Opinion
G054721
09-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JEREMY CAMPBELL OWEN, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler and Julie L. Garland, Assistant Attorneys General, Charles Ragland and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. M-12355) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael J. Cassidy, Judge. Affirmed. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald Engler and Julie L. Garland, Assistant Attorneys General, Charles Ragland and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.
Jeremy Campbell Owen appeals from the trial court's judgment committing him to a state hospital following a jury's finding he was a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) Owen raises two claims: (1) he was prejudiced both by the introduction of inadmissible lay-witness hearsay evidence and by case-specific expert witness hearsay evidence elicited in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); and (2) the SVPA provision permitting admission of multi-level hearsay documents to prove the details underlying certain prior convictions (§ 6600, subd. (a)(3)), is unconstitutional — both facially and as applied to him in this case.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
We find most of Owen's hearsay claims are without merit. Further, any actual evidentiary errors were either forfeited by a failure to object or were harmless in light of other properly admitted evidence. Consequently, it is not reasonably probable Owen would have received a more favorable result had these errors not occurred. Finally, we reject both of Owen's constitutional challenges to the hearsay exception found in subdivision (a)(3) of section 6600. We therefore affirm the judgment.
I.
INTRODUCTION
Because Owen only contests evidentiary issues involving hearsay, and their constitutional ramifications, our factual recitation focuses only on those facts relevant to those issues.
The SVPA provides for the indefinite involuntary civil commitment of persons who meet specified criteria following the completion of their prison terms. (People v. McKee (2010) 47 Cal.4th 1172, 1186-1187 (McKee).) Except for nonsubstantive differences in grammar, the SVPA tracks verbatim the Kansas SVP law approved by the United States Supreme Court in Kansas v. Crane (2002) 534 U.S. 407, and Kansas v. Hendricks (1997) 521 U.S. 346 (Hendricks). (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1157 (Hubbart).)
Section 6600, subdivision (a)(1), defines a sexually violent predator as "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person 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." (See People v. Burroughs (2016) 6 Cal.App.5th 378, 383 (Burroughs).) Here, the Orange County District Attorney was required to establish beyond a reasonable doubt Owen was such a person, and the jury must have unanimously agreed before making their SVP finding. (See Reilly v. Superior Court (2013) 57 Cal.4th 641, 648.)
Normally, a "sexually violent offense" is a felony violation of Penal Code sections 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289, "when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person," or "any felony violation of [Penal Code sections] 207, 209, or 220" that are "committed with the intent to [violate Penal Code sections] 261, 262, 264.1, 286, 288, 288a, or 289 . . . ." (§ 6600, subds. (a)(2)(A)-(I), (b).) In cases such as Owen's, however, where his two qualifying offenses involve 13 year-old victim A.L. (discussed below), "[i]f the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense shall constitute a 'sexually violent offense' for purposes of Section 6600." (§ 6600.1.)
Conviction of a qualifying sexually violent offense may support an SVP determination, "but shall not be the sole basis for the determination." (§ 6600, subd. (a)(3).) The existence of a qualifying prior conviction, and the details underlying the offense that led to the prior conviction, 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." (Ibid.) Consequently, section 6600, subdivision (a)(3), "allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted." (People v. Otto (2001) 26 Cal.4th 200, 208 (Otto).)
"Expert testimony, specifically testimony regarding diagnosis of a current mental disorder, is an important element in an SVPA civil commitment proceeding." (People v. Roa (2017) 11 Cal.App.5th 428, 443 (Roa).) In fact, "expert testimony is critical in an SVP commitment proceeding, in which the primary issue is not, as in a criminal trial, whether the individual committed certain acts, but rather involves a prediction about the individual's future behavior." (McKee, supra, 47 Cal.4th at p. 1192.)
Although rooted in past criminal conduct, SVP trials are not criminal proceedings and instead are special proceedings of a civil nature. (Moore v. Superior Court (2010) 50 Cal.4th 802, 815, 821.)
II.
FACTS
A. Testimony Concerning Owen and His Prior Sex Offenses
1. Prior Convictions
C.S. testified that in 1995, when he was eight years old, Owen was his neighbor in a condominium complex in Laguna Niguel. One day, while the two were playing chess together, Owen asked C.S. about the size of his penis, and asked C.S. to compare his penis size with the size of the chess pieces. Owen then exposed his own penis to C.S. and asked him if he wanted to touch it. C.S. declined, but later told his father what had happened. Based on this conduct, in 1996 Owen was convicted of child annoyance (Pen. Code, § 647.6), and indecent exposure (Pen. Code, § 314.1).
Owen was born in November 1973, making him 21 or 22 years old in 1995.
A former City of Orange police officer testified regarding a different 1995 event involving Owen and two other boys, nine-year-old J.B., and twelve-year-old C.R. The officer spoke to the boys about the incident, although he did not testify to what they said to him, and then arrested Owen for lewd acts on a child (Pen. Code, § 288, subd. (a)). When interviewed at the police station, Owen admitted he had hugged the boys, but denied masturbating in front of them. Instead, Owen stated the boys may have "accidentally" seen his penis when he exposed it to urinate, even though he did not actually urinate. Ultimately, for this incident, in 1996 Owen again pleaded guilty to child annoyance (Pen. Code, § 647.6), and indecent exposure (Pen. Code, § 314.1). A certified copy of the court records of this conviction, Orange County Superior Court case number 95CM09103, was admitted into evidence as exhibit No. 8.
The District attorney's expert witnesses testified, in part, they based their SVP diagnosis of Owen on the underlying facts of Owen's qualifying prior convictions involving a victim named A.L. Both experts testified that, in 1998, Owen had touched eight-year-old A.L.'s penis over his clothing. Later, in about 2001 or 2002, when A.L. was 13, Owen committed additional acts of oral copulation, sodomy, and mutual masturbation. Owen provided A.L. with drugs and alcohol, they watched pornographic movies together, and Owen would "trade" car rides for sexual "favors." A.L. and Owen would use drugs and, when A.L. was "high", Owen would fondle and sodomize him. These various acts happened about ten times.
Based on the molestations of A.L., in 2005 Owen pleaded guilty to two counts of lewd acts on a child under 14 (Pen. Code, § 288, subd. (a)), and one count of lewd act on a child 14 or 15 (Pen. Code, § 288, subd. (c)(1)). He also pleaded guilty to an additional felony count of child annoyance with prior convictions (Pen. Code, § 647.6, subd. (c)(1)). A certified copy of the court records of his conviction in the case, Orange County Superior Court case No. 04SF0877, was admitted into evidence as exhibit No. 6. This conviction is also referenced in exhibit No. 3, a document listing Owen's criminal history (rap sheet), which also was admitted into evidence.
This last count of child annoyance involved a different victim, but the case-specific details were not discussed at trial.
2. Uncharged Conduct
L.H. testified about an incident occurring sometime in the late 1990s involving Owen and her son K.S. They all lived in the same condominium complex in Dana Point, and L.H. testified K.S. called Owen "the creep at the creek." One day, when K.S. went to check the mail, Owen approached him and asked K.S. where he lived and which bedroom was his. L.H. watched as K.S. tried to ignore Owen. After retrieving the mail, K.S. walked in a different direction and hid in the bushes for a while before eventually going home. L.H. reported the incident to police. During a subsequent meeting with the police, K.S. identified Owen, and L.H. testified the man K.S. identified was the man she saw at the mailbox. B. Petitioner's Expert Testimony
Each party called two expert witnesses. The District attorney called Drs. Michael Musacco and Jack Vognsen, both of whom diagnosed Owen with a pedophilic disorder and concluded he met all the criteria of an SVP. We discuss their testimony in more detail below. C. Owen's Evidence
Owen's experts, Drs. Brian Abbott and Gerry Blasingame, both opined Owen was not an SVP. Owen also introduced the testimony of his mother, his sister, and his stepfather, primarily as character witnesses, but also to impeach some of A.L.'s statements to police regarding his relationship with Owen. Because their testimony is not relevant to the issues Owen raises on appeal, we need not relate its details.
Owen claims the prosecutor in his cross-examination of Owen's experts elicited improper hearsay. As the Attorney General points out, however, the complained-of testimony was first elicited by Owen's trial counsel during direct examination. In any event, there were no hearsay objections made to this aspect of the defense experts' testimony by either party, and the claim on appeal is therefore forfeited. (Evid. Code, § 353.) Moreover, exhibit No. 9, which discusses the evidence Owen now complains of, was independently admitted without objection — and is not contested on appeal — so any impropriety is harmless.
III.
DISCUSSION
A. Hearsay
Owen first claims he was prejudiced by the introduction of inadmissible hearsay in L.H.'s testimony. He then challenges the admission of his rap sheet (exhibit No. 3), and the police reports from the A.L. case (exhibit No. 4) as inadmissible hearsay. Finally, he challenges certain case-specific testimonial hearsay evidence elicited from petitioner's expert witnesses, asserting it was admitted in violation of Sanchez, supra, 63 Cal.4th 665. We address each claim serially.
In doing so, we apply "the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 725.) "[A] trial court's decision to admit or exclude a hearsay statement . . . will not be disturbed on appeal absent a showing of abuse of discretion. [Citation.]" (People v. Jones (2013) 57 Cal.4th 899, 956.) The trial court's "discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered." (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.) Moreover, any error regarding the admission of evidence requires reversal only if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
1. Nonexpert Hearsay Testimony
Owen contends the trial court erred in admitting L.H.'s testimony about statements K.S. had made to her regarding Owen's behavior. Owen's trial counsel moved to strike her entire testimony, but it was not on hearsay grounds. Instead, counsel contested the relevance of L.H.'s testimony, emphasizing the conduct was noncriminal. The trial court denied the motion, subject to reconsideration. Even so, during her examination by the prosecutor three individual hearsay objections were made to specific parts of L.H.'s testimony, and all three were sustained. Belatedly, Owen now claims the court erroneously admitted other unobjected -to hearsay.
Evidence Code 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. . . ." (Italics added.) "'In accordance with [Evid. Code, § 353], we have consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable. [Citations.]'" (People v. Partida (2005) 37 Cal.4th 428, 433 (Partida).)
"What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (Partida, supra, 37 Cal.4th at p. 435.)
As a result, Owen forfeited his appellate hearsay challenge to L.H.'s testimony involving statements her son made to her about Owen because he failed to lodge the objection below. "Because he failed to make an appropriate [hearsay] objection, the issue is waived." (People v. Bolin (1998) 18 Cal.4th 297, 320; People v. Abel (2012) 53 Cal.4th 891, 924 ["A defendant who fails to make a timely objection or motion to strike evidence may not later claim that the admission of the evidence was error"].)
2. Documentary Hearsay Exhibits
Below, Owen's trial counsel objected to two of petitioner's exhibits on hearsay grounds. Even though he called them exhibits Nos. 3 and 4, it appears he misspoke. Counsel called exhibit No. 3 "an incident report" involving "the same matter that was testified to by the witness today." The only witness that day was the former Orange police officer who testified regarding the indecent exposure incident involving the two boys. While a certified copy of the conviction in that case was admitted as exhibit No. 8, there is no incident or police report for that case among the exhibits. Moreover, counsel stated he was not objecting to other exhibits "where it's just simply a showing of a conviction or a minute order." Nonetheless, we will assume without deciding that Owen lodged a hearsay objection to what actually became exhibit No. 3; i.e., his rap sheet.
Exhibit 4 contains the Orange County Sheriff's Department reports in the matter involving A.L. that later resulted in Owen's qualifying convictions. His objection on hearsay grounds to that exhibit is preserved.
Owen next argues his rap sheet and the A.L. police reports were inadmissible hearsay and erroneously admitted.
Later in his brief, Owen claims the admission of exhibit Nos. 3 and 4, as well as the admission of exhibit No. 5, violated his due process rights. Exhibit No. 5 is an Orange County Probation Department preplea report in Orange County Superior Court case No. 04SF0877. Owen does not challenge exhibit No.5 on hearsay grounds.
Exhibit No. 3 is a certified California Law Enforcement Telecommunications System (CLETS) printout of Owen's criminal history, or "rap sheet." Owen asserts it is inadmissible hearsay because a rap sheet is not specifically listed in those admissible documents permitted by section 6600, subdivision (a)(3). Owen's argument overlooks the plain language of the section, which provides its enumerated examples of admissible hearsay documents are not exclusive; rather, admissible documents "include[], but [are] not limited to" those listed in the subdivision. (§ 6600, subd. (a)(3), italics added.) As such, exhibit No. 3 is documentary evidence containing "multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted" (Otto, supra, 26 Cal.4th at p. 208), and therefore was admissible.
Moreover, rap sheets are independently admissible under the official records exception to the hearsay rule. (See Evid. Code, §§ 452.5 & 1280; People v. Martinez (2000) 22 Cal.4th 106, 111-112, 134 [trial court did not abuse its discretion in admitting a CLETS printout under the official records exception to the hearsay rule]; see People v. Dunlap (1993) 18 Cal.App.4th 1468, 1476 [proof of prior conviction is not limited to certified court records or certified state prison records]; see also People v. Morris (2008) 166 Cal.App.4th 363, 373 [CLETS rap sheets are not testimonial hearsay and therefore do not violate defendant's right to confront and cross-examine the witnesses against him].) Thus, even if exhibit No. 3 did not fall under the section 6600, subdivision (a)(3), hearsay exception, it was independently admissible under another exception.
Owen argues we cannot rely on a rule of admissibility if it was not raised and ruled upon below, citing the inapt Ward v. Taggart (1959) 51 Cal.2d 736, 742 [generally, plaintiff cannot change theory of its case from tort to quasi-contract for the first time on appeal], and the even more off-base Siddiqi v. United States (2nd Cir. 1996) 98 F.3d 1427 [government changed its theories of criminal liability several times, both at trial and on appeal]. Moreover, the law regarding evidentiary rulings is otherwise: "If a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below." (People v. Brown (2004) 33 Cal.4th 892, 901.)
Finally, even if exhibit No. 3 was erroneously admitted, it could not have prejudiced Owen because he does not contest the admission of exhibit No. 6, which is a certified copy of the court records of his conviction in Orange County Superior Court case No. 04SF0877, and it shows the same information contained in exhibit No. 3, with additional details. "[A] properly certified copy of an official court record is a self-authenticated document that is presumptively reliable, and standing alone may be sufficient to prove a prior felony conviction." (People v. Skiles (2011) 51 Cal.4th 1178, 1186.) Thus, exhibit No. 6 includes the abstract of judgment in that case, Owen's admissions to the offenses as found in the change of plea forms, and Owen's prison commitment on the two SVP-qualifying Penal Code section 288, subdivision (a), convictions. Put another way, Owen has failed to demonstrate he suffered any prejudice when the trial court admitted exhibit No. 3.
The abstracts of judgment related to the predicate offenses are admissible to prove a defendant's convictions of those offenses. (Burroughs, supra, 6 Cal.App.5th at p. 403; cf. People v. Dean (2009) 174 Cal.App.4th 186, 196 [qualifying priors in SVP case can be proved by a Pen. Code, § 969b, prison records package].)
Exhibit No. 4 is a certified copy of the Orange County Sheriff's Department incident and investigative reports in the case that ultimately became Orange County Superior Court case No. 04SF0877. Once more, Owen insists exhibit No. 4 is inadmissible hearsay because investigation reports are not specifically listed in section 6600, subdivision (a)(3). And once more, we reject his falsely-premised exclusivity argument.
Owen further claims exhibit No. 4 "was merely a report, the exact type of hearsay document" that was disapproved in Roa, supra, 11 Cal.App.5th at p. 452. Not so. Unlike exhibit No. 4, the reports at issue in Roa did not relate to Roa's SVP-qualifying offenses. Rather, they were "prepared by a district attorney investigator in 1999 about events that occurred decades earlier, specifically, a 1967 attempted rape that resulted in a juvenile adjudication for assault, a 1974 arrest for the attempted rape of two teenage girls, and allegations by Roa's ex-wife about abusive conduct during their marriage. The trial court excluded the reports themselves as inadmissible hearsay, but allowed experts to rely upon the reports and testify as to their contents as the basis for their opinions." (Roa, supra, 11 Cal.App.5th at p. 450, italics added.)
Significantly, not only were the reports not admitted into evidence, there was "no other evidence of the case-specific facts concerning the 1967 assault . . . , Roa's alleged abuse of his ex-wife, or his 1974 arrest for the alleged sexual assault against two teenage girls." (Roa, supra, 11 Cal.App.5th at p. 452.) Most importantly, the reports in Roa did not fall within the section 6600, subdivision (a)(3), hearsay exception because they did not involve Roa's qualifying prior convictions. (See id. at p. 453.) And since the reports were not independently admissible, "[a]dmission of expert testimony relating case-specific facts about these incidents was error" under Sanchez. (Id. at p. 452.)
Exhibit No. 4, on the other hand, which was admitted into evidence, comprises the investigative reports surrounding Owen's convictions for his qualifying sexually violent offenses against A.L. Section 6600, subdivision (a)(3), creates a hearsay exception for the documentary evidence it describes, and for any multiple-level hearsay statements contained within those documents. (Otto, supra, 26 Cal.4th at p. 208.) Exhibit No. 4, therefore, falls squarely within that hearsay exception since it provided "details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim." (Section 6600, subd. (a)(3).)
Thus, unlike the reports in Roa, exhibit No. 4 was independently covered by a hearsay exception. As a result, and as we discuss further below, expert testimony based on exhibit No. 4 regarding the case-specific facts of Owen's qualifying offenses was admissible hearsay under Sanchez. "The limitation on expert testimony imposed by the Supreme Court in Sanchez" only "applies to case-specific facts that are not independently proven or covered by a hearsay exception." (Roa, supra, 11 Cal.App.5th at p. 450, italics added.) Owen's hearsay objections to exhibit No. 4 are therefore unfounded.
3. Hearsay-Based Expert Testimony after Sanchez
Lastly, Owen argues the District attorney's expert witnesses testified to case-specific hearsay in a manner violative of Sanchez. We disagree.
a.) Dr. Michael Musacco
Dr. Musacco testified that in 1998, when A.L. was eight years old, Owen touched A.L.'s penis over his clothing. In about 2001 or 2002, when A.L. was 13, there were acts of oral copulation, sodomy, and mutual masturbation. Owen provided A.L. with drugs and alcohol, they watched pornographic movies together, and Owen would "trade" car rides for sexual "favors." A.L. and Owen used drugs together and when A.L. was "high," Owen would engage him in sodomy and fondling. These various acts happened about ten times.
Musacco opined Owen was an SVP because he had a qualifying conviction, a qualifying diagnosis (by Musacco) of pedophilic disorder, the disorder was a chronic and life-long condition, his previous interactions with children were predatory, and he posed a serious and well-founded risk to reoffend.
Musacco based his opinion on his personal interviews of Owen, documents and reports relating to the A.L. incidents, Owen's criminal history, and Owen's medical records. When asked what documents he reviewed, Musacco testified, "So I would say the primary documents included arrest reports, probation officer reports, these would be summary reports of arrest reports, legal status summaries, criminal arrest history report. These were documents that are typically generated at a county level or by local peace officers, which describe the elements of a person's criminal history. [¶] In addition to that, I also reviewed a large quantity of mental health treatment records that had been generated at the state hospital, which is where Mr. Owen has been housed since the time I initially evaluated him."
More specifically, Musacco testified he had reviewed Owen's criminal record (exhibit No. 3), the incident reports from Orange County Sheriff's Department case number 04-159064 (exhibit No. 4), an Orange County Probation Department pre-plea report (exhibit No. 5), Owen's prior conviction records in Orange County Superior Court case No. 04SF0877 (exhibit No. 6), a certified copy of Owen's Penal Code section 969b, prison commitment records (exhibit No. 7), and a certified prior conviction in Orange County Superior Court case No. 95CM09103 (the indecent exposure incident in the City of Orange involving the two boys) (exhibit No.8).
Musacco also reviewed unspecified reports regarding a criminal conviction in Orange County case No. 95SM16915 (the case involving C.S.), and its underlying facts. Those facts further supported Musacco's opinion regarding Owen's attraction to and predatory behavior toward prepubescent boys. Musacco testified his review of the police report from the incident in the City of Orange, which was not admitted into evidence, further confirmed his opinion.
The prosecutor gave Musacco a summary of L.H.'s earlier testimony, and asked him whether it would further his opinion regarding Owen's attraction to prepubescent boys, and whether the conduct was predatory. Musacco replied "it would be consistent with my opinion" and "[b]ased on the information that you shared with me" it was predatory behavior.
b.) Dr. Jack Vognsen
Dr. Vognsen first evaluated Owen per the SVPA in 2009, and before his testimony he reviewed all of Owen's Department of Corrections prison files and all his medical files. He also reviewed Owen's "legal history," and psychological evaluations. In addition, Vognsen reviewed "the police records of [Owen's] sexual offenses and other offenses." To determine whether Owen had been convicted of a qualifying offense, Vognsen reviewed court records, including an abstract of judgment, as well as a document similar to the rap sheet admitted as exhibit No. 3. With regard to the A.L. offenses, Vognsen reviewed probation department documents and police reports. He testified to the facts underlying the A.L. offenses, and his testimony mirrored that of Dr. Musacco's.
When presented with a hypothetical question based on the trial testimony of C.S., Vognsen opined it evidenced pedophilic sexual attraction to prepubescent boys. Similarly, when presented with a hypothetical question based on the facts presented by City of Orange police officer in the indecent exposure case with the two minors, Vognsen opined it also supported a pedophilia diagnosis. Lastly, a similar hypothetical based on L.H.'s testimony was posed to Vognsen, who again opined it was consistent with his diagnosis. Based on everything he reviewed, his in-person interviews with Owen in 2012, 2014, and 2015, and his personal diagnostic testing of Owen, it was Vognsen's opinion Owen met the criteria for an SVP.
On appeal, Owen maintains the trial court prejudicially erred when it violated Sanchez by admitting portions of Musacco's and Vognsen's case-specific hearsay testimony.
As a general rule, hearsay evidence — "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" (Evid. Code, § 1200, subd. (a)) — is inadmissible, "[e]xcept as provided by law" (id., subd. (b)). Section 6600, subdivision (a)(3), is an exception to the hearsay rule. (See Otto, supra, 26 Cal.4th at p. 207 ["[E]xceptions to the hearsay rule are not limited to those enumerated in the Evidence Code; they may also be found in other codes and decisional law.")
As discussed above, the Legislature expanded the scope of admissible hearsay evidence in SVP proceedings by enacting section 6600, subdivision (a)(3). In pertinent part, the section provides: "The existence of any prior convictions . . . [and 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." (§ 6600, subd. (a)(3).) The provision impliedly authorizes the admission of hearsay statements contained in those reports. (Otto, supra, 26 Cal.4th at p. 207.) Thus, "it is implicit in the SVPA that the details of an offense may be proven by the multiple-level victim hearsay statements that are contained in probation reports and derived from police reports. [Citation.]" (People v. Fraser (2006) 138 Cal.App.4th 1430, 1444 (Fraser).)
The Supreme Court noted in Otto that, if the details of the qualifying crime and conviction may be proven by documents such as a probation report, the details of the offense necessarily would include multiple levels of hearsay. The preparer of the report certainly would not have been a percipient witness to the offense. (Otto, supra, 26 Cal.4th at pp. 206-207.) Similarly, "[b]y permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." (Id. at p. 208.) Moreover, a requirement that an exception exist for each level of hearsay within the probation report would defeat the purpose behind the statute — to protect victims from having to testify perhaps years after the criminal matter was brought to a resolution — and would leave the provision without "practical effect." (Ibid.)
In a similar fashion, court rules assume police reports will be used as a source of information for summarizing a crime in a presentence report. (See Cal. Rules of Court, rule 4.411.5, subd. (a)(2) & (a)(7)(A); People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154 (Howard) ["Probation reports in felony cases necessarily include victim hearsay statements, pursuant to the requirements for probation reports set forth in" Cal. Rules of Court, rule 4.411.5(a)(5)]; People v. Valdivia (1960) 182 Cal.App.2d 145, 148 ["A probation officer could not make an investigation and report of the nature required by Penal Code, section 1203, if restricted to the rules of evidence"].) Much of the prior record and history of a defendant, as well as the circumstances surrounding the crime, are hearsay and can be investigated and reported upon only by the use of hearsay information. (Howard, supra, 70 Cal.App.4th at p. 155.) "By permitting the use of presentence reports at the SVP proceeding to show the details of the crime, the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception." (Otto, supra, 26 Cal.4th at p. 208.)
Not only does section 6600, subdivision (a)(3), authorize the admission of certain documentary hearsay in SVP trials, but other hearsay rules also become relevant when experts necessarily testify in SVP proceedings. "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion." (Evid. Code, § 802.) Thus, experts may testify to certain otherwise inadmissible hearsay. "'[T]he common law recognized that experts frequently acquired their knowledge from hearsay. . . .' [Citations.] . . . [Citations.] As such, an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds." (Sanchez, supra, 63 Cal.4th at p. 676.) On the other hand, "an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge." (Ibid.) Case-specific facts are "those relating to the particular events and participants alleged to have been involved in the case being tried." (Ibid.)
In Sanchez, a street gang expert's opinion that a defendant was a gang member was based, in part, on records created by other police officers, which recounted their contacts with the defendant. (Sanchez, supra, 63 Cal.4th at pp. 672-673.) On appeal, the defendant argued the admission of the expert's testimony about the case-specific content of these records violated the Sixth Amendment's confrontation clause as set out in Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 (Crawford). (Sanchez, supra, at p. 674.)
While originally raised in a criminal case, "[t]he Sanchez rule applies to civil SVP proceedings. [Citations.]" (People v. Bocklett (2018) 22 Cal.App.5th 879, 890 (Bocklett); Roa, supra, 11 Cal.App.5th at p. 433; cf. People v. Bona (2017) 15 Cal.App.5th 511, 519-520 [Sanchez applies in mentally disordered offender (MDO) proceedings]; see People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 34 (Acuna) [Sanchez applies in civil street gang injunction cases].)
The court recognized the line between an expert testifying about general background information, to which an expert properly may testify as the basis for an opinion, and case-specific hearsay information "has now become blurred." (Sanchez, supra, 63 Cal.4th at p. 678.) This blurring occurred because previously an expert could testify to the basis of his or her opinion, even if the basis entailed inadmissible hearsay evidence, so long as the jury was instructed that "'matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.' [Citation.]" (Id. at p. 679.)
The Sanchez court concluded, that "paradigm is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Sanchez, supra, 63 Cal.4th at p. 679.) This is because "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at p. 682.) "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." (Id. at p. 684.) Consequently, an expert cannot testify to case-specific hearsay statements unless those statements "are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) An expert may be asked to assume hypothetically a set of case-specific facts for which there is independent competent evidence, and then be asked what conclusions the expert would draw from those assumed facts. But if no competent evidence of a case-specific fact has been, or will be, adduced, the expert cannot be asked to assume it. (Id. at pp. 676-677.) Basically, Sanchez restored the common law rule that an expert is not permitted to supply otherwise inadmissible case-specific facts. (Ibid.)
Even so, Sanchez "reaffirmed the principle that an 'expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.' [Citation.]" (Bocklett, supra, 22 Cal.App.5th at p. 890.)
Since Sanchez, two decisions addressing SVP proceedings have found reversible error for improper expert testimony based on case-specific hearsay: Burroughs, supra, 6 Cal.App.5th 378, and Roa, supra, 11 Cal.App.5th 428. While Owen relies heavily on both cases in this appeal, both cases are distinguishable.
In Burroughs, the prosecution's experts related extensive case-specific facts gleaned from police reports, probation reports, hospital records, and a one-page document from the Department of Justice (DOJ) taken during the defendant's arrest for forcible rape. (Burroughs, supra, 6 Cal.App.5th at pp. 407-411) The documentary evidence was not limited to information related to the SVP-qualifying offenses, but also contained "details of the uncharged sex offenses that appellant allegedly committed" and "'information about appellant's prior record, adult history, personal history, physical/mental/emotional health, education, employment, and terms and conditions of probation.'" (Id. at p. 410.) While the court found the defendant forfeited some of the objections to the evidence and that some of the evidence regarding the qualifying offenses was independently admissible (id. at pp. 408-411), other case-specific facts in the probation reports and DOJ document were not pertinent to the details of the qualifying offenses and therefore did not fall within a hearsay exception and could not permissibly be relied upon by the experts. (Id. at pp. 410-411.)
"Although Sanchez was a criminal case, the Court stated its intention to 'clarify the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony,' generally. [Citation.] Those code sections govern the admission of expert testimony in civil cases as well, and nothing in Sanchez indicates that the Court intended to restrict its holdings regarding hearsay evidence to criminal cases . . . . We note that Sanchez also addresses issues relating to the constitutional right to confrontation. Those portions of Sanchez are not relevant here, as the state and federal confrontation clauses are not applicable in SVP proceedings. [Citation.]" (Burroughs, supra, 6 Cal.App.5th at p. 405, fn. 6; see also Acuna, supra, 9 Cal.App.5th at p. 34 ["Sanchez reversed the street gang enhancements because of the confrontation clause violation, not because of the state Evidence Code"].)
The Burroughs court held the error was prejudicial because the inadmissible hearsay evidence "described, in lurid detail, numerous sex offenses that appellant was not charged with or convicted of committing, . . . depicted appellant as someone with an irrepressible propensity to commit sexual offenses, and invited the jury to punish him for past offenses. It also substantially enhanced the credibility of the experts' conclusions about appellant's mental state and likelihood of reoffending. In short, the improperly admitted hearsay permeated the entirety of appellant's trial and strengthened crucial aspects of the People's case." (Burroughs, supra, 6 Cal.App.5th at p. 412.)
In contrast, Drs. Musacco and Vognsen based their testimony on documentary evidence that was independently admissible either under Otto or under other Evidence Code provisions. Moreover, as we discussed above, any evidence regarding Owen's other, nonqualifying, offenses was presented through live-witness testimony. The experts were then properly given hypothetical questions regarding those facts, and testified to what impact, if any, it would have on their opinions.
Similarly, in Roa, as we explained above, the prosecution's experts testified about statements taken from reports concerning the defendant's prior attempted rape that resulted in a juvenile adjudication, a prior arrest, but no conviction, for the attempted rape of two teenage girls, and allegations by the defendant's ex-wife about abusive conduct during their marriage. (Roa, supra, 11 Cal.App.5th at p. 450.) The trial court had excluded the reports as inadmissible hearsay, but allowed the experts to rely upon the reports and testify as to their contents. (Ibid.) The Roa court held that, while it was permissible for the experts to rely on the investigator reports, it was not permissible for them to relate case-specific facts from these reports because they were not independently proved by competent evidence or covered by a hearsay exception. (Id. at p. 452.) Thus, permitting the experts to testify to the hearsay details of sex offenses with which the defendant was never charged or convicted of committing was prejudicial error. (Id. at pp. 454-455.) It is apparent Burroughs and Roa are quite dissimilar to Owens case.
In People v. Landau (2016) 246 Cal.App.4th 850 (Landau), we addressed similar concerns about case-specific hearsay in an SVP proceeding in. After carefully reviewing the expert witness's extensive testimony, we concluded "most of appellant's hearsay arguments lack merit. Either the challenged statements were not offered for their truth or were harmless error if they were admitted for their truth. However, a number of his hearsay contentions with regard to [the expert's] testimony have merit . . . . Admission of this hearsay evidence prejudiced appellant. In other words, there is a reasonable chance a jury that did not hear this prejudicial evidence would have reached a more favorable result for appellant. [Citation.]" (Id. at p. 877.)
Owen's case, however, is not comparable to Landau's. First, Landau was a recommitment trial; i.e., he had previously been found to be an SVP. We remarked that "[c]onvincing a jury that one who has previously been found to be an SVP is ready to be released back into society is no easy task even in the best of cases for an SVP. The inadmissible evidence admitted in this matter cast appellant in a most unfavorable light as someone who will not follow rules, demonstrates no concern for others, and engages in some form of violence. That made the task impossible, regardless of the properly admitted evidence. The 'facts' [the expert] testified to may well be true, but introducing [them] through [the expert] was improper and violated the hearsay rule. [Citation.] Admission of this evidence, evidence that had no basis for concluding the evidence was reliable, was prejudicial and requires reversal of the judgment." (Landau, supra, 246 Cal.App.4th at p. 877.)
In contrast, Owen's was not a recommitment trial. Owen did not face jurors who were told he previously had been adjudged to be an SVP. Indeed, that was the sole issue at Owen's trial.
Similarly, a large portion of the expert's testimony in Landau presented extremely inflammatory hearsay having nothing to do with the defendant's qualifying offenses. Instead, it focused on incidents occurring in institutional settings and of marginal relevance.
For example, the expert witness "proceeded to tell the jury of the contents of 12 other entries in appellant's chart, including repeated instances of appellant yelling and swearing at staff, refusing to let staff inspect his outgoing mail, pulling down his pants and 'mooning' a member of the hospital staff, telling staff that he is a mental patient and is not required to follow 'f . . . g rules,' calling a female staff member a 'fat bitch,' refusing to follow regulations or complying with staff requests, and telling a social worker she was nothing but a 'piece of shit.'" (Landau, supra, 246 Cal.App.4th at p. 876.)
Here, however, the District attorney's expert testimony was almost exclusively based on Owen's qualifying offenses regarding A.L. None of it was overly inflammatory, or otherwise likely to lead the jury to prejudge Owen. More importantly, almost all the evidence supporting the District attorney's experts' opinions was corroborated by documentary evidence otherwise admissible under section 6600, subdivision (a)(3), other traditional hearsay exceptions, or in response to hypothetical questions based on live-witness testimony. Landau is distinguishable.
4. Harmless Error
The Attorney General argues any error resulting from case-specific expert testimony was harmless. We agree.
"We evaluate prejudice resulting from the allowance of expert testimony in violation of Sanchez under the standard of [Watson, supra] 46 Cal.2d 818, which requires reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510; see also People v. Flint (2018) 22 Cal.App.5th 983, 1003-1004 [erroneous admission of expert testimony, including expert testimony containing inadmissible case-specific hearsay statements, is reviewed under the Watson standard even though multiple statements were inadmissible under Sanchez]; accord Roa, supra, 11 Cal.App.5th at p. 455; People v. Stamps (2016) 3 Cal.App.5th 988, 997.) "Under the Watson harmless error standard, it is the burden of [the appellant] to show that it is reasonably probable that [he] would have received a more favorable result at trial had the error not occurred." (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447.)
Owen maintains we must assess Sanchez evidentiary error under the more exacting test of Chapman v. California (1967) 386 U.S. 18. In support, Owen cites Pointer v. Texas (1965) 380 U.S. 400, a seminal criminal case involving whether the Sixth Amendment's confrontation clause applies to the states through the Fourteenth Amendment. However, as we have already noted, "[t]here is no right to confrontation under the state and federal confrontation clause in civil proceedings." (Otto, supra, 26 Cal.4th at p. 214.) Owen's similar citation to Crawford, supra, as authority for how his "rights to confrontation and due process" were violated is also misplaced. Crawford is a Sixth Amendment case that does not apply to SVP proceedings. (People v. Fulcher (2006) 136 Cal.App.4th 41, 56 (Fulcher).)
He also cites People v. Williams (1997) 16 Cal.4th 635, 689, which involved a failure to instruct a jury on the elements of a special circumstance murder allegation in a capital case, but did not create a general rule for all cases, civil and criminal. People v. Hurtado (2002) 28 Cal.4th 1179, 1194, is an SVP case, but it involved the review of federal constitutional error in civil commitment cases generally, and held that the Chapman test also governs constitutional review under the SVPA. Hurtado did not involve evidentiary rules or hearsay, however. Finally, Owen's reference to our opinion in Landau, supra, is also misplaced. In Landau, we found there was "a reasonable chance a jury that did not hear [the] prejudicial [hearsay] evidence would have reached a more favorable result for appellant." (Landau, supra, 246 Cal.App.4th at p. 877.) This is an application of the Watson test, not the Chapman test. Owen also misstates our holding in Landau, claiming we found case-specific hearsay violated the Fourteenth Amendment's due process clause of the Fourteenth Amendment. Not so. Rather, "[b]ecause we found admission of inadmissible hearsay prejudiced appellant and requires reversal, there is no need to determine whether admission of the same evidence also violated appellant's confrontation right under due process." (Landau, supra, 246 Cal.App.4th at p. 878.)
Owen has failed to meet his burden to show Watson error. As explained above, the trial court properly admitted the exhibits into evidence either under Otto or under other Evidence Code provisions. Drs. Musacco and Vognsen based much of their testimony on this documentary evidence. Moreover, any evidence regarding Owen's other, nonqualifying, offenses was presented through live-witness testimony. The experts were properly given hypothetical questions regarding the established facts underlying those incidents, and what impact, if any, it would have on their opinions. Even assuming some hearsay evidence was improperly admitted, or that the experts impermissibly relied upon it, it is not reasonably probable that Owen would have received a more favorable result had these assumed errors not occurred. B. The Constitutionality of the SVPA's Hearsay Provision
Owen next contends the hearsay exception found in section 6600, subdivision (a)(3), is unconstitutional on due process grounds — both facially and as applied to him. We disagree.
1. Facial Constitutional Challenge
Owens' facial challenge to section 6600, subdivision (a)(3), focuses on its language permitting various kinds of hearsay, including trial court "'probation and sentencing reports and evaluations by the State Department of State Hospitals.'" He does not discuss the requisite details of such a facial claim, or argue how they apply to subdivision (a)(3). Rather, he posits a rather conclusory argument, and then proceeds to conflate facial challenges with as-applied challenges.
"A facial challenge to the constitutional validity of a statute . . . considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] '"To support a determination of facial unconstitutionality, voiding the statute as a whole, [a challenge] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute. . . . Rather, [a challenger] must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions."' [Citations.]" (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, second italics added, (Tobe).) In addition, "[a]ll presumptions favor the validity of a statute. The court may not declare it invalid unless it is clearly so. [Citation.]" (Id. at p. 1102.) "A defendant challenging the statute on due process grounds carries a heavy burden. Courts have a '"duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity."' [Citation.]" (Otto, supra, 26 Cal.4th at p. 209-210.)
Owen summarily asserts section 6600, subdivision (a)(3), is facially unconstitutional. He does not argue, let alone provide any authority, for how the text of the subdivision "'"inevitably pose[s] a total and fatal conflict"'" with due process. (Tobe, supra, 9 Cal.4th at p. 1084.) Indeed, in Otto our Supreme Court "concluded that the statutory authorization regarding the admission of such evidence did not violate a defendant's right to due process. [Citation.]" (Bocklett, supra, 22 Cal.App.5th at p. 890, italics added.) If the section was constitutionally sound in Otto's case, perforce it is not unsound in all cases. Consequently, Owen has failed to demonstrate section 6600, subdivision (a)(3), inevitably poses a present total fatal conflict with applicable prohibitions. (Tobe, supra, 9 Cal.4th at p. 1084.)
Moreover, in Hendricks, supra, 521 U.S. 346, the high court considered a substantive due process challenge to the Kansas SVP Act. (Id. at p. 356.) The Court rejected Hendrick's challenge and stated that "[w]e have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards." (Id. at p. 357.) The Court noted that "[t]he numerous procedural and evidentiary protections afforded" a potential SVP did "not transform a civil commitment proceeding into a criminal prosecution," but instead demonstrated the Kansas legislature had "taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards." (Id. at pp. 364-365.) In the end, the Court held that the Kansas SVP Act comported with due process requirements. (Id. at pp. 370-371.) And, as we observed above, our own SVPA tracks verbatim the Kansas SVP law approved in Hendricks. (Hubbart, supra, 19 Cal.4th at p. 1157.)
Owen acknowledges Otto's holding, but asks us to disregard it in light of Sanchez, insisting "Otto does not survive [] Sanchez." The problem with this argument is that, as a criminal case, Sanchez involved the Sixth Amendment's confrontation clause, something inapplicable to a civil SVP commitment. Sanchez did not consider whether its constitutional analysis would apply equally to a due process challenge in a civil proceeding. On the other hand, of course, Otto did address that issue directly, and found the hearsay provisions of section 6600, subdivision (a)(3), did satisfy due process in Otto's case. More fundamentally, Sanchez dealt with Sixth Amendment limitations on types of expert testimony that were based upon otherwise inadmissible hearsay, not the constitutionality of a particular statutory hearsay exception. "[I]t is axiomatic that cases are not authority for propositions not considered." (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) Consequently, unless and until our Supreme Court revisits Otto, we must follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
An SVP defendant also has no Fifth Amendment privilege against self-incrimination. (People v. Allen (2008) 44 Cal.4th 843, 860-861 (Allen); Allen v. Illinois (1986) 478 U.S. 364, 375 [Fifth Amendment self-incrimination clause does not apply to Illinois SVP proceedings, and "due process does not independently require application of the privilege"].) Similarly, see Fraser, supra, 138 Cal.App.4th at p. 1446 ["no Sixth Amendment right to self-representation in SVPA proceedings"]; People v. Angulo (2005) 129 Cal.App.4th 1349, 1367 (Angulo) [rejecting reliance upon Crawford in an SVP proceeding because Crawford "was based solely on the Sixth Amendment right of confrontation"].)
We also decline Owen's invitation to disregard Auto Equity Sales based upon his misplaced references to dissenting opinions in In re Javier A. (1984) 159 Cal.App.3d 913, 975 (dis. opn. of Fieldhouse, J.) [jury trials for juvenile offenders], and Powers v. City of Richmond (1995) 10 Cal.4th 85, 168 (dis. opn. of Lucas, C.J.) [Legislature's power to limit appeals and restrict review to writs], and the high court's hoary opinion in Chesapeake & Ohio Railroad Co. v. Martin (1931) 283 U.S. 209, 220-221 [state court disregarded prior Supreme Court authority].
2. As-Applied Constitutional Challenge
Owen's as-applied due process challenge focuses upon the trial court's admission of exhibits 3, 4, and 5.
As we have emphasized, "[t]here is no right to confrontation under the state and federal confrontation clause in civil proceedings, but such a right does exist under the due process clause. [Citation.]" (Otto, supra, 26 Cal.4th at p. 214; In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16, superseded by statute on another ground ["both the federal and state Constitutions confine the express right of confrontation to criminal defendants"].) Although defendants in civil SVP proceedings do not have a Sixth Amendment right of confrontation, due process provides for some basic confrontation protections. Even so, "[t]he two rights are not coextensive." (Fulcher, supra, 136 Cal.App.4th at p. 55.) As a result, due process under the SVPA "is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings." (Howard, supra, 70 Cal.App.4th at p. 154; see Chambers v. Mississippi (1973) 410 U.S. 284, 295 ["[T]he right to confront and to cross-examine [under the due process clause] is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests[,] . . . [b]ut its denial or significant diminution calls into question the ultimate '"integrity of the fact-finding process"' and requires that the competing interest be closely examined."]; see also Foucha v. Louisiana (1992) 504 U.S. 71, 80 [Louisiana statute violated 14th Amendment's due process clause in allowing insanity acquittee to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even when he does not suffer from mental illness].)
"[I]n civil SVP proceedings, '"[d]ue process requires only that the procedure adopted comport with fundamental principles of fairness and decency. The due process clause of the Fourteenth Amendment does not guarantee to the citizen of a state any particular form or method of procedure." [Citation.]' [Citation.]." (Fulcher, supra, 136 Cal.App.4th at pp. 55-56.) Since "SVP proceedings are governed by the due process clause, rather than the Sixth Amendment confrontation clause, . . . allowing [hearsay-based] expert testimony regarding a defendant's prior conduct did not violate Crawford because Crawford does not apply to civil commitment proceedings. [Citation.] Second, Crawford is not violated if the defendant had a prior opportunity to cross-examine the victims of the misconduct and the officers reporting the misconduct. [Citation.] Also, since the Civil Discovery Act applies to SVPA proceedings, the defendant could have exercised his right of confrontation in the SVP proceeding by taking the depositions of the victims and police officers, and using the depositions at the trial of this case. [Citations]." (Fulcher, supra, 136 Cal.App.4th at p. 56; Angulo, supra, 129 Cal.App.4th at p. 1358 [Civil Discovery Act applies to SVPA proceedings].)
The extent of due process protection which must be accorded a civil litigant is tested by consideration of four factors: (1) "'"the private interest [which] will be affected by the official action"'"; (2) "'"the risk of an erroneous deprivation . . . through the procedures used"'"; (3) "'"the probable value, if any, of additional or substitute procedural safeguards,"'" and (4) "'the . . . interest in informing individuals . . . of the action and in [allowing] them to present their side of the story.'" (In re Parker (1998) 60 Cal.App.4th 1453, 1462-1463 (Parker); see also Otto, supra, 26 Cal.4th at p. 210.)
See also Vitek v. Jones (1980) 445 U.S. 480, where the Supreme Court decided whether Nebraska violated a prisoner's due process rights by transferring him from prison to a state mental hospital for treatment. The Court held that to satisfy due process, a prisoner facing involuntary commitment to a mental hospital is entitled to: (1) written notice; (2) a hearing at which the evidence being relied upon for the commitment is disclosed to the prisoner; (3) an opportunity at the hearing for the prisoner to be heard in person, to present testimony and documentary evidence, and to cross-examine witnesses called by the State; (4) an independent decision maker; (5) reasoned findings of fact; (6) legal counsel; and (7) effective and timely notice of these rights. (Id. at pp. 494-497.) All seven Vitek requirements are satisfied in SVPA proceedings in general, and in Owen's case in particular.
After "[a]pplying these factors to reliance on the victims' hearsay statements in this case" (Otto, supra, 26 Cal.4th at p. 210), the Supreme Court found the hearsay provisions of section 6600, subdivision (a)(3), did not violate due process. (Otto, supra, 26 Cal.4th at pp. 209-215; see also McKee, supra, 47 Cal.4th at p. 1193 [upholding amended SVPA provisions on due process challenge after SVP commitments became indefinite in duration].)
"The defendant in Otto contended that reliance upon hearsay evidence in [§ 6600, subd. (a)(3)-admissible reports] violated his due process right to be convicted only upon reliable evidence. In addressing whether the challenged procedure enhanced the risk of an erroneous deprivation of the defendant's liberty interests, the court in Otto agreed that 'the victim hearsay statements must contain special indicia of reliability to satisfy due process,' because hearsay 'permeates not only the substantial sexual conduct component of the prior crime determination, but also the psychological experts' "conclusion that [Otto] was and remained a pedophile . . . likely to reoffend." [Citation.] Thus, if these facts are unreliable, a significant portion of the foundation of the resulting [sexually violent predator] finding is suspect.' [Citation.] We concluded in Otto that 'the victims' hearsay statements possess sufficient indicia of reliability to satisfy due process.' [Citation.] We added: 'Implicit in the above discussion are other factors (in addition to the reliability of the victims' hearsay statements) that diminish the risk of an erroneous deprivation of rights as a result of reliance on the hearsay statements, and the probable value of additional or substitute procedural safeguards. Otto had the opportunity to present the opinions of two psychological experts, and cross-examine any prosecution witness who testified. Moreover, the trial court retained discretion under Evidence Code section 352 to exclude unreliable hearsay, which acted as a further safeguard against any due process violation.' [Citation.]" (Allen, supra, 44 Cal.4th at pp. 863-864 [SVP defendant has a due process right to testify over counsel's objection].) Owen's case is no different.
"Because we held in Otto that the circumstances of the predicate offenses may be established by hearsay, it is unnecessary for the prosecution to call witnesses to establish the nature of the predicate offenses." (Allen, supra, 44 Cal.4th at p. 867, fn. 17.) "[S]ection 6600(a)(3) expressly permits the use of probation and sentencing reports to show '[t]he details underlying the commission of an offense.' This provision implicitly authorizes the admission of hearsay statements in those reports. The Legislature is undoubtedly familiar with the typical contents of such reports, which include '[t]he facts and circumstances of the crime' and 'the victim's statement or a summary thereof, if available.' [Citations.] The source of the details of the prior offense is not the author of the report, but the victims." (Otto, supra, 26 Cal.4th at p. 207.)
"Nor does reliance on the victims' hearsay statements deny Otto any right of confrontation. . . . Here, Otto had the opportunity to cross-examine any prosecution witness who testified. Because he did not attempt to call any witnesses other than a psychological expert, we need not decide in this case whether he had a due process right to call witnesses such as the victims or other percipient witnesses. We note, however, Otto had the opportunity to confront these witnesses at the time the underlying charges were filed, but instead chose to accept a plea bargain." (Otto, supra, 26 Cal.4th at p. 214.)
So too here. Owen's due process challenge is to the admission of exhibit Nos. 3, 4, and 5 pursuant to section 6600, subdivision (a)(3), and is essentially the same due process challenge our Supreme Court rejected in Otto. Because section 6600, subdivision (a)(3), creates an exception to the hearsay rule, a petitioner may use documentary evidence to prove the pertinent details of the defendant's predicate offenses. (Burroughs, supra, 6 Cal.App.5th at p. 409, 411, citing Otto, supra, 26 Cal.4th at p. 206 [section 6600, subd. (a)(3), "' allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted'"].) Thus, the underlying police reports from the A.L. case (exhibit No. 4), and the heavily redacted preplea report from the Orange County Probation Department (exhibit No. 5), were properly admitted under this hearsay exception. Owen's rap sheet (exhibit No. 3) was not objected to below, but even if it had been, it too is documentary evidence containing "multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted." (Otto, supra, 26 Cal.4th at p. 208.) And as we remarked above, rap sheets are independently admissible under the official records exception to the hearsay rule. (Evid. Code, §§ 452.5 & 1280.)
Our review of the preplea report in exhibit No. 5 shows material that did not specifically refer to or discuss Owen's qualifying offenses involving A.L. was redacted. This avoided many of the problems that required reversal in Burroughs, Roa, and Landau. --------
Upon consideration of the four factors outlined in Otto, Owen suffered no due process violation because the trial court adhered the proceedings mandated by the SVPA, which enabled Owen to challenge the petitioner's documentary evidence. Owen had the opportunity to present his side of the story, and did so with expert testimony and his character witnesses. Hearsay statements are obviously vulnerable to challenge by a defendant as arguably unreliable summaries of victim and witness interviews, but the defendant may rebut the hearsay statements by providing his own version of the details underlying his offenses. Moreover, we emphasize that since this is after all a civil proceeding, Owen also had the opportunity to take discovery and depose any of the hearsay declarants he now complains were sources of hearsay in the admitted exhibits.
The same reasoning which led the court in Parker, supra, 60 Cal.App.4th 1453, "to conclude that hearsay evidence contained in the psychological evaluations is admissible in SVP proceedings without violating the defendant's constitutional due process rights, is also applicable to hearsay victim statements contained in probation reports. The defendant has the same opportunity to challenge the hearsay evidence, whether it is contained in a psychological evaluation or in a probation report, and to cross-examine the People's witnesses, as well as to present his own rebuttal evidence. [Citation.]" (Howard, supra, 70 Cal.App.4th at p. 154.)
"The core of due process is the right to notice and a meaningful opportunity to be heard." (LaChance v. Erickson (1998) 522 U.S. 262, 266.) Furthermore, "[d]ue process calls for an individual determination before someone is locked away." (Demore v. Kim (2003) 538 U.S. 510, 551.) And that is what happened here. Thus, "[i]n light of Vitek, Hendricks, and the [California Supreme Court's] persuasive opinion in Otto," we reject Owen's as-applied due process challenge. (Carty v. Nelson (9th Cir. 2005) 426 F.3d 1064, 1075.) Owen has not demonstrated that the admission of exhibit Nos. 3, 4, or 5 violated his due process rights under the Fourteenth Amendment to the Federal Constitution.
IV
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.