Opinion
E070866
01-09-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN HOWARD SALERN, Defendant and Appellant.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSBSS801136) OPINION APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Affirmed. Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Kristine A. Gutierrez and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, John Howard Salern, appeals from the judgment and order committing him for an indeterminate term to the custody of the California Department of State Hospitals (the DSH), following a jury trial in which the jury found him to meet the statutory criteria for being a sexually violent predator (SVP) under the Sexually Violent Predators Act. (Welf. & Inst. Code, § 6600 et seq.) Defendant was born in 1944 and was age 74 at the time of trial in 2018.
In this appeal, defendant claims the trial court prejudicially erred under state law (Evid. Code, § 352) and denied him his due process right to a fair trial in allowing the prosecutor to impeach defendant's expert witness, forensic psychologist, Dr. K., with the case files of 11 male defendants who were convicted in San Bernardino County of molesting children when the male defendants were over the age of 70. We conclude that this impeachment evidence was properly allowed and that the case files were properly admitted. Alternatively, we conclude that any error in admitting the impeachment evidence was harmless under the Watson standard of reversible error.
People v. Watson (1956) 46 Cal.2d 818, 836.)
II. FACTS AND PROCEDURAL BACKGROUND
A. The Petition, Verdict, and Commitment Order
On March 12, 2008, the San Bernardino County District Attorney filed a petition to civilly commit defendant as an SVP for an indeterminate term. (Welf & Inst. Code, §§ 6250, 6600.) Defendant was a state prisoner with a maximum commitment date of April 12, 2008. Following a trial, on June 28, 2018, a jury determined that defendant met the statutory criteria for being an SVP. The court then granted the petition and ordered defendant committed to the state mental hospital for an indeterminate term. Defendant appealed. B. Pertinent Jury Instructions
The jury was instructed that the petition alleged defendant was an SVP, and that to prove this allegation the People had to prove beyond a reasonable doubt that defendant (1) had been convicted of committing a sexually violent offense against one or more victims; (2) had a diagnosed mental disorder; and (3) as a result of that diagnosed mental disorder, he was a danger to the health and safety of others because "it is likely that he will engage in sexually violent predatory criminal behavior." (CALCRIM No. 3454.) C. The People's Evidence
1. Dr. O.'s Expert Opinions and Defendant's Background
Dr. O., a psychologist under contract with the DSH, had conducted around 2,000 to 2,500 SVP evaluations. The DSH assigned Dr. O. to evaluate whether defendant met the criteria of an SVP. To complete his evaluation, Dr. O. had two face-to face meetings with defendant at Coalinga State Hospital, one in December 2016 and another in January 2018. Defendant's meetings with Dr. O. were voluntary and defendant was cooperative. Before the meetings, Dr. O. reviewed defendant's "entire file," including summaries of defendant's criminal convictions, police reports, and probation reports, along with defendant's treatment plans, psychology notes, testing data, prison records, and other information obtained from Coalinga State Hospital.
(a) Defendant's Five Qualifying Convictions
Defendant had five qualifying convictions for sexually violent offenses, including four 1982 convictions in San Bernardino County, for what would currently be considered lewd acts with a child in 1978, and a 1990 lewd act conviction, also in San Bernardino County, based on defendant's 1989 conduct with another child. When he was charged with the 1978 offenses, defendant was determined to be a mentally disordered sex offender and was sent to Patton State Hospital (PSH) for mandatory treatment as a sex offender. After being treated at PSH for approximately two years, defendant was "returned to court as unamenable" to treatment. In 1982, he pled guilty to the four 1978 offenses and was sentenced to six years four months in state prison.
The victim of the 1978 offenses was eight-year-old Alan. Defendant knew Alan's mother and would babysit Alan and Alan's two siblings. One day, defendant picked up Alan early from school, drove home, was drinking alcohol and smoking marijuana, orally copulated Alan, and had Alan orally copulate him. Defendant had "groom[ed]" Alan by buying him gifts and spending time with him. Alan disclosed the abuse after defendant gave Alan alcohol and marijuana, put Alan on his lap, and ejaculated. Alan also reported five to seven similar instances of sexual abuse. Defendant initially denied the abuse, then admitted it but called Alan's mother "a slut" and claimed that Alan "willingly engaged in sexual conduct." Defendant also claimed he loved Alan and wanted to marry Alan's mother so that he could be a father to Alan.
Defendant told Dr. O. that he and Alan had "had an affair" and that Alan had "enticed" him. This is called "cognitive distortions" or a distorted way of looking at things, which Dr. O. had seen many pedophiles use. It prevents pedophiles from learning from their mistakes and fully benefiting from treatment. Defendant also told Dr. O. that he "got pussy" while he was at PSH. He was eventually discharged from PSH for bringing marijuana into the facility.
Defendant's fifth qualifying conviction, in 1990, was for committing a lewd act in 1989 with nine-year-old Frankie. The 1989 offense also involved Frankie's friend, nine-year-old Michael. The boys reported that while defendant was babysitting them, he would push them down on a bed, get on top of them in a "humping motion," and try to slip his hands down the boys' pants. Michael reported that defendant had an erection during some of this sexual play. Defendant also threatened to "hit" Frankie if Frankie did not participate. Defendant pled guilty to one count of committing a lewd act against Frankie and was sentenced to six years in prison.
Defendant told Dr. O. that he would babysit Michael when Michael's mother and her boyfriend would "go off and use drugs." According to Dr. O., defendant's acts of babysitting the boys was a "red flag" because defendant was already a convicted child molester at the time of his 1989 lewd act offense, had been in sex offender treatment, and treatment subjects were routinely taught to avoid being around children. That defendant "put himself in that situation" by babysitting the boys was "of great concern" to Dr. O. It showed defendant had not learned from his treatment, from prison, or from having been convicted as a sex offender. He had a pattern of babysitting children whose parents were vulnerable or had "drug issues," which Dr. O. described as "the kind of parent a pedophile would likely choose because these parents are less likely to be very attentive to their children . . . ." Only 3 percent of convicted child molesters reoffended, and defendant was "in that three percent" because he reoffended in 1989.
During one of his meetings with Dr. O., defendant denied committing the 1989 offense. Although he admitted touching the boys' buttocks "in a kneading manner" and engaging in "horseplay" with Michael and Frankie, defendant claimed that both boys lied about being sexually abused. In defendant's view, Michael fabricated the sexual abuse because defendant would not let Michael go outside when defendant babysat Michael, and Michael resented that. Defendant also claimed Michael "only knew" that defendant "had a big penis" because Michael had seen defendant using the bathroom.
(b) Defendant's Additional Background
Defendant had a stable homelife as a child and spoke positively of his parents, neither of whom had suffered from mental illness or substance abuse. But when defendant was 12 years old, he was placed in Camarillo State Hospital for "serious" psychiatric and behavioral problems. He told Dr. O. that his parents wanted him placed in the hospital because he was stealing, and he was "burping and farting" in school. Dr. O. did not believe defendant's explanation, because these were not reasons to place a child in a state hospital, even when defendant was 12 years old in the 1950's. But, no records from Camarillo State Hospital were available to show why defendant was placed there.
Defendant claimed he was raped at age 12 at Camarillo State Hospital. After that, he said, he became sexually active with boys. He also admitted that, when he was 19 years old, he sexually molested a 10-year-old girl in an orange grove.
According to another prosecution witness, Dr. S., defendant had a "sustained [juvenile court] petition for sexual abuse of a child" when he was 15 years old, based on his abuse of the 10-year-old girl in the orange grove. Defendant told a defense witness, Dr. K., that he was 15 to 17 years old when he molested the girl.
In 1964, when he was 19 or 20 years old, defendant was sent to the California Youth Authority for soliciting a minor to engage in lewd acts. He claimed he first had sexual intercourse with a female and became bisexual at age 21. In connection with his 1978 offenses against Alan, which occurred when he was 32 or 33 years old, he told the probation officer that he had had sex with nine and 10 year olds when he was a teenager. In 1986, he was convicted of burglary and sentenced to county jail. In 1995, he violated his parole for his 1989 lewd act offense against Frankie, when his parole officer found him in an apartment with a 15-year-old boy. In 1996, he again violated his parole, but the basis of this parole violation is unknown. According to Dr. O., defendant did not "submit very well to supervision," and this was strongly "associated" with reoffending.
In 1997, the mother of a 10-year-old boy reported to the police that defendant had hired her son to chop wood and invited him to spend the night. Defendant denied the incident, claiming the mother reported it because she was angry with defendant. Defendant was charged but not convicted of any crime in connection with the 1997 incident. In 2002, he was convicted of reckless driving and was sentenced to three years' probation, but he failed to complete his probation because, in 2003, he was convicted of failing to register as a sex offender (Pen. Code, § 290) and was sentenced to six years in prison. In 2008, prior to his release from prison on his failure-to-register conviction, he was sent to Coalinga State Hospital, and he was still being held at the hospital at the time of trial in 2018. Thus, at the time of trial, defendant had been in custody since 2003, and he was not charged or convicted of a sex offense between 1997 and 2003, when he was out of custody and living in the community.
Defendant reported having had, throughout his lifetime, around 50 male sex partners and 50 female sex partners, most of whom were prostitutes. Psychologists consider this number of sex partners to be promiscuous, and it concerned Dr. O. because sex offenders who do not have intimate sexual relationships are more likely to reoffend. Defendant told Dr. O. that he no longer had sexual fantasies about children and instead fantasized about attractive women, mostly actresses.
When he was a minor in school, defendant had poor relations with his teachers and peers. He dropped out of school in 10th grade and never obtained his diploma or general equivalency diploma. He had also never held a job for more than one year, and he claimed he had to be self-employed because he could not "stand the bullshit" associated with working for others. Dr. O. believed defendant "gravitated towards children" because he did not get along well with his peers. Defendant's relationships with adult women had for the most part been shortlived. He was married once, but lived with his wife for only three months, was unfaithful to her, then went back to live with his parents. He was with another woman for one year, but Dr. O. did not know whether defendant lived with that woman. Defendant had a subsequent relationship with a woman he described as "very religious," who broke up with him after she discovered he was a convicted child molester. Defendant had been living with the woman and her children but he did not tell the woman he was a convicted child molester. Defendant's longest relationship was his 10-year, "common law" relationship with E., an older woman who knew about his history. E. developed Alzheimer's disease and later died. Defendant lived with his parents for part of the time he was with E.
Dr. O. did not believe that defendant had any "close ties" or healthy friendships with adult men. People who have healthy relationships are less inclined to engage in deviant behavior. Defendant had some physical health issues, but none that would "keep him from sexually reoffending in his customary way." He told Dr. O. that he was masturbating once a month to relieve testicular pain.
Defendant used to drink a lot of alcohol and use a lot of marijuana, and he told Dr. O. that he would resume using marijuana if he were released. This was of further concern to Dr. O., because defendant was drinking and using marijuana when he molested Alan in 1978, and because Dr. O. believed that smoking marijuana would likely tempt defendant to resume drinking alcohol, which would in turn reduce defendant's inhibitions and make him "even more reckless." Defendant had never accepted full responsibility for his sexual molestations.
While at Coalinga State Hospital, defendant had attended an anger management group, a substance abuse course, a course for adult children of sexual abuse, and a therapy program addressing negative and inappropriate thoughts. But he had never attended a sex offender treatment program, even though the hospital offered a "very comprehensive" one. This program, the "Sex Offender Treatment Program," included group therapy sessions, testing for sexual attractions, and polygraph testing. During his 10 years at the hospital, defendant had consistently refused to attend this program. He told Dr. O. he would not attend it because there was "no guarantee" he would be released if he did, and during the program they "make you snitch on yourself for [crimes] you never got caught for." A "big part" of Dr. O.'s concern regarding defendant's risk of reoffending was that he was "an untreated sex offender" with a decades-long history of sexual misconduct. Men who complete sex offender treatment reduce their risk of reoffending by around one-third. But defendant had not engaged in sex offender treatment and had not "changed his ways." In Dr. O.'s opinion, a "treated sex offender" would neither minimize his sexually deviant conduct nor blame his victims for enticing him, as defendant was doing. Defendant also had no realistic plans for how he would support himself or where he would live if he were released.
Defendant also had a history of anger problems. He could "blow up" and be "provocative," although in recent years he had been having fewer anger problems. At Coalinga State Hospital, he had had "episodes of angry outbursts" toward staff and peers, and on a few occasions he had been the victim. He had an uncontrolled "racial animus" which, in Dr. O.'s opinion, kept him "on the fringe" and unable to forge "solid relationships" with people or progress in any treatment program. He continued to struggle in his personal relationships, as he had throughout his life. Although he was "very pleasant" during his meetings with Dr. O., he used a lot of sexual terms in general conversation, which indicated to Dr. O. that sex was "still on his mind, obviously."
(c) Dr. O.'s Diagnoses
Dr. O. diagnosed defendant as having three mental disorders: pedophilic disorder, alcohol use disorder, and marijuana use disorder. Pedophilic disorder is a chronic but treatable condition, marked by having fantasies, urges, or behaviors of a sexual nature directed toward children, typically under age 13. Defendant admitted having pedophilic fantasies when he was younger, and Dr. O. believed defendant still had pedophilia urges and had not treated them or learned to manage them. Defendant's history of having sexual relations with adults did not mean that he did not have pedophilic disorder; few pedophiles do not have sexual relations with adults. Defendant had volitional impairment, meaning he had poor self-control given that he continued to molest children after he first did so, and emotional impairment, meaning he lacked empathy or regard for children. Defendant's alcohol and marijuana use disorders had been in remission since defendant was sent to Coalinga State Hospital; there was no evidence defendant was drinking alcohol or using marijuana in the hospital.
Dr. O. opined that defendant was likely to reoffend. To quantify defendant's risk of reoffending, Dr. O. relied on defendant's "Static-99R" test score, a test which assesses the likelihood that a sex offender will reoffend based on 10 factors, including the sex offender's age. On the Static-99R test, defendant's risk score was a "6," which placed him in "the highest risk category" and made him three times more likely to reoffend than the average sex offender who scored a "2" on the Static-99R test. Defendant's risk score of "6" assumed he was age 53, his age in 1997 when he was released from custody following his 1996 parole violation. Thus, the "6" score did not account for defendant's current age of 74, which reduced his risk of reoffending.
Despite defendant's advanced age of 74 years, Dr. O. still considered defendant to have a "substantial and well-founded" risk of reoffending, based on, among other things, his "history of so much sexual deviance," his pedophilic disorder, his "resist[ance] to supervision" and "making changes," his refusal to participate in sex offender treatment, his continued ability to function sexually, and the fact his victims included males. He lacked the maturity that typically comes with age and reduces the likelihood that a sex offender will reoffend. It is "rare" for a man over age 70 to reoffend, but men over age 70 have been arrested for child molestation. Dr. O. concluded: "[W]hen I look at the risk factors, there are too many, they're too strong, they're too serious to override this age benefit." During the 12-year period before trial, approximately 10 percent of the 2,000 to 2,500 sex offenders whom Dr. O. had evaluated to determine whether they were SVP's had at least one qualifying conviction, a diagnosed mental disorder, and were, in Dr. O.'s opinion, likely to reoffend. The other 90 percent had qualifying convictions but either did not have a diagnosed mental disorder or were not likely to reoffend. Defendant fell within the 10 percent.
2. Dr. S.'s Expert Testimony
As its second witness, the prosecution called Dr. S., another psychologist under contract with DSH who had conducted 400 to 500 SVP evaluations. Dr. S. found that between 5 and 7 percent of the persons he had evaluated were SVP's. He conducted an SVP evaluation of defendant, met twice with defendant, in 2016 and in 2018, and reviewed defendant's entire file.
Defendant told Dr. S. that eight-year-old Alan "enjoyed" their sexual encounters and was equally responsible for what happened between them. He said Alan was a "horny little kid" who had been the aggressor by asking defendant to take off defendant's clothes. He also denied any physical sexual dysfunction and reported he masturbated once a month. At one point, he launched into "a very descriptive statement" about how female staff at the hospital "move their butts and jiggle their titties" to "tease guys into fucking them."
Dr. S. believed defendant had a "very unusual" "world view" because he "[saw] the world as this highly sexualized, highly sexually charged environment where . . . individuals are constantly trying to seduce him and engage him in sexual activity." Defendant did not "see himself as the aggressor" but "as the victim who's being sucked into these overly sexualized other worlds." Defendant had had "multiple" "behavioral problems" at Coalinga State Hospital, "day after day, year after year," including in 2017 and 2018. He had been verbally aggressive toward staff and peers and had at times been physically aggressive toward peers, using derogatory racial and sexual language. The number of these incidents was "possibly the most" Dr. S. had ever seen. Defendant's sexual preoccupation and language made him different from other men his age.
In addition to pedophilic disorder and alcohol use disorder, Dr. S. diagnosed defendant with antisocial personality disorder, which Dr. S. defined as "a long-term chronic disregard for the norms of . . . society." Like Dr. O., Dr. S. scored defendant as "6" on the Static-99R test, placing defendant's risk of reoffending "well above the average" for sex offenders. When his advanced age of 74 years was considered, his Static-99R test score was "4," still a "higher than average" risk of reoffending. Dr. S. concluded defendant had at least an above average risk of reoffending, regardless of how his age was considered. Although Dr. S. acknowledged that sex offense recidivism in men over age 70 "is very rare," defendant was unlike most sex offenders over age 70 in that he was much more verbally and physically aggressive and used highly charged sexual language. His ability to control his impulses was extraordinarily poor. Although he knew how to behave, he could not control his outbursts, and he tended to associate with peers who, like himself, were not involved in sex offender treatment. Based on various static and dynamic risk factors, and despite defendant's age of 74 years, Dr. S. concluded defendant was likely to reoffend— there was a "well-founded and serious risk" that he would reoffend—if he were released.
3. Defendant's 2003 Sex Offender Registration Violation
As its third witness, the prosecution called Deputy S., a San Bernardino County Sheriff's Deputy. In 2003, Deputy S. was tasked with checking on defendant for a possible sex offender registration violation. Defendant was reportedly staying in a state park in Arizona and had not notified the county that he was leaving, despite being required to do so as a sex offender under Penal Code section 290. Deputy S. found defendant at the park, in a travel trailer, and defendant told Deputy S. that he was planning to move to Williams, Arizona.
On an information card he completed for his stay at the park, defendant listed a Phelan, California address as his address. He had last registered as a sex offender at the Phelan address. After park rangers informed him they knew he was a sex offender, he obtained paperwork to register in Arizona, but on that paperwork he listed his address as the campground, though the campground only allowed 14-day stays. He showed Deputy S. that he had an Arizona driver's license which listed his address as a post office box in Williams. Deputy S. believed defendant was trying to avoid disclosing where he was going to be living, and arrested him for failing to register as a sex offender. D. Defense Case
1. Hospital Staff Testimony
Two behavioral specialists at Coalinga State Hospital, who served as facilitators in some of the classes defendant had taken at the hospital, testified about defendant's performance and progress in his classes. The "Values in Action" class focused on learning to be positive, grateful, and kind, developing self-esteem, and "seeing the good" in others. Defendant did well in the class, and over time he became calmer in interacting with others. But the facilitator acknowledged that someone who had fully benefitted from the class would not continue blaming his victims or making excuses for his behavior.
The "Adult Children of Sexual Abuse" class focused on improving self-esteem and self-healing. Defendant repeated this class many times over the course of four years. He was never disruptive or upset in the class, and he got along "[f]ine" with the other men in the class. One goal of the class was to get the participants to "trust the treatment program in the hospital" and "move [the participants] into other groups to ultimately address the sexual offending." Defendant attended the class whenever he was physically able, seemed to "genuinely enjoy the group," and told the facilitator he looked forward to the class. But defendant did not discuss his sex offenses in the class, and his self-esteem did not improve during the four years he was in the class. When asked whether he saw "any changes" in defendant during the four years defendant was in the class, the facilitator responded: "[H]e was kind of the same when I got there and kind of the same when I left." Defendant was "dropped" from an anger management group because of his anger issues.
The defense presented evidence that transitional, one-year housing and services would be available to defendant if he were released. But defendant had no family or friends he could rely on if he were released.
2. Dr. M.'s Expert Testimony
Dr. M., a forensic psychologist, had conducted around 600 SVP evaluations for DSH between 2006 and 2014. She was hired by the defense to evaluate whether defendant qualified as an SVP. She met twice with defendant, reviewed his file, and reviewed the reports of Drs. O. and K. Defendant told Dr. M. that, when he was a young child, he was sexually abused by an older boy, "oral copulation that ended up being mutual oral copulation." Dr. M. believed defendant was sent to the state hospital as a child because he was "acting very bizarrely, and they labeled him as mentally ill."
Dr. M. agreed that defendant had pedophilic disorder, along with "a persistent depressive disorder" and "antisocial personality traits." He had a history of angry, verbal outbursts toward peers and staff at the hospital, but he was not "a physically violent man" and was able to control himself. The hospital environment was stressful because patients could be "unpredictable and violent." Dr. M. believed defendant's verbal outbursts were "situational," attributable to his depression and the stresses of being hospitalized, and purposeful; designed to agitate staff and express displeasure. In Dr. M.'s view, defendant's outbursts had no bearing on his propensity to reoffend.
Dr. M. did not believe defendant posed a serious risk of reoffending. On the Static-99R test, Dr. M. scored defendant as a "6," but this score did not account for his age of 74 years. The recidivism rate of sex offenders over age 70 was so low, "they haven't been able to study it," or quantify the risk that a sex offender over age 70 will reoffend. Dr. M. also relied on research by Dr. Carl Hanson which showed a significant drop in recidivism rates as sex offenders age, with a particularly sharp drop after age 60.
In addition to his age, other factors reduced defendant's risk of reoffending. He was capable of normal adult relationships; he had a low sex drive and some erectile dysfunction; his sexual fantasies primarily concerned adult women, including actresses; he was in poor health, suffered from chronic back pain and Chronic Obstructive Pulmonary Disease; he used a walker; and he was not a psychopath. He also understood that he needed to "self-monitor," engage in "preventative types of activities," and have a "release plan" to reduce his risk of reoffending.
3. Dr. K.'s Expert Testimony
Dr. K., a forensic psychologist, had been conducting SVP evaluations for the DSH for 21 years. In 2015, 2017, and 2018, Dr. K. evaluated defendant as an SVP for the DSH, and concluded defendant was not likely to reoffend and thus, did not meet the third criteria for being an SVP. Dr. K. diagnosed defendant as having pedophilic disorder, alcohol and marijuana "abuse, " and "a general personality disorder, with dependent and antisocial traits." He did not diagnose defendant as having antisocial personality disorder.
On the Static-99R test, Dr. K. said he had "incorrectly" scored defendant as a "4," meaning defendant had an "above-average" risk of reoffending, although Dr. K. acknowledged that defendant's "true" score was a "6," meaning he had a "well above average" risk of reoffending. Defendant's true score was a "6" because the rules of the Static-99R test required the testers or evaluators to use the defendant's age at the time the defendant was released from custody following the defendant's last sex offense, which for defendant was age 53 or 54, not his current age of 74.
Based on research involving 44,000 released sex offenders, Dr. Carl Hanson, who created the Static-99R test, concluded that sex offenders with a score of "4" have an 11 percent probability of reoffending within five years, and those with a test score of "6" have a 20 percent probability of reoffending within five years. These probabilities measure the risk that an "average" sex offender will reoffend within five years of being released from custody following their commission of their last sex offense. These probabilities "overestimate" the risk that an average sex offender, who is age 70 or older, will ever reoffend. The 44,000 sex offenders whom Dr. Hanson had studied included "hardly any" sex offenders over age 70, because there were "very few" sex offenders over age 70. In addition, the Static-99R test does not account for an offender's increasing age over time. Thus, defendant would still score a "6" when he reached ages 80, 90, and 100, so, according to Dr. K., "we don't study" the reoffending risks of sex offenders above age 60.
Dr. K. explained that the Static99-R test was "incredibly useful" in assessing the risk that 20- to 60-year-old sex offenders will reoffend, but it was "much less useful" in assessing the risk that offenders age 70 and older will reoffend. For sex offenders over age 70, Dr. Hanson advised evaluators to use categories of "high, low, [or] medium risk," rather than "the recidivism norms" or statistics.
Dr. K. opined that defendant would reoffend if he were still age 53 or 54, but at age 74, he was not likely to reoffend. Dr. K. testified: "In my mind . . . this whole case rests on the fact if he was 54, I'd say he's going to [reoffend], but since he's 74, I'm saying he's not [going to reoffend]." In Dr. K.'s view, any psychologist's assessment of the risk that a septuagenarian sex offender will reoffend is based more on the psychologist's "clinical judgment" rather than on "science" or statistical probabilities. Nonetheless, in concluding that defendant was not likely to reoffend, Dr. K. relied in part on a graph that Dr. Hanson had prepared which showed sex offender recidivism by age. Based on the graph, Dr. K. concluded that men in their 30's are the "[guys] that you really need to be concerned about. . . . But . . . when you get to be [age] 60, you're [of] much less concern. And then by the time you're [age] 70, they didn't have anybody to study in the sample."
In addition to defendant's age, Dr. K. found it significant, in concluding defendant was not likely to reoffend, that defendant did not have antisocial personality disorder, was not "sexually preoccupied," had a low libido, and did not reoffend when he was out of custody between 1997 and 2003. Regarding defendant's lack of sexual preoccupation, Dr. K. explained that, although defendant's "frequent misbehavior in the hospital" showed he was incredibly "impulsive," during the time he had been hospitalized, he had not had sex with other men, he had not engaged in substance abuse, and he had not used child pornography. This was significant because, given defendant's lack of self-control, if sex were "still a driving force" in defendant's life, then Dr. K. would have at least expected defendant to have been having sex with other men in the hospital, but he was not doing so. Defendant's low libido and age-related poor health were also significant protective factors which lowered his risk of reoffending.
On cross-examination, Dr. K. agreed that defendant's previous sex offenses did not involve the use of force or penile penetration, so his poor physical health and lack of libido might not be a barrier to his reoffending. He had also groomed his victims by giving them things and gaining their trust—something he was still able to do despite his physical limitations. And, in California, only 6 percent of all sex offenders reoffend, and defendant was in that 6 percent because he had reoffended. His risk factors for reoffending included his having had male victims, one "stranger" victim (the girl in the orange grove), his having been "pulled out" of his home when he was a child, his lack of long-term employment, and his unwillingness to "tak[e] orders" from others.
Dr. K. disagreed that defendant's persistent use of sexualized language showed he was sexually preoccupied, and he explained that "men talk like that when they're angry. That's not what they talk about when they're being horny." Defendant was also "nowhere near as antisocial as most folks in prison." He was not a rapist and he had no convictions for assault or for physically violent offenses. In his report, Dr. K. concluded that defendant was "simply too old for the scientist in me to conclude that he remains a serious and well-founded risk of sexually reoffending."
Over defense objections, the prosecution presented Dr. K. with abstracts of judgment and charging documents for 11 San Bernardino County criminal cases involving sex offenders of advanced age, including several who committed lewd acts or other sex offenses against children when they were in their 70's, and one who was age 83. The prosecutor then asked Dr. K. whether it was true that being over the age of 70 does not mean a person won't commit a sex offense. Dr. K. responded that the health and libido of older sex offenders must be considered, and defendant had poor health and a low libido.
On redirect examination, Dr. K. testified that extensive research had shown "[a]bsolutely" no connection between sex offenders' denial of their offenses, or their lack of empathy for their victims, and their rates of reoffending. Thus, defendant's denials of his sex offenses did not place him at any risk of reoffending. Dr. K. also did not find defendant's refusal to participate in the sex offender treatment program significant, because research had shown that only persons who drop out of sex offender treatment programs are likely to reoffend. Defendant's participation in other treatment programs showed he was motivated to change and mitigated his lack of self-control.
Dr. K. later admitted defendant had dropped out of sex offender treatment in the early 1980's, and this placed him at risk of reoffending. Dr. K. also admitted that defendant was not very cognitively "alert" and would need someone to take care of him if he were released. Because he had no family, he would be homeless if he were kicked out of a halfway house. Still, the prosecutor's exhibits showing that 11 men over age 70 had committed sex offenses against children in San Bernardino County in recent years did not change Dr. K.'s opinion that defendant was not likely to reoffend. E. Prosecution Rebuttal Evidence
The courtroom bailiff testified that, on three occasions, defendant had been disruptive and combative in the courtroom. On the first occasion, the court had adjourned for the day, and defendant was still in the courtroom, talking very loudly to his attorney about things other than the case. The bailiff told defendant he needed "to go to the [cell area] now," and defendant "got kind of upset." In a raised voice, he told the bailiff he had a right to talk to his attorney. The bailiff agreed, but explained to defendant that he was not talking about anything that had to do with the case and it was "time to go." Defendant was "kind of aggressive" and did not want to follow the bailiff's direction.
On the second occasion, defendant was in the cell area in the back of the courtroom and, in a raised voice, was arguing with the custody officer, saying his handcuff was too tight. His other hand was uncuffed so he could use his walker. When the custody officer explained that the handcuff was not too tight, and if it was it could be loosened downstairs, defendant became enraged, raised his uncuffed hand, made a fist at the custody officer, and made a growling sound. The bailiff intervened and told defendant to put his hand down. Defendant complied but was still angry.
On the third occasion, the court was adjourned, defendant and his attorney were standing near the counsel table, defendant was talking loudly to his attorney and made a motion, either toward his attorney or the custody door. The bailiff had already told defendant not to make those hand motions, because, when he did so, the bailiff could not tell whether he was "coming at the attorney" or motioning toward the custody door. Again, defendant clenched his fist and made a growling sound. The bailiff said defendant "goes from [zero] to 60 with his temper." After each incident, defendant apologized for his behavior. It seemed that when defendant did not get his way or want to follow directions, he behaved aggressively.
III. DISCUSSION
Defendant claims the trial court abused its discretion in allowing the prosecution to impeach Dr. K. with 11 case examples of criminal defendants who, in recent years, and when they were over age 70, committed lewd acts or other sex offenses against children in San Bernardino County. We conclude that this claim lacks merit.
During his testimony, Dr. K. made broad statements indicating that it was so rare for a man over age 70 to molest children that almost no such cases existed. As the People argue, the prosecutor's 11 case examples directly contradicted this assertion, and were therefore properly admitted as impeachment evidence.
Defendant claims only that the trial court abused its discretion and deprived him of his right to a fair trial, both in allowing the prosecutor to use the case files as impeachment evidence and in admitting the case files as impeachment evidence. He does not challenge the admission of the 11 case files on any foundational grounds.
Additionally, any error in admitting the evidence did not prejudice defendant, because the evidence that he was likely to reoffend was compelling. It is not reasonably probable that the jury would have concluded that defendant was not likely to reoffend, and was therefore not an SVP, had the impeachment evidence been excluded. A. Additional Background
Although we have described Dr. K.'s testimony in detail, here we set forth additional details of Dr. K.'s testimony concerning the rarity or dearth of septuagenarian sex offenders. Dr. K. explained that the Static-99R test overestimated risk for individuals over 70 years old because the data underlying the test included "hardly any 70-yearolds. . . . There's very few that are above 70. We don't have that many folks that are that old. . . . We don't study above 60, really." He added: "[W]e don't have enough folks to study [because] there's not enough in America."
Dr. K. later testified: "In my mind, the whole—this whole case rests on the fact if he was 54, I'd say he's going to do it again, but since he's 74, I'm saying he's not. That's the central issue for me." Dr. K. explained: "In Canada, they had 18 guys that were over 70 they were able to follow. They actually found sex offenders over the age of 70—good for them—in Canada. We don't have that here in America." He continued: "[A]bout one or two [of the 18 people] recidivated. . . . So one or two folks of the 18. So what this really tells you is, boy, oh, boy. You probably don't want to use the Static-99 a lot on folks over 70 because that's a small, bitty, tiny number. That's just not very many folks." Referring to Dr. Hanson's graph, which showed sex offender recidivism by age, Dr. K. noted: "And then by the time you're 70, they didn't have anybody to study in the sample." Dr. K. explained: "[S]o the guys who are really sex offending a lot are these guys in their 30's. They're who you really need to be concerned with . . . But beyond 59, 60, they just really—it just really goes down." In his report, Dr. K. concluded defendant was, "simply too old for the scientist in me to conclude that he remains a serious and well-founded risk of sexually offending."
During her cross-examination of Dr. K, the prosecutor asked someone to retrieve her "pile" of 11 exhibits to show to Dr. K. She explained: "[T]his is just some stuff in San Bernardino County that I was able to gather up. It may be just because the water is different out here." She then asked Dr. K. if he was familiar with court records, charging documents, plea forms, and abstracts of judgment, and he responded that he was. Next, she asked if he was "familiar with the case of the People of the State of California versus James Miller?"
At that point, defense counsel raised a relevance objection, and there was a sidebar conference. During the sidebar conference, defense counsel argued that the impeachment evidence was irrelevant, that it was improper impeachment, and constituted a discovery violation. The court overruled the objections, and the prosecutor continued her cross examination of Dr. K., saying: "And I guess when I asked you, are you familiar with the case of People versus James Miller, that's kind of a trick question. I didn't really expect you to be familiar with the case."
Using the court records, the prosecutor asked about a 2012 San Bernardino case involving a conviction for committing a lewd act upon a child involving a defendant who was over the age of 70 at the time of the offense. She then asked Dr. K. about a 2014 child molestation conviction involving a defendant who was 77 years old at the time of the offense. She asked Dr. K. about four additional cases involving lewd acts or other sex offenses against children, which were committed in 2013, 2014, 2015, and 2016, and which involved defendants who were over the age of 70 at the time of the offenses. Rather than asking about any more of the 11 case examples, the prosecutor said: "I think I made my point." On redirect, defense counsel noted that the Static-99R included some reoffenders over the age of 70, and Dr. K. quipped: "[T]he [district attorney] found all those folks," and clarified that he did not believe defendant was one of those people.
The next day, defense counsel moved for a mistrial "based on the improper admission from the cases from San Bernardino." She argued that the impeachment evidence should have been excluded because it was irrelevant and more prejudicial than probative. The prosecutor responded that the evidence was appropriate impeachment of Dr. K.'s opinions. The court denied the motion, explaining that Dr. K.'s testimony was very broad in asserting that it is "very, very rare" for men over the age of 70 to reoffend. The court later admitted the exhibits of the 11 case examples into evidence. B. Applicable Law and Standard of Review
Only relevant evidence is admissible (Evid. Code, § 350) and relevant evidence includes "evidence relevant to the credibility of a witness . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Under Evidence Code section 352, the trial court has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will unduly consume time, create substantial danger of undue prejudice, confuse issues, or mislead the jury. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
"[I]t is well settled that the scope of cross-examination of an expert witness is especially broad; a prosecutor may bring in facts beyond those introduced on direct examination in order to explore the grounds and reliability of the expert's opinion. [Citations.]" (People v. Lancaster (2007) 41 Cal.4th 50, 105.) Indeed, Evidence Code section 721, subdivision (a) provides that an expert witness "may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to . . . the subject to which his or her expert testimony relates, and . . . the matter upon which his or her opinion is based and the reasons for his or her opinion." (Italics added.)
"A party may cross-examine an expert witness more extensively and searchingly than a lay witness, and the prosecution [is] entitled to attempt to discredit the expert's opinion. . . . Once an expert offers his opinion, . . . he exposes himself to the kind of inquiry which ordinarily would have no place in the cross-examination of a factual witness. The expert invites investigation into the extent of his knowledge, the reasons for his opinion including facts and other matters upon which it is based [citation], and which he took into consideration; and he may be subjected to the most rigid cross-examination concerning his qualifications, and his opinion and its sources [citation]. . . ." (People v. Henriquez (2017) 4 Cal.5th 1, 26, internal quotations & italics omitted.)
We review a trial court's rulings on the admissibility of evidence under Evidence Code section 352, and on the permissible scope of an expert witness's cross-examination, for an abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 123; People v. Valdez (2012) 55 Cal.4th 82, 133.) The court's denial of a motion for a mistrial is also reviewed for an abuse of discretion. (People v. Clark (2011) 52 Cal.4th 856, 990.) A motion for mistrial should be granted "'only when a party's chances of receiving a fair trial have been irreparably damaged . . . .'" (Ibid.) "Whether a particular incident is incurably prejudicial requires a nuanced, fact-based analysis." (People v. Chatman (2006) 38 Cal.4th 344, 369-370.) Here, we conclude that the trial court did not abuse its discretion in admitting the impeachment evidence or in denying defendant's motion for a mistrial based on the prosecutor's use of that evidence. C. The Impeachment Evidence Was Properly Admitted
Dr. K.'s expert opinion testimony was properly impeached with the prosecution's evidence that 11 sex offenders had, in recent years, been convicted of committing lewd acts or other sex crimes against children, in San Bernardino County, when the sex offenders were over age 70. Throughout his testimony, Dr. K. consistently indicated that the number of sex offenders who reoffended after they reached age 70 was so rare that virtually no such persons existed. He explained that Dr. Hanson's research, underlying the Static-99R test, which followed 44,000 sex offenders, included "very few" offenders over the age of 70, and "[w]e don't study above 60, really." "When we're looking at those 44,000 guys, they're all under 60." "[M]ost of what we know about older offenders is from [Canada] because in [Canada] at least they keep people [a] shorter amount of time so they have more 70 year olds to study." Dr. K. also noted that, in Dr. Hanson's research, only "one or two folks of the 18" people over the age of 70 that they were able to follow had reoffended. Dr. K. explained: "[T]hey actually found sex offenders over the age of 70—good for them—in Canada. We don't have that here in America." Dr. K. said the number of sex offenders who reoffend when over the age of 70 is "a small, bitty, tiny number."
Dr. K. based his expert opinion that defendant was not likely to reoffend squarely on defendant's age of 74 years. He opined that, if defendant was still age 53 or 54, he would likely reoffend, but because he was age 74, he was not likely to reoffend. His conclusion that defendant's age made him not likely to reoffend was, in turn, based on Dr. Hanson's statistical data showing that very few individuals over the age of 70 had reoffended. His testimony made it appear that virtually no sex offenders ever reoffended after they reached age 70, or even age 60.
In this context, the prosecutor's 11 case examples were relevant and admissible to contradict Dr. K.'s testimony indicating that virtually no sex offenders over the age of 70 ever reoffend. "A party may impeach an expert witness by contradiction, i.e., by showing the falsity of any matter upon which the expert based his opinion. This can be done either by cross-examination of the expert or by calling other witnesses to offer evidence showing the nonexistence or error in the data upon which the first expert based his opinion." (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 922-923.) The prosecutor's impeachment evidence that 11 men over age 70 had, in recent years, committed lewd acts or other sex offenses against children in San Bernardino County, contradicted Dr. K.'s broad claim that sex offenses committed by individuals over the age of 70 in America were "a small, bitty, tiny number[,]" or that their numbers were so small that such individuals virtually did not exist. Thus, we find no abuse of discretion in the use or admission of the impeachment evidence.
Defendant argues that "the prosecutor's cross-examination and exhibits were pointless" because they did not show that "old men committing sex offenses [was] not rare." Defendant points out that Dr. K. did not claim that no sex offenders reoffended after they reached age 70; rather, Dr. K. only claimed that it was rare for a sex offender to reoffend after age 70. He argues the 11 case examples merely showed it is possible for elderly men to commit sex offenses against children—a point which Dr. K. did not dispute—but did not show that such offenses are not rare. This argument mischaracterizes Dr. K.'s testimony. Although Dr. K. did not testify that no sex offenders ever reoffended once they reached age 70, his testimony made it appear that septuagenarian sex offenders were so rare that there were virtually none of them, particularly in the United States. In this context, the prosecutor's 11 case examples were properly admitted because they countered Dr. K.'s point that sex offenses, or reoffenses, by men over age 70 are so rare they are virtually nonexistent.
In a similar vein, defendant claims the impeachment evidence was not relevant because it was anecdotal and therefore insufficient to show that cases of sex offenders are not, in fact, rare. He argues that "nothing supported [an inference that] the eleven old men show[ed] a lack of rarity, as nothing provided a statistical measuring stick. Without it, the eleven aged offenders could be 11 noodles in a sea of sex offender soup." This point concerns the weight of the impeachment evidence, not its relevancy or admissibility. Again, the impeachment evidence countered Dr. K.'s broad statements indicating that septuagenarian sex offenders or reoffenders are so rare that virtually none of them exist. On that point, the impeachment evidence was relevant and properly admitted. The defense was free to argue that the impeachment evidence failed to show that septuagenarian sex offenders are not rare.
In addition to challenging its relevancy, defendant claims the impeachment evidence should have been excluded under Evidence Code section 352 because it was unduly prejudicial, and so prejudicial it deprived him of his due process right to a fair trial. (People v. Merriman (2014) 60 Cal.4th 1, 70.) Again, we disagree.
"'"The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues."'" (People v. Henriquez, supra, 4 Cal.5th at p. 28.) Nothing about any of the prosecutor's 11 case examples uniquely tended to evoke an emotional bias against defendant as an individual. Indeed, the jury must have understood that none of the 11 case examples involved defendant. Thus, none of the impeachment evidence was prejudicial, much less so prejudicial that it deprived defendant of his due process right to a fair trial. As discussed, the impeachment evidence was relevant to counter Dr. K.'s broad claim that there are virtually no cases of men over age 70 committing sex offenses against children. Defendant implies that, in using the impeachment evidence, the prosecutor used deceptive tactics that "were more than a little absurd, beneath the dignity of anyone who passed the California Bar Exam." We strongly disagree. Although the prosecutor referred to her "pile" of 11 case examples as "real facts, the hard stuff," the jury was not misled to believe that the prosecutor had an endless "stack" of case examples, as defendant implies. In fact, all 11 of the examples the prosecutor referred to were admitted into evidence for the jury to examine. Defense counsel was free to argue that all of the evidence showed, and that all of the testifying experts agreed, that sex offenders rarely reoffended once they reached age 70.
As defendant points out, the court admitted over 100 pages of exhibits showing the 11 case examples. Although these exhibits include references to "the multiplicity of charges, custody, fees, and fines," committed by sex offenders over age 70, none of that information involved defendant. The jury must have understood that the point of the exhibits was to show that there are cases of men over age 70 who have committed sex offenses against children.
In a similar vein, defendant argues the prosecutor "ambushed" Dr. K. by "slyly implying" that he knew or should have known about some of the 11 case examples. He criticizes the prosecutor for asking Dr. K. if he was familiar with the first case example before saying she was "just joking, and that was a trick question." We discern nothing deceptive about the prosecutor's questions of Dr. K. The record shows that Dr. K. set a lively and sometimes comical tone throughout his testimony, and that the prosecutor responded with friendly banter of her own. There was nothing deceptive or reprehensible about the prosecutor's use of the impeachment evidence, or the manner in which she questioned Dr. K. about the impeachment evidence. We are convinced that the jury recognized the prosecutor's questioning of Dr. K. as entirely good-natured, and not in the least deceptive. D. The Impeachment Evidence Was Not Prejudicial
Even if the impeachment evidence was erroneously used or admitted, it was not prejudicial to defendant. (People v. Watson, supra, 46 Cal.2d at p. 836.) There is not a reasonable probability, a reasonable chance, or more than an abstract possibility (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715) that the jury would have found defendant was not likely to reoffend, and was therefore not an SVP, had the impeachment evidence not been used or admitted (cf. People v. Roa (2017) 11 Cal.App.5th 428, 454-455 [finding reversible Watson error in admission of case-specific hearsay in SVP civil proceeding]).
First, the evidence that defendant was likely to reoffend if released was compelling. All of the testifying expert psychologists agreed that defendant's age of 74 years made him less likely to reoffend. But the prosecution's experts credibly explained why they believed defendant posed a serious risk of reoffending: He was sexually preoccupied; he did not submit well to supervision; he did not follow rules; he had an extraordinarily poor ability to control himself; he had a history of committing sex offenses against children, then reoffending and committing sex offenses against other children; and he had refused to attend the sex offender treatment program at Coalinga State Hospital during the entire 10 years he had been in the hospital. He was also deemed unamenable to sex offender treatment during the early 1980's, following his 1978 offenses against Alan. Further, all of the experts agreed that, while only 6 percent of California sex offenders reoffend, defendant was in that 6 percent because he reoffended in 1989.
Second, although defense counsel effectively minimized the probative value of the impeachment evidence during her closing argument, the jury was still not convinced that defendant was not likely to reoffend. Defense counsel pointed out that the prosecutor had found only 11 cases of men over age 70 who had been convicted of molesting children in San Bernardino County during the previous 10 years. She asked, rhetorically: "How many thousands of prosecutions and convictions have there been for child molestation in the last decade? . . . [The prosecutor] gave you a little tiny piece of a very incomplete picture because there was nothing to substantiate it. Nothing in what she gave you changes risk of reoffense with [defendant]. Nothing. There wasn't a doctor up there that said, Oh, no, they don't ever reoffend. . . . It's just not as likely. So showing you a handful of cases gathered over ten years, that doesn't have anything to do with this data. It's just a distractor."
As the People point out, defense counsel's argument "ensured that the jury kept [the impeachment evidence] in perspective." Still, in finding defendant was an SVP, the jury implicitly found beyond a reasonable doubt that defendant was likely to reoffend. Thus, we are not persuaded that there is a reasonable chance that the use or admission of the impeachment evidence affected the verdict.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. SLOUGH
J.