Opinion
C084321
09-12-2018
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE GENE SIMMONS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08F04922)
Defendant Lawrence Gene Simmons challenges his commitment as a sexually violent predator (SVP). He argues trial counsel provided ineffective assistance in failing to seek redaction of exhibits and object to the admission of case-specific hearsay, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We will affirm.
I. BACKGROUND
On November 13, 2015, the People filed a petition seeking defendant's commitment as an SVP. (Welf. & Inst. Code, §§ 6600 et seq.) The petition was based on defendant's conviction in 2001 for three counts of lewd or lascivious acts with a child under 14 years. (Pen. Code, § 288, subd. (a).) A. Documentary Evidence
Undesignated statutory references are to the Penal Code.
During the court trial in March 2017, the People presented three exhibits. Exhibit 1 was certified copies of documents related to defendant's 2001 conviction in El Dorado County case No. S00CRF0261 for one count of lewd and lascivious acts upon a child under the age of 14 years (§ 288, subd. (a)) and molesting a child under the age of 18 years with two priors (§ 647.6, subd. (c)(1)), including the complaint, defendant's declaration regarding his change of plea, and the minute order from the judgment and sentencing (defendant was sentenced to six years in state prison). Exhibit 2 included certified copies of defendant's chronological history from the California Department of Corrections and Rehabilitation, an abstract of judgment from case No. S00CRF0261, and an abstract of judgment from Placer County case No. A36760 regarding 1996 convictions for five counts of stalking (§ 646.9, subd. (a)). Exhibit 3 was (1) certified copies of documents related to defendant's 1993 conviction in Placer County case No. R26505 for six counts of molesting a child under the age of 18 years (§ 647.6) and violating probation; (2) the complaint, abstract of judgment, and minute orders in Placer County case No. A36760; and (3) the complaint and minute orders related to defendant's 1996 conviction in Placer County case No. R39610 for one count of annoying or obscene telephone calls (§ 653m, subd. (a)), with 13 additional counts of violating section 653m, subdivision (a), dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758. Defense counsel did not object to the introduction of any of the exhibits. B. Expert Testimony
1. Dr. Roger Karlsson
Dr. Roger Karlsson, a forensic psychologist who had performed more than 500 SVP evaluations, testified that he evaluated defendant. In performing defendant's evaluation, Dr. Karlsson reviewed records from the Department of State Hospitals and the California Department of Corrections and Rehabilitation, including four prior psychologist reports. He also interviewed defendant in September 2015 for two hours and 15 minutes and in October 2016 for one hour and 10 minutes.
Dr. Karlsson testified defendant met all three statutory elements to be classified as an SVP. First, his 2001 conviction (§ 288, subd. (a)) was a qualifying offense. Second, defendant suffered from other specified paraphilic disorder with a subscript telephone scatologia in a controlled environment (making obscene phone calls to create sexual arousal). Dr. Karlsson testified that, in making his paraphilic disorder diagnosis, he looked at defendant's psychosocial history, including specific behaviors at the crime scenes and his criminal history. Dr. Karlsson interviewed defendant about "each one of his offenses." With respect to diagnosing the telephone disorder, Dr. Karlsson considered defendant's "extensive history" of making obscene phone calls, with defendant having called between 500 to 1,000 people. Except for defendant's 2001 conviction, "all" of defendant's sexual offenses were related to obscene phone calls. Defendant "admitted" to Dr. Karlsson that he "ha[s] a problem" in making obscene phone calls. Defendant's method was "quite advanced": he would scan newspapers for potential victims, track down their addresses, listen to their phone calls with a radio scanner, and then use the information to initiate phone conversations with the victims. Defendant told Dr. Karlsson he was lonely and wanted contact with his victims without a physical relationship. Defendant said he was "socially awkward" and missed out on dating as a teen, so he targeted teenage girls as victims, from ages 14 to 18. He started making such calls at age 14 and spent "a lot of his life" looking for new victims. He also contacted victims multiple times, with one victim receiving 60 phone calls from defendant and another receiving 25 calls in one year. Defendant was the "most excessive case of telephone scatologia" Dr. Karlsson had ever seen.
Those criteria are: "(1) conviction of a 'sexually violent offense'; (2) a diagnosed mental disorder that makes a person a danger to the health and safety of others; and (3) the mental disorder makes it likely the defendant will engage in 'sexually violent criminal behavior.' " (People v. White (2016) 3 Cal.App.5th 433, 448; see Welf. & Inst. Code, § 6600, subd. (a)(1).) The second and third elements require a link between a currently diagnosed mental disorder characterized by the inability to control dangerous sexual behavior and a finding of future dangerousness. (People v. White, supra, at p. 448.) --------
Dr. Karlsson also diagnosed defendant with sexual sadism disorder, or sexual arousal from the physical or psychological suffering of another person. Defendant called his victims to "scare them," including threatening to incapacitate them with chloroform and then raping them. During defendant's most recent offense, he threatened to give the victims gamma-hydroxybutyric acid (GHB) and rape them, although defendant said he never intended to follow through on it. Defendant would masturbate to this thought. Dr. Karlsson opined that defendant wanted to have control and dominate his victims.
In Dr. Karlsson's opinion, defendant lacked volitional control. Defendant had been making these calls for 32 years, despite being incarcerated for such activity. Defendant repeatedly said he could not stop himself and that he eventually reoffends. Defendant's criminal record also indicated he lacked the ability to control his behavior. With respect to his 2001 conviction, defendant was on parole and ignored instructions to not be around his "victim pool" by working at a haunted house. He asked young female customers sexual questions and attempted to give them alcohol. With respect to his 2009 conviction and 2008 parole violation, defendant had successfully participated in outpatient sex offender treatment but still reoffended. Defendant told Dr. Karlsson he learned during the treatment that he was causing his victims to suffer, but he still reoffended. Defendant had even passed polygraph tests, despite planning other sex offenses. In Dr. Karlsson's opinion, defendant "can't learn from being put in jail or prison," and his "urges are stronger than . . . his control over them." Dr. Karlsson opined defendant might have control over his impulses when he was in a controlled environment such as a correctional facility.
With respect to the third element, Dr. Karlsson testified that defendant scored nine on the Static-99 test; individuals with scores above six are most at risk for reoffending. The recidivism rate is 43.8 percent for five years postrelease. Although the Static-99 test is generally not as useful at predicting recidivism for individuals who, like defendant, have more than six convictions, defendant was "unique" because he had an unusually high number of sex offenses. Dr. Karlsson testified that defendant's risk of reoffending was "probably higher" than 43.8 percent. In Dr. Karlsson's opinion, defendant's proposal to be released and participate in outpatient sex offender treatment was not realistic. The risk was "too large" that defendant would reoffend.
2. Dr. Siobhan Donovan
Dr. Siobhan Donovan, a clinical psychologist with expertise in forensic psychology, also evaluated defendant. She reviewed police records, abstracts of judgment, previous SVP evaluations, and court records. Dr. Donovan also interviewed defendant in October 2015 for two hours and again in October 2016. She concluded defendant met all three criteria and qualified as an SVP.
Dr. Donovan opined that defendant had a conviction that qualified him as an SVP. In addition, he had three qualifying mental disorders: other specified paraphilic disorder nonconsenting females, other specified paraphilic disorder telephone scatologia, and other specified paraphilic disorder sexually attracted to females between the ages of 14 to 17. Defendant told Dr. Donovan that he would find females through telephone books, call them, and make threatening statements. Defendant was "sexually aroused by the fact that he was scaring them." Defendant told Dr. Donovan that he was unable to control himself when he was making the phone calls. That defendant continued such behavior despite being sanctioned criminally confirmed Dr. Donovan's diagnosis. Defendant also told Dr. Donovan that he was attracted to women aged 14 to 17 years. Dr. Donovan corroborated the information with the reports. Defendant's 2001 conviction also demonstrated defendant suffered from other specified paraphilic disorder nonconsenting females.
Dr. Donovan testified that defendant lacked volitional control. Defendant was sanctioned multiple times, participated in sex offender treatment, and continued to reoffend. It was "significant" that defendant had been to prison and was on parole for a sex offense when he reoffended.
With respect to his 2001 conviction, defendant told Dr. Donovan that he had volunteered at a haunted house, but it "became apparent that [he] could not work in there being around teenage girls. [Defendant] thought [he] could handle it." Defendant told her he " 'should never have been in there,' " but " 'picked [the victim] up and threw her in the air.' " Dr. Donovan found it "significant" that defendant referenced the victim's name during their 2016 interview, indicating he still focused on her.
Dr. Donovan also discussed with defendant the phone calls he made during 2006 that resulted in his 2009 conviction. He would find the victims in the newspaper, look up their telephone number in the phone book, and call them and threaten to rape them. Defendant told Dr. Donovan "he didn't have control over this behavior and it kind of had taken over his life." Defendant said the calls were sexually arousing. Defendant was already nine months into his sex offender rehabilitation group when he was arrested for the threatening calls, which Dr. Donovan found "extremely significant." In Dr. Donovan's opinion, defendant's behavior during treatment showed his lack of ability to be in the community safely. Dr. Donovan testified the paraphilic disorders are a "chronic condition."
Finally, Dr. Donovan testified that it was likely that defendant would engage in sexually violent predatory behavior if released to the community. Defendant scored a nine on the Static-99R, placing him in the high risk category. Dr. Donovan found it significant that his prior victims were strangers. In Dr. Donovan's opinion, defendant would not be able to participate in outpatient sex offender treatment and not reoffend.
The trial court found the petition true and ordered defendant committed to the custody of mental health. Defendant timely appealed.
II. DISCUSSION
Defendant contends the trial court erroneously admitted case-specific hearsay. (Sanchez, supra, 63 Cal.4th at p. 686.) Citing People v. Burroughs (2016) 6 Cal.App.5th 378 (Burroughs) and People v. Roa (2017) 11 Cal.App.5th 428 (Roa), defendant further argues the trial court should have omitted or redacted the documentary exhibits because they contained references to charges beyond his qualifying offense and other irrelevant and prejudicial facts, including details regarding his plea, his chronological history, and his sentence. As both parties recognize, defendant has forfeited these claims because his trial counsel failed to object to their admission, especially since Sanchez had been decided nine months prior to defendant's trial. (People v. Abel (2012) 53 Cal.4th 891, 924 ["A defendant who fails to make a timely objection or motion to strike evidence may not later claim that the admission of the evidence was error"].)
Defendant argues his trial counsel's failure to object constituted ineffective assistance. To establish his claim, defendant must show that counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) He must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.) On review, the "court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.)
In Burroughs, the defendant refused to meet with the expert clinical forensic psychologist, so she had to rely upon documentary evidence to assess whether he satisfied the statutory criteria to be deemed an SVP. (Burroughs, supra, 6 Cal.App.5th at p. 384.) The appellate court concluded the trial court erred in admitting into evidence portions of probation reports containing information about the defendant's prior record, personal history, hospital records, and terms and conditions of probation. (Id. at p. 410.) In addition, the experts were erroneously allowed to testify regarding details about uncharged offenses and the defendant's behavior while in state custody. (Id. at p. 404.) Significantly, the evidence included details regarding the defendant's repeated sodomy of a young boy, his use of a knife handle to penetrate a woman, and his gang affiliation while incarcerated. (Id. at pp. 404, 412.) The appellate court concluded the evidence was "exceedingly inflammatory," invited the jury to punish him for past offenses, and "substantially enhanced the credibility of the experts' conclusions about [the defendant's] mental state and likelihood of reoffending." (Id. at p. 412.) Because the trial court's error was prejudicial, the court reversed the judgment. (Id. at pp. 412-413; see also People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)[the erroneous admission of hearsay does not require reversal unless "it is reasonably probable that a result more favorable to [the defendant] would have been reached in the absence of the error"].)
Similarly, in Roa the appellate court reversed the jury's determination that the defendant was an SVP. (Roa, supra, 11 Cal.App.5th at pp. 433, 455.) Just as in Burroughs, only documentary evidence was available to the expert clinical forensic psychologist because the defendant refused to meet with him. (Id. at p. 434.) The trial court had erred in admitting case-specific hearsay evidence that was otherwise inadmissible, including defendant's prison record and details of uncharged sex offenses, including a decades old assault, an arrest for an alleged rape against two teenage girls, and his alleged sexual abuse of his ex-wife. (Id. at pp. 453-454.) The appellate court found the admission of the evidence was prejudicial under Watson and reversed the judgment. (Id. at p. 455.)
To the extent defense counsel erred in failing to object to the admission of documentary and expert testimonial case-specific hearsay evidence that did not pertain to the existence of the qualifying conviction or the details of the same and was otherwise inadmissible, we find defendant has failed to establish prejudice. Except for the details regarding defendant's obscene phone calls, the evidence defendant points to was not highly inflammatory and did not "invite[] the [trier of fact] to punish him for past offenses," especially since this was a bench trial. (Burroughs, supra, 6 Cal.App.5th at p. 412; see also Roa, supra, 11 Cal.App.5th at pp. 454-455.) Moreover, unlike Burroughs and Roa, defendant was convicted in 2008 of making obscene phone calls and sentenced to prison, reducing the danger the trier of fact would punish him again. (See People v. Falsetta (1999) 21 Cal.4th 903, 917.)
In addition, unlike Roa and Burroughs, defendant spoke with Drs. Donovan and Karlsson regarding the obscene phone calls, duplicating much of the information contained in the criminal and state hospital documents. (See People v. Yates (2018) 25 Cal.App.5th 474, 486, 487 [prejudice found and judgment reversed where experts in an SVP hearing testified regarding the defendant's criminal and hospital records and the defendant made only "a few admissions" during interviews with the experts].) Dr. Karlsson interviewed defendant about "each one of his offenses." Defendant told Dr. Karlsson that he started making obscene phone calls at the age of 14 and targeted females from the ages of 14 to 17 years. He told Dr. Donovan he was sexually attracted to females in this age range. He also told both Drs. Donovan and Karlsson that he selected his victims from newspapers and was sexually aroused by scaring his victims. Defendant described to Dr. Karlsson that he threatened to incapacitate his victims with drugs and rape them, and that he had called between 500 and 1,000 victims. Defendant told Dr. Donovan "he didn't have control over this behavior and it kind of had taken over his life." Such out-of-court statements are admissible party admissions and thus do not violate Sanchez. (Evid. Code, § 1220; Sanchez, supra, 63 Cal.4th at p. 686 [an expert may relate as true case specific facts asserted in hearsay statements if they are covered by a hearsay exception].) Based on this record, we find defendant's ineffective assistance of counsel claim without merit.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
HOCH, J.