People v. Presley CA3

Filed 6/16/21 P. v. Presley 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
THE PEOPLE, C090439
Plaintiff and Respondent, (Super. Ct. No. CRF073704)
v.
GABRIEL VONZEL PRESLEY,
Defendant and Appellant.
Defendant Gabriel Vonzel Presley challenges his commitment pursuant to the
Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, §§ 6600 et seq; all statutory
section references that follow are found in the Welfare and Institutions Code unless
otherwise stated.) He argues his commitment as a sexually violent predator (SVP) was
erroneous because expert testimony at trial was based on case-specific inadmissible
hearsay, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We affirm
the judgment.
1
FACTS AND PROCEDURAL HISTORY
In 1979, defendant was convicted of rape (Pen. Code, § 261.2). In multiple
prosecutions in the 1990s, he was convicted of sexual battery (Pen. Code, § 243.4),
indecent exposure (Pen. Code, § 314), and pimping (Pen. Code, § 266h). In 2010, he was
again convicted of indecent exposure (Pen. Code, § 314).
In 2013, as defendant’s term of incarceration for his 2010 conviction was expiring,
a Yolo County prosecutor filed a petition for defendant’s commitment pursuant to the
SVPA.
Invoking Sanchez, defendant filed a pre-trial motion requesting exclusion of case-
specific facts (not otherwise admissible) contained in hearsay statements on which any
expert testimony would be based. “[D]efense submits that the basis and the hearsay
relied upon in the expert’s opinion shall not be conveyed to the trier of fact and shall not
be used,” counsel wrote.
In ruling on that motion, the trial court observed: (a) “based on Sanchez, hearsay
statements should be excluded”; (b) because the proceeding was “a court trial,” “not a
jury trial,” the trial court would be able to “differentiate what should be and what should
not be admissible,” and would “make the differentiation as the evidence [came] in.” The
court said it would deem the defense’s Sanchez objection a standing objection.
At the court trial on the petition, which began in September 2019, the People
presented three expert witnesses, and defendant presented one expert witness.
Dr. Bruce Yanofsky
Dr. Yanofsky conducted a “partial clinical interview” with defendant in May
2018, having reviewed defendant’s medical records beforehand. A full clinical interview
did not occur because defendant chose to end the interview early, after becoming
“increasingly upset and agitated about the past and claiming innocence” of any sex
crimes.
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Dr. Yanofsky opined that defendant suffered from three “co-occurring” mental
disorders: “unspecified paraphilic disorder”; schizophrenia; and alcohol use disorder.
Paraphilia is a mental disorder “when an individual presents with urges, fantasies or
behaviors that are sexual in nature that deviate from . . . what would be the standard or
normal practice.”
Dr. Yanofsky drew on multiple sources of information in reaching his opinion,
including (a) records of defendant’s institutional history (which reflected that defendant,
“for the most part, consistently refused” sex-offender treatment); (b) defendant’s criminal
history, as reflected in records of conviction; (c) previous reports of doctors and
“evaluators,” which are commonly considered in mental health practice; (d) hospital
staff; and (e) the May 2018 clinical interview.
Dr. Yanofsky opined that defendant was likely to engage in sexually violent
predatory criminal behavior due to his paraphilic disorder, and defendant’s schizophrenia
aggravated that risk.
Dr. Siobhan Donovan
Dr. Donovan interviewed defendant in 2018, having reviewed defendant’s records
provided to her by the Department of State Hospitals and state prison authorities. She
also interviewed defendant in 2013.
Discussing his rape conviction in the 2018 interview, defendant acknowledged
that he “maybe . . . was demanding.” But he insisted: “I knew I was going to get it. I
went to [the victim’s] house to have sex and she knew it.” Defendant said his “other
offenses” were “bullshit.”
Dr. Donovan opined that defendant suffered from “unspecified paraphilic
disorder,” which was a diagnosable mental disorder that predisposed him to the
commission of criminal sexual acts. She also opined that defendant suffered from
schizophrenia, which condition made it harder for defendant to control his paraphilic
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disorder impulses, and that nothing lead her to believe that defendant would continue to
participate in sex offender treatment if he were released into the community.
Dr. Donovan drew on multiple sources of information in reaching her opinions,
including (a) her interview with defendant, wherein (i) defendant told her that he
participated in sex offender treatment groups because he believed doing so would
facilitate a polygraph test that would exonerate him, not because he “agree[d] with the
groups” or wanted the treatment, and (ii) defendant responded to her questions about his
criminal history; and (b) state prison and Department of State Hospital records of
defendant’s institutional history.
She opined that defendant was likely to engage in sexually violent criminal
behavior due to his paraphilic disorder. Defendant was in the “highest category” of risk.
Dr. Craig King
Dr. King interviewed defendant for three hours, after reviewing “all the records
. . . meticulously,” including defendant’s “medical and mental history.”
Defendant told Dr. King: his rape victim had sex with him willingly; “his main
reason for being involved” in sex offender treatment programs at Coalinga State Hospital
“was to get a polygraph test to prove his innocence”; he did not think he had any risk
factors to sexually re-offend in the community; and he did not need sex offender
treatment.
Dr. King concluded defendant suffered from multiple mental disorders, including
“paraphiliac disorder,” which predisposed defendant to commit criminal sexual acts and
made him a substantial danger for committing sexually violent criminal behaviors
without appropriate treatment and custody.
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Dr. Preston Sims
Dr. Sims, defendant’s sole expert witness, testified he interviewed defendant in
March 2018, after following standard protocol of reviewing multiple sources of
information.
Dr. Sims concluded that appellant’s 1979 forcible rape conviction qualified as a
sexually violent offense under the SVPA, and that defendant suffered from
schizophrenia, antisocial personality disorder, and alcohol use disorder.
Dr. Sims concluded defendant did not suffer from paraphilic disorder, as
defendant’s multiple “sexual offense incidents were all very disparate,” which did not
indicate that defendant “ha[d] a particular script or that he thinks about . . . nonconsenting
sex on a regular basis.” Accordingly, Dr. Sims opined, defendant’s disorders did “not
predispose him specifically to the commission of criminal sexual acts.” “[W]hat they
[did] predispose him to [was] a number of antisocial behaviors, one of which could
possibly be of a sexual nature,” he explained.
Dr. Sims agreed with the People’s experts that defendant was “likely to engage in
sexually violent predatory criminal behavior,” but disagreed that such behavior would be
“due to his specific mental disorders.”
The trial court and Dr. Sims had the following colloquy:
“[The trial court]: The schizophrenia . . . and the antisocial personality disorder.
There’s some other things thrown in, but those are the two big ones.
“[Dr. Sims]: You are correct.
“[The trial court]: And yet, in your determination, you feel those mental disorders
do not predispose him to be sexually violent in the future, but you believe he will be or is
likely to be sexually violent in the future. [¶] Based on what? What is it that would
compel him -- apart from those disorders, to be likely sexually violent in the future, in
your opinion?
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“[Dr. Sims]: In my opinion, it’s a combination of all these things. Well it’s a
combination of all these things together, and I can’t point to any particular thing.
“[The trial court]: So those two disorders play a part in it, but there’s other stuff,
or are they unrelated to his future conduct?
“[Dr. Sims]: Well, I don’t think they’re unrelated, but I don’t think their
relatedness rises to the level to say ‘predisposes him to.’ ”
Defendant’s Closing Argument
Defense counsel conceded the People satisfied the first element of CALCRIM
No. 3454 (the rape, a qualifying sexually violent offense), but emphasized that Dr. Sims
said defendant did not have a mental disorder “that predispose[d] [defendant] to commit
sexual acts.”
Counsel argued that the four expert opinions, “based upon . . . circumstantial
evidence,” were “all . . . reasonable.” But “[e]ven if” circumstantial evidence “that
point[ed] towards guilty” outweighed the other evidence, the trial court “[had] to accept”
the evidence “that sa[id] not guilty or doesn’t meet the criteria.”
Trial court’s ruling
The trial court concluded the People “proved their case beyond a reasonable
doubt,” and committed defendant under the SVPA.
The trial court explained: “[T]he [c]ourt heard from four experts . . . and there
was substantial agreement . . . that [defendant] does have a diagnosed mental disorder.
There was a disagreement as to what the mental disorder [was].
“We did hear from three of [the experts] that [defendant] has . . . schizophrenia . . .
[and] an unspecified paraphilic disorder . . . .
“They all . . . felt, with the exception of Dr. Sims, that that mental disorder made
[defendant] a danger to the health and safety of others, because it is likely that he will
engage in sexually violent predatory criminal behavior.
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“The exception being Dr. Sims. . . . He did conclude that . . . [defendant] does not
suffer from a paraphilic disorder. . . .
“Dr. Sims . . . believes [defendant] is likely to engage in sexually violent predatory
behavior. He also . . . opined that [defendant] is a high risk for a future sexual offense,
and that he is likely to commit violent sexual acts in the future.
“However, he concluded that it was not because of [defendant’s] mental disorder.
And under questioning by the [c]ourt, Dr. Sims couldn’t really say why he would commit
those offenses.”
The trial court observed that, though it was “required to consider the opinions of
experts,” “as the trier of fact, [it] [didn’t] have to . . . agree with them.” “I find Dr. Sims’
conclusion to be a bit of an outlier, and I’m impelled to conclude . . . that not only does
[defendant] have a diagnosed mental disorder, . . . he is a danger to the health and safety
of others, because I find that it is likely that he will engage in sexually violent predatory
criminal behavior.”
DISCUSSION
I
The Sexually Violent Predator Act
“The SVPA provides for involuntary civil commitment of an offender
immediately upon release from prison if the offender is found to be an SVP. [Citation.]
‘The SVPA was enacted to identify incarcerated individuals who suffer from mental
disorders that predispose them to commit violent criminal sexual acts, and to confine and
treat such individuals until it is determined they no longer present a threat to society.’
[Citation.] ‘ “[A]n SVPA commitment proceeding is a special proceeding of a civil
nature, because it is neither an action at law nor a suit in equity, but instead is a civil
commitment proceeding commenced by petition independently of a pending action.” ’
[Citation.]
7
“An SVP is defined as ‘a person who has been convicted of a sexually violent
offense against one or more victims and who has a diagnosed mental disorder that makes
the person a danger to the health and safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior.’ (§ 6600, subd. (a)(1).) A ‘diagnosed
mental disorder’ is defined to include ‘a congenital or acquired condition affecting the
emotional or volitional capacity that predisposes the person to the commission of
criminal sexual acts in a degree constituting the person a menace to the health and safety
of others.’ (§ 6600, subd. (c).)” (Jones v. Whisenand (2017) 8 Cal.App.5th 543, 551.)
“At trial, the trier of fact determines whether, beyond a reasonable a doubt, the
offender is an SVP. (§ 6604.) If the trier of fact determines the offender is an SVP, the
offender is committed for an indefinite term to the custody of the [Department of State
Hospitals] for appropriate treatment and confinement in a secure facility.” (Jones v.
Whisenand, supra, 8 Cal.App.5th at p. 553.)
CALCRIM No. 3454 provides the pattern jury instruction for initial SVP
commitment:
“To prove [the allegation defendant is an SVP], the People must prove beyond a
reasonable doubt that:
“1. He has been convicted of committing a sexually violent offense;
“2. He has a diagnosed mental disorder;
“AND
“3. As a result of that diagnosed mental disorder, he is a danger to the health and
safety of others because it is likely that he will engage in sexually violent predatory
criminal behavior;
“AND
“4. It is necessary to keep him in custody in a secure facility to ensure the health
and safety of others.”
8
Defendant argues that, in light of Sanchez, the “erroneous admission” of
“testimony by the prosecution’s experts to case-specific facts” was an abuse of discretion
that violated his state and federal due process rights to a “fundamentally fair trial.”
Specifically, defendant contends “[a]ll three evaluators” the People presented “relied on a
finding that [defendant] was sexually aroused by forcing sex on unconsenting victims,
and all three of these findings were based solely upon hearsay.”
The People argue “[a]t least some of the expert testimony” defendant challenges
“was entirely proper,” and any error was harmless.
We conclude the trial court did not abuse its discretion, as nothing in the record
dispels the presumption the trial court ignored material it knew was inadmissible under
Sanchez.
Sanchez
“Hearsay, defined as ‘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,’ is inadmissible unless it falls under an exception. (Evid. Code, § 1200, subds. (a),
(b).) A statement ‘offered for some purpose other than to prove the fact stated,’ however,
is not hearsay. [Citation.] This latter principle has been applied to allow expert
witnesses to testify about their general knowledge in a specialized area without being
subject to exclusion on hearsay grounds. (Sanchez, supra, 63 Cal.4th at p. 676.) ‘By
contrast, an expert has traditionally been precluded from relating case-specific facts about
which the expert has no independent knowledge. Case-specific facts are those relating to
the particular events and participants alleged to have been involved in the case being
tried.’ [Citation.]
“An exception to the general rule barring an expert from relating case-specific
hearsay developed under the common law for medical diagnoses, as doctors often rely on
9
patients’ hearsay descriptions of their symptoms to form diagnoses. (Sanchez, supra,
63 Cal.4th at p. 678.) This exception was recognized and given more general application
in Evidence Code sections 801 and 802. (Sanchez, at p. 678.) Evidence Code section
801 allows an expert to render an opinion ‘[b]ased on matter (including his special
knowledge, skill, experience, training, and education) perceived by or personally known
to the witness or made known to him at or before the hearing, whether or not admissible,
that is of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates, unless an expert is precluded by law from
using such matter as a basis for his opinion.’ (Evid. Code, § 801, subd. (b).) Evidence
Code section 802 states that an expert may ‘state on direct examination the reasons for
his opinion and the matter (including, in the case of an expert, his special knowledge,
skill, experience, training, and education) upon which it is based, unless he is precluded
by law from using such reasons or matter as a basis for his opinion.’ ” (People v. Roa
(2017) 11 Cal.App.5th 428, 442-443 (Roa), fn. omitted.)
“Expert testimony that discloses hearsay evidence was . . . circumscribed by the
California Supreme Court in Sanchez. . . . The Supreme Court held that the case-specific
statements related by the expert concerning the defendant’s gang membership constituted
inadmissible hearsay because ‘[t]hey were recited by the expert, who presented them as
true statements of fact, without the requisite independent proof.’ [Citation.]” (Roa,
supra, 11 Cal.App.5th at p. 447.)
“The court in Sanchez rejected the not-for-the-truth limitation when applied to
expert basis testimony and adopted in its place the following rule: ‘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. It cannot logically be maintained that the statements are not being admitted for
their truth.’ (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.) The court also set forth
certain guidelines for admissible and inadmissible expert basis testimony. Experts may
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rely on background information accepted in the field of expertise, information within
their personal knowledge, and nontestimonial hearsay properly admitted under a statutory
hearsay exception. (Id. at p. 685.) An expert may also ‘rely on hearsay in forming an
opinion, and may tell the jury in general terms that he did so. . . . [¶] What an expert
cannot do is relate as true case-specific facts asserted in hearsay statements, unless they
are independently proven by competent evidence or are covered by a hearsay exception.’
(Sanchez, at pp. 685-686.)” (Roa, supra, 11 Cal.App.5th at p. 448, fn. omitted.)
Presumption that Judicial Duty is Properly Performed
“ ‘ “A trial judge hears many items during the course of a trial which are
inadmissible, and [s]he is called upon to rule on the admissibility of numerous
evidentiary matters. The fact that [s]he has heard these things does not mean that [s]he
cannot divorce them from [her] mind.” [Citations.]’ [Citation.] ‘ “As an aspect of the
presumption that judicial duty is properly performed [(Evid. Code, § 664)], we presume
. . . that the court knows and applies the correct statutory and case law [citation] and is
able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts,
and to recognize those facts which properly may be considered in the judicial
decisionmaking process.” [Citation.] Stated another way, a trial court is presumed to
ignore material it knows is incompetent, irrelevant, or inadmissible.’ [Citation.] ‘Only
proof that the evidence actually figured in the court’s decision will overcome these
presumptions. [Citations.] Clearly, the mere fact that the court heard or read the
evidence is not sufficient to overcome the presumptions.’ ” (Hayward v. Superior Court
(2016) 2 Cal.App.5th 10, 60-61, review granted Nov. 9, 2016, S237174.)
Analysis
Here, before trial, the trial court recognized that “based on Sanchez, hearsay
statements should be excluded,” but observed that because the proceeding was “a court
trial,” “not a jury trial,” the trial court would be able to “differentiate what should be and
11
what should not be admissible,” and would “make the differentiation as the evidence
[came] in.” After four experts who interviewed defendant and reviewed his medical and
prison records testified (providing testimony that defendant contends included numerous
inadmissible case-specific facts), the trial court determined defendant was an SVP.
In explaining its determination, the trial court did not reference any of the
inadmissible case-specific facts defendant challenges on appeal, but did observe that
defendant’s expert’s “outlier” opinion -- that defendant, though likely to engage in
sexually violent predatory behavior, would not do so because of a diagnosed mental
disorder -- was not convincing.
That the trial court may have heard inadmissible case-specific hearsay regarding
defendant, does not overcome the presumption that the trial court applied Sanchez and
properly ignored such material. (Hayward v. Superior Court, supra, 2 Cal.App.5th at
pp. 60-61, review granted.)
Further, the expert opinion testimony here drew on multiple sources of
information, not solely the case-specific facts that defendant challenges on appeal. (Cf.
People v. Bona (2017) 15 Cal.App.5th 511, 522 & fn. 10 [rejecting a Sanchez challenge
to a mentally disordered offender commitment under Penal Code section 2962,
explaining that expert opinion testimony was “supported by evidence in the record”
because the expert “interviewed [the defendant], reviewed his records and conferred with
his treating doctors,” and experts “ ‘may rely on hearsay documents that are “of a type
that reasonably may be relied upon by an expert in forming an opinion upon the subject
to which his testimony relates” ’ ”].)
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DISPOSITION
The judgment (commitment order) is affirmed.
HULL, Acting P. J.
We concur:
MAURO, J.
HOCH, J.
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