Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. 210963
ELIA, J.After a jury found that Robert Segura (Segura) is a sexually violent predator (SVP), the court committed him to the custody of the state Department of Mental Health (DMH) for two years.
At the time of Segura's commitment Welfare and Institutions Code section 6604 provided for a two-year commitment. (Welf. & Inst.Code § 6604, added by Stats.1995, ch. 763 (Assem. Bill 888), § 3. Amended by Stats.2000, ch. 420 (Sen. Bill 2018), § 3, eff. Sept. 13, 2000.) On November 7, 2006, California voters approved Proposition 83, also known as Jessica's Law, which made substantive changes to the SVPA. It became effective November 8, 2006. For example, as amended, section 6600 requires that the People prove a sexually violent offense against only one or more victims. (§ 6600, subd. (a)(1), Prop. 83, § 24, approved Nov. 7, 2006, eff. Nov. 8, 2006.) Currently, section 6604 provides for an indeterminate term of commitment. (§ 6604, Prop. 83, § 24, approved Nov. 7, 2006, eff. Nov. 8, 2006.) We apply the statute in effect at the time of Segura's trial in June 2006. We cite the current statute if the relevant language or provision was unaltered by Proposition 83.
Segura appeals from his SVP commitment raising the following seven contentions: his right to due process and a fair trial was violated when the court denied his right to present witnesses in his defense; strict application of the civil discovery statutes in SVP proceedings violates equal protection; the trial court prejudicially erred in excluding all of his lay witnesses; the trial court erred by refusing to grant a mistrial based on the prosecution's failure to turn over notes of the state experts to the defense; the court's cumulative errors require reversal; the SVP law violates the ex post facto clause of the federal Constitution; and the SVP law violates the equal protection clause of the federal Constitution. We agree with Segura's first contention. Accordingly, we reverse and remand to the trial court for a new SVP trial.
The Relevant Law
The Sexually Violent Predators Act (the Act or SVPA) provides for the involuntary commitment of SVPs. (Welf. & Inst. Code, §§ 6600 et seq.) Former section 6600, subdivision (a)(1) defined an SVP as "a person who has been convicted of a sexually violent offense against two or more victims and who has adiagnosed 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." (Stats. 2000, ch. 643, § ___, p.___.) Section 6600, subdivision (c) defines "diagnosed mental disorder" to include "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."
Unless noted, all statutory references are to the Welfare and Institutions Code.
Under the Act, the district attorney initiates the commitment proceedings by filing a petition to declare a person an SVP. (§ 6601.) If a court finds probable cause to believe the person qualifies as an SVP, then the person is entitled to a trial, by jury if requested. (§§ 6602, 6603.) At trial, the trier of fact is charged with determining whether the requirements for classification as an SVP have been established "beyond a reasonable doubt." (§ 6604.)
The process usually begins when the Department of Corrections determines that an inmate approaching release may be a sexually violent predator, and refers him to the Department of Mental Health (DMH) for evaluation by two psychologists or psychiatrists. If the evaluators agree that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the DMH forwards a request for civil commitment to the county to file a petition for commitment in superior court. (§ 6601, subds. (a)(1), (b), (d).)
Facts and Proceedings Below
We begin with a brief overview of the procedural history of this case and the facts relating to Segura and expert witness testimony supporting his commitment. As necessary, we provide additional factual and procedural details in our discussion of Segura's contentions.
On April 28, 2005, the Santa Clara County District Attorney filed a petition to commit Segura as an SVP pursuant to section 6604. Segura's prison sentence was due to expire on June 18, 2005.
On October 21, 2005, the court found there was probable cause to believe that Segura was likely to engage in sexually violent predatory behavior if released from prison. Accordingly, the court ordered that he remain in custody until trial. Subsequently, the court set a trial date of June 12, 2006.
During trial, counsel for both parties stipulated that in case number 66924 Segura had been convicted of two felony violations of Penal Code section 288, lewd or lascivious act on a child, involving two different victims; that as a result of these convictions Segura was found to be a "Mentally Disordered Sex Offender"; that subsequently, Segura was granted probation in case number 66924; that in case number 184164, Segura was convicted of four felony violations of Penal Code section 288, subdivision (a), which resulted in a determinate prison term.
Since none of Segura's contentions relate to whether these offenses were sexually violent we do not find it necessary to relate the facts underlying Segura's convictions.
Psychologists Dr. Jack Vognsen and Dr. Dawn Starr testified as expert witnesses for the People. Dr. Vognsen diagnosed Segura with anti-social personality disorder, polysubstance abuse in institutional remission and pedophilia. Dr. Starr testified to a similar diagnosis. Dr. Vognsen opined that Segura's pedophilia is a lifelong chronic condition that affects his emotional and volitional capacity making it likely that he will reoffend. Further, Dr.Vognsen opined that Segura was at risk to reoffend in a "sexual and violent manner" if released based his score on the Static 99, an actuarial instrument for predicting sexual recidivism; Segura's score on the RRASOR another actuarial instrument, which put Segura in the very high risk category for reoffending; Segura's relatively high score on the psychopathy checklist; Segura's personality disorder; prior failure in sex offender treatment; general criminality and lifestyle instability; intimacy deficits; poor sexual self regulation; and poor cooperation with supervision.
According to Dr. Vognsen, an actuarial instrument is a statistical compilation of risk.
RRASOR stands for rapid risk assessment of sex offender recidivism.
It appears that Segura was committed to the state hospital as a mentally disordered sex offender (MDSO) after he pleaded no contest to two counts of lewd or lascivious conduct in case number 66924. After two or three years, Segura was referred back to court by hospital staff because he refused to submit to psychological treatment or involve himself in treatment. Thereafter, he was sentenced to five years probation on the condition that he serve a one-year county jail term, participate in psychological counseling and stay away from children. Subsequently, Segura violated his probation by failing to report to his probation officer and for living in a household with children.
Dr. Starr opined that Segura was likely to commit future sexually violent predatory acts without appropriate treatment and custody. Dr. Starr based her opinion on Segura's score on the Static 99, which put him in the high risk category to reoffend; Segura's antisocial personality disorder; his high level of sexual deviancy as reflected in the fact that he has sex convictions both as a juvenile and adult and his having two or more victims under the age of 12; Segura's prior failure in sex offender treatment; his unstable lifestyle as reflected in his lack of regular employment, history of childhood maladjustment and probation violations; his relatively high score on the psychopathy checklist; his intimacy deficits; Segura's poor sexual self regulation; his sexual attitudes; and his failure to see himself as at risk for reoffending. In Dr. Starr's opinion, Segura was not amenable to treatment in the community because when he was out of custody Segura did not try to seek treatment and Segura did not "really believe he needed treatment."
On June 21, 2006, following approximately three days of trial testimony, a jury found that Segura is a sexually violent predator within the meaning of section 6600. As noted, thereafter, the court committed Segura to the Department of Mental Health for two years.
Discussion
Due Process
Segura contends that his right to due process and a fair trial was violated when the trial court denied his right to present witnesses in his defense.
Background
Before trial, on May 11, 2006, the district attorney filed a written motion in limine requesting that Segura be "precluded from calling any witnesses, given a violation of [the] discovery rules." In the motion, the district attorney explained that April 25, 2006 was the deadline for discovery exchange. Further, although Segura's counsel had indicated that Segura had retained Dr. Halon as an evaluator, counsel did not provide a narrative of his qualifications, the general substance of his expected testimony, or his reports and writings. However, the district attorney indicated that on May 10, Segura's counsel had sent him a copy of Dr. Halon's report, but did not supply the interview notes or copies of the tests he administered. According to the district attorney, Segura's counsel explained that Dr. Halon was refusing to turn over the materials to the prosecutor because of ethical and copyright considerations. However, Dr. Halon would send the material to a state evaluator designated by the district attorney.
In her written response, Segura's counsel reiterated Dr. Halon's position concerning his notes and the testing materials he had used. Attached to counsel's response was a letter from Dr. Halon to a judge in another SVP case, involving the same deputy district attorney as this case, in which the same issue was addressed. In addition, Segura's counsel included a letter from NCS Pearson Inc., a Minnesota corporation with the exclusive license for the distribution of the MMPI-2 test, which had been sent to Dr. Halon. In this letter, NCS Pearson Inc. advised Dr. Halon that the company did not waive its trade secret protection. However, NCS Pearson Inc. suggested that if the court ordered Dr. Halon to turn over the testing materials, he turn them over to another qualified professional. Further, NCS Pearson Inc. suggested that if the court determined that it was "absolutely necessary" to disclose the testing material, appropriate protective agreements should be used to "satisfy the needs and concerns of all involved."
In addition, in her written motion, Segura's counsel noted that two state evaluators had prepared updated reports, which she had not received. Accordingly, Segura's counsel argued that the People were not in compliance with the discovery rules and the court should order that the reports be produced before jury selection was to begin.
On May 18, during the hearing on in limine motions, Segura's counsel clarified that Dr. Halon's report was sent late to the People because "we were on another line of strategy with Mr. Segura for a long period of time," during which time counsel had engaged another evaluator. Counsel went on to explain, "for reasons that I cannot tell you on the record, I have decided to go with Dr. Halon instead." Furthermore, counsel explained that the People knew of Dr. Halon's reluctance to provide his notes and testing materials would be a problem because "This has all come up in every single case in which Dr. Halon is in fact an expert . . . ." Segura's counsel went on to explain that when she decided to hire Dr. Halon she informed the district attorney of the fact. Further, knowing that discovery would be an issue she told the district attorney to designate a state evaluator to whom she could send Dr. Halon's notes and testing materials. As soon as Dr. Halon submitted his report she sent it to the district attorney with the proposed "compromise solution," which involved sending Dr. Halon's notes and testing materials to one of the state evaluators.
The court questioned the district attorney as to whether in previous cases the court had issued an order for Dr. Halon to produce his notes and copies of the testing materials he had used. The district attorney responded that had happened in another case, but in response to the order he received only Dr. Halon's notes, not the testing materials. The court asked the district attorney if he had received Dr. Halon's notes in this case. Counsel responded that he had not.
Then, the court restricted counsel to arguing why Dr. Halon's notes should not be turned over. The court noted that it was "aware" that the "copyright trade secret" issue "may be a legitimate issue that may need to be more fully addressed . . . ." Segura's counsel argued "the problem" was that the court was asking her to do something that Dr. Halon was not willing to do. Segura's counsel explained that the compromise she had suggested would satisfy both Dr. Halon's ethical obligations and legal obligations, "which would solve all of the problems." The court responded that Segura's counsel was forcing the district attorney "to accept a compromise which by law and right [counsel] is not obligated to accept. It compels [counsel] to give up rights granted absolutely clearly and unequivocally by statute in this proceeding." Thereafter, Segura's counsel indicated that she was not sure that Dr. Halon had made any written notes.
The district attorney pointed out to the court that discovery in this case was due on April 25, but he had not received Dr. Halon's report until May 10. For that reason, "the conversation ends there in terms of the motion to exclude in regards to timeliness of their disclosure. The fact that it's incomplete is extra in terms of the violation of the spirit and why we have the discovery rules.
The court informed counsel that it would take the matter under submission. The court explained that there were concerns "with respect to the confidentiality issues regarding the specific testing materials." Further, the court noted that there was no question that Dr. Halon's report had not been provided to the district attorney in a timely manner. The court noted, however, that the late decision made by Segura's counsel to change evaluators "may have some impact on that and neither party has addressed that in the motion . . . ." The court indicated that counsel might wish to submit further briefing on that matter and "counsel's obligation with respect to this reluctant witness . . . ."
Regarding discovery of the state evaluators' updated report, the court ordered that the reports be made available to Segura's counsel no later that than 5 p.m. the next day. Thereafter, Segura's counsel complained that the omission of these reports was equivalent to her failure to provide timely discovery of Dr. Halon's materials. Counsel argued that she was trying to draw the court's attention to "the fact that to make a decision against one side when the other side has just the same problem, it seems to be a bit unfair." The district attorney responded that the two situations were not the same because updated reports generated by the DMH are sent to both parties at the same time. Moreover, the district attorney pointed out that DMH evaluators are not experts retained by the People, but independent contractors chosen by the DMH. Thus, they were not a party or an employee of a party or retained by a party, which are the categories to which the statutes governing discovery on expert witnesses apply. Accordingly, the district attorney argued Code of Civil Procedure section 2034.310 did not apply. The court indicated that it understood Segura's counsel's "tit for tat" argument, but the court had made an order that the updated reports be turned over to the district attorney.
Thereafter, at the end of the hearing on counsels' in limine motions, the court returned to the discovery issues noting that the court had some "significant concerns" and there were "legitimate question[s] with respect to the copyright and trademark issues." Accordingly, the court suggested that Segura's counsel "consider very seriously preparing an order for [the] Court to secure the materials for the People that should be provided through discovery procedures, notwithstanding the lateness issue." The court went on to explain that regarding Dr. Halon's notes, "there is nothing that would justify the failure to provide those. [¶] With respect to the copyrighted and trademark protected materials, there is nothing to preclude those being submitted to the Court for in camera review . . . ." In short, the court ordered Segura's counsel to provide Dr. Halon's notes and the "So-called trade secret copyrighted protection would be privileged for in camera review by the Court." Segura's counsel asked the court when this should happen. The court set May 25 at 1:45 p.m. for production of the records.
Subsequently, on May 19, 2006, the court issued an order for Dr. Halon to produce "notes from interviews, all psychological testing he performed on Mr. Robert Segura, including but not limited to: Minnesota Multiphasic Personality Inventory – 2 (MMP12) [sic], Rorschach Inkblot Test (RT), Shipley Institute of Living Scale (SILS). Said psychological testing information shall include the test questions, answers, raw test scores, notes and any/all written interpretation/scoring." It appears that the district attorney prepared the order for the court to sign. On May 22, 2006, the court issued a protective order that stated, "The psychological testing performed on Mr. Robert Segura by Dr. Robert Halon that is ordered sent to Deputy District Attorney James S. Cahan is subject to the following protections: Neither Deputy District Attorney James S. Cahan nor Ms. Lindy Hayes, attorney of record for respondent, may disclose or permit to be disclosed . . . the psychological testing to anyone other than the proposed psychologist witnesses in the instant case. The psychological testing may be discussed with other attorneys within the respective offices, but no other copies of the testing shall be made. Such psychological testing can only be used in the preparation for trial and in trial and shall not be disseminated to any other member of the public. Persons provided this material by an attorney shall be informed by the attorney that further dissemination of the material is prohibited." Again, it appears that the district attorney prepared the order for the court to sign.
Following a hearing, on May 25, 2006, after determining that Dr. Halon had not provided the discovery that the court had ordered him to produce, the court found an "absolute violation of the discovery principles . . . ." As a result, the court ordered that Dr. Halon not be permitted to testify. For the record, Segura's counsel objected to the court's order "based on the equal protection and due process clause of the United States Constitution."
The court explained that it was reluctant to exclude Dr. Halon's testimony "in the interest of a full and fair hearing." However, the court went on to note that Segura's counsel "was fully aware that Doctor Halon did not intend to provide those materials. She made no effort prior to the hearing last Thursday to secure an order of Court or by any other means attempt to compel his production of those materials but rather left it to the very last minute. [¶] We have a trial date set two weeks hence. And it was argued it was essentially incumbent upon the district attorney to take whatever efforts were necessary to compel production of those documents. This Court does not plan to allow Doctor Halon to continue to benefit from the payment of county funds for services rendered in cases such as this and at the same time to attempt to dictate how these proceedings will continue."
On June 15, 2006, on the day scheduled for jury selection, the court noted that a package postmarked May 25, 2006 had been sent to the district attorney's office, but had not arrived until June 2, 2006. Defense counsel moved for reconsideration of the court's order precluding Dr. Halon from testifying. Segura's counsel contended that the court's application of the civil discovery statutes to exclude Dr. Halon's testimony conflicted with the goals of the SVPA. In addition, Segura's counsel argued that the district attorney had unclean hands because she had not received supplemental reports from the prosecutor until May 19, 2006, after the date set by the district attorney for mutual discovery. Furthermore, the district attorney had not made a declaration of expert witnesses. The court denied the motion for reconsideration.
As of the June 12 hearing, by agreement with Segura's counsel, the district attorney had not viewed the contents of the package. Apparently, Segura's counsel believed that it was inappropriate for the prosecutor to view the materials in light of the order excluding Dr. Halon from testifying. Segura's counsel explained to the court that it was her "feeling that if the [district attorney] opened them and examined them, an exclusion order remained in effect, they would then have access to materials which were at that point confidential . . . ."
The court did make a record of the contents of the envelope received from Dr. Halon: 15 pages of handwritten notes; a two-page disclosure agreement; a typed seven-page document entitled "preparation for Segura SVP"; a sealed envelope stating that information enclosed was protected by copyright, which contained the Western Psychological Services Administration Test Form and a three-page interpretative report with numerous statistics and test questions; the Rorschach Interpretation Assistance Program Interpretative Report with related notes; and a Rorschach location report.
On appeal, Segura frames the issue as one of a denial of due process and a fair trial. Specifically, that he was denied due process and a fair trial when the court denied his right to present witnesses in his defense. Alternatively, Segura contends that assuming arguendo that he violated the discovery statute, the sanction of exclusion was not justified.
The People argue that under the express terms of Code of Civil Procedure section 2034.300, the trial court properly excluded Dr. Halon's expert testimony. The People make no argument that Segura does not have a due process right to present witnesses in his defense.
Code of Civil Procedure section 2034.300 provides " . . . on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: . . . [¶] (c) Produce reports and writings of expert witnesses under Section 2034.270."
There is little doubt that the Civil Discovery Act applies in commitment proceedings under the Act. For instance in Leake v. Superior Court (2001) 87 Cal.App.4th 675 (disapproved on another ground in People v. Yartz (2005) 37 Cal.4th 529, 537), the court reasoned that when the Legislature "enacted the [Act] as a . . . special proceeding of a civil nature" (Leake v. Superior Court, supra, 87 Cal.App.4th at p. 680), it knew the Civil Discovery Act applied to such proceedings and intended discovery to apply. (Id. at. pp. 682-683.)
Nevertheless, "Pursuant to section 6603, subdivision (a), a person subject to commitment under the Act has a right to counsel and a right to retain experts or professionals to perform examinations on his or her behalf-and of course he or she also has a right to present the resulting evidence to the jury." (Albertson v. Superior Court (2001) 25 Cal.4th 796, 803.) However, Segura's right to present conflicting testimony of his own is a statutory right.
Accordingly, initially, the question that we must answer is does the due process clause of the federal or California Constitution provide Segura a constitutional right to present expert witness testimony in his defense.
"[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." (Boddie v. Connecticut (1971) 401 U.S. 371, 377.) Due process is a flexible concept. At its core is a right to be meaningfully heard, but its minimum requirements depend on what is fair in a particular context. (Mathews v. Eldridge (1976) 424 U.S. 319, 334; Demore v. Kim (2003) 538 U.S. 510, 551 (Souter, J., concurring) ["Due process calls for an individual determination before someone is locked away].")
The California Supreme Court has recognized that the SVPA's procedures "have many of the trappings of a criminal proceeding." (People v. Hurtado (2002) 28 Cal.4th 1179, 1192 (Hurtado).) Furthermore, because proceedings under the SVPA, are "civil proceedings with consequences comparable to a criminal conviction—involuntary commitment—often for an indefinite or renewable period, with associated damage to the defendant's name and reputation," courts have on occasion applied criminal law rules, or declined to apply civil law rules, in SVPA cases. (Ibid.)
Both the United States Supreme Court and the California Supreme Court have recognized that civil commitment constitutes a significant deprivation of liberty that requires due process protections. (See e.g. Addington v. Texas (1979) 441 U.S. 418, 425; Hurtado, supra, 28 Cal.4th at p. 1192 [proceedings under the SVPA, in common with proceedings under other civil commitment statutes, are civil proceedings with consequences comparable to a criminal conviction-involuntary commitment.) Simply, put, "Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections. [Citation.]" (People v. Otto (2001) 26 Cal.4th 200, 209 (Otto); Foucha v. Louisiana (1992) 504 U.S. 71, 80.)
In the context of a criminal case a defendant has the due process right to the assistance of expert witnesses, including the right to consult with a psychiatrist or psychologist, if necessary, to prepare his defense. (Ake v. Oklahoma (1985) 470 U.S. 68, 83 (Ake).) As the Ake court explained, the State may not maintain a strategic advantage over the defendant when that advantage casts a pall on the proceedings. (See Ake, supra, 470 U.S. at p. 79.) No less than a criminal defendant, a defendant under the SVPA is entitled to defend himself on a level playing field.
Ake holds that when an indigent defendant has demonstrated that his sanity is likely to be a significant factor in his defense on the issue of guilt, the state must provide the defendant with "access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." (Ake, supra, 470 U.S. at p. 83.)
"This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where . . . a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake." (Ake, supra,470 U.S. at p. 76.) Neutral experts are not sufficient because they would not be able to advise the defense on how to cross-examine them while on the stand in order to find the flaws in their methodology.
"The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process." (Chambers v. Mississippi (1973) 410 U.S. 284, 294.)
In a criminal case, the right to present witnesses to establish a defense is specifically found in the Sixth Amendment right to compulsory process. (Washington v. Texas (1967) 388 U.S. 14 (Washington).) However, in Washington, the Supreme Court held that the right was so fundamental to a fair trial that it was incorporated in the due process clause of the Fourteenth Amendment. "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." (Washington, supra, 388 U.S. at p. 19.)
The California Supreme Court in Otto, supra, 26 Cal.4th 200 applied four factors to determine what process is due in a SVPA proceeding: "(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official." (Id. at p. 210.)
Following our Supreme Court's instruction in Otto, we apply the four factors listed above to determine whether due process requires that a defendant present the evidence of his expert witness in a proceeding under the SVPA. Initially, we recognize that the private interests affected by civil commitment under the SVPA include liberty, reputation, and freedom from unwanted treatment. The first factor weighs heavily in Segura's favor. Segura, like all defendants in SVP cases, will be impacted significantly by the outcome of the proceedings; "the private interests that will be affected by the official action are significant limitations on [defendant's] liberty, the stigma of being classified as an SVP, and subjection to unwanted treatment." (Otto, supra, 26 Cal.4th at p. 210.)
Next, we determine the probable value of the right to have a defense expert witness testify as an additional procedural safeguard against the erroneous deprivation of the private interests affected by proceedings under the SPVA. Again, this factor weighs slightly in Segura's favor. Although existing protections indicate that there is a minimal risk of erroneously depriving Segura of his liberty, the issues before the jury are narrowly focused to include a determination of whether Segura has a mental disease. "Psychiatry is not . . . an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness." (Ake, supra,470 U.S. at p. 81.)
Before commitment proceedings may even be initiated against a suspected SVP, two independent evaluators must agree that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody. (§ 6601, subds. (a),(c) & (d).) Furthermore, as noted, the trier of fact is charged with determining whether the requirements for classification as an SVP have been established "beyond a reasonable doubt." (§ 6604.) Moreover, at all stages of an SVP proceeding, the defendant has the right to counsel, including appointed counsel and the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. (§ 6603.) Finally, Segura had the opportunity to cross-examine any prosecution witness who testified.
Third, we take into account the government's interest in SVPA proceedings and the fiscal or administrative burden that a right to have an expert witness testify for the defense might have. The SVPA "articulates the strong government interest in protecting the public from those who are dangerous and mentally ill." (Otto, supra, 26 Cal.4th at p. 214.) Nevertheless, this factor does not weigh against finding a constitutional right to have an expert witness for the defense testify in the proceedings because it is unlikely to place a significant fiscal or administrative burden on the government or potentially impede the government's interest in protecting the public.
Finally, we consider whether a right to have an expert witness testify for the defense is necessary to safeguard a defendant's dignitary interest in an SVPA proceeding. The California Supreme Court has explained that a person subject to the SPVA has a dignitary interest "in being informed of the nature, grounds and consequences of the SVP commitment proceeding" and in "presenting his side of the story before a responsible government official." (Otto, supra, 26 Cal.4th at p. 215.) As to this factor, we fail to see how a defendant in an SVP proceeding can present his side of the story on the issue of whether he has a mental disease when the court precludes his expert witness from testifying.
Application of the Otto factors lead inexorably to the conclusion that a defendant in an SVP proceeding has a due process right to present the testimony of his expert witness. As this court has said before, due process in an SVPA proceeding can be satisfied only where "the defendant has the opportunity to thoroughly present his side of the story." (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154.)
In this case, strict application of the civil discovery statutes effectively emasculated Segura's right to present his side of the story. The serious consequences of an SVP commitment militate against a potentially adverse judgment being rendered without Segura being able to present contrary evidence. As noted, the People must prove, beyond a reasonable doubt, that the person is a sexually violent predator. A sexually violent predator is defined, in part, as a person who "has adiagnosed mental disorder" that makes it likely he or she "will engage in acts of sexual violence without appropriate treatment." (§ 6601, subd. (d).) Thus, if Segura could have shown through expert testimony that he does not have a diagnosed mental disorder that makes it likely he will engage in acts of sexual violence without treatment, he could have created reasonable doubt that he is an SVP. Nowhere do the People dispute that Dr. Halon's testimony would have been relevant and material, and that it was vital to the defense.
Nevertheless, because the government's interest "in protecting the public from those who are dangerous and mentally ill" (Otto, supra, 26 Cal.4th at p. 214) is equally as strong (see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1151 [the government also has a strong interest in protecting the public from persons who are dangerous to others]), a defendant in an SVP case cannot circumvent the discovery statutes.
The court must have discretion to fashion a remedy that is fair to both sides. As this court has said before, "While the Civil Discovery Act is applicable in SVPA proceedings, the right to civil discovery in special proceedings of a civil nature remains subject to the trial court's authority to manage discovery. [Citation.]" (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988-989 (Cheek).) Accordingly, we look to the criminal law for such a solution.
The People, relying on this court's opinion in Cheek, supra, 94 Cal.App.4th at page 995, argue that this court has "specifically rejected the notion that criminal discovery rules should apply in SVP cases because of the liberty interests at stake." However, the issue in Cheek was whether the right to civil discovery in SVPA proceedings includes the right to notice depositions. (Id. at p. 983.) The People argued that the burden of attending depositions on the district attorneys' offices and the Department of Mental Health could be avoided only if civil discovery was forbidden in SVPA proceedings and criminal discovery allowed to the extent permitted in juvenile delinquency proceedings. (Id. at p. 995.) This court rejected that argument (ibid.), but did not consider what would happen if the civil discovery statutes came into conflict with a defendant's statutory or due process rights. " 'It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.' [Citation.]" (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680.)
Even in a criminal case a defendant must comply with the discovery statutes. Specifically, Penal Code section 1054.5, subdivision (b), provides that "a court may make any order necessary to enforce the [discovery statutes], including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (Italics added.) Under federal law, the factors to be considered in determining whether the exclusion of testimony is an appropriate sanction include: "(1) the effectiveness of less severe sanctions, (2) the impact of preclusion on the evidence at trial and the outcome of the case, (3) the extent of prosecutorial surprise or prejudice, and (4) whether the violation was willful." (People v. Edwards (1993) 17 Cal.App.4th 1248, 1264.)
"[P]reclusion sanctions may be imposed against a criminal defendant only for the most egregious discovery abuse. Specifically, such sanctions should be reserved to those cases in which the record demonstrates a willful and deliberate violation which was motivated by a desire to obtain a tactical advantage at trial such as the plan to present fabricated testimony . . . ." (People v. Edwards, supra, 17 Cal.App.4that p. 1263.)
In Michigan v. Lucas (1991) 500 U.S. 145 (Lucas), the United States Supreme Court held a preclusion sanction may be imposed against a criminal defendant in a proper circumstance, but emphasized such cases are the exception rather than the rule. In Lucas, the defendant in a rape prosecution failed to give statutorily required notice of his intent to introduce evidence of prior sexual contact between himself and the victim. As a discovery sanction, the trial court excluded the evidence at trial. The state appellate court reversed and adopted a per se rule that notice requirements could never be used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant. The Supreme Court held the per se rule improper in that preclusion may be an acceptable sanction in some cases but noted that "[r]estrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence 'may not be arbitrary or disproportionate to the purposes they are designed to serve.' [Citation.]" (Id. at p. 151.)
The type of sanction imposed is within the trial court's sound discretion (see People v. Gill (1997) 60 Cal.App.4th 743, 749; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203). If we were dealing with a criminal case, we would review the imposition of the sanction under an abuse of discretion standard. (People v. Edwards, supra, 17 Cal.App.4that p. 1264.)
In People v. Gonzales (1994) 22 Cal.App.4th 1744, the court concluded that, if exclusion of evidence is ordered because of prejudice to the surprised party, the prejudice must be "substantial and irremediable." (Id. at p. 1757.) If exclusion is ordered to punish the offending party, there must be "a showing of significant prejudice and willful conduct." (Id. at p. 1758.) If the defense fails to disclose and there is an insufficient showing of prejudice to the prosecution or willfulness by the defense, exclusion of testimony proffered by the defense violates the defendant's right to compulsory process, and the prejudicial effect of the exclusion is reversible unless harmless beyond a reasonable doubt. (Id. at p. 1759.)
Here, the record amply supports an inference of willful and deliberate refusal by the defense to produce Dr. Halon's notes and testing materials. Defendant's counsel was aware even before Dr. Halon interviewed Segura that there would be a problem turning over these materials. Rather than seeking the help of the court to order Dr. Halon to turn over the materials with appropriate protective orders, defendant's counsel left that task to the district attorney. However, once the court signed the appropriate orders drafted by the district attorney, Segura's counsel immediately faxed them to Dr. Halon. Dr.Halon complied with the orders, albeit in a less than timely fashion.
Most other sanctions would have been ineffective in this case. Immediate disclosure was ordered and ignored until the very last minute; contempt proceedings would have been ineffectual because Segura was already in custody; and an order, preventing introduction of the notes and testing materials at trial, would have rewarded Segura's failure to comply. However, we note two things. First, where as here, the jury had not been impaneled, the court could have granted a continuance to allow the prosecution time to examine the materials that Dr. Halon sent on May 25. Second, if the court chose not to grant a continuance, an effective sanction less than preclusion was available. The court could have allowed Dr. Halon to testify and then instructed the jury that because of late discovery, the district attorney did not have adequate time to examine Dr. Halon's notes and the testing materials he used to draw his conclusions regarding Segura's diagnosis.
By refusing to allow Segura's expert witness to testify, Segura was forced to proceed to trial without an expert witness. Without expert testimony to dispute the State's two expert witnesses, Segura had virtually no chance of prevailing at trial. Reversal could have been avoided had the trial court been able to exercise its discretion using criminal law statutes.
We concluded that strict application of the civil discovery statutes denied Segura his right to present the testimony of his defense expert and this denied Segura due process. Accordingly, we must decide the remedy in this case. In determining whether a constitutional error is reversible under the federal Constitution, the United States Supreme Court distinguishes between "trial errors," which are subject to prejudice analysis, and "structural errors," which require automatic reversal. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-310.)
In Arizona v. Fulminante, supra, 499 U.S. at pages 307-308, the United States Supreme court described "trial errors" as those that occur "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless beyond a reasonable doubt." By contrast, "structural errors" are "structural defects in the constitution of the trial mechanism . . . affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Id. at pp. 309-310.) Structural errors are reversible per se because their effect cannot be " 'quantitatively assessed' [citation] by a comparison to other evidence admitted at trial." (People v. Flood (1998) 18 Cal.4th. 470, 510, (conc.opn.Werdegar, J.).)
We need not decide whether the exclusion of Segura's expert witness testimony is structural error or subject to the harmless beyond a reasonable doubt standard for federal constitutional error announced in Chapman v. California (1967) 386 U.S. 18, 22 (Chapman), because even under Chapman we cannot conclude that the error was harmless. We reiterate that one of the things that the jury had to decide was the question of whether Segura has a diagnosed mental disorder that makes him a danger to the health and safety of others. (§ 6600, subd. (a)(1).) The experts for the state testified that he does. Dr. Halon would have testified that he does not. Obviously, there was sufficient evidence presented that Segura does have a mental disorder that makes him dangerous. Nevertheless, it is not a question of sufficient evidence, but a question of the persuasive nature of that testimony when confronted by contrary evidence. We cannot conclude beyond a reasonable doubt that the jury would have completely disregarded the contrary evidence. For that reason, Segura is entitled to a new trial.
The California Supreme Court has determined that "Because the Chapman test [citation] that federal constitutional error is reversible unless shown to be harmless beyond a reasonable doubt is used for the review of federal constitutional error in civil commitment cases in California generally, that test necessarily governs review under the SVPA." (Hurtado, supra, 28 Cal.4th at p. 1194.)
Since this case must be returned to the trial court for a new trial we need not address Segura's contention that strict application of the civil discovery statutes violates equal protection or that there was cumulative error. We will, however, address several of Segura's other contentions for the guidance of the trial court and counsel on retrial.
Exclusion of Lay Witnesses
Before jury selection was to begin, the district attorney objected to certain witnesses on Segura's witness list on the grounds that he had received no notice that the witnesses would be testifying until that morning and because he saw no relevance to their testimony. The proffered witnesses included two of Segura's family members and a long time friend. According to Segura's counsel, all three witnesses knew Segura at the time he was sentenced to prison and were still in contact with him. Thus, they would be able to testify as to the changes that Segura had made in terms of his ability to relate to people, to discuss his past, and to come to terms with what that meant for him. The court found this offer of proof insufficient and sustained the district attorney's objection.
We review a trial court's decision to admit or exclude evidence on relevance grounds for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
To preserve an evidentiary ruling for appellate review, the proponent of the evidence must make an offer of proof regarding the anticipated testimony. (See People v. Whitt (1990) 51 Cal.3d 620, 648.) The offer of proof must address the "substance, purpose, and relevance of the excluded evidence" (Evid.Code, § 354, subd. (a)). Further, the offer of proof must "set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued." (In re Mark C. (1992) 7 Cal.App.4th 433, 444.) The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness. (See Gutierrez v. Cassiar Min. Corp. (1998) 64 Cal.App.4th 148, 161-162; Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168.)
We find that the trial court properly rejected Segura's offer of proof as inadequate. At the time of Segura's SVP trial the jury had to decide two very narrow issues. First, the jury had to decide whether Segura had "been convicted of a sexually violent offense against two or more victims." (§ 6600, subd. (a)(1).) Second, as we have stated more than once in this opinion, the jury had to decide whether Segura "has a diagnosed mental disorder that makes [him] a danger to the health and safety of others in that it is likely that he . . . will engage in sexually violent criminal behavior." (§ 6600, subd. (a)(1).) The parties stipulated to the first issue. However, defense counsel was unable to establish exactly how the excluded witnesses' proffered testimony was relevant to the second issue.
Accordingly, we conclude that the trial court did not abuse its discretion in excluding the lay witnesses' testimony.
Motion for a Mistrial
On June 19, 2006 at the conclusion of the presentation of the evidence, Segura's counsel made a motion for a mistrial on the ground that during discovery the district attorney had not provided the test scoring sheets or handwritten notes of the interviews of her client conducted by Dr. Vognesen and Dr. Starr. Ultimately, the trial court denied the motion.
We make the following observation with regard to this issue. Section 6603, subdivision (a) provides that a person subject to civil commitment proceedings "shall be entitled to . . . have access to all relevant medical and psychological records and reports." Nothing in section 6603 states that the district attorney must procure these materials for the person. As Dr. Starr testified, all Segura had to do was request them.
Ex Post Facto and Equal Protection
Segura argues that the SVPA violates the ex post facto and equal protection clauses of the federal Constitution. He acknowledges that the California Supreme Court in Hubbart v. Superior Court, supra, 19 Cal.4th 1138 has ruled otherwise. Nevertheless, for purposes of further review Segura submits that the SVPA is effectively a punitive measure for involuntary confinement of those who have been convicted of specific crimes and served their full prison sentences.
As this court has said before, "In Hubbart v. Superior Court, supra, 19 Cal.4th at pages 1171-1177, the California Supreme Court determined that the SVPA does not impose punishment for criminal conduct and thus does not implicate ex post facto concerns. That holding is binding on this court (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455) . . . . The determination that the act is not punitive 'removes an essential prerequisite for . . . ex post facto claims.' [Citation.]" (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1226, fn. omitted.)
With respect to the equal protection challenge, Segura acknowledges that this court in People v. Hubbart, supra, 88 Cal.App.4th 1202, rejected the argument he is raising. Segura has not presented this court with a convincing reason for departing from our prior decision.
Disposition
The order committing Segura as an SVP is reversed and the matter is remanded for a new trial.
WE CONCUR: RUSHING, P. J., PREMO, J.