Opinion
C085771
01-24-2022
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL L. INGRAM, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 99F06254)
HULL, ACTING P. J.
Defendant Michael L. Ingram challenges his commitment as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He argues the trial court erred in admitting certain exhibits and in failing to redact them. He also asserts the trial court abused its discretion in admitting case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). To the extent his contentions are not preserved for appellate review, he asserts he was deprived of the effective assistance of counsel. Finally, he asserts that, even if errors were not prejudicial individually, the cumulative effect of the errors warrants reversal.
We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
"Under the SVPA, an offender who is determined to be an SVP is subject to involuntary civil commitment for an indeterminate term' "immediately upon release from prison." '" (People v. Putney (2016) 1 Cal.App.5th 1058, 1065.) To establish an offender is an SVP, the prosecution must prove, beyond a reasonable doubt, the offender (1) has been convicted of a sexually violent offense against one or more victims, and (2) has a diagnosed mental disorder that makes him or her a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. (Welf. & Inst. Code, § 6600, subd. (a)(1).) "The SVPA is designed' "to provide 'treatment' to mentally disordered individuals who cannot control sexually violent criminal behavior"' and to keep them confined until they no longer pose a threat to the public." (Putney, at p. 1065.)
The People filed a petition and an amended petition for commitment of defendant as an SVP pursuant to Welfare and Institutions Code section 6600 et seq. According to the petition, on or about December 2, 1999, defendant was convicted of two counts of lewd and lascivious act upon a child under 14 in violation of Penal Code section 288, subdivision (a) and sentenced to a term of 17 years. The People asserted defendant, as a result of a mental disorder, was a danger to the health and safety of others and was likely to engage in sexual violence if released.
After a hearing pursuant to Welfare and Institutions Code section 6602, having found probable cause to believe defendant was likely to engage in sexually violent predatory criminal behavior upon his release, the court ordered defendant transported to Coalinga State Hospital (Coalinga) to be detained pending trial.
The People's Evidence
The defense conceded that the first element for commitment under the SVPA, was satisfied in that defendant had been convicted of a sexually violent offense against one or more victims. (Welf. & Inst. Code, § 6600, subd. (a)(1).) Thus, the issue at trial was whether defendant had a diagnosed mental disorder that made him a danger to the health and safety of others in that it was likely he would engage in sexually violent criminal behavior. (Ibid.)
A. Testimony of Dr. Dale Arnold
Dr. Dale Arnold has a Ph.D. in clinical psychology. Arnold described the facts underlying defendant's 1990 qualifying conviction taken from a probation officer's report: "in March of 1990, he moved to an apartment complex, and once he was there he was observed by the parents of some of the children to play with the children and spend time with the children. And then on June 1st of 1990, he invited one of the boys, Jason, who was seven years old, over to his apartment to watch television and also one of [Jason's] friends. Jason's friend sat beside [defendant] and Jason sat on [defendant's] lap and while they were watching television, [defendant] reached into [Jason's] pants and squeezed his penis and testicles. I think [Jason] described that as happening five times." The crime was reported three months later. Defendant was 31 and Jason was seven. Arnold testified that those underlying facts were "a factor that helped contribute to [his] overall understanding of the case and ultimately [his] diagnosis that contributed to that."
We note that we have omitted from our summary of the evidence at this point the case-specific hearsay discussed in part II of the Discussion, post. We include Arnold's descriptions of the underlying facts of the qualifying offenses for context and because those facts were properly admissible through documentary evidence as we shall also discuss, post. (Welf. & Inst. Code, § 6600, subd. (a)(3); see also People v. Yates (2018) 25 Cal.App.5th 474, 485-486 (Yates) [hearsay exception under Welf. & Inst. Code, § 6600, subd. (a)(3) is limited to documentary evidence and does not apply to expert testimony].)
As for the 1999 case, Arnold relied on investigation reports from the Sheriff's Department. Arnold testified as follows: that defendant "met a boy by the name of Byron. He originally met him while he was riding his bike in the neighborhood and Byron was riding with another boy. They spent time together riding bikes and talking and then after a while, [defendant] invited the boys to come to his house to play with his daughter, who was represented as being their age and in reality he doesn't have a daughter. . . . The other boy declined to go but Byron agreed to go. So Byron went with [defendant] to his house. They sat on the couch. [Defendant] offered him some food. He declined the offer and they looked at the car that was in the garage and sat on the couch again and [defendant] started touching Byron's penis and ultimately pulled his pants down and he orally copulated or he sucked on Byron's penis and while doing so, he also stuck his finger into Byron's anus and he continued to do that and he took out his penis and he rubbed their penises against each other until [defendant] ejaculated and they stopped that activity . . . ." Four or five weeks later, defendant encountered Byron again. "They rode bikes together. They . . . sat underneath a tree on some grass and [defendant] told him he was a good boy and kind of built up his self-esteem. And at that time he touched his penis on the outside of his clothing and they relocated to the side of the building and at the side of the building, he essentially repeated the acts that he had done the first time. So he sucked on his penis. He put his finger inside of his anus, and he rubbed his penis against Byron's penis." Byron eventually reported the abuse and defendant was arrested. At the time, defendant was 40 and Byron was 12.
In 2013, Arnold undertook an analysis of whether defendant had a mental disorder that predisposed him to committing criminal sexual acts. Arnold performed updated evaluations in 2015 and 2017. Arnold considered, among other things, defendant's social history, sexual history, substance abuse history, and criminal history. Arnold also relied on the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association. Arnold diagnosed defendant with three conditions: intellectual deficit, mild in nature; alcohol use disorder, mild in nature; and, most relevant here, pedophilic disorder.
The DSM has three diagnostic criteria for pedophilia: (1) current fantasies or urges or behaviors related to sexual activity with a prepubescent child, or a child generally 13 years old or younger, (2) the subject either acted on those urges or is distressed by the urges in the sense that, "[i]f they have the fantasies or urges, then they're distressed by it," and (3) the subject is at least 16 years old and at least five years older than the child. According to Arnold, one can be diagnosed with pedophilia even if one does not admit to the urges, provided there is sufficient evidence. According to Arnold, defendant satisfied all three criteria.
Arnold attempted to interview defendant for his evaluation but defendant declined. Defendant told Arnold he feared he would say something incriminating. He also told Arnold the treatment he had undergone was inadequate because "it was just talk treatment. They didn't give him the medication and in his words for his urges or whatever. That's how he described it. So he was aware that . . . there's medications that can be used to help reduce urges --." Defendant "was trying to place blame on his past treatment experience, that he was inadequately treated, and if he had been treated more effectively, he would not have committed the last crimes." Because defendant declined to be interviewed, Arnold's report was largely based on records he reviewed.
Arnold testified that offenders commit offenses for different reasons, including not understanding that it is wrong, intoxication, or because the offender is exploitive such as someone with an antisocial personality. Therefore, according to Arnold, it is necessary to find a pattern of behavior to establish an offender has pedophilic disorder. Arnold found such a pattern with defendant.
Arnold testified that, to an extent, defendant acknowledged sexual contact with children. For instance, defendant acknowledged his prior treatment was not particularly effective for him because it was limited to "talk" therapy rather than medication. Arnold left the attempted interview with defendant "thinking that he was an admitter, that he had acknowledged his sexual conduct with children." To Arnold, given the sexual contact defendant had with children over the course of 15 years in the community, and being detected on several occasions and provided treatment, it was "very clear that at the very least, he had sexual urges to engage children in sexual contact."
According to Arnold, defendant had never had a long-term relationship with a man or a woman. He had repeatedly stated he is lonely. He has difficulty socializing, he tends to talk over people, and he can offend people in interpersonal situations. This was an ongoing problem for defendant for two reasons. First, he was sexually attracted to children. According to Arnold, if defendant got along with adults, he would spend his time with adults and would not be spending his time "doing dangerous things." Second, defendant gravitates to children because he feels more comfortable, emotionally, with children than adults.
Arnold believed defendant had "volitional impairment," which means difficulty controlling oneself and one's behavior. Defendant had sexual interest in children, and, when he is the company of children, he has difficulty stopping himself from becoming sexual. Arnold noted that, with regard to defendant's offense against Byron, defendant committed the offense the day he met Byron. Arnold opined "that's really, really rapid in terms of committing a sexual offense, to do it the very same day you meet a person. So I think that goes with his difficulty controlling himself."
With regard to defendant's participation in sex offender treatment at Coalinga, defendant participated "[f]or periods of time." At other times, he had dropped out or withdrawn. When defendant was not participating in such treatment, he was not actively addressing his most relevant treatment needs. On occasion, he had been asked to leave the group because he was interfering with others benefitting from the group. Defendant did participate in a group called "Values in Action."
With regard to defendant's intellectual deficit disorder, Arnold testified it constituted "an extra obstacle that he has to deal with in order to be receptive or amenable or successful with sex offender treatment. It's going to take him longer to learn the concepts. It's going to be more difficult for him to apply it to his life because he has to generalize it from one situation to the other." Defendant's intellectual deficit disorder was an obstacle to defendant's participation in treatment.
Defendant also had problems with alcohol. He reported using alcohol the day he molested Jason. He also purchased beer when he went to the store with Byron. He had at least one DUI. He went to AA when he was in the community and at Coalinga. Defendant was also referred to formal alcohol treatment at Coalinga, but he declined to attend. Arnold testified that, if defendant uses alcohol, he may be more likely to offend.
Arnold opined defendant had a condition that predisposed him to committing criminal sexual acts that affects his volitional and emotional control. He also had a failure to learn from experience. Arnold was of the opinion that defendant was "implying that he can't really control himself if the child is pursuing him as he claimed that Byron had been."
With regard to defendant's risk to reoffend, Arnold resorted to risk assessment instruments, specifically the Static 99R and Static 2002R. Using both scales and averaging the estimates gives a more accurate prediction of the risk to reoffend. Defendant rated "well above average" in terms of risk to reoffend. Averaging the results of the two instruments, defendant was associated with a group of offenders 30 percent of whom reoffended following release. Arnold also evaluated defendant using the STABLE-2007, which looks at "dynamic risk factors," rather than strictly historical risk factors. Arnold noted, with regard to sex drive preoccupation, that there was "some evidence based upon [defendant's] statements that others have accused him of either staring at them in the shower area or touching them inappropriately sexually in" CDCR and at Coalinga. Arnold also discussed that defendant has made it quite clear "to different individuals throughout the records that he doesn't feel accepted by his peers and this goes back most of his life and in the community too. So I think he has tendency to gravitate more towards children than adults . . . ."
Pressed on cross-examination whether he could make a diagnosis of pedophilic disorder based on a subject's pattern of behavior alone, as opposed to, for example, the subject acknowledging urges or fantasies, Arnold testified that it is always necessary to include consideration of the presence of fantasies, urges, and behaviors. Arnold agreed one could not diagnose based on conduct alone, but would have to find evidence that the subject was acting on sexual urges or fantasies. Arnold concluded the facts of an earlier offense, which he described, demonstrated defendant "had sexual urges to do that. Or at least that would be my hypothesis at that moment." Then, upon considering the 1990 offense as well as another offense, Arnold added, "I think it's both. I think that's an urge to have a sexual contact with the child because he does it on the very first opportunity he has with the child."
Arnold opined, in his direct and redirect testimony, that defendant had a mental disorder that predisposes him to committing criminal sexual acts, and if he were to be released to the community, he was likely to commit another sexually violent predatory offense.
B. Dr. Michele Reed
Dr. Michele Reed was a consulting psychologist for the California Department of State Hospitals. Reed performed an evaluation on defendant. She prepared an initial report in 2013 and updates in 2015 and 2017. Reed interviewed defendant in connection with her 2013 evaluation.
During the interview, defendant was very guarded and defensive. Reed had difficulty getting him to speak "about really much of anything." One of the first things defendant said to Reed was: "if I promise you from my mouth to your ear that I know I'm never going to do it again, is that worth anything?" According to Reed, this was "pretty much an acknowledgment of at least some of what he had done." Reed asked defendant if he had ever had sexual contact with anyone. He responded that he had not. Reed also testified defendant "answered some questions in a format: 'Well, if I did do it . . .' and then he would go off on a tangent. [¶] I don't believe he ever actually admitted to sexually offending against either the 1990 victim or the 1999 victim, but he came -- he kind of circled around it and came very close to it without directly saying yes, I did it." This was a concern to Reed as it demonstrated he had not taken responsibility for what he had done. It is difficult to pursue treatment for this type of issue if one does not admit to having a problem.
During the interview, defendant demonstrated "considerable manipulation." He also feigned not understanding Reed's questions. When discussing the 1999 case, and Reed asked about oral copulation and sodomy, defendant "seemed shocked and said he had never heard these words before and didn't know what [Reed] was talking about. Although he had previously brought up these issues and said on his own, used the word 'sodomy' and 'oral copulation.' "
During her interview, defendant told Reed," 'I might be slow, but I'm not stupid.'" Reed testified this "kind of captures my sense of him."
Defendant reported to Reed he did not have any same-age friends. This was significant to Reed because, if someone cannot associate meaningfully with peers of the same age, and that person has a history of sexual offenses against children, "it means they're going to be more likely to try to get their needs met through children." Also, having never had an intimate relationship with a person of the same age, defendant may lack the ability for intimacy, sexual and nonsexual. He had never experienced intimacy in his life.
According to Reed, generally, at Coalinga, defendant had not been open to sex offender treatment. Defendant did not like to hear feedback and criticism from his peers. Reed recalled a notation of defendant acknowledging he wanted sex offender treatment, but that, in the past, his treatment had not worked because it was "talk therapy." Reed was left with the impression defendant thought there was a medication that could help him which he did not receive.
Defendant had issues getting along with peers. Defendant's peers accused him of stealing property. Defendant had also been accused of watching others take showers. Defendant also intimated there may have been accusations he engaged in sexually inappropriate behavior with a cellmate. Another cellmate accused defendant of "playing him sexually."
With regard to likelihood to reoffend, Reed relied on the Static-99 risk assessment. Defendant's score placed him in the high-risk category. Reed also considered dynamic factors. However, the dynamic factors also indicated defendant was a high risk to reoffend.
Reed testified that "predatory" in the statute refers to an act directed at a stranger or casual acquaintance, or a relationship fostered for the purpose of victimization. Reed testified defendant's sexual offenses qualified as predatory. Defendant had no preexisting relationship with his victims until he began to groom them to victimize them.
Reed acknowledged on cross-examination she knew of Dr. Michael First, a psychiatrist who wrote on issues related to sexual offending. Reed had read First's article in which he opined pedophilic disorder cannot be diagnosed based on behavior in the absence of additional proof of urges or fantasies. Reed disagreed and noted the DSM itself did not conform to First's viewpoint. Defense counsel asked Reed about First's opinion that it had not been anticipated clinicians would interpret the DSM as concluding behavior, in the absence of additional evidence of urges or fantasies, could justify a pedophilic disorder diagnosis. Reed responded, "[h]e did say that, and I think it is ridiculous." Reed testified First's opinions had not been followed by the majority of the DSM panel.
Reed diagnosed defendant with an alcohol abuse disorder. Defendant told Reed that he was an alcoholic. Defense counsel asked if alcohol could drive someone to commit sexual abuse even if that person did not have urges and fantasies driving them towards children. Reed did not believe so. She testified the disinhibiting effect of alcohol does not change the object of one's sexual interest; it merely renders one more likely to act on the attraction.
Reed concluded defendant had a diagnosed mental disorder, specifically pedophilic disorder, that predisposed him to the commission of criminal sexual acts. Pedophilic disorder is a condition where the individual has a period of at least six months of experiencing fantasies, sexual arousal, or sexual behavior towards a child 13 or younger. Reed opined defendant was likely to engage in sexually violent predatory criminal behavior as a result of his diagnosed mental disorder without appropriate treatment in custody. Asked if defendant posed a risk of danger to others without custodial sex offender treatment, Reed responded, "[y]es. That is my firm opinion." This opinion was based on the number of crimes he had committed, the number of sexual offenses he had committed, the nature of his victims-non-related male strangers-the fact that he had been caught and suffered consequences but continued to sexually offend with children, and his unwillingness to engage in sex offender treatment at Coalinga. Asked whether her opinion would be changed by the fact that defendant had not reoffended since being incarcerated, Reed responded that it would not and noted there are no children in prison or at Coalinga. Reed testified: "when somebody has this number of sexual offenses against children, there's -- there's no other diagnosis."
C. Anne Federico
Anne Federico, a supervising social worker at Coalinga, was a facilitator for defendant's treatment team in 2016 and 2017 and facilitated his sex offender treatment program group. When defendant started in the group, he was quiet and observed a lot. Eventually, he began to talk more and ask questions. Defendant felt he was not getting the help he needed. During the time Federico worked with defendant, he never got to the point where he would disclose. He would say he did not remember, or that, if he disclosed, "it would get around the hospital. People would tell the minute they left the room." Federico testified that his memory loss appeared to be selective, in that it only pertained to his crimes. The other group members would share, but they would not get feedback from defendant and would get frustrated with him due to his lack of sharing. There were times when defendant would leave the group and then return. Federico testified defendant did not appear to have friends in the hospital. He appeared to lack the ability to build friendships or have relationships with people in the hospital. Federico recalled defendant saying that if he did not drink alcohol, he would not have offended.
D. Sharon Estrellanes
Sharon Estrellanes was a registered nurse at Coalinga. Estrellanes was part of defendant's treatment team and worked with him for two to three years. During that time, defendant was not enrolled in a sex offender treatment program to address pedophilic disorder. Nor was he enrolled in a formal group to address his alcohol use disorder. Estrellanes testified there were times when defendant had issues with peers. He also reported that he was frustrated at his inability to make friends. Defendant was housed in a single dorm room because he did not get along with his dorm mates.
The Defense Evidence
A. Dr. Brian Abbott
Dr. Brian Abbott, a licensed psychologist and social worker, performed SVP evaluations, primarily on behalf of respondents. Abbott interviewed defendant and prepared reports. He also reviewed the reports prepared by Dr. Arnold and Dr. Reed.
Abbott testified that he did not believe a diagnosis of pedophilic disorder applied to defendant. Abbott acknowledged defendant had multiple incidents of child molestation over several years. But Abbott ruled out pedophilic disorder and instead settled on a combination of intellectual disability and alcohol use disorder as better explaining defendant's sex offense behavior. "Essentially . . . his developmental disabilities and how that affected him psychologically, . . . emotionally and socially coupled with his alcohol use disorder better explains the intermittent episodes of sex offending behavior towards prepubescent children." Abbott testified that if one merely inferred a subject had pedophilic disorder because the subject molested six prepubescent children, "I could be wrong roughly 60 percent of [the] time using that type of method." Abbott testified it was important to understand the motivation behind the subject's behavior, "to look at his complete clinical picture and based on that information then determine which diagnosis best fits his clinical presentation."
Abbott testified there was but one study supporting the method employed by Arnold and Reed, inferring urges and fantasies based on number of victims. According to Abbott, that approach had been roundly criticized in literature, including by Dr. First. Abbott testified: "if you use the number of victims to diagnose pedophilic disorder, you'll be wrong 70 to 80 percent of the time."
Abbott testified there was no evidence defendant's sexual arousal towards children was equal to or greater than his arousal towards adults. There was no evidence of institutional signs of pedophilic interest. There was no evidence he looked at child pornography or had photographs of children in prison or at Coalinga. There were no reports he attempted to develop relationships with younger looking inmates or patients as substitutes for prepubescent children. Abbott opined defendant's intellectual disability disorder, his alcohol use disorder, and the fact that he was around children and acted out in a sexually impulsive way explained his offending behavior better than a pedophilic disorder diagnosis.
Abbott also testified that the literature suggests paraphilic disorder manifests when the subject starts coming into sexual maturity. Abbott saw no indication defendant demonstrated any such interest before the age of 25. Defendant claimed to have no sexual or pedophilic interest in children. According to Abbott, there was evidence defendant wanted to have a heterosexual age-appropriate social-sexual relationship with females, "but it just didn't work out."
Abbott testified that, presently, defendant demonstrated some poor judgment, "but it doesn't seem to be as significant as when he was out in the community." Abbott opined defendant had developed better coping strategies while in custody. Most significantly, Abbott noted defendant was not demonstrating sexually inappropriate behavior in the institutions. Abbott also opined that, as defendant aged, his testosterone level had diminished, and thus his sex drive had diminished. Therefore, "it is just not something that's as prominent on his mind . . . psychologically and physically as he was when he was younger and committed the offenses." Because his sex drive was reduced, "it is more in line with his available psychological resources to cope with the sex drive." Abbott testified that the allegation that defendant stared at people in the shower was never proven to be sexually motivated.
Abbott also testified there was no recent objective evidence that defendant showed difficulty controlling sexually violent behavior. He testified that, absent objective evidence of current serious inability to control sexually violent behavior, "the only logical conclusion is that the person does not meet that second element of the diagnosed mental disorder."
Abbott found that alcohol was involved in all of defendant's prior offenses. In a person with normal cognitive functioning, alcohol impairs reasoning, judgment, and impulse control. For defendant, who has a developmental disability, the effect of alcohol will be worse. Thus, Abbott believed alcohol use disorder to be a significant factor contributing to defendant's sex offending behavior as alcohol aggravated his already poor reasoning, judgment, and impulse control, "and probably acted as a trigger that caused him to act out his . . . normal sexual impulses . . . towards children."
Abbott testified the Static 99 was a way of estimating the probability of sexual recidivism risk over a five-year period. Abbott testified that the risk assessment instruments overestimate risk in several areas, including based on defendant's age. The Static 99 also overestimated risk for African American offenders by approximately 100 percent. Abbott also testified Arnold and Reed did not score the Stable 99 instrument as intended.
Dr. Abbott's opinion was that defendant suffered from intellectual developmental disorder or intellectual disability disorder. However, Abbott opined that defendant's condition did not affect his emotional and behavior control predisposing him to engage in sexually violent acts. Thus, Abbott believed defendant did not suffer from the legally defined diagnosed mental disorder. Therefore, having not met that threshold, Abbott did not have to assess risk. In any event, "[i]f he did have the diagnosed mental disorder my opinion is that he's not a substantial danger, that is, he's not a serious and well-founded risk to engage in sexually violent predatory acts if he's released."
B. Dr. Loren King
Dr. Loren King, a clinical and neuropsychologist, completed a neuropsychological assessment of defendant in 2014. King testified defendant's overall intellectual functioning was in the first percentile. His learning and memory were in the third or fourth percentile. As for intellectual learning, such as reading and writing, defendant fell closer to the first percentile. Defendant had difficulty with relationships with peers his own age. People with cognitive abilities such as defendant may relate better to people younger than they are.
C. Eliseo Garcia
Eliseo Garcia was a behavior specialist at Coalinga. Garcia had worked with defendant for more than three years. Defendant was in the Values in Action group and Garcia met with defendant for one-on-one therapy weekly. Defendant "has a constant distrust in most people. He feels frustrated. He wants to know himself, and he wants friends, which [Garcia] believe[d] he is unable to maintain because of his own behavior." In group sessions, defendant tends to talk over others, which alienates the other patients, so he has to be asked to stop speaking. When this happens, defendant feels offended and wants to leave. According to Garcia, defendant related that he likes children, but not in a sexual way. Rather, he finds ways to be helpful to children. Regarding defendant's emotional state prior to committing his crimes, defendant reported he was frustrated and lonely, and that alcohol may have had something to do with it. Garcia testified that defendant regrets what he did and he does not want to do "that ever again."
D. Defendant's Family Members
Defendant's brother and three sisters testified the family had planned for defendant's reentry into the community and how they could help him. Everyone in the family agreed to play a role, and they were all in close proximity. They would furnish defendant with a place to stay and assistance meeting his needs, and he would be able to work with his brother's church-affiliated men's group. They would also get him to AA meetings and to church if he wanted to go. They were willing to do whatever it took to make sure defendant reentered the community safely.
Verdict
The jury found defendant was an SVP within the meaning of Welfare and Institutions Code section 6600, subdivision (a). The trial court ordered defendant committed for an indeterminate term for appropriate treatment and confinement in a secure facility, effective October 4, 2017, pursuant to Welfare and Institutions Code section 6604.
Discussion
I
Admission of Evidence, Hearsay Evidence, and Exceptions to the Hearsay Rule
"No evidence is admissible except relevant evidence." (Evid. Code, § 350 [statutory section citations that follow are to the Evidence Code unless otherwise stated].)" 'Relevant evidence' means evidence, . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.)
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) "Hearsay is not admissible unless it qualifies under some exception to the hearsay rule." (People v. Davis (2005) 36 Cal.4th 510, 535.)
"Documents like reports, criminal records, hospital records, and memoranda- prepared outside the courtroom and offered for the truth of the information they contain-are usually themselves hearsay and may contain multiple levels of hearsay, each of which is inadmissible unless covered by an exception." (Yates, supra, 25 Cal.App.5th at p. 482.) In other words, each level of out-of-court statement in evaluation reports, probation reports, police reports, and victim statements "ordinarily must fall under a hearsay exception to be admitted into evidence." (Walker v. Superior Court (2021) 12 Cal.5th 177, 192 [discussing evidence in context of SVP probable cause hearing].)
One statutory exception to the hearsay exclusionary rule is for statements made by a party opponent (party admission), codified at section 1220. The party admission exception applies where "[t]he evidence was of statements, defendant was the declarant, the statements were offered against him, and he was a party to the action." (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
II
Welfare and Institutions Code Section 6600, Subdivision (a)(3)
Through Welfare and Institutions Code section 6600, the Legislature has expanded the scope of admissible hearsay in SVP proceedings. Subdivision (a)(3) of that section provides: "Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a[n] [SVP], but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. 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 State Hospitals."
Subdivision (a)(3) of Welfare and Institutions Code section 6600 thus creates a broad hearsay exception for documentary evidence to prove the existence and details underlying the commission of the offenses leading to prior convictions and to the defendant's predatory relationship with the victim. (People v. Otto (2001) 26 Cal.4th 200, 206-207 (Otto) [Welf. & Inst. Code, § 6600, subd. (a)(3) "authorizes the use of hearsay in presentence reports to show the details underlying the commission of a predicate offense"].) "By permitting the use of presentence reports at the SVP proceeding to show the details of the crime," our Supreme Court has explained, "the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." (Otto, at p. 208.) However, portions of otherwise admissible reports containing information that does not pertain to the defendant's qualifying conviction are not made admissible by Welfare and Institutions Code section 6600, subdivision (a)(3). (People v. Burroughs (2016) 6 Cal.App.5th 378, 410-411 (Burroughs), italics added.)
III
Admission of Exhibits
Additional Background
Before the trial court, defense counsel objected to the admission of health care records, asserting the records were prepared in anticipation of litigation. Counsel asserted this applied to every health care record "from the start of Department of State Hospitals keeping records, at that point, [defendant] was a probable cause SVP. Every record that the Department of State Record [sic] has kept has been in anticipation of today's litigation."
The prosecutor disagreed, asserting the records were treatment records. The prosecutor noted that the entirety of each entry would not necessarily be admissible and there were items that should be redacted.
The trial court stated, "we have got some work to do. I'm going to have to hear from both sides specific laser beam objections to each and every single entry of those documents." The court noted, with regard to the "hundreds of pages" at issue, that the "business record hurdle is just one part of the story. We have to drill down deeper into what are these documents" to address, among other things, layers of hearsay.
After the prosecution's case-in-chief, the trial court stated that the records satisfied section 1271 and were treatment records within the scope of Welfare and Institutions Code section 6603. The court did not find anything unduly prejudicial or potentially misleading in the records. (See § 352.) The court stated it did not find merit in defendant's "anticipation of litigation" argument, observing that the records were created in a hospital and the documents were treatment records.
The trial court did raise the issue of redacting the documents. The court specifically directed defense counsel: "you don't waive any of your argument by doing this. If you want to [cull] through these together and figure out what areas could be redacted that you're willing to agree to that would be wonderful. And then I could admit those documents as you're marking them as however you choose to mark them as redacted." However, the court further stated that, "if you don't agree to redact them they are admissible anyway, quite frankly." The prosecutor stated she could go through documents and present the redacted documents to defense counsel. Defense counsel stated he would look at the documents that night.
Towards the close of all evidence, the trial court noted that defense counsel was "going to work with [the prosecutor] on the level of redaction that's going to happen to some of the documents."
After the jury commenced deliberations, the court sought to "go through the exhibits so we can get those either admitted or not admitted." The prosecutor stated she had not heard from defense counsel as to redactions. She had not heard what defense counsel "wants to have unredacted or more redacted. I don't know." The following exchange ensued:
"[DEFENSE COUNSEL]: As I said on the record the last time, I'd ask that they be unredacted. I'll stay with that.
"THE COURT: All of them?
"[DEFENSE COUNSEL]: Yeah.
"[THE COURT:] Any problems with that, counsel?
"[THE PROSECUTOR]: No. "THE COURT: All right. Then we're going to mark the unredacted medical records."
Defense counsel objected to the admission of a RAP sheet on the ground that it contained inadmissible information including arrests. The prosecutor emphasized it contained admissible material, and defense counsel responded that he was "maintaining that there's material on it that's inadmissible under . . . [Welfare and Institutions Code, section] 6600(a)(1) and" section 6603, former subdivision (j). We note that Welfare and Institutions Code section 6603, former subdivision (j), in effect during these 2017 proceedings, now appears in subdivision (k). (See Stats. 2019, ch. 606, § 1.)
The court noted it could take judicial notice of RAP sheets under section 452.5. The court continued: "And I think what I'm going to do is admit Exhibits 8 through 14, including Exhibit 12, the RAP sheet. The RAP sheet will not go back to the jury until there's further court hearing. It simply satisfies the foundation requirement regarding admissible evidence." Thus, exhibits 1 through 14 were admitted into evidence.
The court again stated that exhibits 18 and 19 were medical records admitted as "squarely within Welfare and Institutions Code Section 6603 [former] subdivision (j) . . . ."
Forfeiture
Section 353 provides, in pertinent part: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ." Thus, a"' "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.'" (People v. Partida (2005) 37 Cal.4th 428, 433 (Partida).)" 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.'" (Id. at p. 434.)
Additionally," 'where evidence is in part admissible, and in part inadmissible, "the objectionable portion cannot be reached by a general objection to the entire [evidence], but the inadmissible portion must be specified." [Citations.]'" (Burroughs, supra, 6 Cal.App.5th at pp. 408-409.)
Except where otherwise specified post, defendant did not object to the admission of the exhibits or seek redaction. Where defendant did not object to the admission of the evidence in the trial court, or seek redaction, he has forfeited his contentions. (§ 353; Partida, supra, 37 Cal.4th at p. 433.) Accordingly, except where otherwise noted, we shall analyze defendant's contentions in the context of his ineffective assistance of counsel claim.
Ineffective Assistance of Counsel General Principles
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).)
"When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)" '[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (People v. Carrasco (2014) 59 Cal.4th 924, 985.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Mai, at p.1009; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello).)
Analysis
Defendant's counsel did not object to the following exhibits and we consider them in turn.
Exhibit 9
Exhibit 9 consists of superior court records. Included in exhibit 9 are a minute order, a judgment and sentencing minute order, an order appointing a doctor to evaluate defendant pursuant to Penal Code section 288.1, the 1990 abstract of judgment for defendant's conviction of violation of Penal Code section 288, subdivision (a), a complaint and declaration in support of an arrest warrant, and a Department of Mental Health clinical screen.
Defendant acknowledges that portions of exhibit 9 were admissible. However, he asserts that other portions of it were inadmissible as irrelevant and as hearsay, and that portions of the exhibit should have been redacted.
Section 452.5, subdivision (b)(1) states, in part: "An official record of conviction certified in accordance with subdivision (a) of Section 1530 . . . is admissible under Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record." Section 452.5 "creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred," and the language of the provision "is clear and unambiguous." (People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461 (Duran).) Thus, under section 452.5 "certified records of conviction fall within the definition of official records contained in . . . section 1280 (the official records exception to the hearsay rule), and are per se admissible as such. Moreover, a certified official record of conviction is admissible to prove not only the fact of a conviction, but also that the offense reflected in the record occurred." (Duran, at p. 1461.)
We agree with the Duran court and those courts that have followed Duran (People v. Garcia (2020) 46 Cal.App.5th 123, 171; People v. Ochoa (2017) 7 Cal.App.5th 575, 589, fn. 10; People v. Rauen (2011) 201 Cal.App.4th 421, 425; People v. Wesson (2006) 138 Cal.App.4th 959, 968), and reject defendant's contention that Duran was wrongly decided. The certified records of conviction in exhibit 9 were admissible and counsel cannot be deemed ineffective for failing to object to them. "It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court." (People v. Mendoza (2000) 78 Cal.App.4th 918, 924, citing People v. Osband (1996) 13 Cal.4th 622, 678.)
With respect to the other information defendant asserts was inadmissible (sentencing details, custody credits, the appointment of a doctor for the purpose of an evaluation, and the Department of Mental Health clinical screen), trial counsel could have reasonably believed that such information would have been unlikely to be meaningful to the average juror and not worth the trouble to object or redact. Additionally, trial counsel could have reasonably believed that a heavily redacted exhibit would raise more questions and suspicions in the minds of jurors and decided against objecting or redacting for tactical reasons.
Exhibit 10
Exhibit 10, another Superior Court file, consists of a December 1984 order suspending proceedings and ordering a competency determination and 1985 minute orders suspending proceedings, ordering a competency determination, ordering evaluations of defendant by doctors, continuing the proceedings, and ultimately finding defendant competent to stand trial. None of the documents in exhibit 10 constitute a record of conviction.
Exhibit 10 did not relate to a qualifying offense. Therefore, it was not admissible under Welfare and Institutions Code section 6600, subdivision (a)(3). Defendant also asserts this exhibit was irrelevant. In response to the Attorney General's contention that exhibit 10 was admissible as a court document pursuant to sections 452.5, subdivision (b)(1) and 1280, defendant rightly asserts that exhibit 10 is not "[a]n official record of conviction" so as to qualify for admission under section 452.5, subdivision (b)(1).
Even assuming exhibit 10 was admissible pursuant to section 1280, we agree with defendant that there appears to be nothing relevant about the exhibit. Its contents had little "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.)
However, the fact that this exhibit was not relevant to the issues presented does not necessarily resolve the question whether defendant's trial attorney was ineffective for failing to object to its admission. It is conceivable counsel could have tactically concluded that, to the average juror, a finding that defendant was competent, based on reports prepared by doctors, would reflect favorably on him. Defendant's mental state was at issue in these proceedings, and counsel may have concluded that the more evidence reflecting favorably on defendant's mental state the better. We cannot say that "there simply could be no satisfactory explanation" for counsel's failure to object to this exhibit. (Mai, supra, 57 Cal.4th at p. 1009; Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Moreover, even if the exhibit was not admissible under section 1280, and counsel was ineffective for failing to object, we further conclude defendant was not prejudiced as a result. The jury had before it the conflicting testimony of the parties' experts as to whether defendant was properly diagnosed with pedophilic disorder and qualified as an SVP, and had to determine which opinion it found more persuasive. The jury knew defendant was the subject of prior proceedings in the criminal justice system. That a court ordered a competency determination, ordered evaluations, and found defendant competent to stand trial was not prejudicial to defendant's case here. It is not reasonably probable defendant would have received a more favorable result in these proceedings had counsel objected to the admission of exhibit 10. (See Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Exhibit 11
Exhibit 11 was a letter-"Inter-Department Correspondence"-from a Senior Deputy Probation Officer to a trial court judge in 1987. The letter explained that defendant's plea would have to be renegotiated after the probation department discovered defendant's prior conviction was for a different offense than previously represented.
Defendant asserts exhibit 11 does not relate to a qualifying offense and therefore does not come within Welfare and Institutions Code section 6600, subdivision (a)(3). Defendant further asserts it was not admissible as a government record because it was prepared in anticipation of litigation. According to defendant, this exhibit was "nothing more than inadmissible opinions and conclusions about non-qualifying offenses."
Again, assuming exhibit 11 was admissible pursuant to section 1280, that renegotiation of defendant's 1987 plea was required as a result of a misunderstanding as to his prior was not relevant here. Those circumstances had little "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) However, again, the fact that this evidence was not relevant does not establish counsel was ineffective for failing to object. The letter noted the initial agreement that defendant would not receive a sentence to state prison. It also stated that "Count One, violation of Section 288 (a) of the Penal Code (Child Molest) be dismissed." As for the erroneously reported prior, the letter indicated it was not for violation of Penal Code section 647, subdivision (a) (which the letter denominated "Child Annoyance") but rather for violation of Penal Code section 415 (denominated disturbing the peace) as a lesser reasonably related crime to that charged, violation of Penal Code section 240. Counsel may have tactically decided against objecting to this exhibit because it, too, portrayed defendant in a relatively favorable light. It suggested he was deemed of sufficiently low risk as to not be required to serve prison time. It also demonstrated that a count of violation of section 288, subdivision (a) was to be dismissed and that he was permitted to plead to a lesser offense than that charged. That the plea agreement was scuttled did not establish defendant would receive a harsher sentence or would be deemed an inappropriate candidate for a plea agreement. Given these possibilities, we cannot say "there simply could be no satisfactory explanation" for counsel's failure to object to this exhibit. (Mai, supra, 57 Cal.4th at p. 1009; Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Again, even if the exhibit was not admissible under section 1280, and counsel was ineffective for failing to object, we further conclude defendant was not prejudiced as a result. It is not reasonably probable defendant would have received a more favorable result had counsel objected to exhibit 11, addressed to the renegotiation of a 1987 plea agreement. (See Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) The exhibit was not prejudicial to defendant's case.
Exhibit 13
Exhibit 13 consisted of CDCR documents in a Penal Code section 969b package (969b packet). Defendant acknowledges that the abstract of judgment for his 1990 qualifying offense was admissible. However, observing the document was admitted twice, he asserts it should have been excluded under section 352 and also that it should have been redacted to eliminate sentencing information. Defendant also appears to acknowledge fingerprint and photo pages were admissible. However, other pages pertaining to prison transfers were inadmissible and irrelevant. Defendant further acknowledges that "Court Commitment" pages and "Sentence Component" pages were admissible inasmuch as they support the fact he was convicted of a qualifying offense. However, he further asserts "they are less useful than and cumulative of the abstracts of judgment and should have been excluded for that reason." He further asserts they were inadmissible insofar as they pertained to his sentence or other irrelevant matters.
"Penal Code section 969b authorizes the People to prove the existence of prior convictions in a criminal case by introducing certified copies of prison records. [Citation.] The People may use such records for the same purpose in SVP cases." (Burroughs, supra, 6 Cal.App.5th at p. 394, fn. 5.) To the extent defendant argues to the contrary, we reject defendant's contention.
Defendant is correct that some information in the 969b packet was not relevant to any matter at issue. However, counsel may have had tactical reasons for declining to redact. The documents concerning defendant's status in the prison system merely detailed his transfers, departures from, and reentries into the system. Defendant's attorney could have concluded that the fact that these documents demonstrated defendant was paroled showed that he was a fit subject for rerelease into the community. Additionally, defendant's probation and parole violations were relevant insofar as they informed experts' opinions on defendant's ability to learn from his history. That he was discharged from sentence suggests he was released having served his term and did not commit offenses while incarcerated mandating additional prison time. As for other documents, counsel may have declined to seek redaction of, for example, sentencing details because heavy redaction could raise more concerns than details of defendant's sentencing. Counsel also may have recognized the futility and lack of any gain to be had by objecting to the admission of defendant's fingerprint cards and photographs and other admissible evidence.
We cannot say "there simply could be no satisfactory explanation" for counsel's failure to object to this exhibit. (Mai, supra, 57 Cal.4th at p. 1009; Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Exhibit 14
Exhibit 14 was another 969b packet. Defendant asserts exhibit 14 was inadmissible "[e]xcept insofar as [it] demonstrated the existence of qualifying priors" because, according to defendant, Penal Code section 969b is not a valid hearsay exception in SVP cases. However, as stated ante, "Penal Code section 969b authorizes the People to prove the existence of prior convictions in a criminal case by introducing certified copies of prison records," and the prosecution "may use such records for the same purpose in SVP cases." (Burroughs, supra, 6 Cal.App.5th at p. 394, fn. 5.) Defendant again asserts the information memorializing his movements within CDCR or on parole was irrelevant and inadmissible. Additionally, defendant asserts the 1999 abstract of judgment, while admissible, should have been redacted to eliminate information concerning a prior, the length of his sentence, custody credits, fines and fees, and other matters. He again asserts the 1990 abstract of judgment was "admissible but duplicative" and should have been redacted. Finally, as for the fingerprint forms and photographs, he asserts that, to "the extent they reference anything other than the existence of appellant's identification or qualifying priors they should have been redacted." Defendant states that "the references to [his] sentence should have been removed from the fingerprint document."
Our analysis of exhibit 14 duplicates that of exhibit 13. For the reasons stated ante, we cannot say "there simply could be no satisfactory explanation" for counsel's failure to object to this exhibit. (Mai, supra, 57 Cal.4th at p. 1009; Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Exhibits 18-a Through 18-i
Exhibit 18 consists of treatment records from Coalinga. Defendant objected to the admission of these records on the ground that they were prepared in anticipation of litigation. Accordingly, this argument is preserved. Also, according to defendant, most of these exhibits contain information that does not qualify for admission under the business records or government records exception because "the information was not an act, condition, or event."
We do not agree that the voluminous treatment records prepared by defendant's treatment team and others were prepared in anticipation of litigation. It is true defendant was ordered committed pending trial. It is also true that individuals preparing the documents would presumably know this litigation was in defendant's future. However, the professionals preparing these documents were not doing so in anticipation of litigation. They were doing so in the treatment and care of defendant.
"Hospital records, if properly authenticated, are admissible under the business records exception to the hearsay rule. Authentication requires the entries to have been made in the regular course of business, at or near the event and the method and time of preparation tend to indicate the entry's trustworthiness." (People v. Landau (2016) 246 Cal.App.4th 850, 872, fn. 7 (Landau); accord Yates, supra, 25 Cal.App.5th at p. 486 ["Hospital records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception"].)
With regard to business records: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (§ 1271.)
Defendant does not assert these records were not properly authenticated. Exhibit 18 was accompanied by an affidavit to satisfy the authentication requirements. (See § 1561; see also Yates, supra, 25 Cal.App.5th at p. 486 ["Compliance with a subpoena duces tecum may dispense with the need for a live witness to establish the business records exception if the records are produced by the custodian or other qualified witness, together with the affidavit described in [section] 1561"].)
Thus, we reject defendant's preserved contention. As a general matter, and as to the layer of hearsay represented by recording information in the records, the hospital records were admissible. (Landau, supra, 246 Cal.App.4th at p. 872, fn. 7; § 1271.)
Defendant further asserts portions of the exhibits should have been redacted. However, when it became clear the trial court was overruling defendant's "anticipation of litigation" objection and admitting the records, the issue of redaction arose. Ultimately, defendant did not seek redaction and affirmatively requested the unredacted records go to the jury. Objections to this evidence not raised in the trial court, and claims that certain matter should have been redacted, are therefore forfeited. (§ 353; Partida, supra, 37 Cal.4th at p. 433.)
Between the voluminous exhibits 18 and 19, ultimately, only 32 pages were to go to the jury.
Exhibit 18-A is a nursing weekly progress note. The note stated, in preprinted checkboxes, defendant was pleasant/cooperative, coherent/logical, his mood was stable, and he actively participated in groups. It stated defendant was "enjoying having his single man dorm. [Defendant] is still having difficulties in listening to what staff is saying. He was educated once again about listening to people[']s words so he can better understand what people are saying to him." It noted seclusion or restraint was not warranted. Defendant objects to some of the foregoing, and other aspects of the exhibit, as consisting of inadmissible opinions and hearsay, and as irrelevant. However, plainly, defendant's attorney may have decided against redaction because, whether opinion, hearsay, or irrelevant, the representations were favorable to defendant. Defense counsel may have wanted the jury to see such positive matters. Additionally, as we will conclude with virtually all of the evidence we have yet to discuss, counsel may have wanted to avoid sending heavily redacted documents to the jury for fear of giving rise to questions and suspicions about the redacted material.
Exhibit 18-B is an interdisciplinary note with three entries. Defendant asserts one entry was irrelevant. That entry stated defendant was given an appointment slip for podiatry, which he planned to attend, and for weight management, which he declined. Trial counsel may have concluded this entry was beneficial to the extent it suggested defendant had physical conditions that rendered him less threatening and less likely to reoffend. Moreover, defense counsel may have chosen to avoid redaction for the reasons discussed.
Exhibit 18-C is another interdisciplinary note. Defendant objects to the first portion, which consisted of a patient complaining about defendant following him and looking at him in a threatening manner. The writer of the note then spoke to defendant about the complaint. Defendant acknowledges his own statements are admissible as party admissions. (§ 1220.) However, he asserts that, without the other patient's report, which was hearsay, defendant's statements lacked context. Defendant also asserts the writer's remarks were opinions, not acts, conditions, or events.
We conclude defense counsel could have declined to seek redaction so that defendant's statements would have context. Additionally, defense counsel may have declined to seek redaction of portions of the writer's remarks because they demonstrated the ability to reason with defendant, even if the writer's desired results were not achieved. The writing also indicated defendant had an IT job in the hospital. Additionally, defense counsel could have concluded that rampant redaction would be counterproductive.
Exhibit 18-D was a nurse progress note. Defendant asserts a write-up of an incident stated he attacked a peer over a debt and became verbally aggressive when redirected. However, defendant reported he "was trying to restrain the peer because the peer was trying to assault him." According to defendant's account, "the other peer was walking towards him with clenched fists and was heard saying something to him." Defendant stated," 'I did not attack him first, he attacked me.'" Defendant asserts that the exhibit does not indicate the staff member saw the incident, and therefore it is hearsay. This is not established by the exhibit (and provides an example of the rationale for raising the issue in the trial court). Defendant further asserts that, "[g]enerally speaking this entire entry is based upon information that is not admissible for the purpose it was being offered-to demonstrate that [defendant] had engaged in some kind of misconduct." However, he offers no further analysis or citation to authority for this conclusory assertion.
He further asserts the document contains a diagnosis, which is an opinion rather than an act, condition, or event. We conclude defendant has not established his trial attorney's performance was deficient for failing to object to this document or seek redaction. On this record, it is not established that the report of the incident was inadmissible hearsay, and defendant's representations were party admissions. (§ 1220.) While defendant asserts that, since it is not clear the reports concerning the effectiveness of medication were based on defendant's statements and thus a party admission, "it was inadmissible," this is not so. Defendant has not established the representation was inadmissible. More importantly, defense counsel may have declined to seek redaction of the document because much of it was far more favorable to defendant than the admissible portions concerning the altercation defendant had with a peer. Again, checkboxes indicated defendant was neat and clean, pleasant/cooperative, coherent/logical, his mood was stable, and he actively participated in groups. Indications that medication were effective could suggest to jurors that defendant is responsive to treatment, including through medication where appropriate. And defendant's account of the altercation indicated the other patient was the aggressor.
Exhibit 18-E was another interdisciplinary note with three entries. Defendant describes portions of this exhibit variously as "harmless[]," "admissible" and "pretty much irrelevant." The entries noted defendant's movements and activities, and his feelings of frustration as he felt he had no one to talk to. Defendant acknowledges parts of it were admissible. Indeed, defendant does not expressly assert this exhibit should not have been admitted, but asserts its "significance arises out of its relationship to the incident described in other exhibits." Based on our review, we cannot conclude counsel was ineffective for failing to object to its admission. Nothing in the exhibit is prejudicial to defendant, and, in fact, it largely portrayed him in a sympathetic light.
Exhibit 18-F was another interdisciplinary note. It described an incident where defendant sold a calling card number to a peer. About a week later, defendant and the peer disagreed about how much the peer owed defendant. Staff discussed with defendant the fact that it was against hospital policy for patients to buy, sell, or trade items for profit, and he agreed he should not have sold the calling card to his peer. Asked if he intended to retaliate against the peer, defendant stated he had no such plans and that, as far as he was concerned, the situation was over. He also agreed to admit to the person from whom he acquired the card that he had sold it. He agreed with staff encouragement to use his coping skills. Defendant acknowledges that portions of the exhibit were admissible. However, he asserts that much of the exhibit consisted of "irrelevant or unproven hearsay . . . ." Exhibit 18-G, another interdisciplinary note, described the same altercation. The note stated a peer charged defendant, defendant had both hands around the peer's neck pushing him against a wall, and the patients were separated "as peer continued to yell at" defendant.
Defendant asserts this exhibit should have been excluded under section 352 because, while the admissible evidence may have shown defendant sold the calling card, "the evidence that [defendant] attacked another patient was inadmissible hearsay." There are at least two problems with defendant's representation. One is that he does not establish matters were hearsay, but instead posits that it "is not entirely clear how much of this document was actually based on observations by staff members." Thus, defendant does not demonstrate that portions of the entry are hearsay, but simply assumes they are. A second issue is that the documents do not establish defendant attacked a patient. They indicate a patient attacked defendant. Thus, they do not necessarily portray defendant in an unfavorable light. Rather, they may portray him in a sympathetic fashion as the victim rather than the aggressor, they demonstrate he was moving past the incident, and they show he intended to employ his coping skills. We cannot conclude defense counsel was ineffective for failing to object to exhibits 18-F and 18-G or for not seeking redaction of these arguably favorable exhibits.
Exhibit 18-H, yet another interdisciplinary note, described an incident where a staff member was speaking to defendant when another patient passed by, whistling. Defendant expressed exasperation and said," 'If he keeps it up I'm gonna put my fist down his throat.'" The staff member asked defendant if he was making a threat, to which he responded," 'Oh. It's not a threat, it'll happen if he keeps messing with me.'" Defendant then walked away from the unit "as a coping skill."
Defendant acknowledges that, to "the extent this entry reflected the actual observations of the staff members and the statements made by [defendant] it would be admissible." However, he asserts it was not admissible to the extent "it expressed opinions and future intentions . . . ."
The most prejudicial aspect of this entry is defendant's statements, making a threat directed at another patient. However, that portion of the document is admissible. (§ 1220.) We cannot conclude counsel was ineffective for failing to object to, or seek redaction of, those portions of the document that mitigated the prejudicial effect of this entry by indicating, for example, that defendant employed a coping skill by walking away. A second entry on exhibit 18-H stated defendant approached a staff member to speak about something, and, when several peers walked by, he asked for more privacy. The entry continued: "Staff escorted [defendant] to the interview room. After sitting [defendant] showed" at which point the entry abruptly ends, apparently continued on the next page which was not part of exhibit 18-H. We cannot conclude defense counsel was ineffective for failing to seek redaction of this portion of the exhibit on the ground that "it should have been redacted instead of leaving everyone to wonder what [defendant] showed to the staff member." Redaction would leave everyone wondering what information was so sensitive it warranted redaction. We cannot conclude defense counsel was ineffective for merely choosing to leave this entry untouched.
Defendant makes no argument concerning exhibit 18-I.
For the reasons discussed, we conclude defense counsel was not ineffective in failing to object to, or seek redaction of, exhibits 18-A through 18-H.
Exhibits 19-a Through 19-t
Defendant asserts each of these exhibits was prepared in anticipation of litigation and that the information in these documents did not qualify for admission as it did not record an act, condition, or event. We reject these preserved contentions for the same reasons as set forth in our discussion of exhibit 18. We proceed to consider defendant's claims in the framework of his ineffective assistance of counsel claim.
Exhibit 19-A includes medical information. Defense counsel could have believed the various medical conditions from which defendant suffered would render him less threatening in the jurors' eyes. The exhibit also discussed defendant's mental functioning and learning disabilities as well as his "limited contact with his peers." This supported the defense's position that it was not pedophilic disorder that caused defendant's sexual offending, but his limited mental functioning and inability to relate with peers of his own age. Thus, defense counsel could have declined to seek redaction because the exhibit made defendant appear less threatening and comported with the defense theory at trial.
As for exhibit 19-B, defendant acknowledges some material was admissible. He then asserts a second entry "appears to be entirely opinions albeit some of which are favorable to" defendant. Thus, defendant himself articulates a plausible reason defense counsel may have declined to redact exhibit 19-B.
Exhibit 19-C is a progress note. Like exhibit 18-A, it stated, in preprinted checkboxes, that defendant was pleasant/cooperative, coherent/logical, that his mood was stable, and that he actively participated in groups. The note indicated defendant had certain diagnoses and that he was not enrolled in groups for their treatment, but that he was enrolled in Values in Action. It stated defendant's "attendance is consistent, he is engaged in group discussions, shares meaningfully and asks relevant questions." It also stated defendant's "consistent questioning sometimes helps the group to understand the material better." The note also stated defendant was enrolled in an additional groups. With regard to one group, the note stated defendant was" 'doing well in group, he has made great progress and is starting to make little changes in his thinking patterns, and understanding of what anger is. He should be commended for his progress.' "
The note further stated defendant was diagnosed with alcohol use disorder, mild, which supported his position that alcohol contributed to his offending. The note indicated while defendant was not enrolled in a formal substance abuse group, he was attending AA consistently and, by his account, getting a lot out of it. He was reported as stating:" 'I'm going to AA to stop drinking so I can be a better man. So I am trying very hard with Jesus' help to do the right thing so when I get out I will be able to get a job and my own place and to go AA [sic] meetings four times a week.'" However, the note indicated defendant was not enrolled in a group to address his "deviant sexual interests" based on his diagnosis with pedophilic disorder. Defendant acknowledges portions of exhibit 19-C were admissible. While he objects to portions of it as inadmissible hearsay and inadmissible opinion, much of it is favorable to defendant. Entries portray defendant as working toward improvement and, in some instances, achieving success. While the document does contain the diagnosis of defendant having pedophilic disorder while at the hospital, this was not novel information. Defense counsel may have declined to seek redaction of this exhibit because it was largely favorable to defendant and because piecemeal redaction could raise more issues than it solved.
Exhibit 19-D was an interdisciplinary note. Defendant acknowledges a number of entries were admissible. Defendant objects to entries dated January 29 and 31, 2016, as irrelevant. These entries address medical information. Defense counsel may have declined to seek redaction to avoid raising questions concerning redacted entries, particularly where the entries were entirely innocuous. Another entry dated February 1, 2016, stated defendant "picked up his tray, walked into unit 16 dining hall. A peer he has known to not like him was sitting at a back wall table. [Defendant] chose to sit next to this peer. The peer asked him several times to move. [Defendant] refused to move. The patients['] voices got louder, and his peer stood up and attempted to pick up [defendant's] tray and move him. Staff got involved and attempted to redirect [defendant]. He continued to argue and yell towards his peer. [Defendant's] level placed on hold." Defendant states this "appears to be an admissible description of an act, condition, or event except that the claim that the other patient did not like appellant was an opinion- admittedly a reasonable one." We cannot say counsel was ineffective for failing to redact the fact that the peer did not like defendant, a fact that offered context to the exchange.
Exhibit 19-E, another interdisciplinary note, contains two entries. As to one entry, beyond describing it, defendant only asserts that "[p]ortions of this entry were acts, conditions, or events but the rest was opinions and future intentions of the staff member." As it is the appellant's burden to prove reversible error on appeal (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766 (Del Real)), without further elaboration, analysis, or citation to authority, we need not consider whether counsel was ineffective for failing to object to or seek redaction of this entry. The other entry in exhibit 19-E was a medical issue. Defendant argues that, because the entry continued on the next page which was not included with exhibit 19-E, this "entry probably should have been redacted as irrelevant." Defense counsel may have wanted to avoid questions raised by the redaction of this entirely innocuous entry.
Defendant asserts exhibit 19-F should not have been admitted because one of two entries was not relevant and the other, while "unlikely to have been prejudicial to" defendant, "involved opinions and other matters that are not acts, conditions, or events." The first entry concerned a scheduling conflict between a team appointment and a medical appointment. The second was generally a favorable review of defendant's participation in group and his mood and behavior, and also indicated defendant had written an apology to someone for his behavior but that the person responded there was no need to apologize. The first of these entries is irrelevant and the second is favorable to defendant. Defense counsel may not have thought it worthwhile to bother to seek preclusion of the evidence based on its innocuous nature and may have wanted the positive remarks in the second entry to be before the jury.
Exhibit 19-G consisted of an entry wherein defendant reported another patient had threatened him and subsequently recanted the claim. Defendant only asserts that it "appears that portions of this document did qualify as acts, conditions, or events that were witnessed by the person writing the document. Other portions had an additional level of hearsay." Defendant offers no more in the way of analysis or citation to authority. Nor does he expressly assert the exhibit should not have been admitted, that portions should have been redacted, or identify any particular statements in the entry to which he objects. As such, defendant has not shown reversible error.
Exhibit 19-H was an interdisciplinary note with four entries. Defendant asserts one entry, which is partially crossed out, should have been redacted further but he does not explain why it was objectionable. A December 3, 2015, entry indicated defendant was concerned about a few medical issues but also indicated his behavior was good. Defendant asserts this entry included a diagnosis that should have been redacted. He does not explain why or cite to authority. Moreover, defense counsel may have concluded redaction of this harmless entry would have raised questions. Defendant merely describes a second December 3, 2015, entry and does not make any claims about it. An entry for December 4, 2015, stated defendant "made an inappropriate to this writer [sic] during an individual meeting. He stated, 'I think you have a nice body.' This writer ended the conversation and asked him to leave the room." Defendant suggests this entry is likely the reason this document was introduced. However, he does not assert it should have been precluded or redacted. Instead, he asserts that, if this entry was the purpose the document was introduced, the "rest of the document should have been redacted." However, defense counsel may have preferred to have favorable and innocuous entries go before the jury distracting from his inappropriate remark rather than having them redacted and potentially raising suspicion with the jurors as to the contents of the redacted material.
Defendant asserts exhibit 19-I should have been excluded as irrelevant and inadmissible because it includes matter which are not acts, conditions, or events. However, defendant acknowledges that his reported performance in groups was favorable. Checkboxes indicated defendant was pleasant/cooperative, coherent/logical, that his mood was stable, and that he actively participated in groups. Additionally, one entry stated: defendant" 'is practicing expressing his gratitude and keeping track of the times that he uses his character strengths. [Defendant] is engaged in group discussions, asks relevant questions. [Defendant] demonstrates different character strengths at every session, he displays prudence, hope and, bravery amongst other character strengths in group. [Defendant] is actively listening and attentively involved in the group's process. [Defendant's] comments are becoming more positive and he is engaging the assistance to his peers.'" It is evident defense counsel may have wanted this document before the jury for its favorable impression of defendant and his progress.
Exhibit 19-J, a progress note, contains some positive and some negative reports. It included the diagnosis of pedophilic disorder, which, again, is not novel information. It indicated defendant was enrolled in individual therapy, anger management, and AA. It contained the same quote from defendant about his participation in AA as appeared in exhibit 19-C. It also indicated he maintained a vocational IT placement performing janitorial duties, and that he worked 10 hours a week. On the other hand, one entry stated he "has a difficult time accepting feedback from peers and facilitators and often makes sarcastic remarks like 'Thank you very much, and God Bless you.' in a manner consistent with sarcasm. Facilitators have encouraged him to listen and have taught coping skills to help him with these issues. Last week he was very disrespectful to the group and was given the option to participate and he decided to leave." Defendant maintains portions of this exhibit were inadmissible. However, defense counsel may have concluded that, on balance, the entries were both favorable to defendant and supported the defense theory at trial. Further defense counsel may have wanted to avoid submitting a heavily redacted document to the jury.
Exhibit 19-K contains three entries. Defendant makes no argument concerning the first. The second entry stated, in part, that defendant "was standing directly behind a unit peer breathing heavily and talking under his breath. Peer turned around and asked [defendant] to back off and [defendant] acted as if he was unaware of what peer was talking about. Peer became agitated with [defendant] and this writer educated [defendant] about others['] personal space and asked him to back away from peer. No further incidents observed." Defendant states that this "incident is mostly admissible except for the portions of it that involved opinions such as the assertion that [defendant] was acting as if he was unaware of what the other patients was talking about." Of course, defense counsel may have declined to seek redaction of such material because it suggested the possibility that defendant actually did not know what the other patient was talking about. As for the third entry, which addressed defendant's diet, defendant asserts that it was irrelevant and "probably should have been redacted." However, defense counsel may have wished to avoid submitting a heavily redacted document to the jury particularly where the redacted material would have been harmless.
Defendant does not assert exhibit 19-L should not have been admitted or should have been redacted.
Exhibit 19-M describes the following: "While attending PDR one of [defendant's] peers began threatening him. [Defendant] remained calm during the incident and asked staff to intervene. Staff then began to verbally deescalate [defendant's] peer, while attempting to do so [defendant's] peer threw a tray of food at [defendant]. It was reported that [defendant] was struck with the tray. An assessment was done on [defendant]. He did not cooperate fully with the assessment. [Defendant] does not appear to have any wounds or bruising from the incident. [Defendant's] HAS level was placed on hold pending team review." As defendant acknowledges, there is nothing prejudicial to defendant in this exhibit with the possible exception of the report that defendant did not fully cooperate with the assessment. Defendant states that the exhibit is admissible with the exception of that opinion. Defense counsel could have opted against submitting this document to the jury with a portion redacted out of the middle of it so as to avoid questions, whereas the fact he did not cooperate fully was hardly prejudicial to his case.
Defendant asserts exhibit 19-N should have been excluded. He acknowledges that an entry about an incident with another patient was largely admissible. However, he asserts that within defendant's otherwise admissible statements is another layer of inadmissible hearsay. Presumably defendant is referring to the other patient's accusation that defendant touched his stuff which was on a bench in the shower room. However, this accusation is both not prejudicial to the issues to be resolved at trial and lends context to the portions defendant acknowledges to be admissible. For these reasons, defense counsel may have declined to seek redaction. A second entry pertains to defendant being given a verbal warning "for his vocational position." Defense counsel may have declined to seek redaction of this rather innocuous entry to avoid submitting a substantially redacted document to the jury.
Exhibit 19-O addressed the same incident. It states, in pertinent part: "During the 1600 shower time at approximately 1605 this writer heard a patient yelling 'Don't touch my shit.' This writer then went to the shower room window as he was helping another patient get clothes. Upon approaching the window this writer seen [sic] a patient yelling at [defendant]. [Defendant] responded 'I didn't touch your stuff, prove it'. This writer sought to redirect both [defendant] and the other patient with the attempts unsuccessful. The other patient then responded 'Prove it? Don't touch my shit. I told you before don't touch my shit'. Upon this writer witnessing the other patient becoming physically aggressive towards [defendant] by clenching his fists and stepping towards [defendant], this writer activated his personal alarm device. This writer did not witness [defendant] touching any of the other patient's items but only heard the accusation. HAS levels placed on hold. Awaiting treatment team review." Defendant is correct that, at least as far as this entry is concerned, no staff member witnessed defendant touching another patient's property. Defendant asserts "this entry was only relevant based upon inadmissible hearsay from another patient. For that reason, neither this document nor Exhibit 19-N should have been admitted into evidence because, at the core, they were both based on inadmissible hearsay." We disagree. Defendant's statement that he did not touch anyone's belongings constituted a party admission. (§ 1220.) Accordingly, defense counsel may have opted against opposing the admission of this evidence thinking it was largely admissible and favorable. The exhibit indicated that, in this incident, defendant was not the physical aggressor, he denied touching his peer's belongings, and the hospital worker reported he did not see defendant touch the items. Additionally, defense counsel may have declined to seek redaction on the ground that the entry was not prejudicial, and he did not want to send a heavily redacted document to the jury.
Exhibit 19-P related an incident as follows: staff members "met with [defendant] to discuss concerns brought forth by other patients. More specifically, patients have indicated that [defendant] has been peeping over their curtains and looking at them. [Defendant] denied engaging in this behavior and was educated on the importance of coming to staff before things escalate." Defendant claims the other patients' accusations were inadmissible hearsay and this document should have been excluded on that ground as well as under section 352. In this instance, defense counsel could have believed that, even if the jury thought the accusation was true, and even if the jury believed there was a sexual component to this behavior, this would suggest defendant's sexual interest may be in adults such as the other adults housed at the hospital, not prepubescent males, thus undermining the premise that defendant had pedophilic disorder. Thus, this entry could conceivably be beneficial to defendant's case. Therefore, we cannot say "there simply could be no satisfactory explanation" for counsel's failure to object to this exhibit. (Mai, supra, 57 Cal.4th at p. 1009; Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Exhibit 19-Q, another interdisciplinary note, contained an entry stating defendant "approached staff with clenched fists and stated 'I'm not going to group today I'm too stressed out. It's anger management but it just makes me angry.'" Defendant was then observed pacing with clenched fists, speaking with "pressured" speech, and "presented with muscle tension." Defendant's statements were admissible as party admissions and observations concerning his demeanor were not inadmissible hearsay. Defendant asserts that, to the extent this entry includes opinions or future intentions, it was not admissible. However, once again, defense counsel may have elected against redacting the innocuous portions of the entry indicating, for example, that defendant was to be monitored rather than submit a redacted document to the jury raising questions as to the nature of the information concealed.
Exhibit 19-R is a psychology quarterly progress note. Defendant objects to portions that are opinions and recommendations for future treatment, not acts, conditions, or events. He also asserts that certain entries may not have been made at or near the time of the event recorded. This document, however, contains substantial information beneficial to defendant. It indicated he was making acceptable and even very good progress in his therapy and groups. It indicated all was going well with his vocational placement. He expressed concern about not getting along with dormmates "in an appropriate manner." He "demonstrated a more proactive approach to his treatment by inquiring about several groups and enrolling in some that piqued his interest." While the document also described defendant's difficulty relating to and getting along with his peers, it stated that defendant was "usually the victim in these incidents." The document stated that, in general, defendant "is respectful and appropriate with staff and peers." Defense counsel cannot be faulted for deciding to let this generally favorable and sympathetic material be placed before the jury.
Defendant acknowledges exhibit 19-S "contains much of the same information that was contained in Exhibit 19-R." Indeed, this is a bit of an understatement, as much of exhibit 19-R appears verbatim in exhibit 19-S. In addition, exhibit 19-S states defendant is a low risk for violence and aggression in the institutional setting. Thus, for the reasons discussed in connection with exhibit 19-R, we cannot conclude defendant's trial attorney was ineffective for failing to object to exhibit 19-S.
Finally, exhibit 19-T is a psychology progress note. Defendant asserts it was inadmissible because it contains opinions and inadmissible hearsay. Exhibit 19-T states, in part: "Unit psychologist and social worker met with [defendant] to discuss his interactions with peers on the unit as well as his current job. There have been allegations against [defendant] that he is staring at peers, staring into their rooms and also staring at them in the bathroom and/or shower area. [Defendant] denied that he was staring at any person, staff or patient. Psychologist and social worker informed him that staff and treatment team will continue to monitor the situation and if it is noticed, that we will assist in helping him identify it. It was also pointed out to him that while in CDCR, he did receive at least one 115 for this exact behavior and he was asked if it might be possible that he is in fact staring. Although he didn't acknowledge that he has been staring at people, he did acknowledge that it is possible. He did identify a couple of peers with whom he has been having issues. He denied responsibility in any of the maladaptive behavioral interactions and stated that he has been attempting to stay away from them. Psychologist and social worker suggested that he speak with staff before an issue arises and he confirmed that he has been and will continue to do this. Safety issues were assessed and [defendant] denied that he had any homicidal or harmful intentions targeted at any peers and also stated that he feels safe in the current environment. Lastly, psychologist and social worker informed [defendant] that his job would be changing. He is not being removed from his job, but due to allegations of looking into rooms ([defendant] cleaned door knobs, which would seem to place him into a harmful or risky situation on a daily basis), he will receive a new job and is to stop cleaning patients['] door knobs immediately. He agreed to this and explained that he would like a sweeping job, but is open to any job that he can receive. [Defendant] had no other questions and staff will continue to monitor his behavior and safety on the unit." Those portions of the note reflecting matters within the note maker's personal observation come within the public records exception or business records exception. Defendant's statements come within the party admissions exception. As for those matters that consist of accusations by fellow patients, counsel may have elected against seeking redaction because redaction would be futile given the behavior at issue was disclosed by defendant's denial that he was staring and his acknowledgment that it was possible he was staring.
In the case of every exhibit discussed ante, deferring to counsel's reasonable tactical decisions, we cannot conclude there simply could be no satisfactory explanation for defendant's trial attorney's failure to raise the points raised by defendant on appeal. As such defense counsel was not ineffective for failing to raise those points. (See Mai, supra, 57 Cal.4th at p. 1009; Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
IV
Admission of Hearsay Testimony
In addition to the traditional hearsay rule discussed ante, our high court clarified the law relating to testimony by expert witnesses in Sanchez, supra, 63 Cal.4th 665. Before Sanchez, expert witnesses were permitted to relate case-specific hearsay to the jury so long as jurors were told that they could only consider such information for its effect on the expert's opinion, not for its truth. (Yates, supra, 25 Cal.App.5th at p. 482.) Sanchez ended this practice. (Ibid.) Post-Sanchez, an expert witness "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, at p. 685; see §§ 801, 802.) But an expert may no longer "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, at p. 686.) "The Sanchez rule applies to civil SVP proceedings." (People v. Bocklett (2018) 22 Cal.App.5th 879, 890 (Bocklett), citing People v. Roa (2017) 11 Cal.App.5th 428, 448-449 (Roa) & Burroughs, supra, 6 Cal.App.5th at p. 403.)
Defendant asserts that the trial court permitted witnesses to offer inadmissible testimony, much of it hearsay. He asserts the trial court erroneously admitted "ordinary hearsay" as well as case-specific hearsay offered by experts in violation of Sanchez, supra, 63 Cal.4th 665.
In his in limine motions, defendant sought to preclude the prosecutions' experts from testifying about case-specific facts about which they had no personal knowledge. Defendant further filed a supplemental motion in limine to exclude expert testimony in the form of inadmissible hearsay. The court granted the motion subject to the limited hearsay and evidentiary exceptions in Welfare and Institutions Code sections 6600, subdivision (a)(3) and 6603, former subdivision (j)(1). The court further stated that "experts may not testify as to case-specific facts asserted in hearsay statements, unless those facts are independently proven by competent evidence or are covered by a hearsay exception . . . ."
During Arnold's testimony, defense counsel raised a hearsay objection addressed to Arnold offering case-specific information. In essence, the court stated that if admissible evidence did not support witness hearsay testimony, the testimony would be stricken at some undefined later point in time.
In Sanchez, our high court stated: "If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.) Our high court also stated: "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686, italics added.) The high court's language in Sanchez has led to something of a split of authority. Some courts conclude an expert may properly testify to case-specific hearsay facts about which the expert has no knowledge, provided that those facts are proven by other properly admissible evidence. (See, e.g., People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 506 [Sanchez bars expert hearsay testimony "unless there is direct evidence of the matter discussed or the hearsay evidence has been admitted under an appropriate exception"]; Roa, supra, 11 Cal.App.5th at p. 450 ["The limitation on expert testimony imposed by the Supreme Court in Sanchez applies to case-specific facts that are not independently proven or covered by a hearsay exception"]; Burroughs, supra, 6 Cal.App.5th at p. 407 ["Under Sanchez, admission of expert testimony about case-specific facts was error-unless the documentary evidence the experts relied upon was independently admissible"].) Other courts have concluded that, for the expert to offer such testimony, it must still satisfy an applicable hearsay exception. (See, e.g., People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413, disapproved on another ground in People v. Valencia (2021) 11 Cal.5th 818, 839 fn. 17 ["testimony about case-specific facts of which [the expert] does not have personal knowledge is inadmissible, even if specific facts are independently proven by other evidence"]; People v. Stamps (2016) 3 Cal.App.5th 988, 996, disapproved on another ground in People v. Veamatahau (2020) 9 Cal.5th 16, 31, fn. 4 ["If it is a case-specific fact and the witness has no personal knowledge of it, if no hearsay exception applies, and if the expert treats the fact as true, the expert simply may not testify about it"].)
In People v. Flint (2018) 22 Cal.App.5th 983 (Flint), the court concluded that these cases "are only superficially in tension with one another." (Id. at p. 1000.) The court continued: "The correct analysis, in our view, boils down to harmless error. It seems to us that even if the admission of expert testimony reciting as true case-specific hearsay that was independently proven through other witnesses technically constituted error, at most such error would be harmless on this record." (Ibid.)
As we have just noted, there does appear to be a split opinion by the courts as to the proper interpretation of Sanchez. But in our view, it is appropriate to rely on the specific holding in Sanchez, (notwithstanding language in the opinion that is general and arguably contrary): "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th 665 at p. 686, emphasis added.)
Thus, we will analyze defendant's arguments on this point by asking whether the expert related, as true, case-specific facts asserted in hearsay statements and, if the expert did, then ask whether the hearsay was independently proven by competent evidence or was covered by an exception to the hearsay rule. If neither, we will finally ask whether the error was prejudicial.
There is no Sixth Amendment right to confrontation in SVP cases, and the allegedly improper hearsay is not subject to Crawford v. Washington (2004) 541 U.S. 36 . (See Burroughs, supra, 6 Cal.App.5th at p. 405, fn. 6 [portions of Sanchez addressing issues relating to the constitutional right to confrontation are not relevant in SVP proceedings as the state and federal confrontation clauses are not applicable in such proceedings]; People v. Angulo (2005) 129 Cal.App.4th 1349, 1368 ["the confrontation clause does not apply to civil commitment proceedings"].) People v. Watson (1956) 46 Cal.2d 818 (Watson) provides the proper standard for assessing harmless error in such cases. (Flint, supra, 22 Cal.App.5th at pp. 1003-1004; Bocklett, supra, 22 Cal.App.5th at p. 890; Roa, supra, 11 Cal.App.5th at p. 455.) Under Watson," 'defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.'" (People v. Beltran (2013) 56 Cal.4th 935, 955; Watson, at p. 836.) We now turn to defendant's 46 discrete claims of witnesses offering hearsay and case-specific hearsay.
Dr. Arnold
Defendant identifies 18 instances in which, according to defendant, Dr. Arnold offered case-specific hearsay.
Arnold's descriptions of defendant's 1990 qualifying conviction were based on information from a probation report. The hearsay exception under Welfare and Institutions Code section 6600, subdivision (a)(3) is limited to documentary evidence and does not apply to expert testimony. (Yates, supra, 25 Cal.App.5th at pp. 485-486.) However, assuming Arnold's testimony was case-specific hearsay, any error was harmless. The probation report was admissible to prove the existence and details underlying the commission of the offenses leading to the prior convictions. (Welf. & Inst. Code, § 6600, subd. (a)(3); Otto, supra, 26 Cal.4th at pp. 206-207.) That exhibit was admitted into evidence by the court. After the jury retired to deliberate, the parties were still addressing whether the probation report, exhibit 16, would be redacted. All seemed to agree that, even though admitted, it was not going to go to the jury, seemingly under the impression that it provided foundation for the experts' testimony and was therefore superfluous. Defense counsel, who had prepared some redactions, still objected, but, because the exhibit would not go to the jury, defense counsel stated, "it's not as big a concern." As the parties continued to confer, the court was informed the jury had reached a verdict, after which the record noted that exhibit 16 was admitted into evidence. It is not reasonably probable that, had the trial court sustained case-specific hearsay objections to Arnold's testimony about the underlying conviction, defendant would have achieved a more favorable result. (Watson, supra, 46 Cal.2d at p. 836.) Had the trial court sustained such an objection, the prosecution would have established the existence and details underlying the prior convictions through the probation report, which, again, was properly admitted into evidence. (Welf. & Inst. Code, § 6600, subd. (a)(3); Otto, supra, 26 Cal.4th at pp. 206-207.) Had the court not seemed to believe the expert testimony was, in effect, a substitute for the documentary proof, exhibit 16 would have been submitted to the jury and the existence and facts of the underlying convictions thus proved to the jury.
Arnold's description of facts pertaining to defendant's 1999 qualifying conviction was likewise harmless in light of the admissible documentary evidence covering the same ground. (Welf. & Inst. Code, § 6600, subd. (a)(3).) According to defendant, Arnold's description "included information from a medical report and other documents . . . ." Arnold did refer to a "medical exam that showed that [the victim] was prepubescent in his sexual development . . . ." Presumably this is the medical report to which defendant refers. It is not clear this was a separate document or part of a probation report. Nor is it clear whether there would be a basis for admission of the exam if it were an independent document. Assuming Arnold's testimony about the medical exam was Sanchez error, it was not prejudicial. The evidence established that victim was 12 at the time. Arnold and Reed both testified that, in the diagnosis for pedophilia, the victim is generally 13 or younger. It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted Arnold's testimony about the medical exam of the victim. (Watson, supra, 46 Cal.2d at p. 836.)
Arnold testified about aspects of defendant's "social history." However, the only document he refers to on the pages cited by defendant from which he gleaned information was the 1990 probation report which was admissible as discussed ante. (Welf. & Inst. Code, § 6600, subd. (a)(3).)
Defendant also raises statements he made that were repeated by Arnold. However, such would be admissible as party admissions if made directly to Arnold. (§ 1220.) If they were past statements recorded in the probation report, they would be admissible as party admissions (ibid.) contained in the admissible probation report (Welf. & Inst. Code, § 6600, subd. (a)(3)). Defendant further asserts Arnold offered opinions from CDCR records. However, Arnold did not refer to CDCR records. He did describe some matters relevant to defendant's time under CDCR supervision, but it is not clear this was from CDCR records, to which he did not refer, or the probation report.
In several instances, defendant asserts Arnold offered case-specific hearsay in repeating statements defendant had made. However, such would be admissible as party admissions. (§ 1220; see Sanchez, supra, 63 Cal.4th at p. 686 [expert may relate case-specific facts if they are covered by a hearsay exception].) And, again, if Arnold repeated defendant's admissions recorded in probation reports (Welf. & Inst. Code, § 6600, subd. (a)(3)) or hospital records (Landau, supra, 246 Cal.App.4th at p. 872, fn. 7; accord Yates, supra, 25 Cal.App.5th at p. 486), those documents were themselves properly admitted.
Arnold testified concerning defendant's behavior in prison, rating him as "mostly cooperative" and indicating he received one violation for fighting. He also received a few counseling notices. Arnold characterized receiving one rule violation over the period of time defendant was incarcerated as "pretty good." Arnold further testified there were "mental health records, where he's in distress, and he talks about that. And then he had the problems such as vocational services. But he's not the sort of problem child who is constantly getting into fights with people." It is not clear what Arnold consulted to recite this history and form his opinions. Whatever the source, it would appear to be case-specific hearsay. In any event, this testimony was entirely favorable to defendant. It is not reasonably probable that, had Arnold not testified about defendant's behavior in prison, defendant would have achieved a more favorable result. (Watson, supra, 46 Cal.2d at p. 836.)
Arnold testified defendant participated in AA but was not involved in a formal substance abuse program. This information was properly before the jury in exhibits 19-C and 19-J, both discussed ante. Arnold also discussed defendant's psychiatric and medical history. Arnold testified defendant had a history of being in distress; he had suicidal thoughts and was placed under observation, but at other times he denied having suicidal thoughts; and, while in prison he claimed to hear voices and "see[] things," but at other times he admitted he made those symptoms up, perhaps so he could be placed in a more secure location. The source of this information is not clear. That defendant at some point may have had suicidal thoughts and may have feigned psychotic symptoms for safety purposes had little to no bearing on the central questions with which the jury was faced. It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted this testimony. (Watson, supra, 46 Cal.2d at p. 836.)
Arnold testified about defendant's lack of participation in a sex offender treatment program. This information was properly before the jury, as Estrellanes, who worked with defendant, testified he was not enrolled in a sex offender treatment program to address pedophilic disorder.
Arnold testified about defendant's work history at Coalinga and his participation in treatment groups and statements made about defendant's understanding of treatment. In part, Arnold's testimony about defendant's participation in treatment on the pages cited consisted of his opinion, which was not case-specific hearsay. In other instances, Arnold testified about, for example, defendant's inconsistent participation, and defendant being asked to leave group because he was interfering with others' progress. All of this information was before the jury through Federico's testimony about her firsthand experiences working with defendant. Arnold's only testimony about defendant's work history on the pages cited was when he testified: "The other thing that he's done more recently is he's functioned as kind of a janitor on the units he's on and he's gotten good marks in terms of doing that persistently and regularly doing a good job so that's good." That defendant worked as a janitor was set forth in exhibit 19-J, and that portion of the exhibit was properly before the jury. Additionally, Arnold's testimony in this regard cannot conceivably be characterized as prejudicial to his case.
In another instance, Arnold testified he learned defendant was involved in another group at Coalinga designed to help patients formulate a plan to reenter the community. According to Arnold, the group did not create a written plan; it is up to the patient to provide it. Arnold testified he had received such a plan in many cases but not for defendant. Even assuming Arnold's testimony was case-specific hearsay, there was nothing prejudicial about it. The only prejudicial aspect of this testimony was Arnold's indication that defendant had not furnished him with a reentry plan, which was not hearsay but Arnold's testimony about the fact that he did not receive a document.
Defendant objects to Arnold's testimony about "sanctions appellant received for criminal behavior from non-qualifying offenses." When asked whether defendant was affected by negative consequences of his prior sex abuse behavior, Arnold testified: "essentially, he was sanctioned, you know, in '84, sanctioned again in '87, sanctioned again in 1990 and he failed to learn from those experiences . . . ." Defendant's criminal records were properly before the jury pursuant to sections 452.5 and 1280. In any event, it is not reasonably probable defendant would have achieved a more favorable result absent this testimony. (Watson, supra, 46 Cal.2d at p. 836.)
Arnold testified there was "an instance in the past where [defendant] was accused of committing a sexual crime and a family member tried to dissuade the victim from reporting the crime and that is a negative influence if family members do that." It does not appear this information was properly before the jury. This was case-specific hearsay. However, this evidence reflected poorly on an unnamed member of defendant's family. It also discussed a mere accusation. It had little bearing on whether defendant had a pedophilic disorder diagnosis and whether that diagnosis made him a danger to the health and safety of others in that it was likely he would engage in sexually violent criminal behavior. (Welf. & Inst. Code, § 6600, subd. (a)(1).) It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted this testimony. (Watson, supra, 46 Cal.2d at p. 836.)
Defendant also discussed Arnold's testimony about "what staff members said about appellant." However, on the page cited by defendant, Arnold testified only that "there's some staff members that describe [defendant] in a positive way on the other hand he's frequently voicing conflict with others and feeling rejected by his peers and that negative emotionality type of stuff." The only staff statements Arnold related described defendant in a positive way. The latter material pertained to what defendant himself "voic[ed]." Arnold's hearsay testimony that staff described defendant in a positive way, while hearsay, cannot be deemed prejudicial.
Arnold's testimony that people in CDCR and in the state hospital complained defendant stared at them in the shower or touched them was expressly "based upon [defendant's] statements . . . ." Defendant's statements were admissible as party admissions. (§ 1220.) Moreover, even if those statements were not made directly to Arnold, accusations about defendant staring at others in the shower at the state hospital were before the jury in exhibit 19-T. Therefore, it is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted this testimony. (Watson, supra, 46 Cal.2d at p. 836.)
Finally, defendant raises Arnold's testimony defendant was placed on probation in 1984, he had three or four probation violations, and he was returned to confinement at least twice after being paroled for his 1990 qualifying offense. Defendant's violations after being paroled for his 1990 qualifying offense are set forth in exhibits 13 and 14, and were thus properly before the jury. Information concerning pre-1990 events does not appear on exhibits 13 or 14. It appears this was case-specific hearsay. However, the fact that defendant had three or four probation violations after he was placed on probation in 1984 has very little impact on whether defendant had a pedophilic disorder diagnosis and whether that diagnosis made him a danger to the health and safety of others in that it was likely he would engage in sexually violent criminal behavior. (Welf. & Inst. Code, § 6600, subd. (a)(1).) It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted this rather inconsequential testimony. (Watson, supra, 46 Cal.2d at p. 836.)
Dr. Reed
Defendant alleges 21 instances of case-specific hearsay offered by Dr. Reed.
We discussed case-specific hearsay in the form of testimony about the facts underlying defendant's qualifying offenses in connection with Arnold's testimony, ante. The same analysis applies to Reed's testimony about these matters.
Defendant's statements about his alcohol usage were admissible as party admissions. (§ 1220.) There is no indication Reed's testimony about defendant's statements on the subject relayed anything other than his statements to her.
Reed testified: "alcohol does seem to have been a factor in at least the '99 case. And I don't recall about the 1990 case if alcohol was a factor. But he does have a history. And a number of the records show that he was under the influence at different times when he was arrested." These facts underlying the two qualifying convictions were independently admissible and subject to proof by, among other things, the probation reports prepared in those cases. (Welf. & Inst. Code, § 6600, subd. (a)(3).) Furthermore, even if the testimony was inadmissible, that defendant used alcohol in connection with his prior cases supported Abbott's opinion and defendant's position that his offenses resulted from alcohol use disorder combined with his intellectual disability rather than from pedophilic disorder. It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted this testimony. (Watson, supra, 46 Cal.2d at p. 836.)
Reed testified of the qualifying offenses that she "knew he did it," meaning he committed the 1990 and 1999 crimes "because I had all of the records." Reed offered this testimony in the context of relating that defendant answered some questions by beginning," 'Well, if I did do it . . . .'" Reed did not "relate as true case-specific facts asserted in hearsay statements . . . ." (Sanchez, supra, 63 Cal.4th at p. 686.) She only testified she knew defendant "did it" because she had records. To the extent "he did it" could be deemed case-specific hearsay offered to prove defendant committed the qualifying crimes, that fact was conceded by the defense.
Defendant raises Reed's testimony that he had not had intimate relationships with a same-age person and has never had close friends. Reed's testimony came within the context of testifying about her conversations with defendant. Defendant's statements were independently admissible. (§ 1220.)
Reed's testimony about defendant's job history was also largely gleaned from her conversation with defendant, and was thus admissible. (§ 1220.) She testified, "[h]e told me during that evaluation that he had only been able to keep jobs for three or four months and he did not know why that was the case, but he had never lasted more than four months in a job." However, Reed also testified that "[o]ther records . . . he's given other reports of jobs lasting up to eight months . . . ." Given the inconsequential nature of this testimony and the fact that it was cumulative to, and more favorable than, defendant's party admissions, even if this was case-specific hearsay, it is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted it. (Watson, supra, 46 Cal.2d at p. 836.)
Reed testified to certain aspects of defendant's criminal history from the 1980's not related to qualifying offenses. She testified he had an early conviction of petty theft. A month later, he was arrested and charged with sexual battery. He was convicted in 1987 for soliciting another to engage or engaging in lewd conduct. This appears to be case-specific hearsay not necessarily otherwise before the jury. This evidence was not favorable to defendant's case. While the fact that defendant had a criminal history was no secret, this shed more light on it, and further suggested his willingness to commit sex offenses. However, the testimony was neither particularly provocative nor more harmful to defendant's position than the evidence properly before the jury. It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted this testimony. (Watson, supra, 46 Cal.2d at p. 836.)
Reed testified about defendant's psychiatric history. She did review defendant's mental health notes, but also spoke with defendant about the subject. She testified he had been treated with medication "due to his complaints of hearing voices," but he further told her "he didn't hear voices, and that medication was discontinued." She offered that it "was very hard to get reliable information during that interview." It appears that, while Reed reviewed mental health notes, she testified about what she gleaned from her conversation with defendant, which would be independently admissible. (§ 1220.) Anything she testified about on the pages cited by defendant was cumulative to what defendant told her.
According to defendant, Reed testified "that records indicate appellant preferred individual therapy and continues to refuse group therapy." However, Reed was testifying about a notation in her own report, in which "[h]e said that he preferred individual therapy and continued to refuse group therapy." Insofar as this was a statement defendant made to Reed and Reed testified about it from her recollection, it was admissible. (§ 1220.) Moreover, exhibit 19-J established defendant was in individual therapy and had difficulty with group therapy.
Reed testified about defendant's problems with peers. Specifically, asked about whether defendant has issues getting along with peers, Reed testified, "a lot of his peers accused him of stealing their property. And he was accused of watching people take showers." Defendant admits his own statements are admissible as party admissions. (§ 1220.) He asserts, however, that, in his statements, he repeated statements of others, which constituted an additional layer of hearsay. We disagree. These party admissions were not admitted to prove the truth of the accusations leveled by defendant's peers-that defendant stole their property or that he watched them in the showers. Rather, defendant's admissions were offered to prove defendant had difficulty getting along with his peers, demonstrated by the fact that, as admitted by defendant, they made accusations against him. Again, the statements were not offered to prove the truth of the matter asserted in the peers' accusations. (§ 1200.) Similarly, Reed testified that defendant told her he had problems with peers, that peers accused him of stealing their property, and "he described a situation, saying that a cellmate had made accusations about him." Specifically, "there were suggestions that it may have been -- my sense that it was some kind of sexually inappropriate behavior that they had gotten into it about. He kind of hinted at that. [¶] And then there was another inmate that had been put in his cell, and he said that -- [defendant] told [Reed] that the cellmate accused him of, quote, playing him sexually." Defendant's statements were party admissions. (§ 1220.) And there was not an additional, problematic layer of hearsay, as defendant's statements were not offered to prove defendant stole property, engaged in sexual behavior with a cellmate, or "played [another cellmate] sexually." They were offered to prove defendant had difficulty getting along with his peers as demonstrated by the fact that, as defendant stated, others made accusations against him.
Defendant's statement in a sheriff's report in connection with his 1999 case was independently admissible as a party admission (§ 1220) in a report in connection with a qualifying conviction (Welf. & Inst. Code, § 6600, subd. (a)(3)). Even if Reed's testimony- that defendant told law enforcement he would like treatment, that treatment in the past had not worked because it was talk therapy, and that he wanted medication to help him-relayed case-specific hearsay, it is not reasonably probable that defendant would have achieved a more favorable result absent this testimony. (Watson, supra, 46 Cal.2d at p. 836.) This testimony portrayed defendant as conscientious and wanting to address his problems.
Reed testified that, when defendant committed the 1990 sex offense against the seven-year-old victim, he was on probation. This fact was almost certainly in the probation report. In any event, as reported by Reed, this would appear to be case-specific hearsay. Even if this evidence was not otherwise before the jury, it is not reasonably probable defendant would have achieved a more favorable result in these proceedings had the jury not learned defendant was on probation at that time. (Watson, supra, 46 Cal.2d at p. 836.)
Reed testified about statements defendant made to the effect that he thought he could not be around children until after his probation period ended, but that, after his probation had expired, it was fine. There is no indication in the record this was anything but a statement by defendant to Reed, admissible pursuant to section 1220.
As defendant notes, Reed testified about "information she learned from the state hospital records about appellant's involvement and behavior in sex offender treatment and other types of treatment." This information was already before the jury in the form of the hospital records discussed ante.
Defendant points out Reed testified about the Static-99R. However, in this contention, defendant only asserts Reed "testified to specific events or information she learned from records," and then cites to a range of six pages in the reporter's transcript. "It is the appellant's burden to demonstrate the existence of reversible error." (Del Real, supra, 95 Cal.App.4th at p. 766.) This is not a sufficiently specific claim of error. As the reviewing court, we will not perform an independent, unassisted review of the record in search of error or grounds to support the judgment. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522 (McComber).)
As defendant asserts, Reed testified to facts that she believed supported the determination defendant groomed his victim. The facts Reed described were likely in the probation reports. However, as described by Reed, the facts described would appear to be case-specific hearsay. Reed testified as to grooming in the 1999 offense that defendant "was nice to him. He was friendly with him. He made efforts to become friends with him. He brought him a soda. He offered to make him a sandwich. These are the kinds of things that sort of ingratiates offenders into a relationship with victims, and this is not at all uncommon." While this testimony was not favorable to defendant's case, it was the fact of the qualifying conviction more than how defendant groomed the victim that was particularly relevant to defendant's diagnosis, the central issue in this case. It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted Reed's testimony about how defendant groomed the 1999 victim. (Watson, supra, 46 Cal.2d at p. 836.)
Defendant asserts Reed offered case-specific hearsay in testifying about diagnoses mentioned in Dr. King's report, discussed post. Reed's testimony was case-specific hearsay. However, the jury was aware of the diagnoses. It is not reasonably probable defendant would have achieved a more favorable result had Reed not testified about these diagnoses. (Watson, supra, 46 Cal.2d at p. 836.) Defendant also asserts Reed "testified to information from King's report," and cites a page range, but does not identify any particular information or in what way it could potentially be prejudicial. According, we do not consider this claim further. (See Del Real, supra, 95 Cal.App.4th at p. 766; McComber, supra, 72 Cal.App.4th at p. 522.)
As defendant asserts, Reed testified about information in state hospital documents. This material was before the jury in the records from the hospital discussed ante. Any testimony about this information was not prejudicial.
Finally, defendant asserts Reed "testified to information that she learned appellant was familiar with the term oral copulation based upon documents she reviewed." Reed testified defendant "referenced the term oral copulation and said, 'Why did I do that? Maybe it is my childhood.'" She then testified that, "[a]fter he pretended that he didn't know what [oral copulation] was, I did read some of the specific documentation from the records." Then Reed described her interview with defendant further. Later, Reed was asked if, in her 2013 report, she noted," 'When I read some of the documents that specifically referred to sodomy and oral copulation, he asked what those terms meant even though he had used the words previously himself, '" and she agreed he did. This reflected defendant's own statement, recorded in Reed's report, which Reed testified she included in her report. She also testified she had "independent memory" of her interview with defendant. Reed's report was admitted into evidence, but was not to go to the jury pending a further hearing that may never have occurred given how quickly the jury reached its verdict. In any event, even if this did constitute case-specific hearsay, it only constituted proof that defendant on an occasion may have feigned ignorance of the meaning of the term "oral copulation." This was trivial. It is not reasonably probable defendant would have achieved a more favorable result had Reed not testified about this matter. (Watson, supra, 46 Cal.2d at p. 836.)
Sharon Estrellanes
Defendant asserts Estrellanes offered hearsay testimony in testifying about defendant's problems getting along with peers, that he was transferred to a single dorm room, and that she had heard stories defendant was "peering at other patients." With the exception of the quoted language, based on our reading, Estrellanes was testifying about her own recollection of events, not from documentation or repeating out-of-court statements for their truth. She testified concerning a few statements defendant made to her, which would be admissible. (§ 1220.) Estrellanes's testimony was either not hearsay or admissible as a party admission. As for her testimony that she had heard stories defendant was "peering at other patients," there was evidence before the jury that defendant peeped at other patients in exhibit 19-P, and therefore her repetition of this information was harmless.
Defendant also asserts Estrellanes "testified to information that she learned about appellant's treatment performance and participation from other sources." In the pages cited by defendant, she testified to certain facts she "gleaned from being at the treatment team meeting." She also testified after having her recollection refreshed from her notes. Defendant does not identify any particular information as constituting hearsay.
Dr. Loren King
Defendant asserts that, on cross-examination, Dr. King "testified to diagnoses applied to appellant by other persons." Dr. King agreed his report indicated defendant had been diagnosed with "Pedophilic Disorder, Exclusive Type, Sexually Attracted to Males," "Alcohol Use Disorder, Mild," and "Mild Intellectual Disability." The source of these diagnoses is unclear. This was case-specific hearsay. However, we have concluded ante that Reed's testimony about this matter was nonprejudicial. The same applies to King's cross-examination testimony.
Dr. Abbott
On cross-examination, Dr. Abbott testified that, when defendant was not incarcerated, his mother was the primary person who helped him with his daily needs. The source of this information is unclear. This would appear to be case-specific hearsay. However, this testimony is not remotely prejudicial to defendant's case.
Defendant raises Abbott's cross-examination testimony about defendant allegedly looking at other patients in the shower. However, Abbott testified about this allegation in his direct examination as well. Moreover, this allegation was before the jury in exhibit 19-T.
Even if Abbott's testimony about the underlying facts of defendant's qualifying offenses constituted case-specific hearsay (see Yates, supra, 25 Cal.App.5th at pp. 485-486), for the reasons discussed in connection with Arnold's and Reed's testimony, the admission of this testimony was harmless. To the extent he testified about earlier offenses from unknown sources, we will assume this constituted case-specific hearsay. He testified defendant was convicted of sexual battery in 1985 involving three children, one of whom was a seven-year-old boy and another of whom was a four-year-old girl. He further testified he was convicted of lewd conduct in 1987 based on an incident involving wrestling where defendant fondled the 11-year-old victim's penis under his clothes. However, Abbott immediately testified that defendant's "arousal is not because he's interested in prepubescent children, is that he wanted to satisfy sexual feelings in the moment that were related to age appropriate sexual partners because he lacked the capacity to do that with age appropriate sexual partners." Like some other evidence we have discussed here, this evidence was not favorable to defendant's case. However, it was no more inflammatory than the evidence properly before the jury. It was remote in time. And Abbott immediately followed up by explaining his opinion that defendant's actions were not guided by a pedophilic disorder. It is not reasonably probable defendant would have achieved a more favorable result had the trial court not admitted this testimony during Abbott's cross-examination. (Watson, supra, 46 Cal.2d at p. 836.)
Finally, Abbott noted someone at Coalinga diagnosed defendant with pedophilic disorder. That defendant was diagnosed at Coalinga with pedophilic disorder was before the jury in exhibit 19-J, rendering this testimony harmless.
V
Cumulative Error
In the Introduction section of his opening brief, defendant contends that, while the errors he alleges on appeal were prejudicial, he "cannot determine in advance which of his numerous claims of evidentiary error this court will accept. However, the errors are interrelated and the prejudice from each error is compounded by the prejudice from the other errors. For that reason, appellant has combined his prejudice claims into one argument that he suffered cumulative prejudicial error." In his argument on cumulative error, he similarly asserts: "Since, it is impossible for appellant to determine, in advance, which of the claimed errors this court will specifically identify as errors, appellant cannot make a prejudice argument that focuses exclusively on the prejudicial effect of the errors this court determines were actually errors. However, the errors were prejudicial as a whole." Where we have found potential ineffective assistance of counsel or trial error, we have addressed prejudice individually taking into consideration defendant's prejudice arguments. In light of the fact that defendant has alleged error in connection with 80 discrete items of evidence, this approach was preferable to marshalling and specifically addressing all prejudicial error in a single cumulative error discussion. We now consider defendant's cumulative prejudicial error claim.
Defendant asserts the errors he identified prejudiced him when considered cumulatively if not individually. The premise behind the cumulative error doctrine is that, while a number of errors may be harmless taken individually, their cumulative effect requires reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176.)
Here, the jury had before it the experts' conflicting testimony about their diagnoses and opinions. Drs. Arnold and Reed diagnosed defendant with pedophilic disorder. They opined defendant, as a result, had a mental disorder that predisposes him to committing criminal sexual acts and, if he were to be released to the community, he was likely to commit another sexually violent predatory offense. And they explained the bases for their opinions. Dr. Abbott disagreed, criticized Arnold's and Reed's methodology, opined a combination of intellectual disability and alcohol use disorder better explained defendant's sex offense behavior, and provided support for his position.
Against this backdrop, we have considered extensively defendant's claims of error separately and found no prejudice. Viewed cumulatively, our conclusion is the same. "Defendant was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Defendant was not deprived of a fair trial.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., MURRAY, J.