Opinion
G061365
11-30-2023
In re VINCENT RUSSO, on Habeas Corpus.
Martin F. Schwarz, Public Defender, Adam Vining, Assistant Public Defender, Shawn McDonald and Elizabeth Khan, Deputy Public Defenders, for Petitioner Vincent Russo. Todd Spitzer, District Attorney, and Keith Burke, Deputy District Attorney, for Real Party in Interest Director of the State Department of State Hospitals.
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of habeas corpus to challenge an order of the Superior Court of Orange County Nos. M-18052, M-18842, M-19267, Cheri T. Pham, Judge; and Craig E. Robison (retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Petition granted and remanded with directions.
Martin F. Schwarz, Public Defender, Adam Vining, Assistant Public Defender, Shawn McDonald and Elizabeth Khan, Deputy Public Defenders, for Petitioner Vincent Russo.
Todd Spitzer, District Attorney, and Keith Burke, Deputy District Attorney, for Real Party in Interest Director of the State Department of State Hospitals.
The district attorney's office identifies the real party in interest (RPI) on whose behalf it has filed the return in this matter as, generically, "the People." Pursuant to the Supreme Court's transfer order requiring that the Director of the State Department of State Hospitals be ordered to show cause why Russo's habeas petition should not be granted, we specify the Director as the pertinent RPI.
No appearance for Respondent Superior Court of Orange County.
OPINION
GOETHALS, J.
Vincent Russo, detained at Coalinga State Hospital awaiting trial on the prosecutor's petition for his involuntary civil commitment under the Sexually Violent Predators Act (Welf. &Inst. Code, § 6600 et seq. (SVPA)), challenges the superior court's denial of his habeas corpus petition. Russo sought habeas relief on grounds that the trial court erred at the SVPA probable cause hearing by denying his request to dismiss the prosecutor's petition for lack of foundational support for the opinion of the prosecutor's expert witness that Russo met the requirements for commitment under the SVPA. That opinion testimony was the sole basis upon which the trial court found probable cause to conclude Russo's alleged antisocial personality disorder predisposed him to commit criminal sexual acts, an essential element for his commitment as a sexually violent predator (SVP).
All further statutory references are to this code unless otherwise noted.
Specifically, Russo argued the expert relied on, in addition to his underlying rape conviction for which he served a six-year sentence, two prior sex offense "arrests for which no facts were heard." (Italics added.) Based on the premise that those prior allegations were true, the expert concluded Russo qualified as an SVP. The prosecutor disputes that the expert relied on the truth of the prior charges. The record, however, indicates the expert viewed the incidents as two of "a total of three data points where Mr. Russo committed a criminal sexual act." (Italics added.)
On this record, Russo's habeas petition must be granted. The Supreme Court recently held that the SVPA "does not create an exception that allows hearsay regarding nonpredicate offenses to be introduced via evaluation reports." (Walker v. Superior Court (2021) 12 Cal.5th 177, 185 (Walker).) As a result, evidence that Russo was arrested and charged with two prior sex offenses was not admissible to prove that Russo actually committed those offenses. The principle that "[a]n expert's opinion is only as good as the facts upon which it is based" (Barragan v. Lopez (2007) 156 Cal.App.4th 997, 1007) applies in the SVPA context no less than elsewhere. In the absence of the expert's unfounded opinion, no admissible evidence demonstrated that Russo harbored the requisite predisposition to commit criminal sexual offenses. We therefore grant the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, in exchange for a six-year prison sentence, Russo pleaded guilty to rape (Pen. Code, § 261, subd. (a)(2)) and assault by means of force likely to produce great bodily harm (Pen. Code, § 245, subd. (a)(4)). Rape is a qualifying predicate offense for potential civil commitment under the SVPA. (§ 6600, subds. (a)(2)(A) &(b), referred to as "Criterion A" at the hearing below.)
In May 2019, in advance of Russo's scheduled discharge from prison, the district attorney filed a petition to commit Russo as an SVP. At a hearing later in May 2019, the trial court found the petition included prima facie evidence supporting Russo's designation as an SVP and ordered him detained at a secure facility pending a probable cause hearing.
In February 2020, the trial court held a probable cause hearing on the petition. Russo filed motions in limine to exclude hearsay evidence, objecting in particular to hearsay admitted to prove two prerequisites for commitment under the SVPA, namely, that he suffers from a '"diagnosed mental disorder"' (§ 6600, subd. (c); the SVPA's "Criterion B") and that he was likely to engage in sexually violent predatory criminal behavior if released (§ 6600, subd. (a)(1); "Criterion C"; see generally People v. Yates (2018) 25 Cal.App.5th 474, 477-478 [listing criteria for SVPA commitment].)
Over Russo's objection, the trial court admitted into evidence the People's exhibits numbered "10" and "15." Exhibit 10 consisted of certified court records from San Bernardino County that included a September 1995 notice for Russo to appear on a charge of misdemeanor sexual battery. (Pen. Code, § 243.4, subd. (d).) A subsequent plea form indicated that charge was dismissed upon Russo's plea to simple battery (Pen. Code, § 242).
Exhibit 15 consisted of certified court records from Linn County, Oregon, which included an information charging Russo with a felony rape "in the first degree," allegedly committed in April 2007, and a later indictment alleging the same offense. The records indicated that following a hung jury at trial, the 2007 Oregon rape charge was dismissed with prejudice on the prosecutor's motion.
Dr. G. Preston Sims, a forensic psychologist and SVP evaluator for the Department of State Hospitals, testified for the prosecution at the probable cause hearing. Sims diagnosed Russo with antisocial personality disorder, finding "a pattern of behavior from an early age that basically lacks concern for others." Sims testified that the diagnostic tool guiding his conclusion, the DSM-5 handbook, lists "seven different symptoms that make up antisocial personality disorder." The DSM-5 requires that a person exhibit at least three of the symptoms to qualify for diagnosis with the disorder, and Sims found Russo to have "at least four." According to Sims, those symptoms included "a failure to conf[o]rm his behavior with respect to the law; No. 2, a certain degree of impulsivity and failure to plan ahead; No. 3, a certain amount of irritability and aggressiveness; and, No. 4, a reckless disregard for the safety of others."
Sims testified the conduct referenced in People's exhibits 10 and 15, among other evidence documenting Russo's "extensive criminal history," which included "more than 13 prior sentencing occasions," was crucial to determining whether Russo could be considered an SVP: "So the idea is that with the qualifying mental disorder . . . being antisocial personality disorder, that disorder, if it's going to qualify as a WIC 6600 [i.e., SVPA] qualifying mental disorder, it has to involve the fact that it predisposes Mr. Russo to the commission of criminal sexual acts."
Sims viewed People's exhibits 10 and 15 as providing "two other data points" toward that end, in addition to Russo's current rape conviction: "This other information [in People's 10] that included a charge for sexual battery and the other information [in People's 15] that included a hung jury in regard to a charge of rape indicated, in my opinion, two other data points, whereby there were a total of three data points where Mr. Russo committed a criminal sexual act."
At the close of his testimony, Sims opined further that Russo met the requirements for designation as an SVP because he "represents a substantial danger[,] that is a serious and well-founded risk[,] of committing a future sexual[ly] violent predatory offense, without appropriate treatment in custody."
In reaching this conclusion under Criterion C in the SVPA, which requires a risk of future predatory conduct, Sims testified that "it is important to understand there's no scientific basis for-the only scientific basis for the conclusion on whether a future act is going to be predatory is that there's a general principal that past behavior indicates future behavior. [¶] Or stated another way, the best indicator of future behavior is past behavior. And so what evaluators typically do is, they look at whether offenses in the past have been predatory in nature. If they have, then the evaluator indicates that future offenses are likely to be predatory. [¶] . . . And that's what I did in this case."
Russo objected throughout Sims's testimony to the expert's reliance on People's exhibits 10 and 15 as a basis for his opinions. For instance, when the prosecutor asked Sims whether he "considered [People's 10] in forming your opinion," Russo objected: "Speculation [¶] . . . [¶] Foundation, and calls for hearsay under Sanchez, Bennett, and Couthren."
See People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001; Bennett v. Superior Court (2019) 39 Cal.App.5th 862 (Bennett).
The court overruled Russo's objections "to those records," i.e., People's exhibits 10 and 15. When Russo's attorney asked, "Is the court also making a ruling as to my specific objections as to the doctor's opinions, as it relates to Criteria B and Criteria C, under the Sanchez, Couthren, [and] Bennett hearsay objections," the court answered, "Yes."
At the close of the hearing, Russo's counsel moved the court "to release Mr. Russo on the petition," explaining, "The main crux of my argument is, I believe sufficient evidence has not been shown as it relates to Criteria B, the diagnosed mental disorder" said to predispose Russo to commit criminal sexual acts. Nor, according to Russo, was there evidence as to Criterion C, "the substantial likelihood of risk to sexually/violently re-offend if released to the community without supervision," because, of the "three data points" on which Sims relied, including "two arrests for which no facts were heard," i.e., the San Bernardino County "arrest[] for a sexual battery and for a rape in Oregon . . . neither was [a] conviction."
The trial court denied Russo's motion, finding "[i]t does appear to the court that there is sufficient cause to believe that the allegations in the petition are true and that Mr. Russo is a person who falls within the meaning of the Welfare and Institutions Code section governing sexually violent predators. I order him to answer...."
In December 2020, Russo filed the first of two habeas petitions in the superior court, challenging the probable cause finding. Russo contended the finding was unsupported because of "err[or] in admitting hearsay evidence," specifically because Sanchez "appli[es] to probable cause hearings under the [SVPA]."
The court denied the petition in January 2021. The court relied on existing precedent which held the '"Legislature clearly intended for [SVPA] evaluators to rely on hearsay sources in their evaluations,"' including because the evaluations mandated by the SVPA '"necessarily contain considerable amounts of case-specific hearsay,"' and therefore '"the Legislature must have intended the trial judge to review this hearsay in reviewing the reports."' (See, e.g., Walker v. Superior Court (2020) 51 Cal.App.5th 682, 696-697, subsequently reversed by Walker, supra, 12 Cal.5th 177.) The superior court added a caveat: "To be clear, should the California Supreme Court [in a pending matter] reverse the decision in Walker and instead hold consistent with Bennett and Couthren, the court's ruling would likely be different."
While the Supreme Court's Walker decision was still pending, Russo filed a habeas petition in this court to review the superior court's denial of his petition, which we denied summarily. The Supreme Court then denied Russo's ensuing petition for review, albeit "without prejudice to any relief to which petitioner might be entitled after this court decides Walker v. Superior Court, S263588."
Following publication of Walker in August 2021, Russo filed a renewed petition for habeas corpus in the superior court, which that court denied: "Contrary to petitioner's contention, none of the exhibits documenting petitioner's prior convictions and criminal history introduced and admitted into evidence during petitioner's probable cause hearing referenced case-specific facts pertaining to non-predicate offenses nor were they relied upon to establish that petitioner was convicted of non-predicate sex offenses." This court summarily denied Russo's habeas challenge to the superior court's ruling.
Upon the Supreme Court's grant of Russo's petition for review and order transferring the matter back to this court, we vacated the prior summary denial. This court then issued an order for the Director of the State Department of State Hospitals to show cause, as directed by the Supreme Court, '"why petitioner is not entitled to relief on the ground insufficient evidence supported the Orange County Superior Court's February 20, 2020, finding that a reasonable person could entertain a strong suspicion petitioner "has a diagnosable mental disorder" that "makes it likely he . . . will engage in sexually violent criminal conduct if released ....""'
The parties having filed their respective traverse and return, and having heard oral argument, we now turn to the merits of Russo's habeas petition.
DISCUSSION
Where, as here, the trial court made no factual findings in denying habeas relief, the petition is subject to our independent review. (In re Hansen (2014) 227 Cal.App.4th 906, 914.)
Hearsay is evidence of an out-of-court statement offered for the truth of the matter stated; unless an exception applies, hearsay is inadmissible. (Evid. Code, § 1200, subds. (a), (b).) We review a trial court's evidentiary rulings, including the admission of hearsay, for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) To the extent a hearsay ruling turns on a question of law, we review the question de novo. (People v. Portillo (2023) 91 Cal.App.5th 577, 589.)
The Supreme Court in Sanchez held that "[w]hen any expert relates to the [trier of fact] case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Sanchez, supra, 63 Cal.4th at p. 686.) "[I]t cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, 'the validity of [the expert's] opinion ultimately turn[s] on the truth' [citation] of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking." (Id. at pp. 682-683.)
In Walker, the high court resolved a split of authority regarding the admission of hearsay evidence in SVPA probable cause hearings. The court concluded the SVPA "does not create an exception that allows hearsay regarding nonpredicate offenses to be introduced via evaluation reports." (Walker, supra, 12 Cal.5th at p. 185.)
The Walker court made its thinking clear. "What we hold is that nothing in the statutory language, its legislative history, its place in the broader SVPA statutory scheme, or comparisons to other statutory provisions indicates the existence of a hearsay exception for such hearsay in expert evaluations. Nor does anything in the SVPA or our case law indicate that the Legislature-in creating the hearing as a safeguard for SVP candidates to test the sufficiency of the evidence supporting the state's petition and prevent meritless ones from proceeding to trial-must have created an exception for hearsay on nonpredicate offenses to be introduced via evaluations." (Walker, supra, 12 Cal.5th at p. 185.) Thus, the Supreme Court "decline[d] to find that the Legislature explicitly or implicitly created a hearsay exception in section 6602, subdivision (a), for this evidence." (Ibid.)
The Legislature has added no new hearsay exception since Walker to exempt SVPA proceedings from application of the hearsay principles articulated in Sanchez.
In his briefing, the prosecutor seems to rely on two distinctions to argue that Sanchez's prohibition on hearsay evidence as a valid basis for expert opinion evidence does not undermine the propriety of the trial court's rulings. First, an expert may "relate as true case-specific facts asserted in hearsay statements [where] they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 686.) Thus, there is no Sanchez error when "the documentary evidence the experts relied upon was independently admissible." (People v. Burroughs (2016) 6 Cal.App.5th 378, 407.)
Toward that end, the prosecutor argues the trial court properly admitted the documents in People's exhibits 10 and 15 that included statements Russo was charged in 1995 with a misdemeanor sex offense in San Bernardino County and in 2007 with felony rape in Oregon, respectively. The prosecutor relies on the public employee records hearsay exception (Evid. Code, § 1280) for these documents, the fact that as certified copies they were presumptively authentic (id., § 1530), and, as to People's exhibit 10, its admissibility as a certified record of conviction of the misdemeanor offense to which Russo pleaded guilty. (Id., § 452.5, subd. (b)(1).)
Second, the prosecutor at the probable cause hearing distinguished between charged offenses and convictions, and expressly acknowledged Russo was only charged with sex offenses in San Bernardino County in 1995 and in Oregon in 2007; he was not convicted of those crimes. The prosecutor argues recognizing this fact dictates that Sanchez was not implicated because, at most, the truth asserted as to any matter stated in the admitted documents was only that Russo had been charged with the prior offenses- ostensibly with no suggestion he actually committed them.
We disagree. While acknowledging the charges did not result in conviction, the prosecutor asked the expert if Russo's "1995 arrest for sexual battery, with a plea to . . . battery, and the arrest for rape in Oregon in 2007 . . . that went to a jury [and] hung . . . does that still impact on your opinion, notwithstanding the plea to a nonsexual misdemeanor in the instance of the sexual battery charge from the '90s and the ultimate dismissal in the 2007 rape case?" (Italics added.) In using the word "still," the prosecutor may have intended to emphasize that the charges did not result in conviction. But the expert restated the prosecutor's question thusly: "I think your question was whether this information affected my opinion regarding whether Mr. Russo has a qualifying mental disorder."
When the prosecutor responded, "Yes," the expert's answer revealed that he believed the existence of the charges alone established Russo had committed those offenses: "This other information that included a charge for sexual battery and the other information that included a hung jury in regard to a charge of rape indicated, in my opinion, two other data points, whereby there were a total of three data points where Mr. Russo committed a criminal sexual act."
The prosecutor then attempted to stress again his theory was not that Russo committed the prior offenses, but that the charged offenses, when viewed together with his subsequent guilty plea and conviction for rape in 2014, furnished evidence of a propensity to commit sex crimes because, "notwithstanding the fact that the first of those two [was] pled to a non-sex crime and the second of those two was dismissed ultimately, he still, with [or despite] that experience, engaged in forcible rape conduct in 2014." (Italics added.)
The expert again failed to pick up the prosecutor's cue; he maintained that his opinion was based on viewing Russo as having committed or "engaged in" the alleged prior sex offenses: "I would change the wording of your question just so slightly. Instead of 'forcible rape conduct,' to be more . . . consistent with the actual statute, I would say that what he engaged in were criminal sexual acts." (Italics added.)
In closing remarks at the hearing and again before us during oral argument, the prosecution asserted that what was elicited from Sims was a professional opinion that Russo had a propensity to commit sex crimes based not on a pattern of committing such crimes but rather a pattern of having been charged with such crimes and, "notwithstanding the experience of those two" charging events, Russo remained undeterred by his illegal conduct.
We cannot agree.
When viewed as a whole and in context, Sim's testimony does not reflect an endorsement of the prosecutor's propensity theory. This is evident not only in the expert's repeated statement of his premise that "there were a total of three data points where Mr. Russo committed a criminal sexual act" or, stated differently, that "what [Russo] engaged in were criminal sexual acts." It is also evident in the expert's candid acknowledgment on cross-examination that his SVP opinion would likely be different if not for the manner in which he viewed the prior charged offenses. When Russo's defense attorney asked the expert, "Now, . . . if you only had the most recent data point, the actual pled offense [in 2014], and that was the only data point you had to use, would you still have the same conclusion," the expert admitted, "[T]his is cause for concern, this hypothetical."
The expert continued, "[I]f-if I-if I . . . only had the 2014 conviction and I didn't have these other data points, it is very unlikely that we're having this conversation right now. It is very unlikely that I would have said that Mr. Russo's antisocial personality disorder predisposes him to criminal sexual acts. It is plausible that I might have said that, based on the remainder of the evaluation, but it is extremely unlikely in my opinion, yes, sir."
The prosecutor now points to the expert's "plausible" statement as evidence that something in the expert's evaluation might have led him to conclude Russo was prone to reoffend sexually and thus would qualify as an SVP even without relying on the prior unproven charges as if Russo had committed them. But the prosecutor chose not to introduce any expert SVPA evaluations into evidence, relying only on Sims's testimony at the probable cause hearing.
An expert's "assumptions of fact . . . without evidentiary support" are not sufficient to support a decision in that party's favor. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) "[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based." (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.)
As Sims acknowledged, his SVPA evaluation must be "taken within the context of all the information you have . . . specific to the evaluation itself" and when Sims improperly inferred the truth of the charged sex offenses, that assumption fatally undermined his opinion. For example, he assessed Russo's risk of recidivism based on comparison to "risk percentages . . . from other people that have been studied in the past and followed for a period of time," and that comparison admittedly depended on "the extent that Mr. Russo is similar to that correctional sample." Yet that comparison would necessarily be tainted in a manner "specific to the evaluation itself" once Sims assumed Russo committed all three sex offenses. It also tainted Sims's conclusion that Russo's alleged antisocial personality disorder predisposed him not just to reoffend, but to do so sexually.
That is not to say we necessarily reject the prosecutor's less compelling, but potentially viable theory that a pattern of sex offense charges that do not dissuade a defendant from committing a subsequent, proven sexual offense may aid in showing a compulsion or propensity to commit such offenses. We express no opinion on that issue. The prosecutor here did not present evidence in the form of expert opinion testimony based on that theory. The expert assumed Russo committed the charged offenses, while the prosecutor did not; but the expert based his SVP opinion on the former assumption, not the latter. The probity of the expert's opinion must be weighed according to the factors "specific to the evaluation itself," as Sims said, not a post hoc theory the expert never adopted.
An SVPA evaluator or evaluators perform an essential role at a probable cause hearing to determine whether a subject "is 'likely' to reoffend . . . because of a current mental disorder which makes it difficult or impossible to restrain sexually violent behavior," and therefore whether "the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) The trial court's role is to determine whether, on the evidence presented, "a reasonable person could entertain a strong suspicion that the offender is an SVP." (Cooley, supra, 29 Cal.4th at p. 252, italics omitted.)
Our role on habeas review is to assess the sufficiency of the evidence actually presented at the probable cause hearing to support the expert's SVP assessment and the trial court's probable cause conclusion. Here, the expert's foundational basis for his SVP opinion was invalid under Sanchez, thus rendering the expert's opinion incompetent to support his conclusion. As a result, no evidence supported the trial court's SVP probable cause determination.
The expert's testimony that, were his "data point" premises found to be invalid, it would be "extremely unlikely" he would find "Russo's antisocial personality disorder predisposes him to criminal sexual acts" compels our conclusion that, based on the evidence presented, a reasonable person could not harbor a strong suspicion Russo is an SVP. We therefore must grant Russo's petition to reverse the probable cause finding and remand the matter for the superior court to dismiss the SVPA petition for lack of evidence.
Relying on Walker, supra, 12 Cal.5th at pp. 209-210, the prosecutor contends that if remand is required, it must be for a new probable cause hearing, rather than dismissal. He argues the Supreme Court "has now spoken on this issue, holding in Walker that where the improper admission of hearsay evidence at a probable cause hearing causes prejudice, the appropriate remedy is to remand the case back to superior court for a new hearing."
In Walker, however, unlike in this case, there was a mix of "properly admitted evidence support[ing] the existence of probable cause" and "properly admitted evidence [that] cut against the existence of probable cause." (Walker, supra, 12 Cal.5th at p. 207.) The problem the high court faced in light of this competing, properly admitted evidence was that "[n]othing in the record tells us exactly how the trial court settled on its probable cause determination . . . [b]ut the nature and role of the inadmissible hearsay ma[d]e it likely that this evidence [i.e., the improperly admitted evidence] prejudicially affected the trial court's determination." (Ibid.) Remand with directions to the superior court "for a new probable cause hearing consistent with [the high court's] opinion" was therefore the proper remedy. (Id. at p. 210.)
Here, in contrast, just as was the case in Bennett, supra, 39 Cal.App.5th at p. 881, the prosecutor's showing of probable cause was wholly inadequate without the inadmissible '"make[] or break[]"' evidence on which Sims relied.
DISPOSITION
We grant Russo's habeas corpus petition challenging the superior court's finding of probable cause that he is a sexually violent predator. The matter is remanded with directions for the superior court to enter a new and different order dismissing the prosecution's SVPA petition for insufficient evidence.
WE CONCUR: O'LEARY, P. J. SANCHEZ, J.