the crimes he committed, using the various documents discussed above. We find no misconduct. Defendant’s prior criminal history was relevant to the personality disorder that, the psychologists testified, would make it more difficult for defendant to control his conduct if released. The questions asked by the prosecutor, considered in context, were not argumentative; rather, they were proper responses to various evasive or incomplete answers provided by defendant during his testimony. The mere fact that the questions were humiliating is not, in itself, a basis for a claim of misconduct. Finally, the prosecutor’s use of the documents to challenge defendant’s testimony was ordinary impeachment.
The alleged misconduct during closing argument occurred because, defendant contends, the prosecutor placed too much emphasis on the nature of defendant’s crimes and stated that, “[b]ecause of these two convictions . . . [defendant] is a sexually violent predator.” As discussed above, the nature of defendant’s crimes not only is an element of the requirements for SVP status but also has an important bearing both on the existence of a mental disorder and future threat. The prosecutor followed his account of defendant’s crimes—which occupies barely a page in the transcript—with a full and much longer discussion of the other elements necessary for recommitment. There was therefore no chance that the prosecutor’s statement that defendant was a sexually violent predator as a result of the two convictions was intended to mislead the jury into thinking that no further proof was needed. We find no misconduct.
F. CALJIC No. 2.03
Defendant contends that the trial court erred in giving a modified form of CALJIC No. 2.03. CALJIC No. 2.03, entitled “Consciousness of Guilt—Falsehood,” informs the jury that if they conclude that the defendant made a false or misleading statement about the crime under consideration, the statement can be considered “a circumstance tending to prove a consciousness of guilt.” CALJIC No. 2.03 is ordinarily given when there is evidence that the defendant has made a false statement in order to deflect suspicion from him- or herself. (People v. Rankin (1992) 9 Cal.App.4th 430, 436.) The trial court delivered a modified version of CALJIC No. 2.03, instructing the jury that if they concluded defendant made a misleading or false statement “concerning one of the issues for which he is now being tried,” the jury could consider the statement “as a circumstance tending to prove the truth of that issue.” The modified version thus deleted the phrase “consciousness of guilt” in favor of “the truth of that issue.”
The instruction was given on the basis of evidence that defendant had requested sex offender treatment in lieu of prison at the time of his second conviction in 1990. There was also evidence that defendant had acknowledged that his past behavior was consistent with a diagnosis of paraphilia. Yet at trial, defendant insisted that he had never had a sexual mental disorder and that his violent sexual conduct resulted from alcohol abuse.
Defendant’s testimony can be interpreted in two ways: either (1) he was lying in the past about his need for treatment and diagnosis in order to get favorable treatment, or (2) he was lying in his current testimony in order to avoid recommitment. If the jury concluded that defendant was lying in the past, the modified CALJIC No. 2.03 was inapplicable, since defendant would have made no false statements “concerning one of the issues for which he is now being tried.” Rather, the false statement would have related to his having a mental disorder in the past. On the other hand, if the jury concluded that defendant was lying in his current testimony, he would have made a false statement about an issue in the proceeding. The jury might have concluded that defendant’s blaming his conduct on alcohol abuse was an attempt to supply an alternative basis other than a mental disorder, and thereby to avoid recommitment. Although the false statement was not about some independently verifiable fact, as is ordinarily the case, the jury could have concluded that defendant was deliberately attempting to shift attention from his mental disorder. We therefore find no error in the instruction.
In any event, the instruction could not have been prejudicial. The proceeding, and the prosecutor’s arguments, focused not on defendant’s testimony but on that of the experts. The instruction itself informed the jury, “[T]hat conduct [i.e., falsification] is not sufficient by itself to prove the truth of the issue in dispute, and its weight and significance, if any, are matters for your determination.” In other words, the instruction did little more than tell the jurors to use their common sense. In light of the strong evidence provided by the testifying psychologists, the instruction could not have materially influenced the judgment.
G. Ineffective Assistance
Defendant argues that if we have found any of his arguments on appeal to have been waived as a result of his trial counsel’s failure to object, we should find that trial counsel provided ineffective assistance. The only waiver we found as a result of defense counsel’s failure to object was to the prosecutor’s alleged misconduct. Because we found no misconduct, however, there was nothing to which to object and, as a result, no ineffective assistance.
H. Cumulative Error
Counsel argues that we should find cumulative prejudicial error. Because we found no error other than the allowance of expert testimony regarding defendant’s convictions, and that not prejudicial, there is no basis for a claim of cumulative error.
I. Amendments to the SVPA
In late 2006, the passage of Proposition 83 converted the then-existing renewable two-year term for SVPA commitment to an indefinite term. (See §§ 6604, 6604.1.) Defendant argues that such an indefinite term violates due process.
Defendant lacks standing to bring such a claim because his recommitment occurred under the prior version of section 6604, which imposed a two-year term. The prosecution acknowledges in its brief that “[i]f the state seeks to hold [defendant] after his current commitment expires on March 28, 2008, it will have to try him anew and prove beyond a reasonable doubt to a unanimous jury that he is an SVP.” Only if the state actually brings such a proceeding and is successful, resulting in the imposition of an indefinite term, will defendant have standing to challenge the changes to the SVPA imposed by Proposition 83. (See, e.g., People v. Garcia, supra, 21 Cal.4th at pp. 11–12.)
J. Cruel and Unusual Punishment
Defendant argues that SVP commitment is “essentially penal in nature” and that, as applied in his case, it constitutes cruel and unusual punishment.
The Supreme Court effectively rejected such a claim in Hubbart v. Superior Court, supra, 19 Cal.4th 1138, holding that the SVPA did not violate the constitutional proscription against ex post facto laws: “Hubbart has not demonstrated that the SVPA imposes punishment or otherwise implicates ex post facto concerns.” (Id. at p. 1179; see People v. Chambless (1999) 74 Cal.App.4th 773, 776, fn. 2 [“because the court in Hubbart found the [SVPA] not punitive in purpose or effect and that it did not impose liability or punishment for criminal conduct [citation], Chambless’s double jeopardy and cruel and unusual punishment claims raised in his opening brief have also been impliedly resolved against him”].)
K. Equal Protection
Defendant argues that the SVPA violates equal protection as applied to him because “he is similarly situated to other older persons convicted of violent felonies who have served their terms and are entitled to parole release. His case can no longer be distinguished from such offenders based on any reliable evidence that predicts likelihood of recidivism if released.” The claim is factually unsupported. As discussed above, the prosecution presented credible expert testimony, accepted by the jury, that defendant suffered from a mental disorder and that he was likely to reoffend if released. He was therefore not similarly situated to other older persons convicted of violent felonies for whom such determinations have not been made.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Swager, J.