People v. Burroughs , 211 Cal. Rptr. 3d 656 ( 2016 )

Filed 12/5/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B267353
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM014605)
v.
JOSEPH BURROUGHS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Drew E. Edwards, Judge. Reversed.
Rudy G. Kraft, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
Joseph Burroughs appeals from a jury verdict adjudicating him
a sexually violent predator (SVP) under the Sexually Violent
Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.),1 and
ordering his indeterminate commitment to Coalinga State Hospital.
He argues the trial court should have assessed his mental competency
before allowing him to proceed to trial. He also contends the trial
court committed prejudicial evidentiary errors by allowing expert
witnesses to testify to matters beyond their expertise, by allowing
those same witnesses to testify about otherwise inadmissible hearsay,
and by admitting into evidence inadmissible documents and portions
of documents.
Although we reject appellant‟s competency claim, we agree
with many of his evidentiary arguments. In People v. Sanchez
(2016) 63 Cal. 4th 665, 686 (Sanchez), the California Supreme
Court held that an expert witness cannot in conformity with the
Evidence Code “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.” The
People‟s experts did just that, relying on inadmissible hearsay to
support extensive testimony about appellant‟s unrelated
convictions and unproven allegations that he committed other
acts of sexual violence. This inflammatory documentary and
testimonial hearsay was prejudicial even under People v. Watson
(1956) 46 Cal. 2d 818, 836. We accordingly reverse the judgment
and remand for further proceedings consistent with this opinion.
PROCEDURAL HISTORY
On May 12, 2009, the Los Angeles County District Attorney
(“the People”) filed a petition pursuant to section 6601 to commit
1All further statutory references are to the Welfare and
Institutions Code unless otherwise specified.
2
appellant as an SVP. An SVP is “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.” (§
6600, subd. (a)(1).) Under the SVPA, the People may seek to
confine and treat SVPs “until their dangerous disorders recede
and they no longer pose a societal threat.” (Moore v. Superior
Court (2010) 50 Cal. 4th 802, 815 (Moore).) The special
proceedings that ensue after the People file such a petition are
civil in nature, but an SVP defendant is afforded many of the
same procedural protections afforded criminal defendants, such
as the right to court-appointed counsel and experts, the right to a
unanimous jury verdict, the right to testify in one‟s defense, and
the right to have the People prove his or her SVP status beyond a
reasonable doubt. (See id. at pp. 816-817; People v. Allen (2008)
44 Cal. 4th 843, 861, 870.)
The trial court reviewed the People‟s petition in accordance
with section 6601.5 and ordered a probable cause hearing
pursuant to section 6602. After appellant waived his rights to
appear and cross-examine witnesses at a probable cause hearing,
the trial court held him to answer to the petition. A series of
stipulated continuances ensued.
On January 10, 2014, appellant‟s counsel filed a motion to
stay the proceedings and order “competency training” for
appellant, noting that appellant “has chosen to refuse to talk to
counsel.” The People opposed the motion. The trial court denied
the motion on March 27, 2014. The trial court also granted the
People‟s later motion in limine to exclude testimony regarding
appellant‟s alleged incompetency from the trial.
3
After several more continuances, appellant proceeded to
jury trial on August 21, 2015. As discussed more extensively
below, appellant filed—and the trial court denied—motions in
limine to exclude references to uncharged and unrelated crimes,
expert testimony regarding the contents of documents considered
in formulating their opinions, and expert testimony based on
unreliable information or outside the experts‟ expertise. The jury
returned its verdict on September 3, 2015, finding true the
allegation that appellant was a sexually violent predator within
the meaning of the SVPA. The trial court ordered him committed
to Coalinga State Hospital for an indeterminate term. Appellant
timely filed a notice of appeal.
FACTUAL BACKGROUND
I. The People’s Evidence
A. Dr. Nancy Webber
Dr. Nancy Webber, Ph.D. is a clinical forensic psychologist
who contracts with the state to provide SVP evaluations. She
was contracted to evaluate appellant in 2009 and later prepared
updated evaluations. Because appellant refused to meet with
her, she had to rely upon documentary evidence to assess
whether he satisfied the statutory criteria to be deemed an SVP.
That evidence included probation reports, police reports,
appellant‟s mental health history, and behavior reports from the
institutions in which appellant has been housed.
1. Convictions for sexually violent offenses
Webber opined that appellant met all three statutory
elements to be classified as an SVP.2 First, he was convicted of
2 Those criteria are: “(1) conviction of a „sexually violent
offense‟; (2) a diagnosed mental disorder that makes a person a
danger to the health and safety of others; and (3) the mental
4
committing a sexually violent offense against one or more
persons. Webber testified that appellant actually had two such
convictions or “qualifying offenses”: a conviction for lewd and
lascivious acts with a child under the age of 14, 13-year-old Liza
B., and a conviction for the attempted rape of 19-year-old Tanya
G. Webber reviewed the police reports and probation reports
associated with these offenses. Certified copies of those
documents were admitted into evidence.
Webber testified to the following details of the qualifying
offenses. The first happened in 1994, while appellant was on
parole. Appellant was dating 13-year-old Liza‟s mother. Liza‟s
mother fell asleep while she, Liza, and appellant were watching
television. Appellant started kissing Liza‟s neck and fondling her
breasts over her clothing. Liza told him to stop and went into the
bathroom. Appellant forced his way into the bathroom and began
kissing Liza again. He also removed her blouse and undershirt.
Liza sobbed as appellant kissed and licked her bare breasts. He
told her to shut up. He then choked her with both of his hands
and put her in a strangle hold. He threatened to tie her up with
a bath towel if she did not stop crying. He also threatened to kill
her mother if she did not give him what he wanted. Appellant
then pulled down Liza‟s pants, pulled down his own pants, and
rubbed his erect penis over her legs and genital area.
disorder makes it likely the defendant will engage in „sexually
violent criminal behavior.‟ [Citation.]” (People v. White (2016) 3
Cal.App.5th 433, 448; see also § 6600, subd. (a)(1).) The second
and third elements require a link between a currently diagnosed
mental disorder characterized by the inability to control
dangerous sexual behavior and a finding of future dangerousness.
(People v. White, supra, 3 Cal.App.5th at p. 448.)
5
Around this time, Liza‟s mother knocked on the door and
asked what was going on. Appellant pulled up his pants, opened
the door, said he was using the bathroom, and closed the door.
While appellant was distracted, Liza had pulled up her pants.
Appellant pulled them down again, pulled his own pants down,
and resumed the assault. Liza‟s mother knocked on the door
again. When appellant did not respond, she opened the door. She
saw Liza, grabbed her clothes, and fled the house with her.
Liza‟s mother called police from a pay phone. When appellant
was apprehended, he denied the incident. He claimed that Liza
fabricated the incident because she did not like him and because
her mother put her up to it. He further explained, “If I wanted to
fuck someone, I‟ll fuck the mother.” Appellant nonetheless was
convicted of the crime, which Webber opined was “sexually
violent” due to Liza‟s age and appellant‟s use of force against her.
To Webber‟s knowledge, appellant did not show empathy toward
Liza or otherwise accept responsibility for his actions.
The second qualifying offense occurred in 1996. Appellant
was on the front porch of Tanya‟s house with her neighbor, Bob,
who was his friend. Tanya went into the house after speaking
with appellant and Bob. Appellant knocked on the door and
asked if he could use the bathroom. Tanya let him into the house.
He then grabbed Tanya from behind and said, “What do I need to
do to get you?” Tanya initially thought appellant was joking.
After he reiterated his desire for her, however, Tanya told him he
could not have her because she had a boyfriend. Appellant
responded by throwing Tanya onto a bed, getting on top of her,
and telling her that he wanted her. He held Tanya down and
tore off her blouse, covering her mouth to muffle her screams.
Tanya fought appellant‟s advances, swinging her arms and
6
kicking him in the groin several times as he unzipped his pants.
After appellant hit her in the mouth with a closed fist, Tanya
managed to strike him in the head, push him off her, and run
down the hallway. Appellant grabbed her and pulled her back
into the bedroom, hitting her in the face with his fist. Tanya told
appellant she would do whatever he wanted, prompting him to
unzip his pants again. Tanya screamed and kicked and struck
appellant. She escaped from the bedroom a second time and ran
across the street to a neighbor‟s house to call the police.
Appellant fled the scene but was apprehended a short time
later. He denied attempting to rape Tanya. He told police that
he was drunk and went into the wrong house. Later, appellant
admitted that he slapped Tanya; he claimed he was angry with
her because she blew smoke in his face while they were using
drugs together. Webber testified that appellant was convicted of
attempted rape. She opined that the crime involved sexual
violence, force, duress, and fear.
2. Mental disorder
Based on her review of the documents, Webber concluded
that appellant met the second SVP criterion: he had a mental
disorder, anti-social personality disorder (ASPD), that
predisposed him to commit sexually violent offenses. Webber
explained that the hallmark of ASPD is “a pervasive disregard for
societal rules and some other behaviors.” To be diagnosed with
ASPD, a person must exhibit at least three of seven diagnostic
criteria and demonstrate symptoms of a conduct disorder before
the age of 15. Webber opined that appellant met all seven
diagnostic criteria for ASPD. Webber also testified that
appellant‟s history of arrests dating back to age 14 showed that
his symptoms began prior to age 15.
7
Webber testified about the details underlying appellant‟s
juvenile history, which she gleaned from the probation report
prepared after appellant‟s 1994 offense against Liza. She told the
jury that, at age 14, appellant participated in a group fight
outside a movie theater. Police arrived and began handcuffing
fight participants. Appellant used a knife to cut one of the
handcuffed participants, which led police to arrest him. Webber
testified that appellant was arrested for additional offenses in his
youth, including “driving without a license, joyriding type arrests,
being in a stolen vehicle.” She further testified that “it was
reported he was a gang member, the Rollin‟ 60s Crips affiliated
gang in his juvenile years as well.” The information about
appellant‟s gang affiliation “was stamped on one of the police
reports,” and “has been reported while he was in prison.”
Webber took all of these incidents into consideration when
forming her ASPD diagnosis. She also took into account two
alleged sex offenses for which appellant was arrested as a
teenager. Webber testified that the first of those occurred when
appellant was 15 or 16. He allegedly molested a six-year-old boy
four or five times. According to Webber, appellant sodomized the
boy on a school playground and gave him quarters after each
encounter. Webber noted that “[w]e don‟t know whether that
occurred or not,” as appellant was never convicted of the offense.
Webber noted that “[t]here is some concerns there [sic] he
associated with it,” and that the 1994 probation report included a
statement by appellant that he knew the boy‟s mother, who sold
marijuana and cocaine. Additionally, while appellant was
incarcerated in 2003, he complained to prison officials that he
was concerned about other inmates getting access to his
paperwork “because his offenses involve the rape of police
8
families, families and rape of kids.”
Webber testified that the second alleged sex offense
appellant committed as a juvenile occurred in 1986. During that
incident, Webber testified, a 21-year-old woman reported to police
that appellant hit her over the head with a beer bottle after she
refused his request for sexual favors. According to Webber,
appellant admitted to hitting the woman on the head but claimed
he did so because he was angry about getting his penis caught in
his pants zipper while resisting her sexual advances against him.
Webber testified that appellant was also alleged to have
committed several sex offenses as an adult. In 1988, another 21-
year-old woman filed a police report against “Leo Boykins,” which
Webber testified was listed as an alias on appellant‟s rap sheet
and appeared on a police report from 1991 “when he was arrested
under Joseph Burroughs.” According to Webber, the woman was
walking down the street when appellant and his girlfriend at the
time, Maria, drove by. The woman got in their car, and appellant
and Maria drove her to appellant‟s apartment. Once inside the
apartment, appellant hit the woman with the handle of a knife
and told her to undress. When she refused to undress and
further refused to orally copulate Maria, he kicked her to the
ground and stomped her with his feet. After the woman
undressed, appellant inserted the handle of the knife into her
vagina and forced her to orally copulate him. He also had sexual
intercourse with her three times over the next 12 hours. Before
he let the woman go, appellant threatened to kill her baby if she
went to the police. She went to the police anyway. The police
later obtained Maria‟s statement, which was partially consistent
with the woman‟s. According to Webber, Maria told the police
that appellant hit the woman so hard Maria “could almost feel it
9
herself” and had sex with the woman as “payback for cocaine.”
Webber also testified about an incident that occurred in
1991. On that occasion, appellant drove by a 36-year-old woman
who was walking to the liquor store. The woman was acquainted
with appellant and accepted his offer of a ride. Instead of taking
the woman to the liquor store, however, he drove her to a camper.
There, appellant offered the woman cocaine and drank alcohol
with her. He then removed her clothes, forced her into bed, and
attempted to sodomize her. When his efforts proved
unsuccessful, he gave her the “option” to orally copulate him. He
then had sex with her three times and punched her in the head
before allowing her to leave the camper. The woman flagged
down police and reported the incident. She refused treatment,
however, and also refused to prosecute. Appellant denied the
incident.
Webber also testified that appellant was arrested for a non-
sexual assault in 1995. According to Webber, a woman who was
either dating or engaged to appellant reported to police that
appellant accosted her when she tried to break up with him and
refused to give him back jewelry he had purchased for her.
Appellant struggled with her and pulled a ring and bracelets off
her. He also hit her in the head with a glass candle holder.
Webber testified that appellant was not convicted of any
crimes in connection with most of these incidents; “[t]here were
police reports but no convictions.” Webber testified that SVP
evaluators ordinarily take such incidents into account and
confirmed that she did so when evaluating appellant. She
explained, “[t]hey weren‟t verified via conviction, but I do look at
the content in case there is some patterns [sic] that might be
suggested that this truly occurred, as well as in this particular
10
case is unique. There is some admission of an aspect of it. Like,
yes, I hit the 21-year-old girl with a beer bottle because I was
mad at her. He admitted that.” Appellant‟s counsel objected “as
hearsay not offered for the truth of the matter,” but the trial
court overruled the objection on the ground that the evidence was
being offered as “the basis of the doctor‟s opinion.”
Webber opined that all of these incidents supported her
diagnosis of ASPD. The arrests and convictions demonstrated
appellant‟s inability to conform to social norms, as well as his
impulsivity, aggressiveness, and disregard for the safety of
others. Webber further opined that appellant‟s deceit in using an
alias (“Leo Boykins”) and lack of remorse for his victims
supported the diagnosis. Webber concluded that appellant‟s
ASPD impaired his emotional and volitional capacity because he
was not deterred by “the suffering of his victims,” the presence of
others during the commission of the offense, or the punishments
he received for some of the offenses.
Webber testified that her diagnosis and conclusions also
were supported by appellant‟s conduct in prison and the state
hospital. While incarcerated from 1998-2009, appellant incurred
18 serious rule violations. Webber testified that “about four of
them was [sic] for lethal combat,” several were related to
appellant‟s refusal to have a cell mate, and “[o]thers were for
delaying police officers.” Webber also noted that appellant
refused to sign his conditions for parole. While confined at
Coalinga State Hospital from 2009-2015, she testified, appellant
engaged in “episodes where he flares up, gets verbally aggressive
with the staff.” Webber stated that the frequency of such
incidents increased over the years. She attributed them to her
secondary diagnosis of appellant, “[u]nspecified schizophrenic
11
spectrum and other psychiatric disorders.”
Webber provided more detail about appellant‟s behavior at
the state hospital. She testified that he refused to participate in
group therapy, acted aggressively with staff when he was denied
yard time, called a staff member a “stupid bitch,” and threatened
to “lay hands on somebody if that is what it takes” after he was
found to have tampered with an electrical outlet. In 2015,
hospital staff observed him “grimacing, making jerky motions,
making unusual motions . . . . [t]aking his hand and rubbing over
a clenched fist of the other” while listening to music or watching
a movie on his personal device. Appellant became angry when
staff asked if he was okay. On other occasions, appellant referred
to himself as “Jesus Christ,” “a holy child,” and “the booby,”
which he told staff meant that he was the devil or Satan. Webber
testified that appellant refused contact with anyone outside the
hospital, including her and his attorney, and “would stay holed
[up in] his cell for long periods of time without going out in the
yard, showering or things like that.” Webber opined these
behaviors supported a secondary diagnosis of delusions or
paranoia. Webber further testified that appellant displayed
“pictures of adult females in his room,” and noted that a “relief
shift lead who works nights says she had seen him watching a lot
of pornography on his DVD player at nighttime,” which to
Webber demonstrated that “there is some sexual interests
occurring still and possible sexual preoccupation.” Webber noted,
however, that other hospital staff members she spoke to “have
not observed any sexual behaviors.”
Webber explained that she rested her conclusion that
appellant was an SVP on her diagnosis of ASPD, not upon her
secondary diagnoses of unspecified psychiatric and/or
12
schizophrenic spectrum disorders. Thus, her opinion was “that
his anti-social personality disorder predisposes him to commit
sexually violent offenses.” The secondary diagnosis was relevant
“because it exacerbates and worsens his A.S.P.D.” Webber
testified that if appellant had problems accurately perceiving
reality, “it raises questions of is he misperceiving interactions
with people in the community that could facilitate sexual
offending.” Webber noted that it was unusual for her to find
someone who qualified as an SVP based on a diagnosis of ASPD;
she estimated she had seen only four or five other cases while
conducting over 500 SVP evaluations. Webber believed this
unusual conclusion was appropriate in appellant‟s case because
there was a “sexual component” to his deviant behavior. She
explained, “[t]he majority of his arrests have involved a sex-
related component.” Webber further opined that appellant‟s
condition was worsening, because there had been “more incidents
of his unusual behaviors, or being easily irritable or flaring up
over something.” She also was concerned about appellant‟s
refusal to participate in any sort of therapeutic activities or
treatment, and his apparent lack of insight into his sexual
problems.
3. Likelihood of future sexual offenses
Webber opined that appellant also met the third criterion
to be diagnosed as an SVP: he was “likely to engage in sexually
violent predatory criminal behavior as a result of the diagnosed
mental disorder.” To reach this conclusion, Webber used two
actuarial instruments, the Static-99R and the Static-2002R, to
evaluate appellant. Both instruments assign a score, then use
rates and percentiles associated with that score to provide
information about the risk that the subject will commit a sex
13
offense in the future. Webber testified that appellant had a score
of seven on the Static-99R; that score reflected the offenses of
which he was not convicted as well as a point for the male child
he allegedly sodomized. Appellant‟s score placed him in the high-
risk category for reoffending. Appellant scored eight points on
the Static-2002R, which Webber testified also reflected
uncharged conduct and “was in the ballpark” of his Static-99R
score. Under the Static-2002R, however, a score of eight reflected
a moderate-high risk of reoffending. None of the “protective
factors” Webber considered lowered appellant‟s risk of reoffense.
Webber opined that appellant‟s future sex crimes were likely to
be predatory, or to involve a stranger or casual acquaintance,
because he had a history of committing such offenses and did not
have a treatment plan.
B. Dr. Christopher North
Dr. Christopher North, Ph.D. is a licensed psychologist who
performs SVP evaluations for the states of California and
Washington and the U.S. Department of Justice. He was asked
to evaluate appellant in 2009. Appellant refused to participate in
an interview, however, so North, like Webber, relied primarily on
documentary evidence to assess him. North assessed appellant
in 2009, 2013, 2014, and 2015. North reviewed police reports,
probation reports, prison records, violation reports, and various
other documents “to get as complete a picture of the inmate as
possible.” From his review, North concluded that appellant met
all three criteria to be classified as an SVP.
1. Convictions for sexually violent offenses
North testified that he based his conclusion about the first
criterion, conviction of a sexually violent offense, on appellant‟s
criminal history transcript and an abstract of judgment. When
14
North began testifying as to the details of appellant‟s conviction
involving Liza, appellant‟s counsel objected under Evidence Code
section 352. The trial court overruled her objection and advised
the jury that “the doctor‟s testimony about what happened is
simply offered [as] the basis for his opinion.” North continued
testifying about the details of the offense. His narrative was
shorter and less richly detailed than Webber‟s, but related the
same factual underpinnings to which she testified. North opined
that the offenses against Liza and Tanya were sexually violent;
appellant choked, hit, and threatened to kill Liza, and hit and
violently struggled with Tanya.
2. Mental disorder
North opined that appellant met the second SVP criterion,
having a diagnosed mental disorder that predisposes him to
commit criminal sexual acts. Like Webber, he diagnosed
appellant with ASPD. Based on his interviews with Coalinga
State Hospital staff and his review of appellant‟s hospital records,
North also concluded that there was “some evidence of
psychiatric disorder.” North testified that “there were numerous
incidents of him behaving bizarrely,” such as “grimacing,”
“dancing,” “talking to himself,” and generally acting as though he
was “off in his own little world.” North also testified that some
entries in appellant‟s hospital chart indicated that he was
“responding to internal stimuli,” such as voices in his head.
North explained that appellant‟s ASPD had “paranoid
features.” North testified that appellant “is fearful of other
people,” “doesn‟t interact well with people,” “doesn‟t like any kind
of supervision at all,” and generally “can‟t stand to be around
people.” North also opined that appellant‟s ASPD impaired his
emotional and volitional control. North based that conclusion on
15
appellant‟s criminal history, including the juvenile and
uncharged offenses about which he, like Webber, provided
details. North explained that he got the details relating to the
juvenile and uncharged offenses from probation reports and
police reports, which he “generally assume[s] . . . are reliable
unless I have other information to the contrary.” Taken as a
whole, North opined, appellant‟s criminal history demonstrated
evidence of all seven ASPD diagnostic criteria. North also noted
that “approximately half of his crimes and most serious crimes
have been sex crimes.” North “assume[d]” from this information
that appellant “is a guy who has a fairly high sex drive and takes
what he wants sexually from others.” North opined that
appellant “acts on impulse and he takes what he wants,”
demonstrating lack of volitional control, and has a deficit in
emotional capacity because he demonstrated “an inability to
empathize or feel the harm or understand the harm he is doing to
his victims by assaulting them and raping them.”
North clarified that he did not “have the evidence” to
diagnose appellant as hypersexual. However, he opined that
appellant‟s ASPD predisposed him to commit sexual crimes
because “[m]any or most of his crimes have been sexual in
nature.” North acknowledged that many criminals have ASPD,
but opined that appellant was set apart because “there is no
robbery or other motive involved in any of the sex crimes. It is
simply sexual. He is assaulting these people because he wanted
to take sex from them.” North further testified that his own
views on ASPD had evolved since he began doing SVP
evaluations. Initially, he felt ASPD alone was not sufficient to
qualify someone as an SVP. Over time, however, as he evaluated
more people with ASPD, he came to believe that an ASPD
16
diagnosis could support a conclusion of SVP if the person lacked a
paraphilia3 but nonetheless had a high sex drive and took what
he or she wanted sexually. North stated that there had been a
“trend of change in opinion” toward this view, but it was not yet
“universally accepted.”
North testified that there was some evidence that
appellant‟s ASPD had manifested itself while he was in prison
and the state hospital, even though he had not acted out sexually
at either place. According to North, appellant behaved in bizarre
ways and “became very irritable” when staff asked him if he was
okay. “If that is his response to someone who is showing some
kind of concern about him, I can only imagine how he would
respond if the person were more directly threatening to him.”
3. Likelihood of future sexual offenses
North opined that appellant was likely to commit sex
offenses in the future. He noted that appellant “has attempted to
rape or raped within literally within [sic] a couple months of his
getting out,” and opining that appellant was more likely to
succumb to the impulsivity of his ASPD and commit sex crimes
when outside a closely controlled hospital setting. North testified
that this opinion was supported by the results of the Static-99R
and the Static-2002R. North initially assigned appellant a score
of eight to nine on the Static-99R, but later revised it to a seven
or eight. The uncertainty in the numbers came from North‟s
inability to ascertain from appellant‟s records whether he had
3“„The term paraphilia denotes any intense and persistent
sexual interest other than sexual interest in genital stimulation
or preparatory fondling with phenotypically normal, physically
mature, consenting human partners.‟ (DSM-V, p. 685.)” (Couzens
& Bigelow, Cal. Law and Procedure: Sex Crimes (The Rutter
Group 2015) § 14:2, p. 14-10.)
17
lived with a romantic partner for two years or more. If he had,
his score would be a seven. If not, North would give him an
eight. North testified that either score would place appellant in
the high-risk category. North opined that appellant would be
toward the higher end of the risk range, because “[h]is sex
offenses were pretty brutal. There is a lot of violence involved in
them. The fact that he reoffended so quickly after being released
from custody, just the sheer number of offences [sic].” North gave
appellant a score of eight on the Static-2002R, which placed him
in the moderate-high risk category. Like Webber, he opined that
appellant‟s scores on the Static tests were consistent with one
another and with a likelihood of reoffending.
North‟s conclusions about appellant‟s likelihood of
reoffending did not change when he considered potential
“protective factors” that could lessen the risk appellant posed,
such as appellant‟s age, health, and completion (or not) of
treatment. North further opined that appellant‟s future sex
crimes were likely to be predatory, because his last victim,
Tanya, was a stranger. North also opined that appellant was not
amenable to treatment for his ASPD, which was likely to become
more active once he encountered the stresses of living outside the
hospital. Based on the repeated mentions of cocaine in
appellant‟s criminal records, North thought appellant might have
a cocaine problem that would further increase “volatility” if
appellant were released.
C. Documentary Evidence
Prior to trial, appellant moved in limine to exclude all
evidence of uncharged offenses. The details of his uncharged
offenses were included in probation reports pertaining to the
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offenses of which he was convicted. Appellant conceded that the
probation reports were admissible to prove the details underlying
the convictions used to support the petition under section 6600,
subdivision (a)(3) (qualifying offenses),4 but argued that “[t]he
statute does not create a vehicle for hearsay reference to all bad
acts [appellant] has committed. There is no bases [sic] to include
acts such as dismissed, uncharged or non-qualifying offenses.”
Appellant reiterated this argument when the motion was heard,
arguing that “[i]t is one thing to say it is not hearsay for the
qualifying charges,” but “[e]verything else is hearsay,” such that
“[t]hey can testify to the basis but not the facts. Certainly not on
direct.” He also argued that evidence of his uncharged crimes
was unduly prejudicial under Evidence Code section 352.
The trial court denied the motion in limine on the ground
that the documents were admissible for the non-hearsay purpose
4 Section 6600, subdivision (a)(3) states: “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 sexually violent predator, 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. Jurors shall be admonished that
they may not find a person a sexually violent predator based on
prior offenses absent relevant evidence of a currently 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.”
19
of explaining the basis of the experts‟ opinions. The court also
denied appellant‟s request that the experts be prevented from
testifying to the details of his uncharged offenses for the same
reason. The trial court further ruled that the probative value of
such evidence outweighed the potential prejudice to appellant.
At the close of its case, the prosecution moved to admit all
but one of its exhibits into evidence. Appellant raised no
objections to Exhibit 1, Webber‟s curriculum vitae, or Exhibit 2,
which the court described as a “969.B packet.”5 Appellant
objected to the admission of Exhibit 3, the charging document for
the Tanya case, on foundation grounds. He also objected to “any
and all police reports and probation reports”—Exhibits 4, 4A, 5,
5A, 8, 8A, 9, and 9A, the “As” being the redacted versions of the
documents—“as being historically the worst kind of hearsay that
is not ever introduced into evidence.” He argued that “[n]o one
was brought in who has personal knowledge about the making of
this police report, and there is [sic] hundreds of pieces of
information on this report that were not testified to.” The
prosecution argued that the documents were admissible under
Welfare and Institutions Code, section 6600, subdivision (a)(3)
5 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. (See Pen. Code, §
969b.) The People may use such records for the same purpose in
SVP cases. (See People v. Dean (2009) 174 Cal. App. 4th 186, 196
(Dean); People v. McGee (2006) 38 Cal. 4th 682, 702, fn. 8.) The
packet in this case contained the abstracts of judgment for
appellant‟s convictions involving Liza, Tanya, and his girlfriend
or fiancée. It also contained appellant‟s fingerprints, mug shot,
and “chronological history” of his custodial placements.
20
and case law interpreting that section. The trial court ultimately
agreed with the prosecution and admitted all of the challenged
exhibits in their entirety. The court also admitted Exhibit 11, a
Department of Justice document linking appellant to the alias
“Leo Boykins,” and Exhibit 12, North‟s curriculum vitae.
II. Defense Evidence
A. Dr. Hy Malinek
Defendant called as his witness Dr. Hy Malinek, Psy.D., a
clinical and forensic psychologist. He saw appellant four times—
once during a video conference in 2009, twice in person that same
year, and once in person a week before trial. Malinek also
reviewed appellant‟s mental health records and police reports
and other records documenting his past crimes. Malinek testified
that although he considered the police and probation reports, he
did not give any weight to charges or allegations that were
dismissed or did not result in convictions. In Malinek‟s view, it
“would be improper and unethical” to consider unproven charges
as fact. He testified that he assumed the district attorney
investigated the allegations and had a reason to dismiss or reject
them, which in turn caused him to wonder about the reliability of
such charges. Malinek considered appellant‟s convictions for the
crimes against Liza and Tanya. He concluded from those that
appellant satisfied the first SVP criterion, conviction of a sexually
violent offense.
Malinek opined that appellant did not satisfy the second
SVP criterion, having a diagnosed mental disorder that
predisposes him to commit criminal sexual acts. Malinek agreed
with the other experts that appellant had a diagnosable mental
disorder. Malinek testified that appellant had a “prominent
personality disorder with paranoid elements,” and “clearly” met
21
the diagnostic criteria for ASPD. Malinek further testified that
appellant was “an unusual man to diagnose,” because “he has
intermittently shown many indications of psychiatric symptoms,”
such as delusional statements, suicide attempts, and isolative
behaviors. He also had a history of suffering trauma, including
being diagnosed with and treated for leukemia at age eight, being
beaten in the head by his grandmother, and injuring his head in
an accident.
Malinek opined that none of these issues predisposed
appellant to commit sexual offenses, however. He stated that
there was “nothing in the literature of antisocial personality
disorder or in the diagnostic manual that discusses a
predisposition to sexual offenses,” and further testified that there
was no link between appellant‟s “delusional preoccupation” and
sexual offenses, “[h]im being a child of God on the one hand and
sexual offenses on the other.” Likewise, Malinek testified that
appellant‟s potential abuses of drugs or alcohol “do not predispose
someone to commit sexual offenses, but a wide variety of acting
out.” Malinek found it very important that appellant never acted
out sexually during the 19 years he had been confined. Thus,
even though Malinek conceded that appellant was “a violent and
a dangerous man,” he did not believe appellant‟s mental illnesses
predisposed him to commit sex offenses in particular.
According to Malinek, Webber‟s diagnosis of an unspecified
psychiatric disorder would not predispose appellant to commit
sexual offenses. Neither would Webber‟s diagnosis of unspecified
schizophrenia spectrum disorder; in Malinek‟s opinion, nothing in
atypical schizophrenia would predispose a patient to commit sex
offenses unless his or her delusions were sexual in nature.
Malinek opined that appellant‟s past crimes were not motivated
22
by such delusions but rather were crimes “of opportunity,
violence, alcohol facilitated.” Malinek did not see any pattern in
appellant‟s crimes that suggested he suffered from paraphilia.
Despite concluding that appellant did not meet the second
SVP criterion, Malinek considered the Static-99R and Static-
2002R tests. Malinek assigned appellant a score of six on the
Static-99R, placing him in the high-risk category, and a score of
seven on the Static-2002R, placing him in the moderate-high risk
category. Although Malinek‟s assessments placed appellant in
the same risk categories as Webber‟s and North‟s assessments,
the scores he gave appellant were lower because he did not factor
in the alleged abuse against the six-year-old boy or other alleged
sex offenses that did not result in convictions. Malinek also
testified that the Static tests inflated the risks posed by
appellant.
B. Documentary Evidence
The trial court admitted four defense exhibits into
evidence. The first, Exhibit A, was Malinek‟s curriculum vitae.
The remaining three exhibits were abstracts of judgment for
appellant‟s convictions for lewd acts upon Liza (Exhibit D),
assault against his girlfriend or fiancée (Exhibit E), and
attempted rape against Tanya (Exhibit F).
DISCUSSION
I. Motion to Stay
A. Background
Prior to appellant‟s trial, his attorney filed a motion to stay
the proceedings due to appellant‟s alleged incompetency. In the
motion, counsel alleged that “the competency at issue . . . is one of
communication with counsel and his doctors.” She explained,
“Mr. Burroughs has chosen to refuse to talk with counsel.
23
Retraining and specific counseling could bring him back to the
table.” Counsel contended that the proceedings needed to be
stayed to protect appellant‟s due process rights and his statutory
right to counsel.
The People opposed the motion. They primarily relied on
Moore, supra, 50 Cal.4th at p. 829, in which the Supreme Court
held that “due process does not require mental competence on the
part of someone undergoing a commitment or recommitment trial
under the SVPA.” The People also pointed out “that in many
SVP cases, the inmate refuses to speak to the evaluators for a
variety of reasons, and yet the hearing proceeds.”
At the hearing on the motion, appellant‟s counsel argued
that Moore was distinguishable. Unlike the defendant in Moore,
appellant had not previously been adjudicated an SVP, which
counsel argued rendered “his ability to consult with the experts
and counsel . . . even more important.” Additionally, appellant
did not blame his incompetence on a paraphilia diagnosis; he had
been diagnosed only with ASPD and not paraphilia, and “has
either chosen or for unmedicated reasons decided not to consult
with counsel.” Counsel asked the court to stay the proceedings
and order Coalinga State Hospital to enroll appellant in
“competency training” sessions. The People simply reiterated
their contention that Moore was controlling.
The trial court ruled that Moore was binding and denied
appellant‟s request for stay on that basis. The court
acknowledged that appellant “probably should get competency
training,” but did not order Coalinga State Hospital to provide
such training because it concluded it lacked statutory or other
authority to do so.
B. Analysis
24
Appellant contends the trial court should have stayed the
proceedings. He argues that Moore is distinguishable because
the mental disorder that supported his SVP diagnosis is not the
same mental illness that is the basis of his competency claim. He
also argues that Moore was wrongly decided. We agree with the
trial court that Moore is controlling and forecloses appellant‟s
request.
In Moore, the Supreme Court considered the broad question
whether individuals facing SVP proceedings have a due process
right not to be tried or civilly committed while mentally
incompetent. (Moore, supra, 50 Cal.4th at p. 807.) The
defendant in Moore had been adjudicated an SVP; the
prosecution had petitioned to extend his commitment. ( Id. at p.
811.) He argued that the proceedings could not go forward
because “the diagnosed mental disorders that make him a
sexually dangerous predator also impair his mental competence
to stand trial, and that the state therefore cannot try or commit
him as an SVP unless or until his competence is restored.” (Id. at
p. 808.) Those disorders included “paraphilia, involving intense
and recurrent sexual fantasies, urges, or acts against
nonconsenting persons”; schizoaffective disorder with bipolar and
psychotic components; and ASPD, “manifested by his persistent
disregard of societal norms and the rights of others.” (Id. at p.
810.) The defendant conceded that the SVPA did not provide a
statutory basis for staying his proceedings, but contended that
the fundamental liberty issues at stake in the proceedings
weighed in favor of according him a due process right to mental
competence analogous to that possessed by criminal defendants.
(Id. at p. 812.)
The Supreme Court disagreed. In determining the process
25
due to SVP defendants, the Court employed a four-factor
balancing test in which it considered “(1) the private interest that
will be affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; (3) the government‟s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail;
and (4) the dignitary interest in informing individuals of the
nature, grounds, and consequences of the action and in enabling
them to present their side of the story before a responsible
government official.” (Moore, supra, at 50 Cal.4th at p. 819.) The
Court acknowledged that the liberty and dignitary interests of
SVP defendants are significant. (Id. at p. 824.) It also recognized
that “a mentally incompetent defendant may be in the position of
„filtering‟ his contribution in an SVP proceeding through counsel,
experts, and other witnesses.” (Ibid.) Nevertheless, the Court
concluded that “the nature of the issues, evidence, and findings in
an SVP proceeding prevents any defendant from playing much
more than a supporting role,” such that “any chance that an
SVP‟s mental incompetence would significantly impair his
contribution to his defense seems relatively attenuated.” (Ibid.)
Additionally, the Court found that the “numerous procedural
safeguards” in SVP proceedings both “help mitigate the risk that
an incompetent person would be erroneously adjudicated as an
SVP in the first place” and afford committed SVPs regular
placement reviews to further mitigate the effects of any error
attributable to the reduced participation of a mentally
incompetent defendant. (Id. at pp. 824-825.)
The Court also concluded that the strong governmental
26
interest in protecting the public by enforcing the SVPA
“weigh[ed] against allowing SVPs to avoid being tried or
committed while mentally incompetent.” (Moore, supra, 50
Cal.4th at p. 825.) The Court observed that this interest “would
be substantially impaired if an alleged SVP could claim, based on
his diagnosed mental disorders, that he was too incompetent to
undergo a trial leading to such targeted confinement and
treatment.” (Ibid.)
Though the Court acknowledged that there probably was
“significant potential overlap . . . between those mental disorders
that qualify someone for commitment as an SVP on the one hand,
and those that produce an inability to comprehend the
proceedings or assist in one‟s defense on the other,” it did not
limit its holding to those situations. (Moore, supra, 50 Cal.4th at
p. 825.) Appellant‟s contention that his case is distinguishable
because he alleges incompetency stemming from a different
mental disorder accordingly is not persuasive. Under Moore,
which we are bound to follow (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal. 2d 450, 455), “due process does not require
mental competence on the part of someone undergoing a
commitment or recommitment trial under the SVPA,” regardless
of the precise nature or source of the mental incompetence the
defendant alleges. (Moore, supra, 50 Cal.4th at p. 829.)
Appellant also contends that Moore was wrongly decided,
and that the dissenting opinion authored by Justice Moreno “was
the better reasoned.” He recognizes, however, that we cannot
overrule the Supreme Court, and asserts that he raises the
argument solely to preserve it for consideration by that body.
Unless and until the Supreme Court overrules Moore, appellant‟s
due process claim cannot succeed here.
27
II. Expert Testimony
A. Background
Prior to trial, appellant moved in limine to restrict the
scope of expert testimony in two ways. First, he argued that
psychologists are not qualified to opine on what constitutes
“qualifying prior convictions,” “sexually violent offenses,” or
whether offenses are “predatory” in nature. He argued that such
opinions “would not assist the jury” and instead would “usurp the
job of the trier of fact.”
Second, appellant contended that the experts should not be
permitted to testify about the details of his uncharged offenses.
As noted above, he argued that the details of those offenses were
contained only in probation reports that constituted inadmissible
hearsay as to uncharged offenses. He further argued that the
hearsay was unreliable and could not serve as the basis of the
experts‟ opinions. To the extent the experts could consider the
information, he further contended, it would be improper for the
experts to relate the contents of those or any other hearsay
reports to the jury.
The trial court denied appellant‟s motions. It ruled that
“the information on which the expert witnesses rely, specifically
of a sexual nature, is relevant to determine whether in fact Mr.
Burroughs is in fact a sexually violent predator.” The trial court
explained that “[t]he testimony is coming in for the basis of the
expert‟s opinion. In my view it is coming in for a non-hearsay
purpose.” The court further ruled that “pursuant to Evidence
Code section 352, that evidence is more probative than the issues
in this case are damaging to Mr. Burroughs.”
Later, appellant conducted a voir dire of Webber before
she testified. At that hearing, Webber confirmed that she
28
considered the facts stated in police reports and probation
reports during her evaluation of appellant. Webber
explained that she believed a 1994 probation report setting
forth the details of appellant‟s uncharged offenses was reliable
because she had “no indications that it isn‟t reliable,” and
“typically the probation officer reports I see are consistent with
underlying documents when I have the opportunity to review
them.” Webber also testified that she would have made the same
diagnosis absent the information regarding appellant‟s juvenile
criminal history and the 1988 crimes perpetrated by “Leo
Boykins.”
At the close of the voir dire hearing, appellant argued that
the SVPA “does not say the actual details of the information
comes before the jury. All it ever says is the witness may
consider that information in formulating their opinion, and they
can testify they consider information from juvenile records or
police reports. The details are so biased or unnecessary to their
opinion, that is not supposed to come before the jury.” Appellant
pointed the court to People v. Otto (2001) 26 Cal. 4th 200 (Otto),
which he also had cited in his motion in limine. The trial court
ruled that “[t]he People may go into both the probation reports
and police reports. I believe that is fair game how the doctors
formed their opinion [sic].”
B. Testimony about nature of qualifying offenses
Appellant now contends that the People‟s experts
improperly opined about the nature of his qualifying offenses. He
argues that the “question of whether or not a specific offense
qualified under the statute is a purely legal question which
requires absolutely no mental health expertise to answer.”
Appellant exclusively relies on People v. Stevens (2015) 62 Cal. 4th
29
325 (Stevens), a case addressing expert testimony in mentally
disordered offender (MDO) proceedings. We agree with appellant
that Stevens is analogous and that the expert opinions regarding
the nature of appellant‟s qualifying offenses was improper.
However, we further conclude that appellant was not prejudiced
by this error, as probation reports containing the details of the
offenses were properly admitted under Otto and plainly
demonstrated that the offenses were sexually violent.
Additionally, appellant‟s own expert testified that “[a]ll people
referred for SVP meet this criteria,” including appellant.
In Stevens, the Supreme Court considered the admissibility
of expert testimony in MDO proceedings. Like SVP proceedings,
MDO proceedings allow the civil commitment of a defendant if
the People prove certain facts about the defendant and his crimes
beyond a reasonable doubt. (See Stevens, supra, 62 Cal.4th at p.
328; People v. Baker (2012) 204 Cal. App. 4th 1234, 1243.) In
Stevens, the defendant had been convicted of petty theft with a
prior. Before his scheduled release on parole, the Department of
Corrections and Rehabilitation certified the defendant as an
MDO under Penal Code section 2962, subdivision (d). Stevens
challenged the determination at a bench trial. (Stevens, supra,
62 Cal.4th at p. 329.)
At that trial, the prosecution called as its only witness Dr.
Kevin Perry, a clinical psychologist. Perry reviewed Stevens‟s
medical and criminal records and concluded from them that he
suffered from schizophrenia that “„was at least an aggravating
factor‟ in the commission of his criminal act,” the petty theft with
prior. (Id. at p. 330.) According to Perry, Stevens stole about $27
worth of merchandise from a drug store, pushed a shopping cart
at loss prevention agents who tried to stop him, and threatened
30
to assault and kill the agents. (Ibid.) Perry opined that threats
to the agents‟ lives over such minor items demonstrated Stevens‟s
irrational thought processes. When the prosecutor asked Perry
why, in his opinion, the crime of petty theft with a prior satisfied
the MDO requirement that the crime involve violence or threats
of violence likely to produce substantial physical harm, the court
sustained Stevens‟s hearsay and foundation objections. (Ibid.)
The court noted, however, that it already had Perry‟s testimony
before it. (Ibid.) The court subsequently relied on that testimony
to conclude that Stevens‟s offense involved the requisite violence
or threats of violence; the prosecutor did not introduce into
evidence the probation report from which Perry obtained the
information about the offense. (Id. at p. 331.)
The Supreme Court concluded that the expert‟s testimony
could not support the trial court‟s finding. It held that “in a
commitment hearing under the MDO Act, the People may not
prove the facts underlying the commitment offense (that are
necessary to establish the qualifying offense) through a mental
health expert‟s opinion testimony.” (Stevens, supra, 62 Cal.4th at
p. 339.) That was a problem in Stevens because the prosecution
introduced only a rap sheet showing that Stevens suffered a
conviction for petty theft with a prior; the record contained no
evidence aside from Perry‟s testimony that the offense involved
the violence or the threat of violence necessary to render it a
qualifying offense under the MDO Act. The Court emphasized
that “although expert opinion testimony is required to determine
some of the criteria in the MDO proceeding, it is not necessary, or
even admissible, with respect to proving the underlying facts or
elements of the offense to show that a defendant‟s crime qualified
as an MDO Act commitment offense.” (Stevens, supra, 62 Cal. 4th
31
at p. 336.) The Court explained that an expert in an MDO case
may rely upon reliable hearsay documents to form his or her
opinion as to factors within his or her expertise, such as whether
a defendant‟s severe mental disorder caused or aggravated the
commission of the underlying crime. However, because “proof of
a qualifying conviction under the MDO Act is based on facts
rather than on defendant‟s psychological condition,” namely
whether an offense involved violence, it “does not call for a
mental health expert‟s opinion testimony.” (Ibid.)
The Court rejected the prosecutor‟s contention that the
legislative history of the MDO Act evinced the Legislature‟s
intent to enlarge the role of mental health professionals in MDO
proceedings by incorporating a mental health component into the
violence requirement. (See Stevens, supra, at p. 337.) As
pertinent here, the Court looked to a provision of the SVPA,
Welfare and Institutions Code section 6600, subdivision (a)(3), to
support its conclusion. (See id. at p. 338.) The Court noted that
statute “created an exception to the rules of evidence to allow
admission of multiple-level hearsay contained in . . . specified
documents” and accordingly demonstrated that the Legislature
knows how to craft such an exception when one is intended.
(Ibid.) The Court continued, “Additionally, in SVP proceedings,
the Legislature authorized proof of the details of a commitment
offense through admission of documentary evidence, not expert
testimony.” (Ibid., emphasis in original.)
Although we disagree with appellant‟s assertion that the
Stevens Court “explicitly said that the evidence to which
appellant objected was inadmissible, not just in an MDO case,
but in an SVP case,” we are persuaded that the reasoning in
32
Stevens is applicable to this case. Just as expert testimony is
necessary to prove some elements of the prosecution‟s case in an
MDO proceeding, “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.” (People v. McKee (2010) 47 Cal. 4th 1172, 1192.)
Mental health experts are necessary to establish that an SVP
defendant suffers from a mental disorder that predisposes him or
her to perpetrate sexually violent offenses, and that the
defendant is likely to commit such offenses if released from
custody. Experts are not necessary, however, to establish that
the defendant suffered a conviction for a sexually violent offense.
The fact that a defendant suffered a prior conviction for an
offense enumerated in the SVPA may be proven—and was proven
in this case—by the introduction of a “section 969b prison
packet.” (See Dean, supra, 174 Cal.App.4th at p. 196 ; People v.
McGee, supra, 38 Cal.4th at p. 702, fn. 8.) However, as appellant
points out, a conviction for an offense listed in the SVPA is not
necessarily a conviction for a “sexually violent offense.” For a
conviction to be “sexually violent,” the acts underlying the
conviction must have been committed “by force, violence, duress,
menace, fear of immediate and unlawful bodily injury on the
victim, or threatening to retaliate in the future against the victim
or any other person.” (Welf. & Inst. Code, § 6600, subd. (b).) The
People may prove this element in an SVP case by introducing
“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.” (Welf. & Inst. Code, § 6600, subd. (a)(3); see Otto,
33
supra, 26 Cal.4th at pp. 207-208.) They may not, however, prove
this element by relying solely upon the testimony of a mental
health expert, whose expertise does not lie in such an area.
Whether an offense is “sexually violent” is an issue a jury is
competent to determine in any event. (See Stevens, supra, 62
Cal.4th at pp. 336, 339.)
Here, the trial court admitted probation reports that
recited the facts underlying appellant‟s qualifying offenses
against Liza and Tanya. As appellant concedes and as we discuss
more fully below, these documents were admissible to prove these
facts. And, because the facts were proven independently, the
experts were permitted to relate the facts to the jury as the basis
of their opinions. (See Sanchez, supra, 63 Cal.4th at p. 684.)
We agree with appellant, however, that it was improper for
the experts to opine that the facts of the qualifying offenses
rendered them “sexually violent” for purposes of the SVPA.
Whether the convictions were “sexually violent” was a factual
question that the experts were in no better position to resolve
than the jury. An expert‟s opinion is admissible only with respect
to a subject “that is sufficiently beyond common experience that
an opinion of an expert would assist the trier of fact,” and
whether an offense was violent or involved fear, duress, or
menace was not a question the experts in this case were
competent to answer.
Any error in admitting this testimony was harmless under
any standard, however. One of the probation reports admitted
into evidence indicates that victim Liza was under the age of 14.
This automatically rendered the enumerated offense against her
a “sexually violent” one for purposes of the SVPA. (Welf. & Inst.
§ 6600.1.) The probation reports further indicate that appellant
34
used threats and violent force while perpetrating sexual offenses
against both Liza and Tanya. No reasonable jury could conclude
from this evidence that the offenses were not “sexually violent.”
Even if it could, appellant‟s expert Malinek testified that “[a]ll
people referred for SVP meet this criteria,” i.e., they have
sustained a prior conviction for a sexually violent offense.
Indeed, appellant now acknowledges that he “cannot dispute that
there is other evidence in the record besides the testimony of the
government‟s experts to support the determination that he
suffered at least one qualifying offense.” His unsupported
speculations that “the relatively dry version of events found in
the written exhibits was less significant than the versions of
events provided by the testifying experts,” and that “the jury
probably did not look at the Exhibits” are insufficient to
demonstrate prejudice.
C. Testimony about other offenses and conduct
Appellant contends the trial court erred by allowing the
People‟s experts to testify to “a massive amount of inadmissible
hearsay.” The 34 alleged hearsay statements appellant
challenges fall into two general categories: (1) details about
uncharged offenses appellant allegedly committed in addition to
his two qualifying offenses involving Liza and Tanya, and (2)
details about appellant‟s behavior while in state custody.
Appellant argues that both groups of statements are inadmissible
hearsay under Sanchez, supra, 63 Cal. 4th 665, a recent Supreme
Court case we invited the parties to address in supplemental
briefing. We agree.
1. Expert basis testimony after Sanchez
In SVP cases, the People must prove beyond a reasonable
doubt that the defendant previously committed a sexually violent
35
offense and currently suffers from a mental disorder that renders
him or her likely to commit sexually violent offenses in the
future. To establish that a defendant suffers from a mental
disorder, the People typically enlist an expert to evaluate the
defendant and his or her history to make a diagnosis. As in many
SVP cases (e.g., People v. Angulo (2005) 129 Cal. App. 4th 1349,
1354, 1356), appellant refused to meet with the People‟s experts,
leaving them largely dependent upon documentary evidence to
ascertain and opine about his mental health status. Webber
testified that it was customary for experts to rely on documents
such as police reports, probation reports, and hospital records
when evaluating potential SVPs, and all three experts in this
case testified that they did so.
After denying appellant‟s motion in limine and other
objections, the trial court allowed the People‟s experts to testify
at length to the contents of these documents, including details of
several offenses with which appellant was never charged and his
behavior while in custody, on the ground that the documents
formed the basis of the experts‟ opinions. The court denied
appellant‟s request that the jury be admonished before each
expert testified, as well as during the regular jury instructions,
that the experts‟ testimony “relying on prior cases is not for the
truth of the matter, but it goes directly to their opinion.” The
court did instruct the jury that “certain evidence was admitted
for a limited purpose. You may consider that evidence only for
that purpose and for no other.”
At the time of appellant‟s trial, the general rule was that
“out-of-court statements offered to support an expert‟s opinion
are not hearsay because they are not offered for the truth of the
matter asserted. Instead, they are offered for the purpose of
36
assessing the value of the expert‟s opinion.” (Dean, supra, 174
Cal.App.4th at p. 193.) That general rule was circumscribed to
some extent; the Supreme Court recognized that prejudice could
arise if an expert‟s detailed explanation placed incompetent
hearsay evidence before the jury, and vested trial courts with
discretion to exclude from the expert‟s testimony such hearsay
that was more prejudicial than probative. (People v. Catlin
(2001) 26 Cal. 4th 81, 137; People v. Gardeley (1996) 14 Cal. 4th
605, 618-619; People v. Montiel (1993) 5 Cal. 4th 877, 918-919;
People v. Coleman (1985) 38 Cal. 3d 69, 92.) Appellant
unsuccessfully argued below that the testimony offered by the
People‟s experts as the basis of their opinions lay beyond the
confines of the general rule.
The Supreme Court recently updated the general rule in
Sanchez, supra, 63 Cal. 4th 665. In that case, which involved
testimony by a gang expert, the Court reevaluated “whether facts
an expert relates as the basis for his opinion are properly
considered to be admitted for their truth.” (Sanchez, supra, 63
Cal.4th at p. 674.)6 It concluded that the long-standing
6 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. (Id. at p. 670.) 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. The
Attorney General did not attempt to argue otherwise. 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. (People v. Allen, supra, 44
Cal.4th at pp.860-861.)
37
“paradigm” that testimony as to the basis for an expert‟s opinion
is not hearsay “is no longer tenable because an expert‟s testimony
regarding the basis for an opinion must be considered for its truth
by the jury.” (Id. at p. 679, emphasis in original.)
The Court began its analysis by recognizing that “[t]he
hearsay rule has traditionally not barred an expert‟s testimony
regarding his general knowledge in his field of expertise.” (Id. at
p. 676.) “This latitude is a matter of practicality. A physician is
not required to personally replicate all medical experiments
dating back to the time of Galen in order to relate generally
accepted medical knowledge that will assist the jury in deciding
the case at hand. An expert‟s testimony as to information
generally accepted in the expert‟s area, or supported by his own
experience, may usually be admitted to provide specialized
context the jury will need to resolve an issue.” (Id. at p. 675.)
The Court contrasted this sort of testimony about general
matters with expert testimony pertaining to “case-specific facts,”
which it noted “has traditionally been precluded” under hearsay
rules. (Id. at p. 676.) “Case-specific facts are those relating to
the particular events and participants alleged to have been
involved in the case being tried.” (Ibid.) Experts generally are
not permitted to offer case-specific facts about which they have no
personal knowledge. (Ibid.) The Court gave several examples
illustrating the distinction. We repeat one here: “That an adult
party to a lawsuit suffered a serious head injury at age four
would be a case-specific fact. The fact could be established, inter
alia, by a witness who saw the injury sustained, by a doctor who
treated it, or by diagnostic medical records. How such an injury
might be caused, or its potential long-term effects, would be
background information an expert might provide. That the party
38
was still suffering from the effects of the injury and its
manifestations would be the proper subject of the expert‟s
opinion.” (Id. at p. 677.)
When an expert relies on hearsay statements regarding
case-specific facts, the Court explained, there is a “flaw in the
not-for-the-truth limitation.” (Sanchez, supra, 63 Cal.4th at p.
682.) That flaw was outlined by the U.S. Supreme Court in
Williams v. Illinois (2012) 567 U.S. —, 132 S. Ct. 2221 (Williams),
and described by the California Supreme Court as follows.
“When 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. In
such a case, „the validity of [the expert‟s] opinion ultimately
turn[s] on the truth‟ (Williams, supra, 567 U.S. at p. —, 132 S.Ct.
at p. 2258 [conc. opn. of Thomas, J.].) of the hearsay statement.
If the hearsay that the expert relies on and treats as true is not
true, an important basis for the opinion is lacking.” (Sanchez,
supra, 63 Cal.4th at pp. 682-683.) Thus, “[w]hen an expert is not
testifying in the form of a proper hypothetical question and no
other evidence of the case-specific facts presented has or will be
admitted, there is no denying that such facts are being
considered by the expert, and offered to the jury, as true.” (Id. at
p. 684.)
The Court further concluded that the hearsay problem
cannot be cured by instructing the jury not to consider expert
basis testimony for its truth. “Once we recognize that the jury
must consider expert basis testimony for its truth in order to
evaluate the expert‟s opinion, hearsay and confrontation
39
problems cannot be avoided by giving a limiting instruction that
such testimony should not be considered for its truth. 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. Alternatively,
the evidence can be admitted through an appropriate witness and
the expert may assume its truth in a properly worded
hypothetical question in the traditional manner.” (Sanchez,
supra, 63 Cal.4th at p. 684, fn. omitted.) The Court disapproved
its prior decisions holding that an expert‟s basis testimony is not
admitted for its truth, or that a limiting instruction is sufficient
to cure the hearsay problem. (Id. at p. 686, fn. 13.)
The Court emphasized that an expert “may still rely on
hearsay in forming an opinion, and may tell the jury in general
terms that he did so.” (Sanchez, supra, at p. 685, emphases in
original.) “There is a distinction to be made between allowing an
expert to describe the type or source of the matter relied upon as
opposed to presenting, as fact, case-specific hearsay that does not
otherwise fall under a statutory exception.” (Id. at p. 686.) That
distinction means that “[w]hat 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.” (Ibid.)
2. Analysis
In this case, the People‟s experts related extensive a case-
specific facts they gleaned from documents such as police reports,
probation reports, and hospital records.7 The sole reason the trial
7 No hospital records were introduced or admitted at trial.
40
court gave for admitting this testimony was that it served as the
basis of their opinions. Under Sanchez, admission of expert
testimony about case-specific facts was error—unless the
documentary evidence the experts relied upon was independently
admissible.
a. Admissibility of documentary
evidence
Appellant argues that much of the evidence was not
admissible on any valid basis post-Sanchez. In an exhibit-by-
exhibit analysis, he contends that most of the People‟s exhibits—
Exhibits 2, 3, 4A, 5A, 6, 8A, 9A, and 11—were inadmissible either
in full or in part. The Attorney General responds that appellant
has forfeited many of these evidentiary challenges. It contends
that appellant forfeited all of his arguments about Exhibit 2 by
failing to object to the exhibit below, and about Exhibit 3 by
objecting only on foundation grounds. The Attorney General
further argues that appellant forfeited his challenges to the
admissibility of portions of Exhibits 2, 3, 4A, 5A, 6, 8A, and 9A,
because he “did not identify which portions of the exhibits were
admissible and which were not,” and “did not offer to redact the
portions he now asserts were inadmissible on appeal.” The
Attorney General does not make any forfeiture argument about
Accordingly, any statements the experts made about the contents
of those records as “the basis for their opinions” necessarily were
improper under Sanchez. The experts were permitted to rely on
those records, and to rely on any reports other experts such as
appellant‟s treating personnel prepared. (People v. Campos
(1995) 32 Cal. App. 4th 304, 308; People v. Landau (2016) 246
Cal. App. 4th 850, 870.) They could not testify to the contents of
those reports, however. (People v. Campos, supra, 32 Cal.App.4th
at p. 308; People v. Landau, supra, 246 Cal.App.4th at p. 870.)
41
Exhibit 11 but argues only that the exhibit was admissible.
We agree with the Attorney General that appellant has
forfeited his objections to Exhibit 2, the section 969b prison
packet, and Exhibit 3, the information charging him with
offenses against Tanya. During trial, appellant‟s counsel
expressly told the court that he had no objection to Exhibit 2, and
objected to Exhibit 3 exclusively on foundational grounds.8 In
contrast, counsel expressly reiterated the hearsay objections she
had been making throughout trial as to the remaining exhibits.
The Attorney General‟s assertion that those objections were
inadequately specific to preserve appellant‟s claims on appeal is
not well taken.
In a motion in limine filed before trial, appellant argued
that all references to uncharged offenses and conduct other than
his qualifying offenses were inadmissible hearsay. While
acknowledging that section 6600, subdivision (a)(3) renders
admissible evidence pertaining to his qualifying offenses, he
argued that there was no basis to admit evidence regarding
offenses that were dismissed, uncharged, or otherwise non-
qualifying. In other words, appellant conceded that parts of the
8 Appellant contends his counsel was ineffective for failing
to preserve his current objections to these exhibits. We disagree.
Appellant concedes that substantial portions of both exhibits
were admissible. To the extent that he claims his counsel was
ineffective for failing to object to the inadmissible portions, he
has not demonstrated that counsel‟s inherently tactical decision
as to which exhibits to object to constituted deficient performance
or prejudiced him in any way. (See People v. Bolin (1998) 18
Cal. 4th 297, 333; People v. Maury (2003) 30 Cal. 4th 342, 419;
Strickland v. Washington (1984) 466 U.S. 668, 686-688.)
42
exhibits referring to his qualifying convictions were admissible,
while arguing that other parts were not. “[I]t is settled law that
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.]” (People v. Harris (1978) 85
Cal. App. 3d 954, 957.) Appellant adequately “specified” the
inadmissible portion by drawing a qualitative distinction between
concededly admissible evidence on the one hand and evidence he
believed was inadmissible on the other. Appellant was not
required, as the Attorney General suggests, to identify the
specific lines and pages of each exhibit he believed were
inadmissible to preserve his objections to portions of the exhibits
on appeal. We accordingly consider appellant‟s arguments
regarding exhibits 4A, 5A, 6, 8A, 9A, and 11.
Exhibits 5A and 9A are redacted pre-plea reports prepared
by the probation office in connection with appellant‟s qualifying
offenses against Tanya (5A) and Liza (9A). Appellant contends
that these exhibits were inadmissible in toto because they are not
presentence reports prepared following appellant‟s convictions.
Appellant relies on Otto, supra, 26 Cal. 4th 200 to support this
contention. We conclude that his view of Otto is too restrictive.
In Otto, the Supreme Court considered the reach of section
6600, subdivision (a)(3). That statute provides in pertinent part
that “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,
43
and evaluations by the State Department of State Hospitals.”
The Supreme Court confirmed that this statute, by its terms,
“authorizes the use of hearsay in presentence reports to show the
details underlying the commission of a predicate offense.” (Otto,
supra, 26 Cal.4th at p. 206.) The Court further held that section
6600, subdivision (a)(3) “implicitly authorizes the admission of
hearsay statements in those reports.” (Id. at p. 207.) The Court
explained that because the probation and presentence reports
expressly deemed admissible by the statute necessarily include
hearsay statements from victims and police reports, “the
Legislature necessarily endorsed the use of multiple-level-
hearsay statements that do not otherwise fall within a hearsay
exception.” (Id. at p. 208.) The Court further explained that such
an interpretation was consistent with the legislative history of
the statute, which demonstrated that the Legislature “apparently
intended to relieve victims of the burden and trauma of testifying
about the details of the crimes underlying the prior convictions.”
(Otto, supra, 26 Cal.4th at p.208.) Thus, under Otto, “the only
reasonable construction of section 6600(a)(3) is that it allows the
use of multiple-level hearsay to prove the details of the sex
offenses for which the defendant was convicted.” (Ibid., emphasis
added.)
Appellant is correct that the documents at issue in Otto
were presentence reports, while Exhibits 5A and 9A are not. But
the Court‟s holding in Otto reached the entirety of section 6600,
subdivision (a)(3), not merely the presentence reports at issue in
that case. Probation reports—the term appellant uses to identify
these exhibits, which bear the heading “Probation Officer‟s
Report”—are expressly included in the statute‟s non-exclusive list
of documents the Legislature deemed sufficiently reliable to
44
prove qualifying convictions and the details thereof. Under Otto,
then, those documents and the hearsay statements they contain
are admissible to prove qualifying offenses and the details
thereof.
As appellant argues and the Attorney General concedes,
however, those reports “also contained information about
appellant‟s prior record, adult history, personal history,
physical/mental/emotional health, education, employment, and
terms and conditions of probation,” and “[t]hese sections were not
admissible under section 6600, subdivision (a)(3).” Notably, these
probation reports appear to be the only sources in the record that
include the details of the uncharged sex offenses that appellant
allegedly committed.9
Exhibits 4A and 8A are redacted police reports for
appellant‟s qualifying offenses against Tanya (4A) and Liza (8A).
Appellant contends these exhibits lack sufficient reliability to
come within the section 6600, subdivision (a)(3) hearsay
exception. We disagree. Section 6600, subdivision (a)(3) and Otto
authorize the People to prove the details of appellant‟s qualifying
offenses with probation reports. Otto explained that the sources
of the details contained in those reports almost invariably are
hearsay statements, either directly from victims or as related in
police reports. The police reports underlying the qualifying
offenses accordingly are the source of the admissible information
in the probation reports, and therefore should be admissible
9During oral argument, appellant‟s counsel suggested that
the People could have called the alleged victims of appellant‟s
uncharged sex offenses to testify. We note that concern about the
necessity of calling qualifying offense victims as witnesses in SVP
proceedings was a factor in the Legislature‟s enactment of section
6600, subdivision (a)(3). (See Otto, supra, 26 Cal.4th at p. 208.)
45
themselves to prove the same information. To the extent that the
police reports contained information duplicated in and properly
admitted through the probation reports, any erroneous admission
of the police reports could not have been prejudicial. (Appellant
did not argue below that the police reports should have been
excluded under Evidence Code section 352 as unduly
cumulative.) To the extent the police reports contained
information not also included in the admissible portions of the
probation reports, appellant has not persuaded us that
information was not pertinent to the details of the qualifying
offenses and therefore inadmissible under section 6600,
subdivision (a)(3).
Exhibit 6 is a minute order documenting appellant‟s guilty
plea to sexually assaulting Tanya. We agree with the parties
that the portion of the exhibit showing his guilty plea was
admissible under section 6600, subdivision (a)(3) to show that
appellant suffered a conviction for an offense listed in the SVPA.
We further agree with the parties that the “remainder of the
minute order, which listed appellant‟s sentence, restitution fine,
and requirement to register as a sex offender, however, was not
admissible under section 6600, subdivision (a)(3), because it did
not pertain to the existence of the conviction or the details of
same.” Appellant also argues that the admissible portions of
Exhibit 6 should have been excluded as cumulative under
Evidence Code section 352, because an abstract of judgment
documenting the same conviction was included in the section
969b prison packet. Appellant did not make this argument below
and accordingly has forfeited it here.
Exhibit 11 is a one-page document from the Department of
Justice. It contains fingerprints taken during the 1988 arrest of
46
one Leo Boykins for rape by force (Pen. Code, § 261, subd. (a)(2)),
and lists Joseph Burroughs as Boykins‟s alias. Appellant argues
that Exhibit 11 should have been excluded because it does not
relate to one of the qualifying offenses alleged by the People.
This argument is persuasive. Section 6600, subdivision (a)(3)
allows the People to prove the existence and details of predicate
offenses by documentary evidence. (Otto, supra, 26 Cal.4th at p.
206.) The 1988 rape by force charge mentioned in Exhibit 11 was
not one of the predicate offenses the People alleged. Moreover, it
is unclear from the record whether appellant was convicted of the
1988 forcible rape. Thus, even under the broadest possible
interpretation of the phrase “any prior conviction” in section
6600, subdivision (a)(3), Exhibit 11 was not admissible under
that provision. The Attorney General contends Exhibit 11 was
admissible as an official record under Evidence Code section
1280. For a writing to fall within this exception, it must be
shown that: “(a) The writing was made by and within the scope
of duty of a public employee. [¶] (b) The writing was made at or
near the time of the act, condition, or event. [¶] (c) The sources
of information and method and time of preparation were such as
to indicate its trustworthiness.” (Evid. Code, § 1280.) No such
showing was made here.
In sum, much of the documentary evidence upon which the
experts relied was hearsay that was not shown to fall within a
hearsay exception. The trial court accordingly erred by allowing
the experts to testify to the contents of this evidence as the basis
for their opinions.
b. Prejudice
Appellant contends the evidentiary errors were prejudicial.
“Ordinarily, an improper admission of hearsay would constitute
47
statutory error under the Evidence Code.” (Sanchez, supra, 63
Cal.4th at p. 685.) To determine whether statutory error exists,
we ask whether it is reasonably probable the verdict would have
been more favorable to appellant absent the error. (People v.
Watson, supra, 46 Cal.2d at p. 836.) Appellant contends we
should apply the higher standard set forth in Chapman v.
California (1967) 386 U.S. 18, 24, because his due process right to
confrontation was violated. (See People v. Landau, supra, 246
Cal.App.4th at p. 878.) We need not decide whether it is
appropriate to apply the Chapman standard here, as the
evidentiary errors were prejudicial even under the lower Watson
standard.
The People introduced numerous hearsay documents into
evidence, and their experts related a significant amount of
hearsay to the jury. The documents and expert testimony
described, in lurid detail, numerous sex offenses that appellant
was not charged with or convicted of committing, including the
repeated sodomy of a young boy and the use of a knife to
penetrate a woman. The experts also testified that appellant was
a gang member and described bizarre and even “lethal” behavior
appellant allegedly engaged in while in custody. All of this
evidence was exceedingly inflammatory. It 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.
The Attorney General nonetheless contends that the errors
48
were harmless. The Attorney General argues that the People
would have carried their burden of proof even absent the
inadmissible evidence, and asserts that appellant‟s evidence was
aimed at impugning other aspects of Webber‟s and North‟s
testimony. According to the Attorney General, “the defense
theory was that even if all of those things [the uncharged offenses
and other misconduct] occurred, the diagnoses the prosecution‟s
experts reached did not qualify appellant as a SVP, and their
conclusions that he was likely to reoffend were incorrect because
they relied on faulty data.” Although this is a fair summary of
appellant‟s arguments at trial, it does not take into account that
these were perhaps the best arguments available to appellant in
light of the court‟s evidentiary rulings. More importantly, it does
not negate the significance of the inadmissible evidence to the
strength of the People‟s case at trial. Had the inadmissible
documentary evidence and hearsay testimony been excluded from
trial, there is a reasonable probability that the jury would have
returned a verdict more favorable to appellant.
DISPOSITION
The judgment of the trial court is reversed. The matter is
remanded to the trial court for further proceedings consistent
with this opinion.
CERTIFIED FOR PUBLICATION
COLLINS, J.
49
We concur:
WILLHITE, Acting P. J. MANELLA, J.
50