People v. Stallworth CA3 ( 2021 )

Filed 4/21/21 P. v. Stallworth CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C087019
Plaintiff and Respondent, (Super. Ct. No. 95F07940)
v.
LAVELLE STALLWORTH,
Defendant and Appellant.
Lavelle Stallworth challenges his commitment as a sexually violent predator
(SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et
seq.)1 He argues the trial court erred in admitting some exhibits and failing to redact
others. He also argues his trial counsel provided ineffective assistance in failing to object
to evidence contained in the exhibits. We conclude that only one of Stallworth’s many
claims of error has merit, but the error was harmless. Accordingly, we will affirm.
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
I. BACKGROUND
The Sacramento County District Attorney filed a petition to commit Stallworth as
an SVP under the SVPA in June 2007. The SVPA allows for the involuntary
commitment of certain offenders following the completion of their prison terms if they
are found to be SVPs. (§ 6604.) “An alleged SVP is entitled to a jury trial, at which the
People must prove three elements 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.” (People v.
Yates (2018) 25 Cal.App.5th 474, 477 (Yates).)
Section 6600, subdivision (b) defines “sexually violent offense” as any one of
several enumerated offenses, including lewd or lascivious acts involving a child under 14
years of age (Pen. Code, § 288, subd. (a)). The petition here alleged that Stallworth
suffered a conviction for lewd and lascivious acts with a minor under the age of 14 years
in 1996 (the qualifying conviction) (Pen. Code, § 288).2
A jury trial commenced in February 2018. During the trial, the prosecution sought
to prove Stallworth’s qualifying conviction with the following exhibits: (1) a certified
copy of the amended complaint in the underlying criminal action (Exhibit 1), (2) a copy
of a probation report prepared in connection with the underlying criminal action (Exhibit
2), (3) a copy of an arrest report prepared in connection with the underlying criminal
action (Exhibit 3), (4) a certified copy of an abstract of judgment reflecting the qualifying
conviction (Exhibit 4), (5) a copy of the trial court’s minutes recording the guilty verdict
2 Stallworth was contemporaneously convicted of attempted lewd and lascivious acts
involving a minor under the age of 14 years by force (Pen. Code, §§ 664/288, subd. (b)).
That conviction is not alleged in the petition.
2
in the underlying criminal action (Exhibit 5), (6) a certified copy of a “prison packet”
from the Department of Corrections (Pen. Code, §969b) (Exhibit 6), (7) a copy of a 1988
felony juvenile adjudication against Stallworth for lewd and lascivious acts involving a
child under 14 (Pen. Code, § 288, subd. (a)) (Exhibit 7), (8) a certified copy of a
California Law Enforcement Telecommunications System (CLETS) rap sheet showing
Stallworth’s criminal history (Exhibit 8), and (9) copies of requests for modification of
order and orders modifying orders in Stallworth’s juvenile proceeding (Exhibit 9).
Stallworth objected to Exhibits 2 through 9 on various grounds, primarily on the
grounds that they were hearsay or cumulative.3 The trial court overruled most of
Stallworth’s objections and admitted the exhibits, albeit with modifications described
post.
Dr. Michael Musacco, a clinical psychologist employed by the Department of
State Hospitals, testified as an expert on SVPs. Musacco explained that he had been
asked to evaluate Stallworth on five separate occasions. Stallworth refused to speak with
Musacco, so the evaluation was based on interviews with state hospital clinicians and
available medical and legal records.4 As relevant here, Musacco testified that he
reviewed and relied upon Exhibits 2, 3, 6, 7, 8, and 9 in forming his opinions.
Musacco was asked to describe the events giving rise to Stallworth’s qualifying
conviction. Relying on Exhibits 2 and 3 (the probation and arrest reports), Musacco
explained that Stallworth met sisters M. and C., both runaways, at a party in August
1995. Stallworth had sexual intercourse with M., who was then 13 years old. According
to Musacco, M. was later “taken down to Hollywood and put into . . . a juvenile
prostitution ring.” Some time later, Stallworth invited C., age 12, to his sister’s house.
3 No objection was made to Exhibit 1, which is not challenged on appeal.
4 Stallworth was detained at Coalinga State Hospital pending trial.
3
He ordered C. to perform oral sex on him. When she refused, Stallworth struck C. and
locked her in a closet. C. eventually escaped and contacted police. Musacco opined that
Stallworth’s relationships with M. and C. were “clearly predatory.”
Musacco also testified that he reviewed records concerning Stallworth’s juvenile
adjudication.5 Specifically, Musacco testified that a juvenile wardship petition for lewd
and lascivious acts with a child under 14 had been filed against Stallworth in 1988 or
1989. According to Musacco, the petition was sustained, and Stallworth received
treatment in connection with the offense.6 Based on the foregoing, Musacco opined that
Stallworth suffers from pedophilic disorder, non-exclusive type.
Musacco further opined, based upon his review of Exhibits 6 and 8 (the prison
packet and CLETS rap sheet), that Stallworth suffers from antisocial personality disorder.
Musacco explained, “an antisocial personality disorder is defined exclusively by
behaviors. There has to be a pattern of lying, stealing, hurting others, committing crimes
that exist not just in adulthood, but back prior to the age of 15. That pattern of behaviors
needs to interfere with the person’s ability to care for their responsibilities, live in a
responsible way, maintain relationships, and in Mr. Stallworth’s case, he has spent a good
portion of his life in and out of jails and prisons and other institutions based on behaviors
which fall under this category of an antisocial personality disorder, so in his case I also
offered that diagnosis.” Referring to the CLETS rap sheet, Musacco elaborated, “In fact,
you know, for the antisocial personality disorder, it really is defined by criminal activity,
so a rap sheet which contains somebody’s criminal record would be an important
document to support or rule out the diagnosis of an antisocial personality. In this case,
5These records were not specifically identified, but appear to have been those contained
within Exhibits 7 and 9.
6 Exhibit 9 (the request for modification of order and order modifying order) indicates
that Stallworth completed residential treatment in the juvenile matter.
4
there is reference to his criminal history going back to 1987, which has numerous entries
for the types of crimes that I have discussed previously.” Musacco characterized the
prison packet as “a quick history of why the person is in prison and where they have gone
to in terms of different institutions since they initially arrived in prison,” adding, “the
chronological history would include data if there is a parole violation.”
Dr. Bruce Yanofsky, a clinical and forensic psychologist, evaluated Stallworth on
two separate occasions. Yanofksy had no more success speaking with Stallworth than
Musacco, so he too relied on interviews with state hospital clinicians and medical and
legal records. As relevant here, Yanofksy testified that he reviewed Stallworth’s
probation report (Exhibit 2), records relating to his juvenile adjudication (presumably,
Exhibits 7 and 9), records generated by the California Department of Corrections
(presumably, Exhibit 6), and Stallworth’s CLETS rap sheet (Exhibit 8). Yanofksy did
not testify to the contents of any of these records; however, he opined that Stallworth’s
relationships with M. and C. were formed “for the sole purpose of victimizing them, so
definitely meeting the criteria as a predatory offense.” Based on the foregoing, Yanofksy
likewise concluded that Stallworth suffers from pedophilic and antisocial personality
disorders, and presents a serious and well-founded risk of reoffending.
The prosecutor referred to Exhibits 2 through 9 in closing argument, offering a
brief description of each, and inviting the jury to review the exhibits in deliberations. She
then offered a summary of Stallworth’s criminal history, derived from the exhibits. As
relevant here, the prosecutor explained that Stallworth had been arrested in October 1987
for possession of rock cocaine and lewd and lascivious conduct with a child under 14.
He was then placed in juvenile wardship from February 1988 through April 1989. He
was convicted of vehicle theft in 1989 and felony domestic violence in 1991. He was
convicted of the offenses involving M. and C. in 1996. Along the way, he was found to
have violated various grants of probation and parole. The prosecutor went on to explain
that Stallworth was released on parole in January 2004 after serving 10 years for the
5
domestic violence and sex offenses. He was returned to custody in April 2004 for
violating the terms of his parole and released again in February 2005. He was arrested
for possession of a controlled substance in September 2006. It was then, the prosecutor
said, that Stallworth was evaluated as an SVP.
Stallworth’s trial counsel acknowledged in closing argument that Stallworth has an
“awful” and “reprehensible” record. He also acknowledged that the evidence established
Stallworth’s qualifying conviction and diagnosed mental disorder. He argued, however,
that the evidence fell short of establishing that Stallworth was likely to engage in future
predatory acts of sexually violent criminal behavior if released from custody. He
emphasized that the juvenile adjudication was entered 30 years ago, when Stallworth
“was a child himself.” He noted that no evidence had been presented that Stallworth had
committed any sexual offense in more than 20 years. He observed that, “people change,
especially men.” He concluded: “What Lavelle Stallworth did and what he was
convicted of in his 20s was reprehensible, and I am not discouraging you from looking at
the exhibits, but it was 20 years ago, 20-plus years ago. Statistics, science tells you
people do change. That’s just a fact.”
The jury found Stallworth to be an SVP, and the trial court ordered him committed
to the State Department of Mental Health for an indeterminate term. This appeal timely
followed.
II. DISCUSSION
Stallworth argues the trial court erred in admitting or failing to redact Exhibits 2
through 9. He challenges several exhibits on multiple grounds, many of which were
never raised in the trial court. The People respond that Stallworth’s newly asserted
objections have been forfeited. We agree with the People. As we shall see, Stallworth
has forfeited many of the claims now urged on appeal.
6
A. Applicable Evidentiary Principles and Standard of Review
As a general rule, hearsay evidence—“evidence of a statement that was made
other than by a witness while testifying at the hearing and that is offered to prove the
truth of the matter stated” (Evid. Code, § 1200, subd. (a))—is inadmissible, except as
provided by law (id. subd. (b)). “Documents like reports, criminal records, hospital
records, and memoranda—prepared outside the courtroom and offered for the truth of the
information they contain—are usually themselves hearsay and may contain multiple
levels of hearsay, each of which is inadmissible unless covered by an exception.” (Yates,
supra, 25 Cal.App.5th at p. 482.)
The Legislature has expanded the scope of admissible hearsay evidence in SVP
proceedings. Section 6600, subdivision (a)(3) provides: “Conviction of one or more of
the crimes enumerated in this section shall constitute evidence that may support a court or
jury determination that a person is a 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 . . . including, but not limited to, preliminary hearing transcripts,
trial transcripts, probation and sentencing reports, and evaluations by the State
Department of State Hospitals.”
Section 6600, subdivision (a)(3) thus creates a broad hearsay exception for
documentary evidence to prove the existence and details underlying the commission of
the offenses leading to prior convictions and to the defendant’s predatory relationship
with the victim. (People v. Otto (2001) 26 Cal.4th 200, 206-207 [§ 6600, subd. (a)(3)
“authorizes the use of hearsay in presentence reports to show the details underlying the
commission of the predicate offense”].) “By permitting the use of presentence reports at
the SVP proceeding to show the details of the crime,” our Supreme Court has explained,
“the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do
not otherwise fall into a hearsay exception.” (Id. at p. 208.) Portions of otherwise
admissible reports containing information that does not pertain to the defendant’s
7
qualifying conviction, however, are not made admissible by section 6600, subdivision
(a)(3). (People v. Burroughs (2016) 6 Cal.App.5th 378, 410-411.)
Another hearsay exception will be relevant here, Evidence Code 1280.7 Evidence
Code section 1280 provides: “Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered in any civil
or criminal proceeding to prove the act, condition, or event if all of the following applies:
[¶] (a) The writing was made by and within the scope of duty by 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 or preparation were such as to indicate
trustworthiness.” “A trial court has broad discretion in determining whether a party has
established these foundational requirements.” (People v. Martinez (2000) 22 Cal.4th 106,
120 (Martinez).)
“A trial court’s ruling on the admissibility of evidence, including one that turns on
the hearsay nature of the evidence, is reviewed under the abuse of discretion standard.”
(People v. Roa (2017) 11 Cal.App.5th 428, 442; see also People v. Waidla (2000) 22
Cal.4th 690, 725.) We likewise review a trial court’s rulings under Evidence Code
section 352 for abuse of discretion, meaning we uphold them unless they exceed the
bounds of reason. (People v. Brooks (2017) 3 Cal.5th 1, 40-41.) Moreover, any error
regarding the admission of evidence requires reversal only if “it is reasonably probable
that a result more favorable to the appealing party would have been reached in the
absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Forfeiture and Ineffective Assistance of Counsel
“When an objection is made to proposed evidence, the specific ground of the
objection must be stated. The appellate court’s review of the trial court’s admission of
7 Other hearsay exceptions are discussed where relevant in the text.
8
evidence is then limited to the stated ground for the objection.” (People v. Kennedy
(2005) 36 Cal.4th 595, 612, disapproved of on other grounds by People v. Williams
(2010) 49 Cal.4th 405, 459; see also Evid. Code, § 353, subd. (a) [a judgment may be
reversed for erroneous admission of evidence only if an objection to the evidence or a
motion to strike was “timely made and so stated as to make clear the specific ground of
the objection or motion”].) “What is important is that the objection fairly inform the trial
court, as well as the party offering the evidence, of the specific reason or reasons the
objecting party believes the evidence should be excluded, so the party offering the
evidence can respond appropriately and the court can make a fully informed ruling. If the
court overrules the objection, the objecting party may argue on appeal that the evidence
should have been excluded for the reason asserted at trial, but it may not argue on appeal
that the court should have excluded the evidence for a reason different from the one
stated at trial. A party cannot argue the court erred in failing to conduct an analysis it
was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).)
Anticipating forfeiture, Stallworth argues his trial counsel was ineffective for
failing to raise many of the objections asserted herein. To establish ineffective assistance
of counsel, a defendant must show both that counsel’s representation fell below an
objective standard of reasonableness and that it is reasonably probable that, but for
counsel’s error, the result of the proceeding would have been different. (Strickland v.
Washington (1984) 466 U.S. 668, 686-688; People v. Benavides (2005) 35 Cal.4th 69,
92-93; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) “ ‘A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’ ” (People v. Ledesma,
supra, at p. 218.)
In reviewing a claim of ineffective assistance, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts. [Citation.] To
9
the extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, we will affirm the judgment unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation.” (People v. Maury (2003) 30 Cal.4th 342, 389; see also People v. Hayes
(1990) 52 Cal.3d 577, 621 [“Whether to object to inadmissible evidence is a tactical
decision”].)
C. Admission of Exhibits 2 Through 9
We now come to the central issues in this appeal, the admissibility of Exhibits 2
through 9, which we take out of order for ease of analysis. For each of the challenged
exhibits, we first identify and resolve any preserved challenges on the merits. We then
identify any forfeited challenges and consider whether they support a claim for
ineffective assistance of counsel. We consider the question of prejudice, if any, in
section D, post.
1. Exhibit 4
We begin with Exhibit 4, the certified abstract of judgment reflecting Stallworth’s
convictions for lewd and lascivious acts involving a minor under the age of 14 (the
qualifying conviction) and attempted lewd and lascivious acts involving a minor under
the age of 14 years by force (Pen. Code, §§ 288, subd. (a) & 664/288, subd. (b)).
Stallworth acknowledges the abstract of judgment was admissible under section 6600,
subdivision (a)(3), but argues the trial court should have redacted an entry reflecting a
conviction by plea for spousal abuse (Pen. Code, § 273.5), and notations regarding his
restitution fines, sentence, and custody credits. Stallworth’s trial counsel objected to
Exhibit 4 pursuant to Evidence Code section 352, arguing the conviction for spousal
abuse was more prejudicial than probative. Trial counsel made no other specific
objections to Exhibit 4.
On appeal, Stallworth argues the notations reflecting his conviction for spousal
abuse, restitution fines, sentence, and custody credits should have been redacted as
10
hearsay not covered by the exception set forth in section 6600, subdivision (a)(3). This
challenge, which was not raised in the trial court, has been forfeited.8 (See Evid. Code, §
353; Partida, supra, 37 Cal.4th at p. 435.)
Stallworth argues in the alternative that his trial counsel’s failure to object on
hearsay grounds amounts to ineffective assistance of counsel. We reject this argument as
well. As the People observe, Exhibit 4 is a certified record of conviction, and
Stallworth’s trial counsel could have reasonably believed that the entire record, including
any “prior conviction, service of a prison term, or other act, condition, or event recorded
by the record” was admissible under the exception to the hearsay rule set forth in
Evidence Code section 452.5, subdivision (b)(1). (See People v. Duran (2002) 97
Cal.App.4th 1448, 1460-1461 (Duran) [holding that, under Evid. Code, § 452.5, subd.
(b)(1), “certified records of conviction fall within the definition of official records
contained in Evidence Code section 1280 (the official records exception to the hearsay
rule), and are per se admissible as such”].)9 Stallworth’s trial counsel could have also
reasonably believed that the conviction was admissible under the hearsay exception for
admissions of a party. (Evid. Code, § 1220; see also People v. Lee (2011) 51 Cal.4th
620, 650-651.) Stallworth’s trial counsel was not ineffective for failing to raise
objections that were reasonably likely to be overruled. (People v. Mendoza (2000) 78
Cal.App.4th 918, 924.) With respect to the other information said to have been
8 Stallworth does not challenge the merits of the trial court’s ruling under Evidence Code
section 352, and we decline to consider them.
9 Stallworth argues at length that Duran, supra, 97 Cal.App.4th 1448 was wrongly
decided. We need not reach this argument because, whatever the merits of Stallworth’s
challenge to Duran, his trial counsel could not have been ineffective for failing to raise an
objection that would have been futile under existing law. (People v. Welch (1993) 5
Cal.4th 228, 237 [“Reviewing courts have traditionally excused parties for failing to raise
an issue at trial where an objection would have been futile or wholly unsupported by
substantive law then in existence”].)
11
objectionable (the information concerning Stallworth’s sentence, custody credits, and
restitution fines), trial counsel could have reasonably believed that such information
would have been unlikely to be meaningful to the average juror, and thus, not worth the
trouble to object or redact. Trial counsel could have also reasonably believed that an
extensively redacted Exhibit 4 would have been more likely to raise questions in the
minds of jurors than an unredacted exhibit, and decided, for tactical reasons, that
objections were better left unasserted. We therefore reject Stallworth’s claims based on
Exhibit 4.
2. Exhibit 5
Stallworth argues the trial court erred in admitting Exhibit 5, a certified copy of
the minutes recording the guilty verdict in the underlying criminal action. Stallworth’s
trial counsel objected to Exhibit 5 as cumulative under Evidence Code section 352. The
trial court overruled the objection, stating, “I understand your cumulative objection. It is
saying the same thing [as other exhibits showing Stallworth’s qualifying conviction].
Although it’s not taking up more court time, it’s providing more information and
complete information on when the jury came back, the verdict is exactly the same. It’s
not prejudicial in any way. It’s somewhat probative.” We cannot say the trial court
abused its discretion in admitting Exhibit 5.
Although Exhibit 5 may have been cumulative of other admitted evidence
(specifically, Exhibit 4), jurors unaccustomed to court records may have found the
presentation of the verdict in narrative form more accessible than a checked box on the
abstract of judgment. As the trial court observed, nothing about Exhibit 5 threatened to
consume undue trial time, and the presentation of the information in a different form may
have been helpful to some jurors. The trial court did not abuse its discretion in admitting
Exhibit 5.
Stallworth argues the trial court should have redacted portions of Exhibit 5
regarding the length of the earlier trial, and the previous jury’s requests for readbacks of
12
testimony. These challenges have also been forfeited. (See Evid. Code, § 353; Partida,
supra, 37 Cal.4th at p. 435.) To the extent Stallworth contends the failure to seek such
redactions constituted ineffective assistance of counsel, we reject the contention.
Stallworth’s trial counsel could have reasonably believed that the jury would be unlikely
to draw any inferences from information concerning the length of the trial or requests for
readbacks, such that redactions would be unnecessary or even counterproductive,
particularly insofar as they raise questions in jurors’ minds about the redacted
information. We therefore reject Stallworth’s claims based on Exhibit 5.
3. Exhibit 7
Stallworth argues the trial court erred in admitting Exhibit 7, a form recording his
juvenile adjudication for violating Penal Code section 288, subdivision (a).10 Stallworth
objected to Exhibit 7 on various grounds, only one of which has been renewed on appeal.
Specifically, Stallworth argued in the trial court and continues to argue on appeal that
Exhibit 7 was hearsay not covered by the exception set forth in section 6600, subdivision
(a)(3). The People apparently concede the inapplicability of section 6600, subdivision
(a)(3), but maintain the form was admissible as a party admission under Evidence Code
section 1220. We agree with the People.
Juvenile adjudications under section 602 are not criminal convictions, and thus are
not admissible under section 6600, subdivision (a)(3). (§ 6600, subd. (a)(3) [establishing
a hearsay exception for documentary evidence of “prior convictions”]; see also § 203
[“An order adjudging a minor to be a ward of the juvenile court shall not be deemed a
conviction of a crime for any purpose . . .”]; and see People v. Sanchez (1985) 170
Cal.App.3d 216, 218 [“A juvenile’s delinquency may consist of felony activity, but an
10The prosecution originally sought admission of the juvenile petition against Stallworth,
but the trial court excluded the pages comprising the petition from Exhibit 7 pursuant to
Evidence Code section 352.
13
adjudication as such is not a felony conviction”].) But an admission that allegations in a
juvenile petition are true is comparable to a guilty plea (Ricki J. v. Superior Court (2005)
128 Cal.App.4th 783, 791), and, therefore, admissible under the exception for party
admissions. (Evid. Code, § 1220; People v. Lee, supra, 51 Cal.4th at pp. 650-651.)
Here, the trial court could reasonably conclude that Exhibit 7 was admissible as a
party admission under Evidence Code section 1220. Exhibit 7 contains, in the space for
“Disposition Proceedings,” the following notation: “288(a) PC, Felony, sustained upon
admission 1/21/88.” That notation can reasonably be construed as recording Stallworth’s
admission to the juvenile petition alleging lewd and lascivious acts involving a minor in
violation of Penal Code section 288, subdivision (a), and was thus admissible under
Evidence Code section 1220. (People v. Lee, supra, 51 Cal.4th at p. 651.)
The trial court could also reasonably conclude that Stallworth’s juvenile
adjudication was admissible under Evidence Code section 1280, which makes admissible
a writing to record an act, condition, or event if the writing “was made by and within the
scope of duty of a public employee,” “at or near the time of the act, condition, or event,”
and “[t]he sources of information and method and time of preparation were such as to
indicate its trustworthiness.” (Evid. Code, § 1280, subds. (a)-(c).) A trial court has broad
discretion in determining whether these requirements have been met. (Martinez, supra,22 Cal.4th at p. 120.) Furthermore, the trial court’s ruling “ ‘implies whatever finding of
fact is prerequisite thereto; a separate or formal finding is . . . unnecessary.’ ” (Ibid.) “A
reviewing court may overturn the trial court’s exercise of discretion “ ‘ “only upon a clear
showing of abuse.” ’ ” (Ibid.) No such showing appears here.
After a minor is found to be a person described within section 601 or 602, the
court must hold a hearing to take evidence on the proper disposition of the child. (§ 706.)
Exhibit 7 indicates that Stallworth appeared before the juvenile court in February 1988
and was adjudged a ward of the court subject to supervision by the probation department.
On the record before us, the trial court could reasonably conclude that Exhibit 7 was “a
14
writing made by and within the scope of duty of a public employee” (Evid. Code, § 1280,
subd. (a); i.e., juvenile court personnel), “as a record of an act, condition, or event” (Evid.
Code, § 1280; i.e., the disposition hearing). The trial court could also reasonably rely on
the presumption that the juvenile court regularly performed its official duties in the
preparation of Exhibit 7 (Evid. Code, § 664), thereby establishing that the “sources of
information and method and time of preparation were such as to indicate its
trustworthiness” (Evid. Code, § 1280, subd. (c)). (See also People v. Dunlap (1993) 18
Cal.App.4th 1468, 1477 (Dunlap) [“a court may rely on the rebuttable presumption that
official duty has been regularly performed (Evid. Code, § 664) as a basis for finding that
the foundational requirements of Evidence Code section 1280 are met”].) The trial court
did not abuse its discretion in admitting the juvenile adjudication. We therefore reject
Stallworth’s claims based on Exhibit 7.
4. Exhibit 9
We reach a similar conclusion with respect to Exhibit 9, the requests for
modification of orders and resulting orders in Stallworth’s juvenile proceeding. Exhibit 9
contains two juvenile court records: (1) a March 7, 1988, request by a probation officer
that Stallworth be placed in a group home, together with an order granting the request
dated the same day; and (2) a May 1, 1989, request that Stallworth be placed in his own
care and custody, accompanied by the same probation officer’s representation that
Stallworth had completed residential treatment and attained the age of majority, together
with an order granting the request dated the same day. Stallworth’s trial counsel objected
to Exhibit 9 on hearsay grounds and pursuant to Evidence Code section 352. The trial
court admitted Exhibit 9 without explanation. On appeal, Stallworth argues only that the
15
trial court erred in admitting Exhibit 9 because the juvenile records are hearsay not
subject to any exception.11 We are not persuaded.
A review of the juvenile records comprising Exhibit 9 confirms that they were
made by and within the scope of several public employees’ duties (i.e., the probation
officer, juvenile court referee, and deputy county clerk), under circumstances indicating
trustworthiness of the sources of information and method of preparation. (Evid. Code, §
664.) Although the records do not reveal the dates of Stallworth’s residential treatment,
the trial court could reasonably infer that he commenced treatment on or after March 7,
1988, and completed treatment on or before May 1, 1989. The trial court could also
reasonably infer that Stallworth’s residential treatment took place over a period of weeks
or months, rather than days, such that the writings could reasonably be viewed as having
been prepared at or near the time of the act, condition, or event. On the record before us,
the trial court could reasonably conclude that the juvenile records comprising Exhibit 9
were official records within the meaning of Evidence Code section 1280. We find no
abuse of discretion in the admission of the juvenile records, and therefore reject
Stallworth’s claims based on Exhibit 9.
5. Exhibit 3
Stallworth argues the trial court erred in failing to redact Exhibit 3, an arrest report
describing the offenses underlying his qualifying conviction. Stallworth acknowledges
the report was admissible pursuant to section 6600, subdivision (a)(3), but argues that
certain information should have been redacted. Specifically, Stallworth argues the trial
11 Stallworth argues in his reply brief that the juvenile records comprising Exhibit 9 were
irrelevant and more prejudicial than probative under Evidence Code section 352.
Although Stallworth offered an objection under Evidence Code section 352 in the trial
court, he made no effort to develop these arguments in his opening brief, and we do not
consider arguments raised for the first time in a reply brief. (Varjabedian v. City of
Madera (1977) 20 Cal.3d 285, 295, fn. 11.)
16
court should have redacted: (1) an entry on a form regarding warrants and bail, (2)
statements to police by the victims’ mother, including a statement that one of the victims
had been placed in a foster home, (3) statements to police by C. about the circumstances
surrounding her decision to run away, (4) statements to police by C. about M. leaving
Sacramento with a man named Sonny to work as a prostitute in Hollywood, (5)
statements to police by C. about sexual experiences with persons other than Stallworth,
(6) statements to police by C. about school, and (7) statements to C. by police about the
decision to arrest Stallworth and the possibility that she might be required to testify
against him. These challenges, too, have been forfeited. (See Evid. Code, § 353;
Partida, supra, 37 Cal.4th at p. 435.)
“[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.’ ” (People v. Harris
(1978) 85 Cal.App.3d 954, 957.) Here, Stallworth’s trial counsel objected to Exhibit 3 in
its entirety, arguing that the arrest report as a whole was cumulative, prejudicial, and
hearsay. However, when asked to identify any “specific objections” to the report, he
declined to do so, stating: “We can go through it line by line if the [c]ourt wishes to, but
the general overall aspect of it is, all the information in the police report is contained in
the probation report. It is the same information, the same transaction and occurrence, and
it’s unnecessary. The jury already has the information that is contained [in the arrest
report]. It’s just prejudicial to be able to restate it again and again and again.” This
objection was not sufficient to preserve Stallworth’s newly asserted challenges to Exhibit
3.
To the extent that Stallworth contends his trial counsel was ineffective for failing
to request the redactions, we reject the contention. Stallworth’s trial counsel could have
reasonably believed that an extensively redacted arrest report would have been likely to
raise more questions in the minds of jurors than the information sought be redacted, much
17
of which, Stallworth allows, “was probably incomprehensible to the jury.” On the record
before us, Stallworth’s trial counsel could reasonably believe that, failing an effort to
exclude the arrest report entirely, the report might as well be admitted in unredacted
form. We therefore reject Stallworth’s claims based on Exhibit 3.
6. Exhibit 2
Stallworth directs most of his fire to Exhibit 2, the probation report describing the
offense in the underlying criminal action. Here, again, Stallworth acknowledges the
probation report was admissible under section 6600, subdivision (a)(3), but argues the
trial court should have made numerous redactions, only some of which were requested by
trial counsel. Only one of Stallworth’s numerous challenges to Exhibit 2 was preserved
for review and possesses any merit.
Stallworth argues the trial court should have redacted a section of the probation
report entitled “Criminal Record.” We agree, to a point. The “Criminal Record” section
of the probation report consists of two subsections: (1) a single paragraph discussion of
Stallworth’s juvenile adjudication, to which trial counsel objected, and (2) a three
paragraph discussion of Stallworth’s adult record to date, to which no objection was
made.12 The trial court erred in failing to redact the discussion of Stallworth’s juvenile
adjudication.
Stallworth’s trial counsel objected to the discussion of the juvenile adjudication in
the probation report on the grounds that juvenile offenses are not predicate offenses under
12 That discussion notes that Stallworth was convicted of felony vehicle theft in 1989
(Veh. Code, § 10851) and placed on five years formal probation. He was charged with
spousal abuse (Pen. Code, § 273.5) and willful cruelty to a child (Pen. Code, § 273, subd.
(a)) in 1991, following an argument in which he struck his girlfriend in the face as she
was holding their child. He was then placed on probation again. He was subsequently
cited for various misdemeanor vehicle offenses (Veh. Code, §§ 12500, subd. (a), 4000,
subd. (a)). According to the report, Stallworth failed to appear in traffic court and a
bench warrant was issued for his arrest.
18
the SVPA. We understand trial counsel’s objection to encompass an objection that
juvenile offenses are not covered by the hearsay exception set forth in section 6600,
subdivision (a)(3). The trial court overruled the objection, referring to its earlier ruling
admitting Exhibit 7. This was error. As previously discussed, Exhibit 7 was not
admissible under section 6600, subdivision (a)(3), which establishes an exception for
documentary evidence of “prior convictions.” (See People v. Sanchez, supra, 170
Cal.App.3d at p. 218 [a juvenile adjudication is not the same as a conviction].) Rather,
Exhibit 7 was admissible as a party admission under Evidence Code section 1220 or an
official record under Evidence Code section 1280. (See section C.3, ante.) No similar
admission appears on the face of the probation report, and we cannot say the report
constitutes an official record of the juvenile adjudication within the meaning of Evidence
Code section 1280. The trial court erred in failing to redact the discussion of the juvenile
adjudication from the probation report.13
No objection was made to the report’s discussion of Stallworth’s adult record. We
consider trial counsel’s failure to object to the discussion of Stallworth’s adult record
momentarily, after we have considered his other “preserved” claims (all of which have
actually been waived or forfeited).
Stallworth argues the trial court should have redacted a sentence in the probation
report stating that M. “had been taken to the Hollywood, California area by friends of the
defendant’s and placed into a juvenile prostitution ring where she earned approximately
$1,000.00 a night, which she in turn gave to her ‘pimp.’ ” Stallworth’s trial counsel
objected to this sentence as prejudicial and inflammatory under Evidence Code section
352. The trial court redacted the sentence to delete the words, “by friends of the
13 We discuss the question of prejudice post.
19
defendant’s,” thereby eliminating the connection to Stallworth.14 On appeal, Stallworth
argues the sentence was hearsay not subject to any exception. This objection was not
raised in the trial court and was therefore forfeited. (See Evid. Code, § 353; Partida,
supra, 37 Cal.4th at p. 435.) Stallworth does not challenge the trial court’s ruling under
Evidence Code section 352, and we decline to consider it.
Stallworth argues the trial court should have redacted a statement by the victims’
mother in which she expressed anger that Stallworth appeared to take no responsibility
for harming her daughters. Stallworth’s trial counsel objected to the statement as
hearsay. The trial court overruled the objection. On appeal, Stallworth argues the
statement was inadmissible because “it did not describe the qualifying crimes” and “was
nothing but opinions.” We understand Stallworth to argue that the mother’s statement
was hearsay not subject to the exception set forth in section 6600, subdivision (a)(3),
because the statement was not specifically related to the offense giving rise to his
qualifying conviction. (See People v. Burroughs, supra, 6 Cal.App.5th at p. 411.) But
Stallworth’s trial counsel did not articulate this argument in the trial court. Instead, trial
counsel offered only a general hearsay objection, which was not sufficient to alert the
trial court or prosecution to the claim that the statement was not covered by section 6600,
subdivision (a)(3) because not related to Stallworth’s qualifying conviction. This claim,
too, is forfeited. (See Evid. Code, § 353; Partida, supra, 37 Cal.4th at p. 435.)
Stallworth argues the trial court should have redacted a section of the probation
report entitled “Probation Officer’s Conclusions,” which describes the offenses giving
rise to his qualifying conviction, his other criminal history (including the juvenile
adjudication), and the probation officer’s determination that he was not eligible for
14The redacted sentence thus stated that M. “had been taken to the Hollywood,
California area and placed into a juvenile prostitution ring where she earned
approximately $1,000.00 a night, which she in turn gave to her ‘pimp.’ ”
20
probation but should instead be sentenced to an aggregate term of 10 years in state prison.
Stallworth’s trial counsel objected to this section as hearsay not subject to any exception,
irrelevant, and cumulative. The trial court overruled the objection. On appeal, Stallworth
challenges another section of the probation report (to which there was no objection in the
trial court), and then concludes, in perfunctory fashion: “Even if the probation report was
otherwise admissible, this part of it was completely inadmissible. The same is also true
for the report’s conclusions.” This last sentence comprises the sum total of Stallworth’s
argument with respect to the probation officer’s conclusions. We understand Stallworth
to argue, again, that the discussion of the juvenile adjudication was inadmissible as
hearsay, an argument we have already accepted. To the extent Stallworth intends to
advance any other argument, we treat the argument as waived. (Nelson v. Avondale
Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [when an appellant asserts a point
“ ‘but fails to support it with reasoned argument and citations to authority, we treat the
point as waived’ ”].)
We now turn to Stallworth’s numerous forfeited claims. Stallworth argues other
portions of the probation report should have been redacted, including: (1) the discussion
of his adult record in the “Criminal Record” section of the report, (2) a section entitled
“Trial Information,” which states that M. and C. were “extremely traumatized” over their
ordeal with Stallworth and notes that he was a member of a rap group known for a song
about forcible oral copulation, (3) a section entitled “Summary of Violation,” which
discusses Stallworth’s violation of probation, (4) a section entitled “Defendant’s
Statement,” which indicates that Stallworth believes he was a victim of mistaken identity,
(5) a section entitled “Victim Notification,” which indicates that the victims’ family
members had been notified of all sentencing proceedings (Pen. Code, §§ 1191.1 and
1191.2), (6) a section entitled “Social History,” which includes information derived from
Stallworth’s probation and jail records, and (7) a section entitled “Applicable Rules of
Court,” which includes the probation officer’s analysis of circumstances in aggravation
21
and circumstances in mitigation. No objection was raised to any of these portions of the
report, and we conclude Stallworth has forfeited any appellate claim thereon. (See Evid.
Code, § 353; Partida, supra, 37 Cal.4th at p. 435.)
To the extent Stallworth contends his trial counsel was ineffective for failing to
request redactions of the above referenced sections of the report, we reject the contention.
With respect to the report’s discussion of Stallworth’s adult record, trial counsel could
have reasonably believed that most of Stallworth’s uncharged offenses were not worth
redacting because they were immaterial to the SVP inquiry (e.g., felony vehicle theft and
misdemeanor vehicle offenses), extensive redactions would have invited juror
speculation, and the discussion of the argument with his girlfriend useful for giving
context to the spousal abuse conviction (which had already been admitted by way of
Exhibit 4). Trial counsel did not render ineffective assistance in failing to object to the
probation report’s discussion of Stallworth’s adult record.
Stallworth’s trial counsel could have also reasonably believed that an objection to
the section entitled “Trial Information” would have been unlikely to succeed, given the
relevance of the information to Stallworth’s qualifying conviction. Trial counsel was not
ineffective for failing to make an objection that would likely be overruled. (People v.
Mendoza, supra, 78 Cal.App.4th at p. 924.) Stallworth’s trial counsel could have also
reasonably believed there was no tactical advantage in seeking extensive redactions to the
probation report, since much of the information was cumulative of information from
other properly admitted sources (e.g., the sections entitled “Summary of Violation” and
“Social History”), not incriminating (e.g., the section entitled “Defendant’s Statement”),
or unlikely to be meaningful to jurors (e.g., the sections entitled “Victim Notification”
and “Applicable Rules of Court”). On the record before us, we cannot say that trial
counsel’s failure to request a laundry list of inconsequential redactions constituted
ineffective assistance of counsel. With the exception of his preserved challenge to the
22
probation report’s discussion of the juvenile adjudication (which we take up again post),
we reject Stallworth’s challenges to Exhibit 2.
7. Exhibit 6
Stallworth argues the trial court erred in admitting Exhibit 6, the certified copy of
a prison packet from the Department of Corrections (Pen. Code, § 969b). The prison
packet includes: (1) a three-page “chronological history” containing abbreviated
handwritten notes reflecting Stallworth’s time in custody, (2) a computer printout
reflecting Stallworth’s qualifying conviction, sentence, and custody credits, (3) a copy of
the abstract of judgment (Exhibit 4), (4) a copy of Stallworth’s fingerprint card, (5) a
computer printout recording dates of delivery and discharge (presumably in connection
with Stallworth’s incarceration), and (5) a copy of a photograph of Stallworth.
Stallworth’s trial counsel objected to Exhibit 6 as a whole as cumulative. The trial court
overruled the objection.
On appeal, Stallworth acknowledges that portions of the prison packet (namely,
the abstract of judgment and computer printout reflecting the qualifying conviction) were
admissible (though cumulative), but argues the trial court should have redacted other
portions as hearsay not subject to any exception and irrelevant. Specifically, Stallworth
argues the trial court should have redacted: entries on the abstract of judgment and
computer printout reflecting his conviction for spousal abuse, the chronological history,
the computer printout reflecting dates of delivery and discharge, and copies of the
fingerprint card and photograph. None of these claims were raised in the trial court.
Accordingly, they, too, have been forfeited. (See Evid. Code, § 353; Partida, supra, 37
Cal.4th at p. 435.)
To the extent Stallworth contends his trial counsel was ineffective for failing to
request redactions of the above-referenced information, we reject the contention. As
even Stallworth acknowledges, much of the information in the prison packet (e.g., the
abstract of judgment and computer printout reflecting the qualifying conviction) was
23
cumulative of other properly admitted information. The rest of the information was
likely not meaningful to a layperson (e.g., the chronological history), inconsequential
(e.g., the computer printout recording dates of delivery and discharge), or concededly
harmless (e.g., the fingerprint card and photograph). We cannot say that trial counsel’s
failure to seek redactions of this information amounted to ineffective assistance.
Accordingly, we reject all of Stallworth’s challenges to Exhibit 6.
8. Exhibit 8
Finally, Stallworth argues the trial court erred in admitting Exhibit 8, the certified
CLETS rap sheet. The CLETS rap sheet discloses Stallworth’s juvenile adjudication and
qualifying conviction, as well as his convictions for attempted lewd and lascivious acts
involving a child under the age of 14 and spousal abuse. The CLETS rap sheet also
discloses other arrests and convictions, including a juvenile drug arrest (Health & Saf.
Code, § 11351.5) and an adult conviction for vehicle theft (Veh. Code, § 10851). Much
of this information was also contained in other exhibits, including the discussion of
Stallworth’s criminal record in the probation report (Exhibit 2), to which only a partial
objection was made.
Stallworth’s trial counsel objected to the CLETS rap sheet as hearsay and more
prejudicial than probative under Evidence Code section 352. The trial court overruled the
objections without explanation. On appeal, Stallworth argues Exhibit 8 was inadmissible
as hearsay not covered by the exceptions set forth in section 6600, subdivision (a)(3) or
Evidence Code section 452.5, subdivision (b)(1).15 The People direct our attention to
Martinez, supra, 22 Cal.4th 106. We conclude that Martinez is controlling.
Our Supreme Court considered the admissibility of an uncertified CLETS rap
sheet in Martinez. There, the prosecution offered the uncertified CLETS rap sheet to
15 Stallworth does not reassert his Evidence Code section 352 objection on appeal.
24
prove that the defendant had served prior prison terms. (Martinez, supra, 22 Cal.4th at p.
113.) The trial court found the rap sheet admissible under Evidence Code section 1280,
and our high court agreed. (Id. at pp. 112-113.)
To satisfy the official records requirement that the writing was made at or near the
time of the act, condition, or event (Evid. Code, § 1280, subd. (b)), the Martinez court
relied on statutes requiring law enforcement agencies to report criminal proceedings to
the Department of Justice (Department) and requiring the Department to provide
information on request within certain time limits. (Martinez, supra, 22 Cal.4th at pp.
121-125 [collecting statutes]; see also People v. Morris (2008) 166 Cal.App.4th 363, 371-
372.) To satisfy the requirement that the writing was made by and within the scope of
duty by a public employee (Evid. Code, § 1280, subd. (a)), the Martinez court relied on
the presumption that “official duty has been regularly performed.” (Evid. Code, § 664;
Martinez, supra, at p. 125.) As to the trustworthiness requirement, the Martinez court
relied, again, on the reporting and recording statutes, as well as the testimony of a deputy
sheriff that the defendant, during a conversation with her, did not deny the accuracy of
information consistent with the CLETS rap sheet. (Martinez, supra, at p. 131.)
Following Martinez, we conclude Exhibit 8 was admissible under Evidence Code section
1280. (See also People v. Morris, supra, at p. 367 [“CLETS rap sheets have been found
to be admissible under the public records exception to the hearsay rule (Evid.Code, §
1280)”].)
Stallworth resists this conclusion, arguing the CLETS rap sheet contains
information regarding arrests that did not result in convictions (including juvenile arrests
for possession of cocaine base for sale (Health & Safety Code, § 11351.5) and sodomy
upon a child (Pen. Code, § 286, subd. (b)(1)), and convictions having no obvious bearing
on the SVP inquiry (including a conviction for vehicle theft (Veh. Code, § 10851)).
Stallworth does not argue that such information would have been recorded or reported
differently by law enforcement agencies, such that reliance on the certified CLETS rap
25
sheet would be unwarranted. We therefore conclude that the trial court did not abuse its
discretion in admitting Exhibit 8.
We are sensitive to the claim, implied by some of Stallworth’s arguments, that
evidence of arrests and nonqualifying convictions may be more prejudicial than probative
under Evidence Code section 352. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404
[“Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely
careful analysis’ ”].) However, as Stallworth does not expressly raise that argument, we
have no occasion to consider it. We therefore reject Stallworth’s claims based on Exhibit
8.
D. Prejudice
The final issue we consider is prejudice. We begin and end with the single
paragraph discussion of the juvenile adjudication in the probation report (Exhibit 2), the
only meritorious claim of error among the many asserted by Stallworth.
We evaluate a claim of prejudice from the erroneous admission of non-testimonial
hearsay under the state law standard set forth in People v. Watson, supra, 46 Cal.2d at p.
836. Under that standard, reversal is not warranted unless it is reasonably probable
defendant would have obtained a more favorable outcome had the inadmissible hearsay
been excluded. (Ibid.) It is defendant’s burden to show prejudice. (People v. Hernandez
(2011) 51 Cal.4th 733, 746.) Stallworth fails to carry this burden.
Rather than address specific exhibits or portion of exhibits, Stallworth argues
generally that he would have achieved a more favorable result had any and all evidence
of the juvenile adjudication been excluded. We have no difficulty with the idea that
things might have gone better for Stallworth had the jury heard nothing about the juvenile
adjudication. But the juvenile adjudication was already before the jury by way of
Exhibits 7 and 9, both of which were properly admitted. Stallworth does not make any
effort to explain how he could have been prejudiced by the erroneous admission of the
discussion of the juvenile adjudication in Exhibit 2, when the same information, so far as
26
Stallworth contends, was already before the jury through properly admitted Exhibits 7
and 9, and we decline to develop such arguments for him. Because we find harmless the
trial court’s error in admitting the discussion of the juvenile adjudication in the probation
report, we also conclude there is no basis for Stallworth’s contention his due process right
to a fair trial was violated.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
DUARTE, J.
27