People v. Curlee CA1/4 ( 2020 )

Filed 12/23/20 P. v. Curlee CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Petitioner and Respondent,
A155574
v.
JOEL CURLEE, (Alameda County
Super. Ct. No. 165110)
Defendant and Appellant.
Defendant challenges his commitment as a sexually violent
predator (SVP) under the Sexually Violent Predator Act (Welf. &
Inst. Code, § 6600 et seq. (SVPA)). First, he argues the trial court
erred in allowing a witness to provide detailed testimony
regarding the sex offender treatment program (SOTP) at
Coalinga State Hospital (CSH). Second, he argues the trial court
erred in admitting hearsay (Evid. Code1, § 1200) and case-specific
hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665(Sanchez) and his due process right to confrontation. Finally, he
argues that his trial counsel provided ineffective assistance by
failing to object to the admission of the challenged evidence, by
failing to object to prosecutorial misconduct in closing argument,
All further statutory references are to the Evidence Code
1
unless otherwise stated.
1
and by making an argument in closing that damaged his
counsel’s credibility. We find there was no reversible error in the
admission of testimony regarding the SOTP; defendant forfeited
most of his evidentiary and due process challenges by failing to
object; there was no prejudicial error in the court’s admission of
the hearsay to which defendant did object; and defendant fails to
meet his burden on his ineffective assistance claims.
Accordingly, we affirm.
I. BACKGROUND
In 1990, defendant was convicted of robbery, burglary, and
rape of a 90-year old woman, and he was paroled in 1999.
Defendant was in and out of custody thereafter, imprisoned for
burglary in 2002, and transferred to CSH in 2012 where he
remained pending an SVP trial.
In 2010, the Alameda County District Attorney filed a
petition alleging that defendant was an SVP. A jury found that
defendant was an SVP, and the court committed him to the state
hospital.
During his trial, defendant was forced to testify against
himself, and on appeal, he argued that the trial court violated his
right to equal protection because persons found not guilty by
reason of insanity (NGI’s) could not be forced to testify against
themselves at recommitment proceedings. (People v. Curlee
(2015) 237 Cal.App.4th 709, 712–713.) This court remanded the
case for further proceedings and directed the trial court to
conduct an evidentiary hearing at which the People would have
the opportunity to show that the differential statutory treatment
2
of SVP’s and NGI’s was justified. (Id. at p. 722.) If the trial court
found that the People carried their burden, it was to confirm
defendant’s commitment order, and if it found the People had not
carried their burden, it was to conduct a new SVP trial. (Id. at
pp. 722–723.)
In 2016, the trial court ordered a new trial to determine
whether defendant qualified for commitment as an SVP.
The jury found that defendant qualified for SVP commitment, the
court committed him to the state hospital for an indeterminate
term, and defendant timely appealed.
A. Witnesses for the People
Jane Doe
In January 1982, a noise awakened Jane Doe at 3 a.m. She
walked towards the noise and saw a man in the kitchen. She
screamed and tried to run to the front door, but the man grabbed
her from behind, and she felt what she believed to be a knife
being held to her. When she screamed, the man punched her in
the face and told her to shut up. Doe stopped screaming because
she did not want the man to continue punching her. She
struggled with him, but he was able to pull her towards her
bedroom; he pushed her on the floor where she got the knife and
pushed it under her bed. While Doe was on the floor, the man
raped her.
Donald Biasotti
Retired probation officer Donald Biasotti authored a 1982
probation report about defendant. Defendant had been on
3
Biasotti’s caseload for about three months when defendant was
arrested in January 1982. Biasotti interviewed defendant in
March 1982 and asked him questions about a statement he had
made to another probation officer wherein he admitted taking a
purse from, and raping and sodomizing an old woman in 1981. In
the same statement, defendant admitted that he took a purse
from and raped Jane Doe in January 1982. Defendant confirmed
his statement was accurate.
Dr. Nancy Webber
Psychologist Nancy Webber conducts DSH annual
assessments to determine whether a sex offender’s condition has
changed to the point that he or she can be released into the
community. She evaluated defendant in 2015 and 2016 and
interviewed him in 2015. Webber opined that community release
was not appropriate. One of the most significant factors for her
opinion was that defendant had not participated in the SOTP. In
2016, his treatment team recommended ancillary groups and the
SOTP, but defendant started only the initial module of SOTP and
completed one anger management group. Webber considered
defendant’s very high score of 8 on the Static-99R, an actuarial
tool used to predict the risk of re-offense, which is associated with
a relatively high rate of sexual recidivism. Although it is not the
correct way to use the Static-99R, Webber also considered that,
using defendant’s current age instead of his age at the time of
release from his last sex offense (33), defendant would score a 6.
The five-year and ten-year recidivism rates for a score of six are
25.7 percent and 37.3 percent, respectively. Webber also
4
considered dynamic factors that have the potential to change and
protective factors that reduce people’s risk level. Defendant
received some protection from his age, but, even then, Webber
opined that he should not be released because of his lack of
treatment, risk factors, lack of developed release plan, and his
poor performance when he was in the community. Webber had
no opinion on defendant’s risk at the time of the trial.
Witnesses to CSH Rule Violations
Unit supervisor Serina Robledo testified that defendant
incurred a rule violation in August 2014 for putting sheets on his
curtains, which both violated the Fire Code and obstructed the
view into his room. She testified that, typically, she would write
a patient up for that type of behavior if it was a reoccurring
offense, and she would have given a warning to a patient prior to
writing him up. Senior psychiatric technician Barbara Mendez
searched defendant’s room in February 2016 and discovered
contraband—juice, fruit cups, metal paperclips, and a sharpened
metal nail file. Registered nurse Vida Adcock testified that,
sometime when she was assigned to defendant’s unit, she went to
his area at night, and he had a sheet covering his curtains.2
2 Adcock testified that she worked on unit 15 where
defendant was a patient, and she thought she had worked on the
unit for about five years when she testified, but she testified that
she could not remember precisely and she may have started on
unit 15 in 2016.
5
Irene Arenas
Irene Arenas, a senior psychiatric technician at CSH,
testified that, in November 2017, a patient told her that he was
being bullied and threatened by defendant. Arenas informed the
unit supervisor and defendant’s treatment team.
Renee Pierce
Renee Pierce, a unit supervisor on defendant’s unit at CSH
since September 2017, testified that patients approached her and
complained about defendant. Five patients personally
approached her, and others approached members of her staff. In
one of the complaints to Pierce, two patients reported that
defendant “used his torso to propel them further up the stairs” in
the stairwell, made some sort of threatening statement
suggesting they come into his room, and later walked into their
room without invitation. Another complaint was made in the
form of a note given to a staff member and involved an alleged
threat made by defendant to a patient. Pierce also received a
report through Arenas about a threat that defendant made to a
patient, and patients alleged that defendant monopolized the TV
room. After defendant left CSH for court, staff found clothing
contraband in a trashcan while searching another patient, and
that patient said defendant had given him the contraband to
hold.
After defendant returned from court, they had a team
meeting about the incident on the stairs, the threat, and his
entering the dorm room. They also discussed the contraband.
Defendant acknowledged the clothing contraband was his and
6
that he had been washing his clothing in the sink instead of
through the normal laundry process, but he denied any incidents
of bullying or violence. Pierce moved defendant to another area
and then off the unit because her unit did not have the staff to
observe and determine whether the allegations of bullying were
true. She also stated that a patient had started urinating in a
makeshift urinal in his bedroom rather than going to the
restroom because he feared defendant. On cross examination,
Pierce testified that when they transferred defendant, he seemed
okay with it, and he was moved to another low risk unit. She
confirmed that staff had not seen the incident in the stairwell.
Dr. Sangil Kwon
Psychologist Sangil Kwon was defendant’s treating
psychologist for approximately one year ending around
September 2017. During that time, defendant was enrolled in a
supplemental group he eventually withdrew from called “Men
Convicted of Rape.” While Kwon supervised defendant,
defendant did not enroll in or participate in the core SOTP.
Defendant was not “actually genuinely engaged with [his]
treatment in general.” While he had engaged on an intellectual
and cognitive level, for meaningful treatment progress, a deeper
emotional level of processing was important, and defendant did
not do that. Kwon testified defendant’s behavioral issues
included peers accusing him of bullying, and she observed
defendant hanging out with patients whom staff told her were
suspected of drug trafficking. When the treatment team met
7
with defendant to discuss accusations of bullying, he got upset
and angry about being accused of such behavior.
Dr. Mark Patterson
Psychologist Mark Patterson contracted with DSH to
conduct SVP evaluations. He first evaluated defendant in 2010
and ultimately assessed him five times. Patterson performed his
most recent evaluation in 2018. As part of his evaluation,
Patterson updated his prior evaluation from 2017, he reviewed
his previous reports, defendant’s state hospital and criminal
records, and the clinical interview he conducted with defendant
in 2017 for approximately three hours. He also obtained
collateral information about defendant in 2017 and 2018 through
mental health professionals who worked at CSH, including
psychologists Sangil Kwon and Eric Kunkel, and defendant’s
social worker.
Patterson opined that defendant qualified as an SVP. He
diagnosed defendant with other specified paraphilic disorder and
antisocial personality disorder; he also made a “provisional
diagnosis”3 of substance use disorder for cocaine.
Other specified paraphilic disorder refers to sexually
“deviant behavior that has to do with violent or coercive behavior
or sadistic behavior directed at a non-consenting person for the
3Patterson gave a “provisional diagnosis” with respect to a
substance use disorder because the severity of defendant’s
cocaine use was not entirely clear to him; Patterson testified that
there was probably enough evidence to make a diagnosis, but he
believed that additional information would be useful if it could be
obtained.
8
purpose of sexual gratification.” The DSM-54 does not include
this disorder, but it is a qualifying disorder commonly used in
practice; the research on sexual deviance recognizes a variety of
paraphiliac disorders that have not been fully defined, and one of
those relates to coercive sexually violent behavior. Patterson
based his diagnosis on the series of violent rapes defendant
committed from age 15 to 24, including rapes in 1981, 1982, and
1990. Patterson noted that, while incarcerated for the first two
rapes, defendant received sex offender treatment before being
paroled. Also significant to Patterson’s diagnosis were the
considerable level of violence that defendant used during the
rapes and his targeting of vulnerable, often elderly, women. For
example, defendant had a “rape kit” with rope and a knife for
Jane Doe’s rape, and, in 1990, he used his elderly victim’s cane to
threaten her, hook her neck, and pull her across the bed before
raping her. Patterson opined that the early onset of defendant’s
behaviors showed he had an entrenched disorder. There is no
cure for other specified paraphilic disorder, but treatments can
enable a person to manage his or her behavior; the disease can
also go into remission depending on the circumstances of a
person’s life, and those in custody tend not to display symptoms
because the opportunity to act on their behaviors is less readily
available.
4This refers to the Diagnostic and Statistical Manual, Fifth
Edition, published by the American Psychiatric Association. The
DSM is a manual that helps clinicians focus their diagnostic
thinking about what a person is struggling with.
9
Patterson explained that antisocial personality disorder
usually begins in adolescence and persists throughout a person’s
life. It involves a long-standing pattern of violating rules,
including laws and social expectations. Those with this disorder
often have extensive criminal histories despite prosecution and
incarceration. Patterson diagnosed defendant with this disorder
because of his early onset of rule breaking and criminal behavior,
including substance abuse, burglary, drug sales, and sexual
offending, and this behavior extended into adulthood. Defendant
also demonstrated a lack of remorse as a juvenile and an adult as
evidenced by his criminal behavior and the harm he has caused
others. Antisocial personality disorder tends to be chronic, but
for many, the criminality aspect tends to diminish in the late
thirties or late forties.
Patterson opined that defendant’s anti-social personality
disorder, combined with his paraphilic disorder, put him at a
particularly high risk of reoffending. Substance abuse and
antisocial personality disorder can lower impulse or volitional
control, and Patterson opined that defendant suffered from a lack
of volitional control. To support his opinion, he cited defendant’s
long criminal history, many parole violations, the difficulty he
had getting along with his peers at CSH, and his rule violations
at CSH as good evidence of continuing antisocial personality
disorder.
To assess defendant’s risk of future sexual re-offense,
Patterson used reliable actuarial tools, including the Static-99R
and Static-2002R. Defendant received a Static-99R score of eight,
10
placing him in the high risk category.5 The maximum score is 12
while the minimum is negative three, and defendant’s score put
him in the 99th percentile of risk for sex offenders. Per the rules
for the Static-99R, Patterson scored defendant using his age at
the time he was last released for a sexual offense (33) rather than
his current age (53), but he considered defendant’s current age,
although there was no statistically proper way to do so. When
considering defendant’s age, Patterson considered whether
defendant was slowing down in terms of his aggressive or
antisocial behavior, but he saw no evidence of significant
slowdown. Defendant also scored eight on the Static 2002R,
placing him in the well above average category, or in the 95th
percentile. Based on this score, his recidivism rate would be
expected to be five times higher than the typical sex offender. On
cross-examination, Patterson conceded defendant would receive a
six on both tests if he had used defendant’s current age.
In addition to those included within the Static 99R and
Static 2022R instruments, Patterson looked at additional risk
factors for defendant. He used the structured Risk Assessment
Forensic Version (SRA-FV), a tool that considers dynamic risk
factors not fully taken into account with the Static 99R and the
5Patterson testified that he scored defendant as an eight
when he evaluated him originally in 2010. Then, after receiving
additional information about defendant’s sexual offense history,
Patterson scored defendant as a nine in 2012. Patterson testified
that he made errors when he neglected to carry the extra point
over when he scored defendant as an eight in 2017 and 2018.
Scores of eight and nine fall into the highest category of relative
risk.
11
Static 2002R. Defendant’s score on the SRA-FV was 3.98, which
is above the 3.3 threshold high score. Research shows that those
with high scores on the SRA-FV tend to do less well on probation,
parole or conditional release. They also tend to be more likely to
re-offend, especially if they have a history of committing sexual
offenses. Last, Patterson used the Hare Psychopathy Checklist,
or the PCL-R, and gave defendant a high score of 30 out of 40.
He explained that a high score is consistent with defendant
having antisocial personality disorder, which is relevant to
whether defendant is a psychopath and/or he is likely to have
impaired volitional control.
Patterson opined that defendant could not be safely treated
in the community. He did not believe that defendant had had
sufficient treatment to develop a foundational relapse prevention
plan. Patterson relied on the fact that, while defendant had
participated in some groups falling under the umbrella of sex
offender treatment at CSH, he elected not to participate in the
core SOTP. According to Patterson, the more willing someone is
to engage in the SOTP in an in-patient setting, the more likely
that person is to participate in such treatment in an outpatient
setting. Because of defendant’s limited engagement in treatment,
Patterson opined that he would be less willing to participate in
outpatient treatment. Defendant had also told Patterson that he
had decided not to participate in the SOTP, but he believed the
groups in which he had participated sufficiently met his needs. If
released into the community, defendant said “he would not need
to do anything specific to keep himself from re-offending
12
sexually[,]” that the treatment he would receive while on parole
would be sufficient to meet his treatment needs, and Patterson
testified that, while defendant was able to recognize several of his
risk factors, he could not identify them all. Further, Patterson
opined that defendant had only limited insight or understanding
of his issues, including his risk factors, his sexual offense cycle
and his triggers, and things that might facilitate his engaging in
sexually criminal behavior.
Dr. Michael Montrief
Michael Montrief, a psychologist at CSH who treated
defendant in 2014, testified generally about the SOTP. He stated
that, when he treated defendant, defendant was not enrolled in
the SOTP or any substance abuse treatment programs, although
both were recommended. Defendant took beading and chess
classes. Montrief testified that defendant needed to address his
anger issues and his paraphilia, and he needed to learn to control
his deviant sexual issues. Montrief identified defendant’s August
2014 treatment plan, and he testified that defendant’s risk of
violence was at that time moderate, meaning that if certain
circumstances occurred, defendant would resort to violence.
Defendant had a hard time controlling behaviors of impulsivity
and dangerousness, and he had an act of aggression with a peer,
but Montrief did not witness the act. When Montrief counseled
defendant regarding other patients’ complaints that he was
intimidating them, defendant told Montrief that “he would leave
people alone if they respected his rights,” but that “when
13
somebody did not respect his rights or try to—he would use
violence if he had to.”
Dr. Charles Flinton
Psychologist Charles Flinton, retained by DSH to conduct a
psychological evaluation of defendant, did so in 2017 and 2018.
He reviewed CSH records, treatment records, evaluations, and
defendant’s criminal history. In 2017, he interviewed defendant;
Flinton also scored defendant using the Static 99R, the Static
2002R, and the PCL-R. Flinton concluded that defendant
qualified as an SVP: defendant had a qualifying offense and a
mental disorder that predisposed him to commit sexual crimes—
namely, antisocial personality disorder, stimulant use disorder,
cocaine type, and “other specified paraphilic disorder, a coercion”;
he posed a serious risk to the community; and he needed “the
level of intensity and custody that is afforded him at the hospital
in order to participate [in] and potentially complete treatment.”
The paraphilic disorder manifests in defendant becoming
sexually aroused by “controlling, dominating, coercing non-
consenting partners into sexual activity.” This qualifies as a
disorder because it caused defendant distress through repeated
arrests and incarceration, but he keeps doing it because he
cannot stop. Further, defendant pursued this sexual activity
when he had a consensual sexual partner. The existence of
volitional and emotional impairment was demonstrated because,
even in the face of a suffering victim, defendant continued with
his actions because he does not control his behavior in response
to suffering. Sexual interest develops in adolescence, so the fact
14
that defendant’s initial sexual offenses occurred at 15 was
significant because it shows the intensity and fixed nature of
defendant’s desires. Flinton testified that defendant admitted in
his interview that he had not been able to control himself and
was aroused by the control he had over his victims—an admission
Flinton found significant.
Antisocial personality disorder impacts defendant’s impulse
control and can manifest with aggressiveness, violent behavior,
or just general rule breaking behavior. This personality disorder
requires evidence of a conduct disorder before the age of 15 and
tends to lessen when people get into their forties. When asked if
defendant’s antisocial personality disorder was active, Flinton
said that, in a controlled setting such as CSH, it is difficult to
assess whether defendant still has the diagnosis. Flinton noted
there were reports of defendant being aggressive in CSH,
although he normally follows the rules. Similarly, whether
defendant suffered from stimulant use disorder was difficult to
say because of his controlled environment, but defendant told
Flinton that using cocaine made him crave sex more. Defendant
also said he would not commit to abstaining from cocaine.
Flinton testified that defendant’s mental disorders predispose
him to commit violent sexual crimes.
Regarding the risk assessment tools, defendant scored an
eight on the Static 99R, placing him “well above average re-
offense-wise.” On the Static 2002R, defendant scored a nine, also
“well above average risk” of reoffending with a recidivism rate of
43.8 percent. For dynamic risk factors, Flinton utilized the SRA-
15
FV, which put defendant in the above-average need group. He
also used the Stable 2007, which assesses 13 dynamic risk factors
that could change, particularly with treatment. Flinton did not
fully score defendant with this tool, but he used the results to
determine which areas defendant’s treatment should target.
Flinton opined that defendant needed some work in almost all of
the 13 areas, and he needed treatment to reduce his risk of
recidivism. Defendant scored a 30 on the PCL-R, indicating that
he suffers from psychopathy. The PCL-R correlates highly with
recidivism, including violent sexual recidivism, because it is
indicative of a high level of callousness and anti-sociality.
Flinton considered protective factors but did not identify any that
applied to defendant. If defendant were to reoffend, Flinton
believed it would be predatory because of the nature of his past
offenses.
As another risk factor, Flinton testified that defendant did
not have a developed release plan. When Flinton asked
defendant what type of treatment he would participate in if
released, defendant said that he “might participate in a [monthly]
program at the parole out-patient clinic,” but Flinton testified
that program has not existed since the early 2000s, which
indicated that Defendant had not researched treatment available
in the community. While completion of the SOTP could be a
protective factor, defendant had not participated.
The basis for Flinton’s opinion that it was necessary to
keep defendant in custody to ensure the health and safety of
others was that defendant was not participating in treatment
16
offered to him at CSH, so Flinton would not expect defendant to
participate in treatment in the community. Defendant also had a
history of not complying with parole in that he cut off his GPS
monitor on parole. Flinton also noted that when he interviewed
defendant, defendant admitted that he had not been in control of
his cocaine use and using cocaine increased his sex drive.
Further, defendant had been released from a state hospital where
he had participated in sex offender treatment, and defendant
committed another sexual assault thereafter; defendant
attributed his offense to being returned to his old environment
and not being in control, and, from this, Flinton concluded
defendant’s prior treatment had not worked. Flinton also
testified that defendant had no relapse prevention plan, which is
a plan that identifies a person’s triggers and the resources from
which to seek help.
Dr. Harry Goldberg
Psychologist Harry Goldberg contracted with DSH and
evaluated defendant in 2017. In connection with that evaluation,
Goldberg considered various records, he interviewed defendant,
and he considered and scored defendant on a number of actuarial
tools. In 2018, Goldberg updated his report. Goldberg opined
that defendant met the criteria for an SVP. Defendant’s 1990
rape conviction qualified as a sexually violent offense. Goldberg
diagnosed defendant with “other specified paraphilic disorder[,]
nonconsensual sex”; cocaine use disorder, which was in sustained
remission given defendant’s controlled environment; and other
specified personality disorder, antisocial personality. Defendant
17
admitted to Goldberg that, in 1981 and 1982, he had thoughts of
raping his victims before doing so, and Goldberg testified that
such urges are consistent with paraphilia. Goldberg also found it
significant that defendant had consensual sex available to him
when he committed the rapes, and that defendant admitted to
another doctor that he liked to control women, and, had his
victims consented to sex, he may have gone through with it but
would not have found “that feeling of powerfulness.” Paraphilia
is chronic, and Goldberg opined that defendant still suffers from
paraphilic disorder and is “predisposed to commit sexually
violent, predatory crimes in the future.”
Goldberg further opined that defendant cannot presently
control his urges, and he noted there was no evidence that
defendant had been successful at not using cocaine while out in
the community. Goldberg’s personality disorder diagnosis was
essentially antisocial personality disorder, but Goldberg lacked
evidence of defendant’s conduct before 15, which was essential to
the antisocial personality disorder diagnosis. After 15, defendant
had a history of aggressive crimes, he was known to be
threatening at CSH, and Goldberg testified that he made
observations from the record of defendant’s time at CSH that
were consistent with antisocial personality disorder. Goldberg
testified that antisocial personality disorder is chronic, but its
traits can lessen in severity. Goldberg therefore concluded that it
was likely that, without the appropriate treatment and being in
custody, defendant would “engage in violent, predatory criminal
behaviors as a result of his diagnosed mental disorder[s].”
18
Goldberg initially scored defendant with a seven on the
Static-99R but changed it to an eight based on what he
characterized as a confusing complication with juvenile offenses.
The difference between a seven and an eight is not that
significant, as both are well above the average score. Goldberg
used the SRA-FV to examine dynamic risk factors, and, based on
defendant’s SRA-FV score, Goldberg assigned him to the high
risk/high needs sample of sex offenders for the purposes of
determining a risk rate. On the PCL-R, Goldberg scored
defendant with a 27 out of 40, with 30 being the threshold score
for psychopathy; thus, while defendant had significant antisocial
traits, he was not a psychopath.
Goldberg found the following factors significant to his
conclusion that defendant qualified as an SVP: the results of his
evaluation with the Static 99R, the SRA-FV, and the PCL-R; that
the doctor did not see defendant making much progress at CSH,
including his failure to participate in the SOTP and in drug
treatment; that defendant had previously received sex offender
treatment and had gone on to reoffend; and defendant’s
statements during their interview. For instance, defendant said
he did not believe he had a psychological or sex problem, and the
only treatment he needed upon release was “maintenance
treatment regarding issues with his mother” which Goldberg
explained was not the type of treatment meant to reduce
recidivism. Defendant also told Goldberg that he “had no
warning signs or triggers because there’s no possibility at all he’d
ever do this again.” Goldberg explained that this was
19
problematic because if defendant does not believe he has a
problem, he will not avoid situations that could possibly lead him
to commit the same types of crimes.
B. Witnesses for Defendant
Dr. Jeremy Coles
Psychologist Jeremy Coles conducted four evaluations of
defendant, with the most recent in 2017 per DSH’s request. For
the 2017 evaluation, Coles reviewed defendant’s CSH treatment
records and police reports detailing defendant’s offenses, and he
interviewed defendant for the first time for about an hour and a
half. The two discussed defendant’s risk factors, and defendant
gave what Coles thought was a comprehensive account of what
motivated him and how he felt he had changed. Coles believed
that defendant had had a paraphilia, but his acting out when he
was younger had to do with issues with unresolved aggression,
impulsivity, and aggression towards women. Coles believed these
factors were no longer present to a level where defendant would
act on them.
Coles used the Static-99R, which he opined gives a baseline
risk for re-offense but is not the end of the story. Defendant’s
score on the Static-99R was an eight, but the age variable was
based on his age of release for his last sex offense. In defendant’s
case, that was misleading because his last sex offense was many
years ago, and Coles believed it would be more useful to use a
current age to account for the diminishing recidivism as people
age; with this age, defendant scored a six. Coles did not use the
PCL-R because he did not believe that test was particularly good
20
at predicting sexual recidivism. The factors that underlie the
finding of psychopathy, such as aggression, impulsivity, and lack
of remorse, are matters that can be talked about in common
language without assigning a number. In addition, in
defendant’s case, many of these factors had changed. The DSH
knows that Coles does not use the actuarial instruments that
other evaluators use, and it accepts his evaluations.
While Coles believed that defendant had a diagnosed
mental disorder—“cocaine use disorder, mild and other specified
paraphilic disorder related to coercive sexuality[,]”—he did not
believe that defendant still suffered from antisocial personality
disorder. Coles had diagnosed defendant with personality
disorder with antisocial traits in 2010 and 2012, but antisocial
character structures tend to diminish over time. Based on
defendant’s hospital records, Coles no longer saw evidence of
antisocial character structure or aggression. While defendant’s
prior offenses were predatory, because the factors that
contributed to his crimes were no longer present, Coles did not
believe that defendant was likely to engage in predatory, sexually
violent behavior. Therefore, it was not necessary to keep
defendant in custody in a secure facility to ensure the health and
safety of the public because he does not present a serious and
well-founded risk of reoffending.
On cross examination, Coles admitted that he believed that
defendant was engaged in SOTP when he interviewed him, and
he only first became aware that defendant refused to do the
21
SOTP that day. He found this problematic but stated it did not
change his opinion.
Dr. Christopher Fisher
Psychologist Christopher Fisher evaluated defendant in
2012 and in 2017; he interviewed defendant both times. For his
evaluation, Fisher also reviewed defendant’s file from CSH, his
prison records and criminal history, and juvenile psych
evaluations. He opined that defendant did not qualify as an SVP.
Although Fisher diagnosed defendant with cocaine use
disorder, he does not believe that defendant should be “diagnosed
with any kind of paraphilia or sexual disorder.” He explained
that the crimes defendant committed were not the result of such
a disorder but were the “result of other factors in his life[.]”
While Dr. Fisher had diagnosed defendant with antisocial
personality disorder in the past, he opined the condition had gone
into remission.
Fisher scored defendant on the Static-99R and the PCL-R.
He scored defendant with a six on the former, which translates
into a well above average risk of reoffending. To reach this score,
Fisher scored defendant in the required categories and then
subtracted a point in the age category based on defendant’s
current age rather than scoring him based upon his age when he
was last released from prison for a sexual offense. He believed
this was a more accurate and reasonable way of scoring the
Static-99R because the purpose of the item is to account for the
reduced rate of re-offense that results from aging, and everyone
agrees that advancing age is a significant protective factor. Even
22
the Static-99R developer has debated on how to handle this issue.
Fisher testified that, when the Static-99R was developed,
developers went with the age when the person was released from
confinement for the last sexual offense because it was more
convenient, but they have subsequently admitted the spirit of the
item is to reflect the person’s current age. Fisher claimed it was
uncommon to see state evaluators using the age of release when
it was as long ago. On the PCL-R, Fisher scored defendant with
a 22. A typical person would score somewhere between a two or a
four.
Fisher opined that defendant had a diagnosed mental
disorder, cocaine use disorder, but that diagnosis is not one that
makes him likely to reoffend in a sexually violent and predatory
fashion. Further, Fisher considered the risk that defendant
would reoffend but concluded that it was not necessary to keep
him in a secure facility to ensure the safety of the public.
In 2017, when discussing his prior crimes with Fisher,
defendant said that he had felt a sense of power and wanted to
feel more powerful and he ended up raping his first victim. He
felt even more powerful when he raped his second victim. He
referenced his relationship with his mother, and then told Fisher,
“ ‘I just wanted to feel that sense of control. I felt this was a way
I could feel total control, to force someone against their will to do
what I wanted them to do.’ ” Fisher asked defendant if he would
have had sex with the victims if it was consensual, and defendant
said, “ ‘If it was consensual, I may have gone along with it, but I
23
still wouldn’t have felt like I had done what I set out to do, which
was find that feeling of powerfulness.’ ”
Dr. Alan Abrams
Psychologist Alan Abrams, who is also licensed to practice
law in California, conducted a psychiatric evaluation of defendant
at the request of defendant’s counsel. In doing so, Abrams
reviewed the prior evaluations of defendant prepared by various
doctors, as well as state hospital records from CSH; he did not
have defendant’s prison records. Abrams also interviewed
defendant in 2017 for approximately three and a half hours. In
his interview, defendant identified anger as an issue, and he was
able to talk about how his mother made him feel inadequate
which made him angry. Defendant told Abrams that he did not
believe he had any mental illnesses.
Abrams testified that, with sex offenders, there are tools
that are fairly useful in figuring out where to put the supervisory
resources, but there are no tools that have been validated to
predict which individual is likely to commit future sexually
violent criminal behaviors. He stated that the Static-99R has
been misrepresented to the courts as far as a tool that predicts
recidivism for sexually violent crimes, but the types of recidivist
offenses studied included a variety of offenses, not just sexually
violent predatory offenses.
Nonetheless, Abrams used the Static-99R and scored
defendant with a five or a six; the variance existed because
Abrams did not believe it was possible to reliably determine one
of the scoring variables. In calculating the Static-99R score, he
24
used defendant’s actual age rather than his age when he was last
released from a sex offense because the science supports using
the actual age. Abrams stated that an individual with a score of
five or six is more likely to commit some kinds of sex offenses, but
not necessarily a violent and predatory sexual offense, than a
person who scores a three or a four. He also conducted a clinical
risk assessment and concluded that defendant’s risk was much
lower than the score generated by the Static-99R. He did not
believe defendant met the statutory requirements for an SVP.
Abrams diagnosed defendant with cocaine use disorder in
sustained remission in a controlled environment, current severity
absent. He also diagnosed defendant with having suffered
parent/child relational problem, child abuse by a parent, high
expressed emotion level within his family, adult sexual abuse of a
non-partner, problem related to living in a residential institution,
problems relating to other legal circumstances (the current
proceedings), and he said that defendant probably met the
criteria for antisocial personality disorder. For the last diagnosis,
he said “probably” because he did not have defendant’s juvenile
records to discern whether the behavior manifested before the
age of 15. Abrams found the cocaine use disorder the most
significant; he believed that defendant had matured quite a bit
since he last was incarcerated and using cocaine, but defendant
had not had a chance to prove sobriety in the community. He
considered whether defendant suffered from “other specified
paraphilia coercive,” but repeatedly characterized people who
make this diagnosis as “ideologues.”
25
Abrams did not use the PCL-R to evaluate defendant
because it was an “unscientific cottage industry.” In evaluating
defendant’s risk, he made a clinical assessment based on his
experience which he believes adds to one’s ability to understand a
person’s risk. He also considered the literature addressing the
effects of age in recidivism.
Like many people with substance abuse problems, Abrams
opined that defendant needs treatment. While he diagnosed
defendant with mental disorders, he did not believe that, as a
result of those disorders, defendant was likely to engage in
sexually violent predatory behavior because defendant did not
have a mental disorder that strongly or meaningfully connects
him to a risk of committing violent sexual behavior. Abrams
conceded there is a highly unlikely chance that, if released,
defendant could go on a cocaine binge and commit another rape.
That is why defendant needed drug treatment, but that
treatment could be done in the community.
II. DISCUSSION
A. Dr. Busby’s Testimony Regarding the SOTP
Defendant contends the trial court erred by admitting
testimony from psychologist Tricia Busby in which she described
the details of the SOTP. Although the program was available to
defendant, he did not participate, so he argues this information
was “completely irrelevant” and should have been excluded under
section 350. He adds that the admission of Busby’s testimony
was prejudicial since it improperly suggested to the jury that if
26
defendant completed the SOTP and was released via the
conditional release program, “it would be even safer.”
B. Additional Background
Busby testified that the SOTP model was based on the
“Good Lives Model” written by experts Ward and Yates. The
prior relapse prevention model was premised on one path to
reoffending, whereas the current model assumes multiple
pathways and allows for more individualized and effective
treatment. Busby testified that research has shown that
treatment, and in particular the type used in the SOTP, reduces
recidivism. The SOTP uses polygraph assessments, the penile
plethysmograph, and a structured risk assessment instrument to
determine the patient’s treatment needs. At CSH, there is the
core SOTP as well as adjunct treatment groups, and the SOTP
provides the patient with an intensive look at why he or she
committed sexual offenses. It is comprises four modules: Module
1 is generally a 12-week starter module, while module 2 is the
core of the program and identifies life goals, a patient’s offense
progression chain, including trigger identification and developing
intervention techniques to prevent re-offense when triggered,
victim awareness, and behavioral self-awareness. Module 3
involves the application of skills learned in module 2 and focuses
on gathering resources for community release, and module 4 is
supervised out-patient treatment in the community. Patients are
assessed by and moved through the modules by committees.
Defense counsel objected to the introduction of this
testimony, arguing that “a general pitch from Dr. Busby about
27
the general virtues and operations of this so-called core [SOTP]
would be irrelevant as to [defendant].” The trial court overruled
this objection, finding Busby’s testimony would be probative to
the jury in assessing issues in the case that were somewhat
complex.
Legal Authority
Only relevant evidence is admissible. (§ 350.) Relevant
evidence is evidence, including evidence relevant to the
credibility of witness, that has any tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action. (§ 210.) “ ‘The test of relevance is
whether the evidence tends “logically, naturally, and by
reasonable inference” to establish material facts [and] . . . [t]he
trial court retains broad discretion in determining the relevance
of evidence.’ ” (People v. Cunningham (2001) 25 Cal.4th 926, 995,
citations omitted.) However, a trial court has no discretion to
admit irrelevant evidence. (People v. Honig (1996)
48 Cal.App.4th 289, 343.) We apply an abuse of discretion
standard to our review of the trial court’s evidentiary decisions.
(Cunningham, at p. 995; People v. Hamlin (2009) 170 Cal.App.4th
1412, 1449.) Absent a showing of prejudice, however, evidentiary
errors are not reversible. (People v. Hamlin, at p. 1446; People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).)
“The SVPA authorizes the involuntary civil commitment of
a person who has completed a prison term but is found to be a[n]
[SVP].” (State Dept. of State Hospitals v. Superior Court (2015)
61 Cal.4th 339, 344.) To establish a person is an SVP, the People
28
must prove beyond a reasonable doubt: (1) the person has
suffered a conviction of at least one qualifying “sexually violent
offense,” (2) the person has “a diagnosed mental disorder that
makes the person a danger to the health and safety of others,”
and (3) the mental disorder makes it likely the person will engage
in future predatory acts of sexually violent criminal behavior if
released from custody. (Welf. & Inst. Code, §§ 6600, 6603, 6604;
People v. Shazier (2014) 60 Cal.4th 109, 126.) “Evidence of the
person’s amenability to voluntary treatment, if any is presented,
is relevant to the ultimate determination whether the person is
likely to engage in sexually violent predatory crimes if released
from custody.” (People v. Roberge (2003) 29 Cal.4th 979, 988,
fn. 2.) “[I]t would be reasonable to consider the person’s refusal
to cooperate in any phase of treatment provided by the
Department, particularly a period of supervised outpatient
treatment in the community, as a sign that the person is not
prepared to control his untreated dangerousness by voluntary
means if released unconditionally to the community.” (People v.
Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 929 [interpreting
section 6601, subd. (d)].)
Analysis
We find that Dr. Busby’s explication of the SOTP was
relevant, notwithstanding defendant’s failure to participate in it.
The description of the available treatment program, along with
defendant’s refusal to take advantage of it, offered the jury
pertinent information to assess the likelihood that he will engage
in sexually violent criminal behavior if free in the community.
29
The program details were also relevant to the opinions of the
prosecution’s experts. Dr. Patterson opined that defendant could
not be safely treated in the community in part because he had not
addressed the primary issues one addresses in the SOTP, his
failure to participate in the SOTP made him unlikely to seek
treatment in the community, defendant did not believe he had
any triggers that would facilitate reoffending, and he had not had
enough foundational treatment to help him create a relapse
prevention plan and learn the skills required to keep from
reoffending. Dr. Flinton testified that defendant needed the
custody and intensity of CSH in order to participate and
potentially complete treatment, and defendant’s treatment record
was concerning because research shows that those who complete
treatment can reduce their recidivism. Dr. Webber opined that
defendant was not suitable for release in the community in 2015
and 2016 largely because he had not participated in the SOTP.
Further, Dr. Goldberg testified that the fact that defendant did
not think he had a sex or psychological problem, he did not think
he needed treatment, he had no release plan, and his lack of
progress in treatment at CSH were significant to his opinion that
defendant qualified as an SVP. The description of the SOTP thus
gave the jury a basis for assessing the credibility of the opinions
of these experts that defendant would reoffend and could not be
safely released.6
6Defendant does not argue that, if relevant, Busby’s
testimony should have been excluded under section 352.
30
Even if the trial court erred in admitting Dr. Busby’s
testimony, it is not reasonably probable the jury would have
found that defendant did not qualify as an SVP had Busby not
testified. (Watson, supra, 46 Cal.2d at p. 836.) There is a
reasonable probability of a more favorable result when there
exists “at least such an equal balance of reasonable probabilities
as to leave the court in serious doubt as to whether the error has
affected the result.” (Id. at p. 837.) In this case, there was
substantial expert testimony that it would not be safe to release
defendant in the community in part because of his refusal to
participate in treatment and that defendant qualified as an SVP;
defendant had not participated in the SOTP; he minimally
participated in other treatment; he did not believe he needed
further treatment or that he had any triggers or psychological
problems. Moreover, albeit in less detail than Dr. Busby, Dr.
Webber testified that the SOTP is a four-module program that
defendant had started but had not pursued. Dr. Fisher testified
that completion of the SOTP would give defendant a protective
factor when assessing the risk of re-offense and allow his release
in the community through the conditional release program. Dr.
Montrief also testified that stage two of the SOTP was the “meat”
of the program where the patient works on the offense
progression chain and module four is release in the community
when the patient has addressed all aspects of his or her
treatment plan. In light of this evidence, there is no reasonable
probability that the alleged error of which the defendant
complains affected the result. (Id. at p. 836.)
31
C. Challenges to Testimony Regarding Defendant’s
Conduct at CSH
Defendant contends the trial court erred in allowing Dr.
Patterson, Dr. Coles, Dr. Fisher, Dr. Montrief, Dr. Kwon, Irene
Arenas, and Renee Pierce to testify to hearsay or case-specific
hearsay conveying details about his behavior at CSH in violation
of section 1200 and Sanchez, and that such error violated his due
process right to confrontation.
Under section 1200, a hearsay statement—one by which a
person makes an out-of-court factual assertion and the proponent
seeks to rely on the statement to prove that assertion is true—is
generally inadmissible unless it falls under a hearsay exception.
(§ 1200, subd. (b); Sanchez, supra, 63 Cal.4th at p. 674.) In
Sanchez, applying the hearsay rule to expert testimony, our
Supreme Court explained, “When any expert relates to the jury
case-specific out-of-court statements, and treats the content of
those statements as true and accurate to support the expert’s
opinion, the statements are hearsay.” (Sanchez, supra,
63 Cal.4th at p. 686.) Although “[a]ny expert may still rely on
hearsay in forming an opinion, and may tell the jury in general
terms that he did so[,] . . .[¶] [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.” (Id. at pp. 685–686, italics
omitted.) “Case-specific facts are those relating to the particular
events and participants alleged to have been involved in the case
being tried.” (Id. at p. 676.) As a result, hearsay statements
32
containing case-specific facts are admissible only if they either
fall under a hearsay exception or are independently proven.
(Ibid.) Although Sanchez is a criminal case, its analysis of the
admissibility of expert testimony applies to SVP cases. (People v.
Roa (2017) 11 Cal.App.5th 428, 433.)
Nonetheless, to challenge inadmissible evidence, an
objection must be timely and specific, and the failure to make an
appropriate objection forfeits the right to appellate review unless
an objection would have been futile. (See § 353, subd. (a).)
Respondent contends that defendant forfeited most of his
evidentiary objections. While defendant briefly mentions futility,
he essentially concedes that he forfeited the majority of these
challenges. We agree that defendant forfeited most of his
evidentiary challenges.
With the exception of hearsay objections to Arenas’s
testimony and one part of Pierce’s testimony, defense counsel did
not object on hearsay, Sanchez, or due process grounds to the
testimony he now challenges, and the objections he did make
were not all timely. Arenas testified that a patient contacted her
about defendant in November 2017. When the prosecutor asked
what the nature of that contact was, she started to respond, and
counsel objected on hearsay grounds. This objection was timely,
but counsel’s objections to Pierce’s testimony were not. In
response to the question asking whether a staff member
approached Pierce about a patient complaint, Pierce testified,
“She did. There was a complaint lodged, a patient had passed
her a note, said another patient had—that is associated with
33
[defendant], had apparently given to him that had a threatening
statement of some sort on it that he was – that they were going to
get him, type of thing.” Counsel did not object or move to strike
this testimony, and his double hearsay objections thereafter to
the prosecution’s attempt to elicit more details about the threats
came too late. Further, the trial court’s ruling regarding Arenas’s
testimony did not establish the futility of objections to other
witnesses’ testimony before and after Arenas testified.
Defendant preserved only his challenge to Arenas’s testimony.
(§ 353.)
With respect to Arenas, respondent argues that the trial
court properly admitted her testimony for the nonhearsay
purpose of explaining her subsequent actions. For this
nonhearsay purpose, the court allowed Arenas to testify that a
patient told her that he was being bullied and threatened by
defendant, so she made a note about the threat in defendant’s
chart and spoke to his treatment team. A statement offered to
prove effect on hearer and to explain the hearer’s subsequent
actions is not hearsay where “ ‘ “it is the hearer’s reaction to the
statement that is the relevant fact sought to be proved, not the
truth of the matter asserted in the statement.” ’ ” (People v.
Livingston (2012) 53 Cal.4th 1145, 1162.) The fact that Arenas
wrote down that a patient said defendant had threatened him
and that she discussed it with his treatment team were not the
relevant facts in this SVP trial; rather, the relevant fact would
have been that defendant made the threat. The trial court erred
in allowing Arenas to relay the hearsay complaint.
34
Nonetheless, evidentiary errors are reversible only when
the defendant establishes it is reasonably probable that he would
have obtained a more favorable outcome absent the error.
(Watson, supra, 46 Cal.2d at p. 836.) Defendant argues the
admission of this evidence allowed the prosecution to show he
continued to engage in antisocial behavior and discredited his
experts who believed that he was not currently antisocial and
was not likely to commit future sexually violent offenses in part
because of his recent behavior, and particularly the testimony of
Dr. Coles, who defendant states was likely his strongest witness.
Defendant falls far short of establishing the requisite prejudice.
The prosecution’s experts testified that antisocial
personality disorder has to do with a long-standing pattern of
general rule violation, aggressive and impulsive behavior, or not
conforming to social norms. There was unchallenged evidence of
defendant’s significant history of aggressive crimes and parole
and rule violations before CSH. Patterson opined that
defendant’s criminal history showed a lack of impulse and
volitional control, which is a sign of antisocial disorder, and
Goldberg opined that defendant’s inability to maintain parole and
control his cocaine use also demonstrated his impulsivity.
Montrief also testified that defendant had trouble controlling
impulsivity and dangerousness.
The patient complaint testified to by Arenas was not the
only evidence of defendant’s rule-violating behavior at CSH.
Instead, the evidence showed that defendant violated CSH rules
at least twice by putting a sheet on his curtains; he admitted to
35
Dr. Fisher that he and “his entire dorm” were caught with pruno,
although “he wasn’t clear who was in possession” of the pruno;
defendant was caught with contraband including a sharp metal
nail file, fruit cups, juice, and metal paperclips in 2016; defendant
had contraband clothing in 2017, and he admitted to violating
CSH rules regarding laundering his clothing. The record also
includes the unchallenged testimony of Dr. Flinton that there
were reports of defendant being aggressive at CSH (though he
seemed to generally follow the rules), and of Dr. Goldberg that
defendant was known to be aggressive at CSH. Likewise,
Montrief testified without objection that when he spoke to
defendant regarding other patients’ complaints that he was
“intimidating them,” defendant did not deny the accusations and
instead responded that he would engage in violence if he
perceived someone as “not respect[ing] his rights.”
In addition, Drs. Patterson and Flinton scored defendant
with a 30 of 40 on the PCL-R, and Patterson explained a high
score is consistent with antisocial personality disorder. Dr.
Goldberg scored him with a 27, indicating significant antisocial
traits, and Dr. Fisher scored him with a 22, which he considered
moderate, but he testified that a typical person would score
between a two and a four. Dr. Fisher had diagnosed defendant
with antisocial personality disorder in 2012 because of
defendant’s criminal history and PCL-R score; while he opined
the condition had gone into remission in 2017, he did not give
details as to why, and he conceded that his 2012 diagnosis was
made in part because of defendant’s PCL-R score which was the
36
same in 2017. Defense expert Dr. Abrams also diagnosed
defendant with probable antisocial personality disorder,
explaining that he used “probable” only because this diagnosis
requires evidence of a conduct disorder before the age of 15 and
he was missing records on defendant before this age.
Moreover, while the prosecutor attacked Dr. Coles’s
credibility because he was unaware of 2017 bullying accusations
against defendant, that was not her only or even her most
significant attack on Dr. Coles. Instead, the prosecutor
highlighted that, despite his purported review of defendant’s
CSH records, Dr. Coles conceded he was unaware of multiple
contraband incidents, and, significantly, up until the day of his
trial testimony, Dr. Coles thought defendant was participating in
the SOTP and had been unaware that he was not. Dr Coles
conceded on cross-examination that defendant’s lack of SOTP
participation was problematic. Dr. Coles also conceded on cross-
examination that he had not mentioned defendant’s parole
violations in his report, and, when he testified defendant did not
have the type of serious prison rule violations that linked to
antisocial personality disorder, the prosecutor made him concede
that defendant’s fourteen prison rule violations were one of the
factors he had considered in diagnosing defendant with antisocial
personality disorder in 2010. On this record, it is not reasonably
probable that, absent Arenas’s brief testimony, defendant would
have received a more favorable result.
Finally, defendant argues that the admission of the
hearsay statement violated his due process right to confrontation.
37
Defendants in civil SVP proceedings do not have a Sixth
Amendment right of confrontation, but they have a due process
right of confrontation. (People v. Otto (2001) 26 Cal.4th 200, 214.)
Assuming without deciding that there was some due process
violation and defendant did not forfeit this claim (see People v.
Partida (2005) 37 Cal.4th 428), on this record and for the same
reasons set forth above, we believe that admission of Arenas’s
brief testimony was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.)
D. Ineffective Assistance Related to Evidence of CSH
Conduct
Anticipating forfeiture, defendant argues his trial counsel
provided ineffective assistance by failing to object to the hearsay
and case-specific hearsay.
To establish ineffective assistance, a defendant must show
counsel’s performance was “deficient, in that it fell below an
objective standard of reasonableness under prevailing
professional norms.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
A defendant must also show “resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been
different.” (Ibid.) A reasonable probability is one sufficient to
undermine confidence in the outcome. (People v. Boyette (2002)
29 Cal.4th 381, 430.) “Reviewing courts defer to counsel’s
reasonable tactical decisions in examining a claim of ineffective
assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range of
38
reasonable professional assistance.’ ” (People v. Lucas (1995)
12 Cal.4th 415, 436–437.) Failure to object rarely constitutes
constitutionally ineffective legal representation as the decision
whether to object is inherently tactical. (People v. Boyette, at
p.424; People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Where the record sheds no light on the purpose behind
counsel’s acts or omissions, an ineffective assistance claim on
direct appeal should be rejected unless counsel was asked for a
reason and failed to provide one, or there simply could be no
satisfactory explanation. (People v. Mendoza Tello (1997)
15 Cal.4th 264, 266.) A claim of ineffective assistance is more
appropriately resolved by a petition for writ of habeas corpus,
which provides the opportunity to present additional evidence
regarding the reasons for counsel’s acts or omissions. (Id. at
pp. 266–267.) As we explain below after setting forth the
testimony defendant challenges, defendant’s ineffective
assistance claim fails on direct appeal.
Additional Background
Before trial, the court addressed the admissibility of
documents returned under subpoenas with affidavits from CSH
and CDCR custodians of records, including hospital records and
special incident reports, police reports, CDCR records, and
additional hospital records that had yet to be produced. Trial
counsel did not object to psychiatric treatment records, but he
objected to CSH special incident and police reports because he
believed they were “offered specifically for the purpose of a
criminal investigation” and were not part of medical or
39
psychological treatment. The prosecution remarked there was
confusion and explained that CSH treatment staff generated
serious incident reports in the course of their duties and kept
them as medical records whereas the law enforcement agency at
CSH generated police reports and returned them under a
separate subpoena. Reserving the right to admit documents
under sections 1271, 1280, 1560, and 1562, the prosecution
agreed to pull out the special incident and police reports to
conduct a later admissibility analyses for those she wished to
introduce. Ultimately, none of these documents was introduced.
Dr. Patterson
Seeking to elicit that CSH considered defendant to be a low
to moderate risk, defense counsel asked Patterson, “Currently, or
for the last couple of years, he’s been considered at [CSH] to be a
low to moderate risk to other patients or staff; is that right?”
Patterson responded, “My recollection of those assessments
performed by staff members at the hospital is that they have
very—from time to time, depending on when he’s being
evaluated. So there may have been some periods where with
some reference points, he’s been considered a low risk to other
people there and other times when he’s been considered a
moderate risk because he has been involved in a series of
altercations with other patients.”7 Defense counsel’s questioning
continued:
7The word “very” in this quotation may be a court
reporter’s error; it seems likely that the word used was “varied.”
40
“Q. Well, when you say a series of altercations, there’s no proof of
any violent altercation?
A. It’s been documented, yes, there have been.
Q. Somebody complained about him when he was away in court
or something?
A. That was one of several complaints that have been
documented about [defendant’s] aggressive behavior at the
hospital.”
We do not believe the record affirmatively shows counsel
had no rational tactical purpose for his questioning or that there
could be none. It is unclear whether defendant challenges the
form of the question counsel used to ask about defendant’s risk
level or the actual decision to ask the question. With respect to
the question’s form, we reject defendant’s claim that counsel did
not ask a “yes-no” question when it is clear counsel’s question
called for a yes or no answer. Regarding the decision to ask the
question itself, as defendant concedes, counsel appears to have
made a tactical choice to have Patterson concede helpful case-
specific facts inadmissible under Sanchez. After asking
Patterson to do so, counsel could reasonably have decided that
objecting to the explanatory part of Patterson’s response would
undermine the impact of Patterson’s concession. Similarly,
having questioned Patterson further about the altercations and
complaints, counsel could rationally have decided that objecting
to the response under Sanchez would have been fruitless. (People
v. Bell (2020) 47 Cal.App.5th 153, 194 [“[T]he testimony about
which defendant now complains was elicited by his own counsel.
Thus, any [Sanchez] error was invited, and defendant may not
41
challenge that error on appeal”].)8 Finally, defense expert Dr.
Coles testified that CSH records showed a “lack of aggression for
many, many years” on defendant’s part, and “[a]ll of the records
show[ ] him being very cordial, respectful with peers and staff.”
Counsel could have rationally decided not to object to Patterson’s
testimony on Sanchez grounds and to instead attack the
complaints of aggressiveness as unsubstantiated, in the hopes of
avoiding a similar objection from the prosecution when Dr. Coles
later related case-specific hearsay supporting his position.
Moreover, defendant fails to show the requisite prejudice
for an ineffective assistance claim, as there is no reasonable
probability that he would have obtained a more favorable
outcome in the absence of counsel’s brief questioning of Patterson
on this point. We therefore reject this assertion of ineffective
assistance.
Dr. Montrief
The prosecution asked Montrief whether defendant had
behavioral concerns during Montrief’s supervision, and he
responded that defendant “ha[d] an act of aggression with
another peer.” Additionally, in response to the prosecution’s
question regarding whether staff raised issues about defendant
during the time when Montrief acted as his treating psychologist,
8 Defendant’s opening brief, which defines the scope of
issues raised in this appeal, argues that defense counsel erred by
failing to object to Patterson’s responsive testimony describing
the complaints, not by asking the follow-up questions.
42
Montrief testified, “Well, a couple staff said he was difficult. It
was just difficult to get compliance from him.”
We cannot say there was no plausible tactical reason for
counsel’s failure to object to this testimony. Montrief conceded
that he did not observe the act of aggression; however, he used a
document provided by the prosecution to refresh his recollection
of when the act occurred, and his testimony did not establish
whether the act of aggression was witnessed by other staff. It is
possible that CSH records documenting the aggressive act, if
properly authenticated and based on personal observation, could
have been admitted as business records. (§ 1271, subd. a; People
v. Landau (2016) 246 Cal.App.4th 850, 872, fn. 7 [“Hospital
records, if properly authenticated, are admissible under the
business records exception to the hearsay rule. Authentication
requires the entries to have been made in the regular course of
business, at or near the event and the method and time of
preparation tend to indicate the entry’s trustworthiness.”].)
Similarly, had counsel objected to Montrief’s testimony regarding
defendant’s lack of compliance, the prosecution might have called
staff members to testify to their personal observations. Because
counsel could have made a strategic decision not to object to this
brief hearsay testimony to avoid the introduction of non-hearsay
that may have further strengthened the People’s case, we reject
defendant’s ineffective assistance claim.
In any case, the defendant cannot show the requisite
prejudice for this claim, as there is no reasonable probability he
43
would have obtained a better outcome had his counsel objected to
Montrief’s testimony.
Dr. Coles
Dr. Coles diagnosed defendant with antisocial personality
disorder in 2010 and 2012, but opined that defendant no longer
suffered from this disorder in 2017. He based his conclusion on
defendant’s CSH records, testifying that he no longer saw
evidence of antisocial character structure or aggression therein.
On cross-examination, the prosecutor asked Dr. Coles whether he
was aware that defendant “was having problems with being
accused of bullying other patients in 2017,” and whether “he was
aware that in 2014 [defendant] had an act of aggression or some
type of physical altercation with one of his peers?” Dr. Coles said
he was unaware of the former and conceded the latter. Again,
defendant’s counsel did not object to these questions.
The prosecutor’s questions challenging Dr. Coles’s opinion
contained case-specific hearsay, but we find no ineffective
assistance given the state of the law at the time of the trial.
Sanchez addressed experts relaying case-specific hearsay to
support their opinions on direct examination. (Sanchez, supra,
63 Cal.4th at p. 686.) On cross-examination, however, “ ‘[i]t is
common practice to challenge an expert by inquiring in good faith
about relevant information, including hearsay, which he may
have overlooked or ignored.’ ” (People v. Townsel (2016)
63 Cal.4th 25, 55–56.) People v. Malik (2017) 16 Cal.App.5th 587,
597 (Malik), considered whether Sanchez applies when a
prosecutor cross-examining a defense expert in a criminal case
44
asks impeaching questions that recite testimonial hearsay. As
Malik observed, the issue is not clear cut. (Malik, at p. 597.) On
the one hand, a broader range of evidence may be properly used
on cross-examination to test and diminish the weight to be given
the expert opinion than is admissible on direct examination, but
on the other hand, where an expert witness is cross-examined
with a question that calls for her or him to confirm a case-specific
fact, one may argue that the jury is likely to consider the answer
for its truth in contravention of the principles animating
Sanchez. (Ibid.) Ultimately, because the case-specific hearsay in
Malik was testimonial, the court held that the prosecution’s use
thereof violated the defendant’s Sixth Amendment right to
confrontation. (Id. at p. 598.)9 As defendant concedes, Malik
does not directly address the use of non-testimonial hearsay to
impeach an expert in a non-criminal case.
The parties do not cite additional published authority as of
the time of defendant’s trial addressing the use of case-specific
hearsay for impeachment on cross-examination and none
addressing the issue in a civil proceeding. Nonetheless, in his
leading evidence treatise, our esteemed colleague Justice Simons
questions the validity of a blanket rule disallowing the use of
case-specific hearsay to impeach an expert. “The Sanchez rule
barring an expert from relating case-specific hearsay should not
be understood to bar cross-examination which seeks to
9The court ultimately held, however, that any error was
harmless beyond a reasonable doubt. (Mailk, supra,
16 Cal.App.5th at p. 598.)
45
undermine an expert’s opinion by showing that facts relied upon
are suspect or that facts inconsistent with the opinion were
ignored. Such cross-examination is permissible, subject to
section 352, because the underlying details are introduced to
impeach the expert’s opinion and not for their truth.” (Simons on
California Evidence, § 4.31, citing People v. Townsel, supra,
63 Cal.4th at pp. 55–56.) Justice Simons notes that Malik may
have ignored the distinction between admitting out-of-court
statements introduced by the cross-examiner for their truth and
using them to impeach the expert, questioning the decision’s
conclusion that “ ‘if [the challenged statements in the reports]
were not true, the statements would have no impeaching value.
[Citation.] This seems incorrect: whether true or not the
statements undermine the opinion unless the expert can explain
why she ignored them.’ ” (Simons on California Evidence, § 4.31.)
Given the uncertain state of the law in this context at the time of
the trial, defendant fails to establish that his counsel provided
ineffective assistance. (See People v. Foster (2003)
111 Cal.App.4th 379, 385 [“Given that there is no California
authority establishing whether or not the questions were proper,
defendant cannot establish that counsel’s failure to object to the
prosecutor’s questions in this case ‘fell below an objective
standard of reasonableness.’ ”].)
In any event, defendant fails to show the requisite
prejudice for an ineffective assistance claim, as there is no
reasonable probability that he would have obtained a more
favorable outcome in the absence of counsel’s brief questioning.
46
Dr. Fisher
On cross-examination, the prosecutor asked Dr. Fisher,
“And [defendant] has historically had a problem with
manufacturing and selling pruno while incarcerated, isn’t that
right?” Fisher replied, “There have been some Pruno production-
related issues brought up for [defendant] in the past.” The
prosecutor continued, “And are you aware of any documentation
from the hospital, from Coalinga pertaining to him having been
caught with pruno?” Fisher responded, “Yes, there have been
allusions to that in the record.” On redirect, Fisher elaborated
that, in the records he reviewed, defendant had never been found
in possession of pruno; pruno was found in the dorm room he
shared with three others, but he was never specifically found
producing or possessing pruno.
We reject defendant’s claim of ineffective assistance
pertaining to the cross-examination of Dr. Fisher for the same
reason we have rejected his claim with respect to Dr. Coles.
Additionally, even if this information had been conveyed during
direct examination, there would be no Sanchez violation. Dr.
Webber testified that defendant admitted to her that he had
manufactured pruno in prison to generate income, and Dr. Coles
testified that, defendant “told me that he—he and his entire dorm
47
was caught with pruno” at CSH.10 Because defendant admitted
he had made pruno for sale in prison and that he and his dorm
had been caught with pruno at CSH (§ 1220), the prosecution’s
questioning did result in prejudicial Sanchez error. (Sanchez,
63 Cal.4th at p. 686 [expert may not relate as true case-specific
facts “unless they are independently proven by competent
evidence or are covered by a hearsay exception”]; People v. Flint
(2018) 22 Cal.App.5th 983, 1000 [“even if the admission of expert
testimony reciting as true case-specific hearsay that was
independently proven through other witnesses technically
constituted error, at most such error would be harmless”].)
Dr. Kwon
The prosecution asked Kwon what observations she made
about defendant when she began interacting with him, and after
refreshing her recollection, Kwon immediately answered, “there
was some strong suspicion about [defendant] being involved in
trafficking drugs or being intoxicated.” When asked further
about the issue on direct examination, Kwon explained that she
10 The full sequence of Dr. Coles’s testimony is as follows:
“Q. So, from reviewing those records, you were aware that in
March of 2013, he was caught with contraband; isn’t that right?
A. I believe he told me that he – he and his entire dorm was
caught with pruno.
Q. Okay. So he admitted to you at some point in your interview
that he and his whole dorm was [sic] caught with pruno; is that
right?
A. Right.
Q. And was he in possession of the pruno?
A. He wasn’t clear who was in possession. The whole dorm was.”
48
observed defendant with certain patients at meetings, and staff
told her those patients were suspected of drug trafficking.
Kwon’s testimony regarding what staff told her was
hearsay, but we cannot say there was no valid strategy in failing
to object. The prosecution’s initial question asking Kwon what
she had observed when she worked with defendant did not call for
hearsay. Assuming without deciding that Kwon’s response
relaying her suspicion that defendant was involved in drug
trafficking implicated hearsay, trial counsel, who had presumably
seen the document Kwon used to refresh her recollection, could
have rationally opted to pursue cross-examination to show that
Kwon’s suspicion was based merely on defendant’s association
with others suspected of drug trafficking rather than moving to
strike the testimony and risking the jury’s speculation about a
more damaging scenario. For the same reason, counsel could
have opted to forgo objection to the prosecution’s questioning
eliciting Kwon’s more detailed explanation of her suspicion.
Testimony Regarding Patient Complaints
Defendant challenges his counsel’s failure to object to
testimony regarding patient complaints about defendant at CSH.
Montrief testified that a few patients complained that defendant
was intimidating them. Kwon testified that, in 2017, patients
complained that defendant was bullying them, and he learned
from a patient that the patient felt regularly threatened by
defendant. Pierce testified that, in 2017, seven patients
complained about defendant, and some claimed that he
49
monopolized the TV room. Respondent seems to concede this
testimony relayed hearsay.
Nonetheless, the record does not show why counsel did not
object. Defendant contends that the complaining witnesses’
unavailability and counsel’s pretrial objection to the admissibility
of CSH police and special incident reports show there was no
tactical explanation for counsel’s failure to object. While
defendant asserts that the complaining SVP patients were
unavailable and he may be correct, it is his burden to show
ineffective assistance, and he has not even attempted to provide
authority to support his bare assertion. With respect to CSH
special incident and police reports, counsel’s pretrial objection
was based on the belief that these reports were generated during
criminal investigations, so regardless of their content, they would
be inadmissible. We do not think the record affirmatively
establishes on appeal that counsel had no tactical reason for his
“inherently tactical” (People v. Hillhouse, supra, 27 Cal.4th at
p. 502) decision not to object to the testimony at issue.
Indeed, after Patterson’s testimony, it is at least plausible
that counsel decided to challenge the peer complaints by showing
they were from questionable sources and unsubstantiated. On
cross-examination, Kwon confirmed that, in her experience,
patients at CSH made false accusations about peers, defendant
was upset after hearing what he said were false accusations, and
defendant wanted to be moved to another unit. Kwon also
confirmed that she observed defendant acting appropriately with
staff and patients, including when defendant would not have
50
been aware of her observations. Pierce conceded that she
observed defendant behaving in an appropriate manner, the 2017
allegations against him were unsubstantiated, and defendant
had been candid about his 2017 contraband violation. Defense
counsel highlighted defendant’s candor in closing and argued that
the bullying allegations against him were unsubstantiated. At
the very least, defendant cannot succeed on his claim on direct
appeal.
E. Ineffective Assistance During Closing Arguments
Defendant next asserts that his counsel was ineffective for
arguing that predictions made by actuarial statistical tools for a
sex offender’s risk of re-offense within the five to ten years
following release from his or her last sexual offense did not apply
to defendant because he had been released from his last sexual
offense in 1999 and had not committed a sexual offense since
1990; he also argues ineffective assistance as a result of counsel’s
failure to object when the People stated in rebuttal closing
argument that expert opinion is direct evidence.
Additional Background
In his closing argument, defense counsel stated, “Ladies
and gentlemen, what I want to tell you is that the government
has failed to prove that [defendant] meets criteria as a sexually
violent predator. [¶] The actuarial statistical evidence that is the
backbone of their case, that is, evidence of other’s people’s
behavior is irrelevant as applied to [defendant]. Because you
know and you know almost for certain that the prediction that
they make, the prediction that within five years or within 10
51
years after the age of release for [defendant] at 33 years, that
there’s a certain percentage chance that he’s going to re-offend is
wrong. You know that it’s wrong because—and you know it’s
irrelevant because you have not had any evidence whatsoever
that [defendant] has committed any sort of sexually violent crime
since 1990. So no matter what excuses government has that fact
is a fact. Those tables don’t apply to him because he didn’t re-
offend within five years or 10 years after the age of 33.” Counsel
also argued that actuarial instruments are circumstantial, not
direct evidence.
In rebuttal closing argument, the prosecution stated, “Now,
opposing counsel spent a lot of time talking to you about this idea
of direct versus circumstantial evidence and he focused
specifically on the Static 99R and his examination of various
witnesses about the issues with the Static 99R as they saw them.
A couple of points. [¶] These opinions that were given to you by
Dr. Flinton, Dr. Patterson, by Dr. Goldberg, their opinion is
direct evidence. They rendered the opinion that the respondent
met each and every element of the sexually violent predator act
and they talked to you about the basis of those opinions. And it
wasn’t based just on the Static 99R. It was based on their records
review, it was based on their interview of the respondent, it was
based on them looking at what they found out about him from the
PCL-R, from the 2002R, from the SRA-FV and from the Static 99.
Numerous tools that provided all sorts of factors tied to the
literature that reflect risk for re-offense in the community. All of
those factors went [went? Seems like this might be another court
52
reporter error.] into each of those doctor’s opinions and they
testified about them for why they are of the opinion that
respondent right now meets that criteria.”
The trial court instructed the jury on evaluating witness
credibility (CALCRIM No. 226), conflicting evidence (CALCRIM
No. 302), evaluating expert opinions (CALCRIM. No. 332),
circumstantial evidence (CALCRIM No. 224), and direct and
circumstantial evidence (CALCRIM No. 223).
Analysis
To establish ineffective assistance of counsel, defendant
must show counsel’s performance was deficient and resulting
prejudice. (Mai, supra, 57 Cal.4th at p. 1009.) Without
addressing the first prong, we reject defendant’s ineffective
assistance claims because defendant has not established
resulting prejudice. (People v. Boyette, supra, 29 Cal.4th at pp.
430–431.)
Defendant contends that his counsel’s closing argument
opened him up to the government’s criticism, and he suffered
prejudice because, without this argument, the jury would have
found his counsel more reliable. However, defense counsel’s
comment was brief, Dr. Flinton explained that the Static-99R can
be used in a situation such as defendant’s where the offender has
been in custody for a lengthy period after release from his last
sexual offense, and the judge instructed the jury about how to
assess attorney misstatements by instructing them that “[i]f
either attorney misstates the evidence or the law, you will rely on
the evidence as presented in the trial and the law as stated by
53
me.” Moreover, the prosecutor did not argue in rebuttal that
defense counsel misunderstood the actuarial tools, nor did the
prosecutor comment on counsel’s alleged error. Instead, she
highlighted that the fact that defendant had not committed a sex
crime since 1990 was not a protective factor because he had not
been released in the community for more than eighteen months
and he did not have access to the elderly victims he preferred. In
these circumstances, defendant has not established the
probability of a more favorable result sufficient to undermine
confidence in the jury’s decision. (People v. Boyette, supra,29 Cal.4th at p. 430.)
Regarding the failure to object to the prosecution’s
argument, defendant contends that because there were
competing expert opinions, two reasonable inferences could be
drawn from this circumstantial evidence—one that the defendant
qualifies as an SVP and one that he does not—and the
prosecution’s statement that expert opinions were direct evidence
54
prevented the jury from applying CALCRIM No. 22411 and
concluding that defendant was not an SVP. But the experts
called by the People and those called by the defense disagreed on
whether defendant had a mental disorder making it likely that
he would engage in predatory sexually violent crimes and on
whether it was necessary to keep him in custody in a secure
facility to ensure the health and safety of others. In order to
draw the inference that defendant did or did not qualify for
commitment as an SVP from this evidence, the jury first had to
believe one side’s experts. The jury was instructed on evaluating
competing expert opinions (CALCRIM No. 332 [“If the expert
witnesses disagreed with one another, you should weigh each
opinion against the others”]), and conflicting evidence (CALCRIM
No. 302 [“if you determine that there is a conflict in the evidence,
you must decide what evidence, if any, to believe”]). The jury’s
11 This instruction stated, “Before you may rely on
circumstantial evidence to conclude that a fact necessary to find
the allegations of the petition have been proved, you must be
convinced that the Petitioner has proved each fact essential to
that conclusion beyond a reasonable doubt. [¶] Also, before you
may rely on circumstantial evidence to find that the respondent
is a sexually violent predator, you must be convinced that the
only reasonable conclusion supported by the circumstantial
evidence is that the respondent is a sexually violent predator. If
you can draw two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable conclusions
points to a conclusion that the respondent is not a sexually
violent predator and another to a conclusion that he is a sexually
violent predator, you must accept the conclusion that he is not a
sexually violent predator. However, when considering
circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”
55
finding that defendant was an SVP shows that it resolved the
conflict in expert opinions against defendant and found the
People’s experts credible. It is not reasonably probable that this
would have changed had counsel objected to the prosecutor’s
argument that the expert opinions were direct evidence.
F. Cumulative Error
Defendant contends that the cumulative impact of the
several instances of alleged ineffectiveness, coupled with the
admission of hearsay, deprived him of a fair trial. Because
defendant has not satisfied his burden of showing that his
counsel failed to act as a diligent advocate in this direct appeal,
and because we have found any actual or assumed error
harmless, we reject defendant’s cumulative error claim. (See
People v. Sapp (2003) 31 Cal.4th 240, 316 [“We have either
rejected on the merits defendant’s claims of error or have found
any assumed errors to be nonprejudicial. We reach the same
conclusion with respect to the cumulative effect of any assumed
errors”].)
III. DISPOSITION
The order is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J. People v. Curlee (A155574)
56