Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 16632C
RAYE, J.The sole issue presented in this appeal of a two-year civil commitment is whether the trial court abused its discretion by allowing experts to testify about a 1999 incident they relied upon, in part, in forming their opinion that defendant Thomas White qualified as a sexually violent predator. (SVP law; Welf. & Inst. Code, § 6600 et seq.) Finding no abuse of discretion, we affirm.
FACTS
At the time of trial defendant was 55 years old and had an extensive criminal profile. He became involved in stealing and vandalism at age 10. While in his early to mid-20s, he was convicted of malicious mischief, hit and run felony driving under the influence of alcohol (DUI) with injury, possession of marijuana, DUI on a highway, resisting arrest, having an invalid license, auto theft and/or joy riding, grand theft auto, and had at least four other convictions for auto theft.
Defendants’ parents had him committed to a state hospital when he was 27 because his “explosive personality” rendered him a “danger to himself as well as to others.” While at the hospital, he sodomized a disabled male patient and had sexual intercourse with disabled female patients. He stole a car from the hospital grounds, possessed a knife on hospital grounds, brought a loaded 12-gauge shotgun onto hospital grounds, possessed prescription drugs that were not prescribed to him, and attacked a male patient, causing the patient to incur a head injury. He was released the following year and served six months in jail.
At 31, defendant was charged with and later convicted of molesting a five year old and two seven year olds. He also raped and attempted to sodomize one of the seven year olds. He admitted using soft soap on the child’s vagina but denied penile penetration, saying his “size couldn’t go into a 10-year-old broad.” He also admitted buying her ice cream and soda, which, according to expert testimony, is classic pedophile grooming conduct. She accused him of choking her, removing her clothes, unsuccessfully attempting to insert his penis into her vagina, then rubbing her vagina with soft soap and successfully inserting his penis into her vagina. A medical exam of her throat and vaginal area corroborated her account. He was sentenced to state prison for a total of 22 years 8 months for these crimes.
Defendant served 12 years in prison and was released on parole. He was sent back on three different occasions. First, he was reported to be in a public swimming pool in the presence of children, and parents complained he was bothering their daughter. Second, he was caught sneaking out of his residence in violation of his curfew. The admissibility of the experts’ consideration of his alleged third transgression is at the heart of this appeal.
The third incident occurred in 1999 while defendant was living in a home with unrelated residents, including a single mother and her four-year-old son. The mother reported that she walked into defendant’s room and saw him fondling her son’s genitals. Police officers saw several toys near defendant’s bed. He was charged with molesting the child with and without force and for failing to reregister as a sex offender. Following a preliminary hearing, defendant was held to answer on the charges. The prosecutor discovered problems with the mother’s credibility and, as part of a plea agreement, dropped the molestation charges for insufficiency of the evidence and offered a seven-year sentence for failing to register. Defendant accepted the agreement.
In October 2004 a petition to commit defendant as a sexually violent predator was filed, alleging that he had qualifying convictions for crimes committed against two or more persons and had a diagnosed mental disorder such that he was likely to engage in sexually violent predatory acts without appropriate treatment and custody. Following an eight-day jury trial in September and October 2006, a jury found that defendant fell within the statutory definition of a sexually violent predator. Two psychologists testified for the prosecution and explained the basis of their opinions that defendant was a sexually violent predator who was likely to reoffend.
Thomas R. MacSpeiden, Ph.D., diagnosed defendant with a mental disorder of “pedophilia, females preferred, nonexclusive type.” Defendant had “recurrent and intense sexual arousing fantasies” or “urges” about children over a six-month period, had acted on those urges, and was at least 16 years old and five or more years older than his victims. MacSpeiden also opined that defendant had an antisocial personality disorder, meaning he had little or no empathy for other persons and was inclined to violate laws and rules, was an alcoholic in remission, and had borderline intellectual functioning, with an I.Q. between 71 and 84. MacSpeiden disagreed with earlier diagnoses of mental retardation because defendant was able to articulate and think abstractly.
Despite defendant’s age of 56, MacSpeiden testified that he was likely to reoffend. He pointed out that defendant was in very good physical health, and pedophilia “is not a diagnosis that goes away.” He also relied on defendant’s propensity to reoffend and the fact that he had never lived with a woman in an intimate relationship for a two-year period or longer. In addition, defendant’s statements when interviewed in 1996 led MacSpeiden to conclude defendant had a remarkable sexual preoccupation and an interest in sexual gratification over any kind of relationship. On the standardized Static-99 test, defendant scored a nine; a score of six indicates the subject is likely to reoffend. Had MacSpeiden disregarded the 1999 incident, defendant would have scored a six on the test. Thus, MacSpeiden testified that whether or not he took the 1999 incident into consideration, he would have concluded it was likely defendant would reoffend.
The second psychologist for the prosecution, C. Mark Patterson, Ph.D., diagnosed defendant with “pedophilia, sexually attracted to females and males, nonexclusive type,” antisocial personality disorder, mild mental retardation, and alcohol dependence in a controlled environment. He supported his diagnosis of pedophilia with defendant’s sexual encounters with disabled persons at the state hospital; his convictions for child molestation, rape, and attempted sodomy of young girls; his violation of parole by going to the public swimming pool and interacting with children there; and the 1999 charges, including his failure to register. His alcoholism exacerbated his sexual deviancy. Like MacSpeiden, Patterson testified that pedophilia is a chronic condition, unlikely to dissipate on its own. He believed that defendant needed to be in a locked and secure environment and might benefit from treatment.
Patterson opined that defendant was likely to reoffend in the absence of sex offender treatment. He relied on three predictive tests -- the Static-99, the Minnesota Sex Offenders Screening Tools-Revised, and the Sexual Offender Risk Appraisal Guide -- all of which demonstrated that defendant was high risk for reoffending. He reported that defendant scored a seven on the Static-99 and would have scored a six if Patterson had not considered the 1999 incident. He also testified that five other psychologists who examined defendant in 1996 and 1997 found that defendant was likely to reoffend.
The lone dissenter was Robert Halon, Ph.D., the defense expert who disagreed generally with the SVP law. He found no evidence that defendant has a mental disorder that makes him act out in a sexually violent way and no evidence that pedophilia is a chronic condition. Rather, in his opinion, defendant was a developmentally disabled person with difficulty processing complex information, who acted on his impulses and preferred adult females as sexual partners when available. Thus, he was not a pedophile but a “situational” child molester. He discounted the predictive tests used by the prosecution’s experts as “worthless.” Halon opined that defendant did not fit the profile of a pedophile because he had numerous relationships with adult women, he did not commit any acts on young children until he was 31 years of age, and his criminal convictions were a result of his mental retardation and intoxication.
DISCUSSION
It is well established that experts are accorded wide latitude in formulating their opinions and juries are generally entitled to assess the weight of the evidence upon which the experts relied. “An expert may generally base his opinion on any ‘matter’ known to him, including hearsay not otherwise admissible, which may ‘reasonably . . . be relied upon’ for that purpose. . . . [¶] Because an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment. [Citations.] Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.” (People v. Montiel (1993) 5 Cal.4th 877, 918-919.)
The admissibility of the experts’ reliance on the 1999 incident was thoroughly vetted at trial. In a motion in limine defendant asserted, as he does here, that the 1999 incident was unreliable hearsay with little, if any, proper probative value and its consideration by the jury was unduly prejudicial. Indeed, “‘prejudice may arise if, “‘under the guise of reasons,’” the expert’s detailed explanation “‘[brings] before the jury incompetent hearsay evidence.’”’” (People v. Catlin (2001) 26 Cal.4th 81, 137; see People v. Carpenter (1997) 15 Cal.4th 312, 403.) The trial court carefully evaluated the potential for prejudice.
During the initial argument on the in limine motion, it was unclear whether a preliminary hearing had been held in the 1999 incident. The prosecutor obtained a transcript of the preliminary hearing in which the mother testified that she had come into a room and had seen defendant fondling her four-year-old son. She was thereafter subject to cross-examination. Defense counsel argued that there were too many inconsistencies in the child’s account of what happened, and the prosecution ultimately dismissed the charges relating to the incident. The prosecutor reminded the court that defendant was actually convicted and sentenced to prison for seven years “for not registering as a sex offender . . . .”
The court heard additional argument, read the police reports and the transcript of the preliminary hearing, and carefully evaluated the admissibility of the experts’ testimony relating to the 1999 incident. The court explained at length: “There have been situations in cases of this type where we’ve had snippets of information and they’re just not complete. They’re tangential, maybe different to our case, there’s not a lot of clarification. [¶] That’s really not the situation here with the 1999 incident and the case we’ve referenced because we have reports and more importantly, we have a prelim where there was cross-examination. It’s like a 97 or 98-page prelim based on my recollection here. [¶] So I don’t think this is an issue -- I’m not going to foreclose the doctors from discussing this based on my read that it’s credible or not credible or kind of credible. I really think it goes to the weight. The doctors have looked at it and it’s directly relevant to this, and Mr. White can be asked about that, and I think I know what he’s going to say because he gave some statements here denying it, indicating there’s some rough feelings with the mom or issues. [¶] So he can address that, he’s the only person that was there. So under [Evidence Code section] 352, I think it’s probative. I don’t think it’s profoundly prejudicial. I think the probative value outweighs the prejudicial given the entire cast of the case. [¶] I’ll let the jury make a decision on the weight to be given to this, and also I don’t think counsel are going to spend days and days talking about this incident. There’s a lot of issues in Mr. White’s life and that’s the last thing I want to address. These cases, Mr. White, really ends [sic] up being about your life all the way from birth, if doctors think that’s relevant to their opinion to now. That means things you’ve been involved in that maybe weren’t pleasant issues that are upsetting, criminal arrests, criminal convictions, if the doctors reviewed it and believe they’re relevant they come in. [¶] I don’t choose to pick apart the doctors’ opinions. I do that on rare occasions, but I’m not going to do it in this case because it just doesn’t meet that standards [sic] of prejudice and finally, I am going to admonition [sic] the jurors and I know sometimes lawyers think that’s nice, but the doctors have looked at a lot of materials. [¶] The jurors are going to know that because you’ll be asking the doctors how many pieces have you looked at it? They’ll say relied on. I’ll admonish them before the first doctor testifies that for each doctor, they looked at a ton of materials and that they reviewed things, but the documents they reviewed are basically admitted solely for the purpose of explaining the basis for the doctors’ opinions and not for of [sic] the truth of the matter asserted in the document. [¶] So I’m going to cover it that way. So with that technically speaking I’d have to deny the request by the defense to preclude discussion about that incident in 1999, the allegations that resulted in the prelim.”
We reject defendant’s assertion that the trial court’s ruling was an abuse of discretion. While we appreciate that an expert should not be allowed to expose the jury to unreliable and unduly prejudicial hearsay under the guise of justifying or explaining his or her opinion, we must defer to the trial court’s assessment of that delicate balance. A trial court “has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.]” (People v. Gardeley (1996) 14 Cal.4th 605, 619.)
The court minimized the risk that the jurors might improperly consider the evidence by clearly admonishing them the evidence was admitted solely for the purpose of explaining the basis for the doctors’ opinions and not for the truth of whether the 1999 incident actually occurred. Moreover, the experts were subjected to vigorous cross-examination and the jury became well acquainted with the discrepancies in the mother’s and child’s stories and the crucial fact that defendant was not convicted of molesting the child. Nevertheless, both doctors emphasized the danger of the grooming materials found in defendant’s bedroom even if defendant did not fondle the child. That is to say, they considered the fact that a 50-year-old man kept toys in his room indicative of his continued pedophilia and his propensity to lure children and engage in sexual improprieties with them.
The trial court, after a thorough hearing and exhaustive review of the evidence, determined that the weakness in the evidence of the 1999 incident was a question of weight rather than admissibility. Because the evidence was based not merely on a police report but on the transcript of a preliminary hearing, the court concluded it met a threshold of reliability sufficient to allow the jury to determine the value of the experts’ opinions and the extent to which the experts relied on this one incident. Thus, in the context of the vast amount of information the experts relied on in making their diagnoses, we cannot conclude the trial court abused its discretion by allowing the jury to be the ultimate arbiter of the weight to be accorded the opinions, based as they were on some inadmissible hearsay.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.