Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. R. L. Putnam, Judge, Super. Ct. No. 03CRSP676741.
Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
The trial court committed Jeffrey Frank Snyder for two years to Coalinga State Hospital for treatment after a jury determined he was a sexually violent predator (SVP). He argues that one of the crimes on which the prosecution relied to petition for commitment does not meet the statutory definition of a sexually violent crime. We disagree and affirm the order of commitment.
PROCEDURAL SUMMARY
The significant facts are discussed in our analysis. The People filed a petition to have Snyder declared an SVP and committed for treatment. Two psychiatrists reported that Snyder met all of the elements to be found an SVP. Snyder made several attempts to have the petition dismissed because one of his prior convictions, in his opinion, was not a sexually violent offense as required by the applicable statutes. (Welf. & Inst. Code, § 6600 et seq.) Each attempt failed.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
A jury trial was held and the People presented the testimony to establish each element necessary for commitment. Snyder contested the conclusions of the People’s testifying professionals, but concentrated primarily on attempting to convince the jury that the disputed conviction was not a sexually violent offense. The jury concluded Snyder was an SVP.
DISCUSSION
I. The Use of Force Finding
The main issue at trial was whether Snyder had two prior convictions within the meaning of the SVP statute. Section 6600, subdivision (a)(1) defines an SVP as a person who has been convicted of a sexually violent offense against two or more individuals. A sexually violent offense, in turn, is defined as a conviction for certain enumerated sex offenses that are committed “by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person .…” (Id., subd. (b).)
Snyder was convicted of violating Penal Code sections 288, subdivision (a) (lewd and lascivious act with a person under 14 years of age) in 1979 and 288a, subdivision (b)(2) (oral copulation with a person under 16 years of age) in 1985. Each offense is listed in section 6600, subdivision (b) as a crime that may be a sexually violent offense. Each offense, however, may be committed without the use of force, violence, or duress. Therefore, the prosecution was required to provide additional evidence for these crimes to qualify as sexually violent offenses.
Section 6600, subdivision (a)(3) assists the prosecution in meeting its burden. This statute provides, in relevant part, that the “details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.”
The testimony of the prosecution’s expert psychologists, John Hupka, Ph.D., and Donald Viglione, Ph.D., established that the victim of the 1979 offense was 10 years old. At the time of trial, section 6600.1 provided that if the victim of a crime included in section 6600 subdivision (b) was under the age of 14, and there was substantial sexual conduct, then the crime was defined as a sexually violent offense. Based on their review of the records, the psychologists concluded there was substantial sexual conduct; therefore, the 1979 offense qualified as a sexually violent offense. Snyder conceded the 1979 offense qualified as a sexually violent offense.
Section 6600.1 was amended by proposition in the November 2006 election. The amendment eliminated the need for substantial sexual conduct where the victim of the sex crime is a child under the age of 14. (Prop. 83, § 25, approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006.)
The victim of the 1985 offense was 14 years old at the time of the offense. The prosecution, therefore, was required to establish that Snyder used force, fear, or duress to commit the crime. This issue was the primary point of contention at trial.
The evidence on this issue was inconsistent and not strong. Hupka testified to the facts underlying the conviction based on his review of the records. According to Hupka, Snyder convinced the victim, who had run away from home, to come home with him to spend the night. While the victim slept, Snyder pulled the victim’s pants down and orally copulated him. The victim woke up and either pushed Snyder away or hit Snyder in the back, effectively ending the incident. Hupka pointed out the victim was asleep when Snyder removed the victim’s pants. Hupka opined that because Snyder orally copulated the victim against his will, Snyder used violence or force.
Snyder pointed out during his cross-examination of Hupka that at Snyder’s sentencing hearing the report of the probation officer was changed to reflect that force was not used but that Snyder merely engaged in an act of oral copulation with the victim because the victim was asleep when the act occurred.
Viglione also testified about the facts underlying the 1985 offense. His recitation of the facts leading to the conviction was similar to those testified to by Hupka. Viglione, however, added that his review of the police report indicated that the victim initially reported he allowed the oral copulation to continue for a short period of time because he was scared. Viglione also recognized that Snyder removed the victim’s pants, thus exercising physical control over the victim. The police report also stated several times that the victim reported being frightened by what occurred. These facts led Viglione to conclude that Snyder employed force or fear in committing the crime.
During cross-examination, Snyder pointed out that at the preliminary hearing the victim testified that when he woke up, Snyder was orally copulating him. The victim then hit Snyder in the back, effectively ending the incident.
Although the testimony presents a close case, Snyder does not argue that the evidence was insufficient to support the jury’s determination that the 1985 conviction was a sexually violent offense. Instead, he argues the events at the sentencing hearing for the 1985 offense established as a matter of law that the offense did not constitute a sexually violent offense.
A “special report” was prepared for the sentencing hearing for the 1985 offense. The report as prepared stated that Snyder “forced the minor” to engage in oral copulation. Snyder objected to the term “forced,” and requested the report be modified to read that Snyder “engaged” the minor in oral copulation. The trial court acceded to Snyder’s request after the probation officer admitted the victim was asleep when the incident began.
Snyder argues that based on these events, the People are estopped from now claiming Snyder used force in committing the 1985 offense. Equitable estoppel “arises from declarations or conduct of the party estopped. ‘Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.’ [Citations.]” (13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 190, p. 527.) The elements of a claim of estoppel are: “(a) a representation or concealment of material facts (b) made with knowledge, actual or virtual, of the facts (c) to a party ignorant, actually and permissibly, of the truth (d) with the intention, actual or virtual, that the ignorant party act on it, and (e) that party was induced to act on it. [Citations.]” (13 Witkin, supra, § 191, pp. 527-528.)
Snyder’s claim of estoppel fails for many reasons. We will point out only one -- Snyder was not induced to act on the “conduct” of the prosecutor in failing to object to Snyder’s claim that he did not use force during the 1985 incident. “There can be no estoppel where one of [the] elements is missing. [Citations.]” (13 Witkin, Summary of Cal. Law, supra, § 191, p. 528.)
Snyder also argues, citing People v. Quartermain (1997) 16 Cal.4th 600, that the principles of due process preclude the People from now arguing that force was used in the 1985 offense. The introduction in the opinion adequately explains the holding of Quartermain and why the opinion is inapposite: “Before trial, defendant waived his constitutional right to remain silent and gave a statement to the prosecutor after the prosecutor agreed not to use the statement in court. At trial, however, the prosecutor breached this agreement and used the many contradictions between defendant’s statement and his testimony to impeach defendant’s credibility. Under the controlling United States Supreme Court precedents, the prosecutor’s use of the statement in breach of the agreement with defendant was fundamentally unfair and a violation of defendant’s federal constitutional right to due process of law.” (Id. at p. 606.)
Here, Snyder was not promised anything by anybody when the trial court acceded to his request to amend the probation report to reflect he did not use force when committing the 1985 offense. Specifically, no one promised Snyder that if the change was made, the issue of force would not be raised in the future. The “correction” by Snyder’s counsel was made in the context of the sentencing hearing. Its purpose was to secure a favorable outcome from the sentencing judge. It was never intended to establish how the events of the crime would be interpreted in the future. Thus, his right to due process was not implicated in this case.
Nor do we find any support for Snyder’s argument in cases in which appellate courts have enforced the terms of a plea agreement. (See, e.g., Davis v. Woodford (9th Cir. 2006) 446 F.3d 957.) There is no evidence in the record that Snyder entered a plea agreement for the 1985 offense that included as one of its conditions an agreement that Snyder did not use force when committing the crime. The prosecutor merely acquiesced to Snyder’s requested change, probably because he knew the change would not affect the sentence about to be imposed. There is an indication in the transcript that the district attorney at the sentencing hearing was not the district attorney who obtained the conviction or reached a plea agreement with Snyder. If this were correct, he would not have been in a position to argue the facts of the case in the face of Snyder’s representations to the trial court.
The transcript is not clear on this point or on the issue of whether Snyder pled to the 1985 crime or was convicted after a trial.
Snyder also argues the doctrine of collateral estoppel prevents the prosecution from arguing that he used force in the 1985 crime. “Collateral estoppel applies if five elements are satisfied: ‘“First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.”’ [Citations.]” (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953, 980.)
As with the estoppel argument, there are several reasons why collateral estoppel does not apply to this proceeding. Again, we point out only one -- there is no evidence that the issue of force was litigated in the 1985 sentencing hearing. It seems highly unlikely that a claim of collateral estoppel regarding the underlying facts of the case ever would arise from the proceedings at a sentencing hearing simply because a sentencing hearing is not the forum for litigating such issues. Snyder does not cite any authority to the contrary.
Snyder also suggests that the ruling by the trial judge allowing the correction to the probation report was a finding on the merits of the issue and should be given res judicata effect. Not so. He has provided no authority holding that corrections to probation reports are findings on the merits for all purposes. We can find none. Such a holding would change the entire nature of sentencing hearings. We do not intend to do so here.
II. The Expert Testimony
Snyder makes several contentions concerning the testimony of both Hupka and Viglione.
Snyder claims that an expert is not permitted to offer an opinion as to whether he is likely to reoffend in the future. If that were so, such a prohibition would essentially ensure that no one ever could be found to be an SVP. This subject matter is well beyond common experience; and, it would seem the only way this element of an SVP commitment could ever be proven is through expert testimony. This argument was rejected in People v. Ward (1999) 71 Cal.App.4th 368, 373-374, a result in which we concur. It was proper to permit Hupka and Viglione to offer their opinions on this issue.
Snyder also contends that each expert was impermissibly allowed to testify that Snyder had committed a sexually violent offense as defined in section 6600, subdivisions (a) and (b).
We discern two separate issues. The first is whether the psychologists should have testified to the facts underlying the prior offenses. All of the facts were taken from documents. Snyder did not object to this testimony, so any objection has been waived. (People v. Fulcher (2006) 136 Cal.App.4th 41, 48.) Moreover, even if there was error, it was harmless because the prosecution could, and in some cases did, submit the documents to which the psychologists referred when presenting their testimony.
The second issue is the propriety of the psychologists opining about whether the prior convictions were sexually violent offenses as defined by sections 6600, subdivision (b), and 6600.1. This testimony should not have been admitted, although Snyder waived the error by failing to object. (People v. Fulcher, supra, 136 Cal.App.4th at p. 48.)
Admission of opinion testimony is limited by statute. An expert may testify in the form of an opinion if the subject of his opinion is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact, and the opinion is “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness .…” (Evid. Code, § 801.)
In this case the jury was charged with determining whether Snyder used force or fear when he committed the 1985 offense. The jury was as qualified as either Hupka or Viglione to make that determination. In other words, the testimony was not related to a subject that was sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. Nor does it appear that either Hupka or Viglione possessed special knowledge, training, or experience in determining whether a perpetrator used force or fear in committing a crime.
Snyder makes two arguments in an attempt to overcome the lack of objection to the testimony of Hupka and Viglione about his 1985 conviction. The first is that the trial court should have excluded the testimony on its own motion. Snyder has not cited any authority that supports this contention. We can find none. We reject the argument. The trial court was under no obligation to exclude the testimony on its own motion.
The second claim is that Snyder was provided ineffective assistance of counsel. “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
We do not think counsel’s performance was deficient. There are obvious reasons for counsel not objecting to the improper testimony. First, an objection to the factual recitations by the experts would have resulted in the necessary documents being submitted, as some of them were. So, the facts would have been in front of the jury anyway. Also, Snyder’s counsel thoroughly examined the experts concerning their conclusions about the facts, a very appropriate endeavor by counsel in this case. So it is clear that the facts were going to come out and the experts were going to testify about them.
Also, by not objecting to the expert testimony about whether the crime constituted a sexually violent offense, Snyder was able to introduce the opinion of a third psychiatrist that the 1985 offense did not meet the definition of a sexually violent offense. That was a reasonable tactical choice by counsel.
The psychiatrist did not testify, but the parties stipulated to what her testimony would have been had she been called to testify.
Finally, our review of the record convinces us that there is not a reasonable probability that had Snyder objected, he would have received a more favorable result. The issue was squarely before the jury. Snyder’s counsel referred to the 1985 conviction as the “big issue” in the case during closing argument. He argued that it was the jury’s obligation to determine whether Snyder used force or fear in committing the 1985 offense, pointing out that the victim was sleeping when Snyder pulled the victim’s pants down and orally copulated him. He also pointed out that the judge, in sentencing Snyder in 1985, concluded no force was used. He attacked the inconsistencies between the testimony of Hupka and Viglione and pointed out that a third psychiatrist concluded the 1985 crime was not a sexually violent offense because no force was used.
The prosecutor focused his argument on the facts of the 1985 offense and did not mention the opinions of Hupka and Viglione in his closing. He mentioned the experts’ opinions in his rebuttal when acknowledging the discrepancies in Hupka’s and Viglione’s testimony as pointed out during Snyder’s closing argument. He also focused the jury on the instructions and its obligation to determine whether the 1985 offense met the requirements of a sexually violent offense.
The jury was properly instructed on the law. The evidence and all of its nuances were thoroughly argued. Counsel was not ineffective.
DISPOSITION
The order committing Snyder to a two-year term of treatment as an SVP is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., WISEMAN, J.