Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. ZM004182. C. Edward Simpson, Judge.
Susan S. Bauguess, under appointment by the Court of Appeal, for Respondent and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Petitioner and Respondent.
FLIER, J.
INTRODUCTION
Appellant Bernard Brinkley challenges his commitment as a sexually violent predator under Welfare and Institutions Code section 6600, et seq. on numerous grounds, including evidentiary error, insufficiency of evidence, ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and the constitutional infirmity of the Sexually Violent Predator Act (SVPA). We conclude the trial court did not abuse its discretion by limiting appellant to two testifying experts. Appellant forfeited hearsay and due process objections to particular exhibits by failing to raise them in the trial court. The trial court’s discovery sanction against appellant did not violate due process. Substantial evidence supports the verdict. Error in the court’s commitment order does not entitle appellant to relief. The SVPA does not violate the ex post facto or equal protection clauses of the United States Constitution. The prosecutor did not commit misconduct and neither trial nor appellate counsel rendered ineffective assistance.
BACKGROUND AND PROCEDURAL HISTORY
In November 2000, the office of the Los Angeles County District Attorney filed a petition to commit appellant as a sexually violent predator, citing his 1983 convictions for forcible rape and forcible oral copulation as predicate offenses.
Appellant also had numerous other convictions, including a 1977 conviction for assault with intent to commit rape and a 1980 conviction for assault with intent to commit sodomy.
In December 2005, a jury found the petition true. The court ordered appellant committed to the state Department of Mental Health for two years.
DISCUSSION
1. The trial court did not abuse its discretion by limiting appellant to two testifying experts.
Appellant sought to introduce the testimony of four experts: Christopher Heard, Ph.D.; Raymond Anderson, Ph.D.; William Vicary, M.D.; and Kaushal Sharma, M.D. The People argued the testimony of the four experts would be cumulative. Appellant responded that because each expert’s qualifications and approach differed, the testimony of each was probative. He made offers of proof regarding each expert.
According to appellant, Sharma was a psychiatrist specializing in forensic psychiatry, who was also a professor at the USC School of Medicine. He would testify that appellant did not have a diagnosed mental disorder, appellant did not show signs of “sexual mental illness,” and appellant’s sex crimes were attributable to criminal orientation, not a mental disorder. Sharma did not consider or address the likelihood of appellant reoffending.
According to appellant, Heard was a psychologist and attorney, who was formerly a deputy district attorney, a staff attorney for the Department of Corrections and a psychologist for the Board of Prison Terms. He would testify that paraphilia is not a lifelong disorder and appellant was at the tail-end of the sexual recidivism curve and therefore not likely to reoffend in a sexually violent, predatory manner.
According to appellant, Anderson was a psychologist who was formerly the chief of Wisconsin’s sex offender treatment facility. He did not believe appellant had a diagnosed mental disorder, but was a situational sex offender who was not likely to reoffend in a sexually violent, predatory manner. Anderson believed the Static 99 test used by the People’s experts was inaccurate.
According to appellant, Vicary was a psychiatrist and an attorney. He was also a professor at the USC School of Medicine and was the head of its treatment program, in which capacity he had evaluated and treated hundreds of sex offenders. He would testify that appellant had a diagnosed mental disorder of paraphilia, but did not feel he was likely to reoffend in a sexually violent, predatory manner. Vicary followed the same approach used by the People’s experts, which distinguished him from the other defense experts.
The prosecutor noted that three of the proposed defense experts agreed paraphilia NOS is a diagnosable mental disorder, but two of the three experts did not believe appellant suffered from it. Anderson and Sharma both administered the MMPI test.
Paraphilia NOS refers to paraphilia not otherwise specified.
The court limited appellant to calling two of his four proposed experts to testify. The court acknowledged the experts had different backgrounds, but found their testimony cumulative. The court left the choice of experts to appellant. Appellant complained that the People’s experts were cumulative because they followed the same approach and reached the same conclusion. He argued the prosecution should be allowed to call only one of them. The court rejected the argument. Appellant elected to have Anderson and Heard testify.
Appellant contends the trial court abused its discretion by limiting the number of experts he could present.
Evidence Code section 723 provides trial courts with authority to “limit the number of expert witnesses to be called by any party.” The decision to do so is discretionary. (Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371.) Appellant therefore bears the burden of establishing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Windham (1987) 194 Cal.App.3d 1580, 1592.)
Although the proposed testimony of each of appellant’s experts was in some way unique, their proposed and actual testimony demonstrated significant redundancy on material points. For example, according to the testimony of Heard and Anderson, the offer of proof regarding Sharma and Sharma’s report, appellant had no diagnosed mental disorder, although Heard “strongly” suspected appellant had an antisocial personality disorder. All three experts rejected a paraphilia diagnosis, albeit for different reasons. Heard and Anderson considered the Static 99 test inaccurate or inappropriate. It may also be inferred that Sharma held the Static 99 test in low regard, as his report criticized the prosecution experts for relying upon appellant’s past criminal history. The Static 99 test is primarily based upon the subject’s criminal history and the circumstances of his prior sexual offenses. Sharma and Anderson both viewed appellant’s crimes as stemming from a general criminal orientation. None of appellant’s experts believed he was likely to reoffend in a sexually violent, predatory manner. Heard, Anderson and Vicary all cited appellant’s age or age-related health problems as a factor indicating he was unlikely to reoffend.
Accordingly, we cannot conclude that the trial court abused its discretion by forcing appellant to pick just two of his experts. The soundness of the court’s decision is further illustrated by the largely cumulative testimony given by the two experts appellant chose, Heard and Anderson. Perhaps, in retrospect, appellant should have chosen differently. However, the court’s equal limitation on each party’s experts was not arbitrary, capricious or patently absurd.
Nor has appellant shown the limitation resulted in a manifest miscarriage of justice. Given the redundancy and agreement of the four defense experts, it is highly unlikely the jury would have reached a result more favorable to appellant if the court had permitted all of his experts to testify. Sharma’s report contains no evaluation of the likelihood of appellant reoffending, but just an opinion that appellant did not suffer from an identifiable mental disorder. Heard and Anderson testified that appellant did not suffer from a diagnosable mental disorder. Sharma also criticized the approach of the prosecution experts, as did Heard and Anderson. Accordingly, Sharma’s testimony would not have benefited appellant. Vicary’s report reflects an opinion that appellant suffered from several mental disorders: paraphilia NOS, alcohol abuse, cannabis abuse, cognitive disorder and personality disorder NOS primarily antisocial traits and behaviors. With respect to appellant’s prospects of reoffending, Vicary acknowledged that it was a “relatively close case” with 11 risk factors indicating a greater likelihood of reoffending and 10 indicating a lesser likelihood of reoffending. Vicary also employed the Static 99 test, which appellant’s testifying experts attempted to discredit. Accordingly, despite Vicary’s opinion that appellant was not likely to engage in sexually violent criminal behavior, his opinion was also of limited benefit to appellant. To the extent that Sharma and Vicary may have been more impressive to the jury because they were psychiatrists, any lost benefit is attributable solely to appellant’s choice of which experts would testify, not the trial court’s ruling.
We therefore conclude the trial court did not abuse its discretion by limiting appellant to two experts.
2. Appellant forfeited his hearsay and due process objections to Exhibits 20 and 22 by failing to raise them in the trial court.
Appellant contends the trial court violated his right to due process by admitting hearsay statements in People’s Exhibits 20 and 22, which were probation reports dating from 1980 and 1983.
Appellant objected to the admission of particular sections and statements in the two probation reports. The court directed counsel to confer regarding possible redaction of the reports. Counsel came to an agreement regarding most portions of the two reports and then presented the remaining issues for the court’s resolution.
The remaining objections pertinent to this appeal were (1) a relevance objection to a statement in Exhibit 20 that the victim had entered therapy, (2) a relevance objection to a statement by the probation officer that appellant had no remorse (Exhibit 20) and (3) objections to the probation officer’s statement in Exhibit 22 of the officer’s opinion that appellant was a danger to the community and the community required protection from repeat offenders for as long as possible. Appellant asserted that the opinions in Exhibit 22 were irrelevant and likely to inflame the jury. The court overruled these objections, although it sustained most of appellant’s other objections.
Appellant did not raise in the trial court the hearsay and due process objections he now raises. He therefore forfeited them. (People v. Williams (1997) 16 Cal.4th 153, 208; People v. Hill (1992) 3 Cal.4th 959, 994-995 overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.)
3. The trial court’s discovery sanction against appellant did not violate due process.
Prosecution experts last interviewed appellant in June 2003. On January 19, 2005, the trial court ordered appellant to submit to new interviews with the prosecution’s experts. Appellant refused to do so. In June 2005, the prosecution filed a motion for sanctions. In particular, the prosecution asked the court to preclude appellant’s experts from testifying at all or to the extent their testimony was based on interviewing appellant, for an instruction that appellant “suffer[s] from a current diagnosable mental disorder that makes him unable to control his behavior so that the commits sexually violent predatory crimes against women” and to preclude appellant from challenging the prosecution’s experts about their opinion regarding his qualifying current diagnosable mental disorder. Appellant opposed the motion.
Before trial, the court ruled that the prosecution experts could be asked about opportunities to interview appellant after 2003, why they were unable to interview him and whether an interview would have helped them form their opinions about appellant. According to the ruling, the jury would also be instructed in some fashion about appellant’s refusal to submit to additional interviews. The court deferred ruling upon additional sanctions.
Dr. Jack Vogensen testified he interviewed appellant on September 1, 2000 and again on June 20, 2003. He performed a third evaluation on February 17, 2005, but this evaluation was not based upon a new interview because he was informed that appellant refused to meet with him. Vogensen felt a third interview would have been helpful, in that he could determine whether there had been “any changes in the respondent’s understanding of his offense history, his potential for re-offense,” or his plans. However, he did not find appellant’s refusal to meet with him was a significant factor. Dr. Craig Updegrove testified he interviewed appellant on September 8, 2000 and then again on June 25, 2003. He performed a third evaluation on March 16, 2005, but this evaluation was not based upon a new interview, as appellant was not willing to meet with him.
After the prosecution rested, the trial court reviewed the reports Anderson and Heard prepared following their 2005 supplemental interviews with appellant. The court concluded that there was nothing new in Heard’s 2005 report and, although Anderson readministered some tests in 2005, his report did not indicate those tests significantly effected his opinions. Accordingly, the court precluded Anderson and Heard from testifying to any information they acquired during 2005. The court also precluded appellant from asking either witness about the fact of the 2005 interviews. The court did not instruct the jury regarding the issue.
Appellant contends the trial court’s ruling violated due process. He argues the effect of the ruling was to permit the jury to infer the defense experts were incompetent because they did not conduct more current interviews. He further argues “the jury likely speculated that there may have been something new causing a different opinion as to his status . . . .”
Appellant’s willingness to interview with his own experts while refusing to submit to new interviews with the prosecution’s experts constituted an attempt to manipulate the system that required a corrective sanction. (See People v. Sumahit (2005) 128 Cal.App.4th 347, 353-354 [by refusing interviews with prosecution’s experts, defendant forfeited claim that prosecution failed to prove he was currently suffering from a mental disorder that made him dangerous].) The Civil Discovery Act applies to SVPA proceedings. (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 995.) The trial court therefore had discretion to impose a variety of sanctions, including issue, evidence or terminating sanctions, for appellant’s violation of its order to submit to interviews. (Code Civ. Proc., §§ 2023.010, subd. (g); 2023.030; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 388.) The court’s choice of sanctions is subject to reversal only for an abuse of discretion. “The trial judge’s application of discretion in discovery matters is presumed correct, and the complaining party must show how and why the court’s action constitutes an abuse of discretion in light of the particular circumstances involved.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432.)
A review of the record shows the trial court carefully considered the potential harm to appellant’s defense that might result from precluding defense experts from basing their testimony upon their 2005 interviews. Before selecting the sanction, the court found that little or no harm to the defense would result. Appellant has not specified how his experts’ testimony would have been more beneficial to him if they had been able to rely upon information obtained during their 2005 interviews. His speculation that the jury would conclude his experts were incompetent or infer that his status had changed in some fashion is no substitute for his obligation to demonstrate that the ruling was arbitrary, capricious or patently absurd, or that it resulted in a manifest miscarriage of justice. The trial court’s cautious, considered, well-tailored ruling was not an abuse of discretion.
Nor did the ruling violate due process. Due process in SVPA proceedings is not measured by the standard applied in criminal proceedings, but by that applicable to civil proceedings. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 738.) It requires only that the procedure employed comport with fundamental principles of fairness and decency. (Ibid.) The trial court cautiously tailored the sanction to the harm caused by appellant’s violation of the order to submit to new interviews. This served to level the playing field between prosecution and defense experts and prevent appellant from benefiting from his attempt to seek an unfair advantage by abusing the system. The sanction was thus imminently fair. The court’s careful consideration of the potential harm to appellant’s defense and appellant’s inability to pinpoint any harm establish the inherent fairness and decency of the court’s ruling.
4. Substantial evidence supports the jury’s findings.
Appellant contends the evidence was insufficient to establish that he posed a substantial danger of committing sexually violent offenses if he were released.
To resolve this issue, the whole record is reviewed in the light most favorable to the judgment to decide whether substantial evidence supports the determination, so that a reasonable jury could find beyond a reasonable doubt that appellant qualified as a sexually violent predator. (People v. Sumahit, supra, 128 Cal.App.4th at p. 352.) “In order to establish that defendant was an SVP, the People must prove that (1) defendant was convicted of two separate sexually violent offenses; (2) he had a diagnosable mental disorder that made him a danger to the health or safety to others; (3) his disorder makes it likely he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature. (People v. Roberge (2003) 29 Cal.4th 979, 985; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243; People v. Hurtado (2002) 28 Cal.4th 1179, 1186; § 6600, subd. (a).)” (People v. Fulcher (2006) 136 Cal.App.4th 41, 52, italics omitted.) “[A] person is ‘likely [to] engage in sexually violent criminal behavior’ if at trial the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.” (People v. Roberge, supra, 29 Cal.4th at p. 988.)
Because appellant does not challenge the sufficiency of evidence of the first, second or fourth element listed in the preceding paragraph, we address only the evidence regarding whether his diagnosable mental disorders make it likely he will engage in sexually violent criminal conduct if released.
Vogensen testified that he determined the likelihood of a person reoffending in a sexually violent and predatory way by means of actuarial and clinical analysis, including an interview and review of the person’s prior offenses, to determine whether there is a serious and well-founded risk. When he originally evaluated appellant in 2000, Vogensen concluded the likelihood of appellant reoffending was greater than 50 percent. Based on all of his evaluations, he concluded that, as of the time of trial, appellant was likely to commit sexually violent predatory offenses or crimes if released. Vogensen explained his use of and reliance upon the Static 99 actuarial tool, which led him to score appellant at 7, possibly 8. This score put him into the category of those at high risk of being convicted of a new sexual offense. This meant he had a 39 percent chance of a new sexual offense conviction in the first five years, a 45 percent chance of a new sexual offense conviction in the first 10 years, and a 52 percent chance of a new sexual offense conviction in the first 15 years following release. Vogensen testified the Static 99 was a conservative measuring tool, as it only predicted the likelihood of convictions, not actual offenses.
This finding was consistent with an understanding that the statute required a “more likely than not” chance of reoffending. In People v. Roberge, supra, 29 Cal.4th at p. 988, the Supreme Court rejected such a standard in favor of a “substantial danger” or “serious and well-founded risk” standard.
Vogensen testified that after appellant revealed a history of substance abuse in his 2003 interview, his score on the Hare psychopathy checklist rose to 26.7, which indicated an increased risk of sexual offense recidivism.
Vogensen testified that he factored appellant’s age (53 at the time of trial) into his evaluation, in that age generally reduces the likelihood of the commission of crimes, sexual or otherwise. Studies showed that the risk of reoffense for the “average sex offender,” with one or two offenses, declined severely after the age of 50. However, appellant’s record placed him into the category of higher risk offenders, for whom there was no decline in the risk of reoffending before the age of 60. Because appellant was under 60, he was still at a high risk for reoffending. Moreover, despite some age-related conditions, such as high blood pressure and arthritis, appellant appeared to be in good health and at the time of the 2003 interview, his parents were alive at the ages of 66 and 76.
Updegrove found appellant posed a “serious and well-founded risk” of committing other sexually violent predatory offenses in the future. Updegrove based this conclusion on actuarial analysis, appellant’s pattern of offenses, and his interview with appellant. He testified that appellant’s antisocial personality disorder made him more likely to commit sexual offenses in the future. Updegrove gave appellant a score of 34 on the Hare psychopathy checklist, which placed him at greater risk of committing future sexual offenses. He scored appellant a 7 on the Static 99 but, in reviewing his report, he realized the score should have been 8. Either score put appellant in the highest risk category for reconviction for a sexual offense. Updegrove considered a risk reduction based upon appellant’s age in his analysis.
Anderson testified the Static 99 was “useless” as a predictor of sexually violent recidivism. It over-predicted such offenses by a factor of five. Anderson believed the 1994 Department of Justice study was more accurate. It showed a reconviction rate for serious sexual offenses of 3.5 percent over three years, which is the interval in which reoffense was most likely to occur. Anderson was willing to accept appellant as an out-patient at his clinic. He considered appellant’s use of medications for his high blood pressure and arthritis to “further” reduce the likelihood of him reoffending. Moreover, most rapists stop reoffending after age 40.
Heard testified that the recidivism rate for persons in appellant’s age group was five to ten percent. Heard did not believe the Static 99 was an accurate tool, as it was based upon Canadian offenders, and the rate of sexual offense recidivism in Canada was two to three times higher than that in the U.S. According to the Department of Justice study, there was only a five percent chance of reoffending within three years. The rate of reoffending declined for those with three convictions because “criminals get tired. . . . [¶] They get tired faster because they get tired of going to prison, they get tired of being picked up [by] the police, arrested.”
Viewing the evidence in the light most favorable to the judgment, we conclude the testimony of Vogensen and Updegrove constituted substantial evidence that appellant was likely to engage in sexually violent criminal conduct if released. Appellant’s claim essentially asks this court to reweigh the evidence and has no merit.
5. Error in the court’s commitment order does not entitle appellant to relief.
Before the verdict was returned, the prosecutor submitted a proposed order of commitment that stated appellant was “committed to the Department of Mental Health for a period of two years for appropriate treatment and confinement pursuant to Welfare & Institutions Code §6604 for the period of December 13, 2005 to December 13, 2007. [¶] It is ordered that the Respondent remain at Coalinga State Hospital . . . for treatment and confinement until the expiration date of his commitment order or further court order.” When the court learned the jury had reached a verdict, it conferred with counsel as to how to proceed if the jury found the petition true. The prosecutor referred to her proposed order and informed the court that she had “checked with the Atascadero State Hospital and apparently new commitments are to go directly to Coalinga State Hospital . . . .” Defense counsel did not object to the order and said that, if the jury found the petition true, “then the court proceeds forthwith with the order.” After the verdict was received, the court signed and filed the prosecutor’s proposed order.
Appellant contends the trial court usurped the authority of the Department of Mental Health and violated the separation of powers doctrine by directing him to be placed at the Coalinga State Hospital, as opposed to simply committing him to the custody of the Department of Mental Health.
Welfare and Institutions Code section 6604 provides that if the petition for commitment as a sexually violent predator is found true, “the person shall be committed for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health.”
It appears the trial court’s direction that appellant be held and treated at a particular facility violated the terms of the statute by directing a specific placement. However, appellant forfeited his claim by failing to object to the order when the court discussed it with counsel. Defense counsel stated he had seen it, but did not object to any aspect of it.
Moreover, appellant has not established any prejudice from the court’s order. If the Department of Mental Health felt that the court’s order infringed upon its mandate or discretion, the agency, not appellant, could seek a modification of the court’s order. Appellant has not established standing to attempt to raise a claim that clearly belongs to the Department of Mental Health.
6. The SVPA does not violate the ex post facto or equal protection clauses of the federal Constitution.
Appellant contends that the SVPA violates the ex post facto and equal protection clauses of the federal Constitution. He acknowledges that the California Supreme Court has rejected identical claims. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1168-1179.) We are bound by these rulings and therefore do not further address the merits of appellant’s claims. (Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
7. The prosecutor did not commit misconduct.
Appellant was granted leave to file a supplemental brief in propria persona. Respondent’s brief does not address the contentions raised in appellant’s supplemental brief.
Appellant first contends the prosecutor committed misconduct by “withholding” from Updegrove appellant’s medical records generated at the Los Angeles County Jail. Appellant incorrectly claims the court permitted defense counsel to inform the jury that the prosecutor had “broken the rules of court” by doing so. He argues the SVPA required Updegrove to consider those records, and they would likely have affected his evaluation of appellant’s “ability to reoffend.”
In actuality, the issue regarding appellant’s medical records from jail arose when defense counsel sought to call Sharma to testify about the effect of appellant’s “health issues” on his risk of reoffending. Defense counsel told the court that he provided appellant’s jail medical records to the prosecutor to pass on to Vogensen and Updegrove, and was unaware the prosecutor had not done so until he asked Vogensen about them. The prosecutor opposed the request to have Sharma testify on the ground his report did not indicate he had reviewed any medical records. After reviewing Sharma’s report, the court denied the request, but stated that appellant could introduce the records, ask Updegrove and his own experts about the effect of the medical conditions and testify about the conditions himself.
On cross-examination, defense counsel asked Updegrove whether he received a phone call from the prosecutor regarding appellant’s medical records. He said he had received a call, but did not receive the records. Updegrove asked the prosecutor if there was anything significant in them and told her he did not feel qualified to make medical determinations. He already had a “thick stack” of documents to review and was not eager to receive any additional records. Updegrove noted that he already knew from his review of older records and his 2003 interview with appellant, that appellant had hypertension, arthritis and possibly an enlarged heart and that he took a variety of medications. Defense counsel then introduced appellant’s medical records from the county jail (Defense Exhibit G) and asked Updegrove to review specific entries. Updegrove testified that entries for July 2005 indicated appellant was complaining of chest pain. He received nitroglycerin and had an EKG, which showed a trial enlargement. Other entries indicated appellant was receiving two medications for hypertension and had numerous abnormal EKGs as early as June 2003. Hypertension medications may affect sexual performance, but do not affect sex drive. After reviewing the records, Updegrove testified that appellant apparently had cardiac problems and ongoing hypertension.
On redirect examination, Updegrove testified that during the lunch break he had an opportunity to review Defense Exhibit G, and nothing in it changed his opinion that appellant currently suffered from paraphilia and antisocial personality disorder. He saw nothing in the jail medical records to indicate that poor health would affect appellant’s likelihood of reoffending. In particular, nothing indicated that his mobility was limited to an extent that would affect the likelihood he would commit a sexually violent predatory offense if released. He was receiving aspirin or ibuprofen for his arthritis. Nothing in the records indicated appellant had been hospitalized or had follow-up treatment for his heart condition, other than taking nitroglycerin and aspirin.
Appellant has not established any basis for finding that the prosecutor had an obligation to provide Updegrove and Vogensen with appellant’s medical records from the jail. Welfare and Institutions Code section 6601, cited by appellant, does not impose an obligation, as it applies to the initial evaluations required to file the petition. Section 6603, subdivision (c) provides that “updated or replacement evaluations shall include review of available medical and psychological records, including treatment records,” but this imposes no obligation with respect to trial testimony. Appellant does not contend, and nothing in the record indicates, that Updegrove and Vogensen failed to review appellant’s current medical records at the time they prepared their two updated evaluations.
This was not an instance in which the prosecutor withheld favorable evidence from the defense. Appellant clearly had the records. Indeed, the prosecutor did not “withhold” the records at all. She informed Updegrove of them, but he replied he was not qualified to review them.
In any event, appellant has failed to demonstrate he was harmed by the prosecutor’s failure to forward the county jail medical records to her experts. Updegrove testified he already knew about the three medical conditions and medications based on his review of available records and interview with appellant in 2003. The new records were admitted in evidence at trial. Updegrove testified regarding their contents. He also testified that their contents did not alter his opinions. Anderson testified that appellant’s arthritis and the medication he took for his hypertension reduced the likelihood of him reoffending. The issue was therefore before the jury. Appellant’s medical conditions were not complex or beyond the common experience or understanding of jurors. Appellant’s reliance upon a post trial diagnosis of a need for knee and possibly hip replacements ventures outside of the appellate record and cannot be considered.
8. Updegrove did not testify falsely or in a misleading fashion about the 1993 conviction.
Appellant next contends that the prosecutor permitted Updegrove to give false and misleading testimony regarding appellant’s 1993 conviction. Appellant quotes his opening brief for the proposition that Updegrove testified he found appellant had “a repetitive, pattern of sexual activity with non-consenting partners . . . commencing with his 1976 conviction for assault with intent to commit rape, and continuing through his 1993 conviction for indecent exposure.”
In actuality, Updegrove never referred to appellant’s 1993 conviction as being for indecent exposure. The prosecutor asked Updegrove about his reliance upon reports of appellant’s “1993 indecent exposure arrest.” Updegrove responded as follows:
“A male adult contacted the police. He had seen Mr. Brinkley in his car attempting to make contact with a 30-year old, thirtyish-year old woman, who was walking down the street. And as this male who made the report contacted the police, observed that Mr. Brinkley had his pants down and he was exposed. [¶] Mr. Brinkley was contacted by the police who had difficulty gaining his compliance in showing his hands, and Mr. Brinkley explained that he had a boil on his butt and that was why his pants were loosened. So he was -- he was actually convicted of a disorderly conduct charge for this offense.”
Accordingly, the claimed error did not occur. Appellant’s new version of the 1993 incident is outside the appellate record and irrelevant in any event.
9. Trial counsel did not render ineffective assistance.
Appellant contends his trial attorney rendered ineffective assistance of counsel. He claims counsel erred by permitting an excessive delay in bringing this matter to trial; failing or refusing to call appellant as a witness at trial; failing to explain to the jury the difference between police reports, probation reports, and preliminary hearing transcripts; and failing to use the terms “recent objective indicia” and “current psychological symptoms” at trial.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, that (1) counsel’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
Assuming, for the sake of argument, that the right to effective assistance of counsel applies in proceedings under the SVPA, we find appellant’s claims meritless. Many of his claims are based primarily upon matters outside the record and he has failed to demonstrate either constitutionally deficient performance by counsel or prejudice with respect to the claimed errors.
While the five-year delay from the filing of the petition to the trial was excessive, the record does not reveal that defense counsel was responsible, either by act or omission, for any significant portion of that delay. At least four continuances were necessitated by the failure of the sheriff’s department to transport him to court. Three continuances were attributable to appellant’s need for medical attention. For 27 other continuances, no reason appears in the appellate record. Only eight continuances are clearly attributable to a defense request and all but one of these occurred within a ten-month period in 2004 and 2005. Additional delay was caused by appellant’s successful motion to set aside the probable cause finding, which required a new probable cause hearing. At least one continuance was necessitated by the unavailability of the defense experts. To the extent delay was attributable to the defense, appellant has not shown that counsel lacked a valid reason, such as the need for further investigation or his trial schedule. Nor has appellant established a reasonable probability that he would have obtained a more favorable result if counsel had taken steps to hasten the trial.
Appellant’s contention regarding counsel’s failure or refusal to call him as a witness at trial is based, in large part, on matters outside the appellate record. The record indicates that appellant was a potential defense witness, but after a conference between appellant and defense counsel, counsel informed the court that appellant would not be testifying. Appellant has not shown and indeed cannot show in the context of an appeal, the substance of the testimony he would have given at trial. Such a showing, however, is essential for an ineffective assistance claim based upon failure to call a witness. (People v. Wash (1993) 6 Cal.4th 215, 269.)
Presumably appellant wanted counsel to explain to the jury the difference between police reports, probation reports and preliminary hearing transcripts during argument. The prosecutor introduced abstracts of judgment (Exhibit 1), police reports (Exhibits 3-5), preliminary hearing transcripts (Exhibits 6-7), informations (Exhibits 16, 18-19, 21), a complaint (Exhibit 24) and probation reports (Exhibits 17, 20, 22). Most of these exhibits were admitted in evidence. Appellant has not shown that any likelihood of jury confusion regarding the differences or that it is reasonably probable he would have obtained a more favorable result if counsel explained the differences between these types of documents.
Nor has appellant shown he would have obtained a more favorable result if counsel had used the phrases “recent objective indicia” and “current psychological symptoms” at trial. Certainly, counsel is not required to utter particular words or phrases to render effective assistance.
To the extent appellant intended to argue that counsel should have argued that the prosecution experts were simply relying upon appellant’s prior offenses to reach their conclusions that he currently suffered from a mental disorder making him a danger to the health and safety of others, he also fails. Both the experts and the triers of fact may rely upon prior offenses as evidence of current mental disorder and the likelihood of reoffending, as long as the prior offenses are not the sole basis for determining that a person constitutes a sexually violent predator. (Welf. & Inst. Code, § 6600, subd. (a)(3); Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1163-1164.) Appellant’s jury was so instructed. Defense counsel argued that the prosecutor failed to prove appellant had a current diagnosed mental disorder because the proof relied solely upon his past offenses. Both prosecution experts testified they relied upon their interviews with appellant, as well as their consideration of his prior offenses, in reaching their conclusions. In particular, Vogensen cited appellant’s revelations in his 2003 interview of substance abuse as a factor of significance, especially with respect to his diagnosis of antisocial personality disorder and polysubstance abuse. He also cited appellant’s deceitfulness and lack of remorse. Similarly, Updegrove cited appellant’s deceitfulness, lack of remorse, admitted behavioral problems in school and an implausible explanation during the 2003 interview that he ordered his victims to undress to facilitate his escape after robbing them. Moreover, Updegrove testified paraphilia is a chronic, lifelong condition and appellant had not participated in a treatment program.
Accordingly, it is not reasonably probable appellant would have obtained a more favorable result if his attorney had used particular words or phrases.
10. Appellate counsel did not render ineffective assistance.
Appellant contends that appellate counsel in the present appeal rendered ineffective assistance by failing to raise the issues appellant raised in his supplemental brief. Because none of the issues in his supplemental brief has merit, appellant’s ineffective assistance of appellate counsel claim has no merit.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.