People v. Roa

Filed 5/17/17 Unmodified opinion attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B264885
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM011271)
v.
ORDER MODIFYING OPINION
NICKOLAS ROA, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on May 2, 2017,
be modified as follows:
1. On page 20, the first full paragraph under the heading
A. Scope of permissible expert testimony, is modified to read
as follows:
As discussed, the existence of a qualifying SVP
conviction and the details underlying the offense can
be established by multiple-level hearsay evidence
such as preliminary hearing and trial transcripts,
probation and sentencing reports, and evaluations by
the California Department of State Hospitals.
(§ 6600, subd. (a)(3); Otto, supra, 26 Cal.4th at p.
208.) Because the facts underlying the qualifying
offenses were presented to the jury pursuant to a
hearsay exception under section 6600, subdivision
(a)(3), the experts could permissibly relate those facts
to the jury as the basis for their opinions.
(Burroughs, supra, 6 Cal.App.5th at p. 403.) The
experts could also testify that the defendant was
convicted of a qualifying offense, as evidence of such
a conviction was admitted into evidence under Penal
Code section 969b. (Dean, supra, 174 Cal.App.4th at
p. 196.) Finally, experts may testify as to a
defendant’s likelihood of reoffending. (People v.
Therrian, supra, 113 Cal.App.4th at p. 615.)
2. On page 21, in the second full paragraph beginning with
“In Landau”, the citation for People v. Landau should be
corrected to read:
(Landau, supra, 246 Cal.App.4th at p. 876.)
3. The paragraph at the bottom of page 30 commencing
with “Roa’s trial counsel objected to exhibit 18” and ending at the
top of page 31 with “the trial court’s ruling” is modified to read as
follows:
Roa’s trial counsel objected to exhibit 18, a
certified copy of the CLETS printout detailing Roa’s
criminal history on the grounds that it was
prejudicial, cumulative of the abstract of judgment,
and did not prove prior convictions. Roa’s counsel
raised no hearsay objection to the CLETS printout.
The trial court ruled that the printout was relevant
because the experts relied on it to support their
diagnosis of antisocial personality disorder. Roa has
demonstrated no error in the trial court’s ruling.
2
4. On page 31, the first full paragraph beginning with “As
to exhibit 21” and ending with “to those documents as well,” is
modified to read as follows:
As to exhibit 21, the prior prison packet
prepared pursuant to Penal Code section 969b, Roa’s
trial counsel objected to the portion containing the
prison chronological history logs on the ground that
they did not “show[] anything in regards to his -- the
prior convictions that the People need to prove in this
case.” The trial court overruled the objection because
the logs showed disciplinary write-ups in prison that
the experts relied upon as the basis for their
antisocial personality disorder diagnosis.
Trial counsel’s objection to the chronological
history portion of Roa’s prison record was arguably
sufficient to preserve an argument on appeal that
such evidence was inadmissible hearsay. The
chronological history portion of Roa’s prison records
does not come within the hearsay exceptions set forth
in section 6600, subdivision (a)(3) or Penal Code
section 969b. The chronological history does not
show the existence of a prior qualifying SVP
conviction or the details underlying commission of
the offense that led to the prior qualifying SVP
conviction. (§ 6600, subd. (a)(3).) Admission of that
portion of Roa’s prison records into evidence
accordingly was error. (See Burroughs, supra, 6
Cal.App.5th at p. 410 [trial court erred by admitting
into evidence portions of probation reports containing
information about SVP committee’s prior record,
adult history, personal history,
physical/mental/emotional health, education,
employment and terms and conditions of probation].)
3
Roa failed to raise any objection in the trial
court below to exhibits 12, 13, and 17 and forfeited
his objections to those documents.
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
____________________________________________________________
_________
ASHMANN-GERST, Acting P. J., CHAVEZ, J., GOODMAN, J.*
* Retired Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
4
Filed 5/2/17 Unmodified opinion
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B264885
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM011271)
v.
NICKOLAS ROA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. James R. Dabney, Judge. Reversed.
Rudy Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell and Douglas L. Wilson,
Deputy Attorneys General, for Plaintiff and Respondent.
Nickolas Roa (Roa) appeals from the judgment and order
committing him indefinitely to the custody of the Department of
State Hospitals after a jury found him to be a sexually violent
predator (SVP) under the Sexually Violent Predators Act (SVPA)
(Welf. & Inst. Code, § 6600 et seq.).1 Roa contends the trial court
committed prejudicial error and denied him his due process
rights by allowing the expert witnesses to testify as to case-
specific facts that constitute inadmissible hearsay under People v.
Sanchez (2016) 63 Cal. 4th 665 (Sanchez) and by admitting into
evidence hearsay statements contained in documents that should
have been redacted or excluded in their entirety.
We conclude that the trial court erred by allowing the
experts to recite case-specific facts that were not independently
proven by admissible evidence and that the error was prejudicial
under the standard set forth in People v. Watson (1956) 46 Cal. 2d
818. We therefore reverse the judgment.
PROCEDURAL HISTORY
On February 14, 2007, the Los Angeles County District
Attorney (the People) filed a petition pursuant to the SVPA to
commit Roa as an SVP.2 The trial court reviewed the petition
__________________________________________________________________
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Roa was previously found to qualify as an SVP and was
committed to a state hospital. This court affirmed the previous
order of commitment in a nonpublished opinion (People v. Roa
(Mar. 9, 2000, B131389)). Before 2006, a person determined to be
an SVP was committed to the custody of the Department of
Mental Health for a two-year term, which could be extended for
additional two-year periods. (Former § 6604, as amended by
Stats. 2000, ch. 420, § 3; former § 6604.1, as amended by Stats.
2000, ch. 420, § 4.) Roa’s previous commitment was pursuant to
the former version of the SVPA. In 2006, the statutes were
amended to provide for an indeterminate term of commitment.
(Stats. 2006, ch. 337, §§ 55, 56; Prop. 83; see People v. Whaley
(2008) 160 Cal. App. 4th 779, 785-787.)
2
and ordered a probable cause hearing pursuant to section 6602.
A probable cause hearing was conducted on June 25, 2009, at
which Dr. Jack Vognsen and Dr. Jeffrey Davis testified. At the
conclusion of the hearing, the trial court found that the petition
stated sufficient facts that would constitute probable cause to
believe that Roa was likely to engage in SVP criminal behavior
upon release. The matter proceeded to a jury trial that
commenced on May 26, 2015.
As relevant here, Roa’s counsel filed two motions in limine
to preclude the People’s experts from considering, relying upon,
or discussing the contents of two reports prepared by a district
attorney investigator in 1999 and to preclude the experts from
testifying as to “the details or contents of hearsay statements,
including those contained in police and probation reports and
psychiatric and medical records, when disclosing hearsay
statements that were relied upon in forming their opinions unless
the statements themselves are admissible.” The trial court ruled
that the experts could testify regarding the “general substance” of
information they gleaned from documentary evidence, including
the investigator’s reports, as the basis for their opinions, but that
the reports and any other documents reviewed by the experts
would not be admitted into evidence unless they came within a
hearsay exception.
At the conclusion of the trial, the jury returned a verdict
finding true the allegation that Roa was an SVP and a danger to
the health and safety of others because he is likely to engage in
acts of predatory sexual violence. The trial court ordered Roa
committed indefinitely to Coalinga State Hospital. This appeal
followed.
3
BACKGROUND
The People’s evidence
Dr. Jack Vognsen
Jack Vognsen, a forensic psychologist who contracts with
the California Department of State Hospitals (DSH) to provide
SVP evaluations, testified as an expert witness. He evaluated
Roa in 2004 and prepared updated evaluations in 2006, 2009, and
2013, and an addendum to the 2013 evaluation in 2014. Because
Roa repeatedly refused to be interviewed, Vognsen based his
evaluations on Roa’s state hospital records, court records, police
reports, probation officer reports, prison records, and criminal
history reports prepared by the Department of Corrections and
the Department of Justice. He also reviewed and relied upon the
two district attorney investigator reports prepared in 1999.
1. Convictions for SVP offenses
Vognsen opined that Roa had been convicted of two
qualifying SVP offenses. He testified as to the details of those
offenses, based on his review of probation officer’s reports and
police reports in both cases. The first offense occurred in 1977,
when Roa sexually assaulted a realtor named Helen who was
conducting an open house. Roa held a knife to Helen’s throat and
forced her to undress and orally copulate him. He sodomized her
with his fingers and bit her genitals, anus, and buttocks. Roa
was convicted in 1978 of oral copulation by force for the offense
against Helen and was sentenced to two years in prison.
The second qualifying offense occurred in 1984. Roa went
to the home of a woman named Michelle whom he had met on a
previous occasion, said his car had broken down, and asked to use
the bathroom. When he was finished, Roa told Michelle he had
something in his car to show her, and she went outside with him.
Roa opened the car door, grabbed Michelle by the hair and forced
her into the car. He told Michelle that he had a knife and drove
4
to an abandoned pallet yard. There, Roa raped and orally
copulated Michelle over a two-hour period. When Michelle
resisted, Roa struck her in the face. He was convicted in 1984 for
oral copulation by force, penetration of the anus with a foreign
object, rape, and kidnapping.
2. Mental disorder
Vognsen diagnosed Roa with a paraphilic disorder3 with
nonconsenting others, sexual sadism, antisocial personality
disorder, and a substance abuse disorder.
Vognsen based his sexual sadism diagnosis on the
circumstances of the offense against Helen, which he said
demonstrated Roa’s interest in sexually humiliating the victim
rather than having sexual intercourse with her. Vognsen
testified that he was not “totally comfortable” with the sexual
sadism diagnosis until he reviewed a district attorney
investigator’s report on a 1999 interview with Roa’s ex-wife,
Bertha. According to Bertha, Roa had to beat her, humiliate her,
and see her cry and scream before he could become sufficiently
aroused to have sexual intercourse with her. Bertha stated that
she was 17 years old and Roa was 16 when they married and that
the marriage lasted between six and eight years.
Vognsen based the paraphilia diagnosis on the
circumstances of the offense against Michelle, in which Roa
sexually coerced the victim using force and threats. Vognsen
found further support for that diagnosis in two additional
incidents he learned of after reviewing a second district attorney
__________________________________________________________________
3 ‘“‘The term paraphilia denotes any intense and persistent
sexual interest other than sexual interest in genital stimulation
or preparatory fondling with phenotypically normal, physically
mature, consenting human partners.” [Citation.]’ [Citation.]”
(People v. Burroughs (2016) 6 Cal.App.5th 378, 392, fn. 3, quoting
Couzens & Bigelow, Cal. Law and Procedure: Sex Crimes (The
Rutter Group 2016) § 14:2, p. 14-10.)
5
investigator’s report prepared in 1999. Vognsen then testified as
to the details of those two incidents.
The first incident was a 1967 juvenile adjudication for
assault. Roa was 17 at the time and was sent to the California
Youth Authority for that offense. Vognsen stated that Roa was
attempting to rape a 12- or 13-year-old girl named Cecilia in an
alley when a witness heard her cries for help and came to her aid.
Roa then fled, but was subsequently arrested and pleaded to
assault. The second incident occurred in 1974 when Roa was
arrested for attempting to rape two inebriated teenage girls who
were asleep in a van outside a party Roa had attended. Roa was
not convicted for that offense because the girls refused to testify.
Vognsen explained that a diagnosis of antisocial
personality disorder requires evidence of a conduct disorder
before the age of 15 and that he found such evidence in Roa’s
juvenile criminal history. Vognsen testified that Roa’s juvenile
history included curfew violations, driving under the influence
and without a license, and disciplinary problems in school
because of fighting. Vognsen found further support for his
diagnosis in Roa’s adult criminal history, which included multiple
robbery offenses, assault with a deadly weapon, and theft; his
prison record, which showed disciplinary sanctions for fighting;
and hospital records indicating that Roa had never financially
supported his children and that he had disengaged from his
family, including his children and grandchildren.
Vognsen based his diagnosis of polysubstance abuse on
hospital records indicating that Roa began consuming alcohol and
using marijuana as a teenager and that he used other stimulants
and drugs up until the time of his imprisonment, and prison
records indicating that he was found in possession of inmate
manufactured alcohol in 1986.
6
3. Likelihood of reoffending
Vognsen opined that the four principal disorders he had
diagnosed -- paraphilia with nonconsenting women, sexual
sadism, antisocial personality disorder, and substance abuse,
interact with one another and make it more likely that Roa would
reoffend in a sexually violent, predatory manner if he were to be
released. Vognsen further opined that Roa lacks volitional
control over his urge to humiliate women. He based this opinion
on the fact that Roa raped Michelle after being arrested and
convicted for the sexual assault against Helen.
Vognsen also used several diagnostic tools to assess Roa’s
risk of reoffending. One of these tools was the STATIC-99, an
actuarial instrument that calculates a defendant’s risk of
reoffense based on the number of sex offenses, sentencing dates,
and convictions for nonsexual violence. The STATIC-99 also
takes into account the defendant’s age at the time of evaluation
and whether any sex offenses were against unrelated victims or
strangers.
Applying the STATIC-99 factors, Vognsen testified that
Roa’s criminal history included long periods of custody between
1966 and 1974; previous convictions for nonsexual violence,
including robbery and assault with a deadly weapon; and
repeated sexual offenses against unrelated victims or strangers.
He gave Roa a score of 4, indicating a moderate risk of
reoffending. Vognsen stated that Roa would have qualified for a
score of 5, indicating a high-moderate risk, had he been charged
with a sex offense against Cecilia instead of assault.
Vognsen also assessed Roa using two other diagnostic tools
-- the sexual violence risk tool4 and the sexual recidivism SRA
__________________________________________________________________
4 The sexual violence risk tool considers factors such as
sexual deviation, whether the defendant was a victim of child
abuse, psychopathy, major mental illness, substance abuse
7
tool.5 Vognsen concluded that Roa presented a high risk of
sexual reoffending when assessed under both of these tools.
Vognsen testified that the additional information he
obtained from the district attorney investigator’s reports about
Roa’s assault against Cecilia and the alleged abuse of Roa’s ex-
wife, caused him to assess Roa at a higher risk of sexual
reoffending than he had previously determined in his 2013
evaluation.
Dr. Carolyn Murphy
Carolyn Murphy, a forensic psychologist who contracted
with the Department of State Hospitals from late 2006 until June
2014, testified regarding her evaluation of Roa in September
2013. Because Roa declined to be interviewed, Murphy based her
evaluation on probation reports, police reports, disciplinary
reports from the Department of Corrections, and records from the
state hospitals in which Roa had been housed. She also reviewed
Roa’s psychosocial history, his educational and employment
history, and his relationship history, as documented in his
medical records and prior psychological evaluation reports.
problems, suicidal or homicidal tendencies, relationship and
employment problems, past nonsexual violent offenses, past
nonviolent sexual offenses, past supervision failure, multiple
offenses within a short space of time, physical harm to the
victims, use of weapons or threats of death, escalation of
frequency, minimization or denial of offenses, condoning offenses,
lack of realistic plans, negative attitudes toward intervention.
5 The SRA tool takes into consideration factors such as
sexual preference for children, sexualized violence, sexual
preoccupation, lack of emotional intimate relations with adults,
emotional congruence with children, grievance thinking,
pervasive anger, dysfunctional coping and self management
skills.
8
1. Qualifying SVP offenses
Murphy opined that Roa had been convicted of two
qualifying SVP offenses against two different victims in two
separate cases. She then described the details of Roa’s 1977
sexual assault against Helen and the 1984 rape against Michelle.
2. Mental disorder
Murphy diagnosed Roa with two mental disorders that
predispose him to criminal sexual acts -- other specified
paraphilic disorder, and antisocial or criminal personality
disorder.
In formulating her opinions, Murphy considered, in
addition to the two qualifying SVP offenses, Roa’s 1967 sexual
assault against Cecilia and the 1974 sexual assault against the
two inebriated teenage girls. She stated that the four incidents
involved attempted or completed sexual assaults against
nonconsenting females and demonstrated a pattern of interest in
sexually assaulting people.
Murphy found significant the fact that the assault against
Cecilia occurred in an alley, as it showed isolation of the victim
and perpetration of a sexual act. With regard to the 1974 assault
against the teenaged girls, Murphy testified that a police report
indicated that one of the victims saw blood in her underwear,
evidence that the assault included completed penile or digital
penetration.
Murphy responded affirmatively when asked whether she
had reviewed a report of an interview with Roa’s ex-wife and
whether that report contained information suggesting sexual
sadism. She then related Bertha’s statements that Roa had been
physically aggressive with her during sex, and sometimes beat
her prior to sex. Murphy acknowledged that Roa’s abuse of
Bertha and his behavior during the 1977 offense against Helen
had sadistic themes.
9
Murphy testified that antisocial personality disorder is one
in which an individual has a lifelong pattern of lawless behavior
and violating the rights of others. She found evidence of that
behavior in Roa’s extensive history of juvenile misconduct that
included fighting, driving under the influence, and the sexual
assault against Cecilia when Roa was 17. She stated that Roa’s
juvenile adjudications resulted in a succession of California
Youth Authority commitments for a total of seven years. Murphy
found additional evidence of the personality disorder in Roa’s
adult conduct, which included several drug related offenses, a
robbery conviction, and an assault against two state hospital
patients that had occurred the previous August. Murphy
testified that a staff member who had witnessed the August
assault believed Roa was experiencing auditory hallucinations at
the time because he had cotton stuffed in his ears. Murphy
further testified that an officer who interviewed Roa after the
August attack said that Roa was not making sense, which
suggested thought disorganization.
Murphy testified that Roa’s history of meeting with the
state hospital treatment staff was poor and that he had expressed
delusional ideations that the hospital was a morgue and that the
physicians were not really doctors.
3. Likelihood to reoffend
Murphy opined that Roa’s assaultive behavior, and his
refusal to participate in mental health and substance abuse
treatment placed him at a higher risk of reoffending. She
acknowledged that studies show a diminished propensity to
commit rape among men over the age of 60, but noted that the
research did not cover Roa’s other, more diverse sexually
assaultive behaviors such as oral copulation and digital
penetration.
10
Murphy assessed Roa’s risk of reoffending using the
STATIC-99 and the STATIC-2000. He received a score of 4 under
each of those diagnostic tools, placing him at a low moderate risk
for reoffense under the STATIC-2000, and a moderate high risk
under the STATIC-99. Murphy assessed Roa’s risk of reoffending
to be higher than what the statistical diagnostic tools indicated,
however, because he was showing active symptoms of psychosis
and refusing any treatment. Murphy opined that Roa’s
paraphilia for nonconsensual sexual relations makes him
dangerous and that his antisocial personality disorder is an
exacerbating factor that makes him more dangerous. Murphy
further opined that Roa meets the criteria for an SVP because he
has a qualifying mental disorder and appears to pose a serious
and well-founded risk to the community.
Defense evidence
Dr. Douglas Korpi
Douglas Korpi, a psychologist who had diagnosed and
evaluated the risk of sex offenders since the mid-1980s, evaluated
Roa in 2013 and again in 2014. Because Roa refused to be
interviewed, Korpi based his evaluations on police reports,
probation reports, court documents, and state hospital records,
including notes of the nurses, rehabilitation therapists, and
doctors who saw Roa on a daily basis. For the 2014 evaluation,
Korpi also reviewed the 1999 district attorney investigator’s
report about Roa’s alleged mistreatment of his ex-wife.
In 2013, Korpi diagnosed Roa with schizophrenia,
antisocial personality disorder, and a mild intellectual deficit. He
concluded that although these diagnoses predisposed Roa to
violent criminal behavior, they did not predispose him to
reoffending sexual conduct. He reasoned that Roa did not begin
to exhibit psychotic conduct until the age of 39 and all of his
criminal conduct occurred long before then. Korpi also assessed
11
Roa’s risk for reoffending using the STATIC-2002 and the
STATIC-99 and gave Roa a score of 4 under each of those
actuarial instruments. He explained that people with a score of 4
reoffend four to sixteen percent of the time.
During his 2014 evaluation of Roa, Korpi’s review of the
district attorney investigator’s report on Roa’s ex-wife caused him
to change his diagnosis to include sexual sadism. Despite this
new diagnosis, Korpi maintained that Roa was not likely to
sexually reoffend in a violent predatory manner given his
moderate scores under the actuarial measurements, his advanced
age, and the absence of any sadistic or sexual behavior in the
past 30 years.
During cross-examination, Korpi admitted that although he
had not diagnosed Roa with paraphilia, he could have made that
diagnosis based on his review of a 1974 Pomona Police
Department report describing the assault on the two girls in the
van, and police reports containing the details of the assaults
against Helen and Michelle.
Dr. Michael Musacco
Psychologist Michael Musacco was assigned by the DSH to
evaluate Roa in 2014. Because Roa refused to be interviewed,
Musacco reviewed Roa’s medical and law enforcement records.
Musacco opined that Roa has a qualifying mental disorder
that predisposes him to commit sexual crimes -- specifically, a
diagnosis of other specified paraphilic disorder. Musacco also
diagnosed antisocial personality disorder, substance abuse
disorder, and schizophrenia.
Musacco gave Roa a score of 4 using the STATIC-99,
placing him in the category of moderate high risk of reoffending.
He noted, however that the STATIC-99 is based entirely on
historical factors and does not account for dynamic risk variables
such as sexual preoccupation, and antisociality. Musacco stated
12
that although Roa met two of the three criteria for an SVP --
conviction of a qualifying sexual offense and a mental illness that
predisposed him to commit sex crimes -- he was unlikely to
reoffend in a sexually violent predatory manner because of his
advanced age and the absence of any sexual conduct during his
hospitalization. Musacco concluded that although Roa presented
a risk, that risk did not rise to the level of a “serious and well-
founded risk” of being a danger to the health and safety of others.
Dr. Hy Malinek
Hy Malinek, a forensic psychologist and expert in SVP
evaluations, was hired by the defense to evaluate Roa in 2011.
Malinek attempted to interview Roa on four separate occasions.
Roa refused to be interviewed for the first two attempts. On the
third attempt in December 2011, Roa participated for
approximately 15 minutes and then got up and walked out of the
interview room. Roa arrived for the fourth interview attempt but
refused to wait for Malinek to finish with another patient and left
before his own interview could begin. Malinek based his
evaluation on Roa’s law enforcement and mental health records.
Malinek opined that although Roa may in the past have
had a mental disorder that would predispose him to commit
criminal sexual acts, he did not currently have such a disorder.
Malineck based his opinion on the absence of adequate
information from 1977 to the present that would indicate such a
disorder.
Malinek acknowledged that Roa had an extensive criminal
history, commencing at the age of 14 or 15, that included
robberies, sexual offenses, and public intoxication. He further
acknowledged that Roa had spent most of his life in custody, and
had violated probation, thereby demonstrating a disregard for the
law. He did not, however, diagnose Roa with paraphilia or sexual
sadism and discounted the reports of abuse by Roa’s ex-wife
13
because of inconsistencies in her statements. Malinek diagnosed
Roa with polysubstance dependence and antisocial personality
disorder based on his juvenile and adult criminal history but
concluded that these disorders did not predispose Roa to commit
sex crimes. He noted the absence of evidence in Roa’s records of
any sexual preoccupation in the past 31 years.
Malinek concluded that Roa was unlikely to reoffend based
on his low actuarial scores and his advanced age. He disagreed
with testimony that age was not a protective factor for
individuals diagnosed with sexual sadism. Malinek concluded
that Roa did not present a serious and well-founded risk of
reoffending in a sexually violent, predatory manner if he were to
be released.
DISCUSSION
I. Standard of review
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.
Waidla (2000) 22 Cal. 4th 690, 725.)
II. General legal principles
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, subd. (b).) A statement “offered for some purpose other
than to prove the fact stated,” however, is not hearsay. (Sen.
Com. on Judiciary com., 29B Pt. 4 West’s Ann. Evid. Code (2015
ed.) foll. § 1200, p. 3.) 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
14
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.” (Ibid.)
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 patients’ hearsay
descriptions of their symptoms to form diagnoses.6 (Sanchez,
supra, 63 Cal.4th at p. 678.) This exception was recognized and
given more general application in Evidence Code sections 801
and 802. (Ibid.) 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.
__________________________________________________________________
6 Another exception is expert testimony about property
valuation, as “‘courts recognized that experts frequently derived
their knowledge by both custom and necessity from sources that
were technically hearsay -- price lists, newspapers, information
about comparable sales, or other secondary sources.’ [Citations.]”
(Sanchez, supra, 63 Cal.4th at p. 678.)
15
III. The SVPA
Expert testimony, specifically testimony regarding
diagnosis of a current mental disorder, is an important element
in an SVPA civil commitment proceeding. Such a proceeding
identifies persons who have committed a sexually violent offense
and who have a current diagnosed mental disorder that makes it
likely that they will commit sexually violent crimes in the future.
The SVPA requires that such persons be confined and treated
until they no longer present a threat to society. (Stats. 1995, ch.
762, § 1 (Sen. Bill No. 1143).)
An alleged SVP has the right to a jury trial, at which the
prosecutor must prove beyond a reasonable doubt that the person
was convicted of a qualifying sexually violent offense; has a
current, diagnosed mental disorder that makes the person a
danger to the health and safety of others; and that the mental
disorder makes it likely the defendant will engage in sexually
violent criminal behavior in the future. (§§ 6600, 6603, 6604;
People v. White (2016) 3 Cal.App.5th 433, 448.)
A. Conviction of a sexually violent offense
To qualify as an SVP, a defendant must have been
convicted of at least one qualifying sexually violent offense. (§
6600, subd. (a)(3).) Section 6600, subdivision (b) lists the offenses
that qualify as predicate offenses under the SVPA. The existence
of a predicate offense and the details underlying commission of
that offense may be established by documentary evidence made
admissible by section 6600, subdivision (a)(3). That statute
allows admission of “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” to prove the existence of a prior
qualifying offense as well as the details underlying the
commission of the offense. (Ibid.)
16
Section 6600, subdivision (a)(3) creates a hearsay exception
for the documentary evidence described in that statute, and for
multiple-level-hearsay statements contained within such
documents. (People v. Otto (2001) 26 Cal. 4th 200, 208 (Otto).) As
explained by the California Supreme Court, the expansive
hearsay exception accorded by section 6600, subdivision (a)(3)
was intended to relieve victims of the burden of testifying about
the details of crimes committed many years ago:
“As originally enacted, the SVPA did not permit
the use of documentary evidence. (See Stats. 1995,
ch. 763, § 3.) The Legislature modified the act after
prosecutors complained that ‘they must bring victims
back to court to re-litigate proof of prior convictions.’
[Citation.] . . . [¶] Thus, the Legislature apparently
intended to relieve victims of the burden and trauma
of testifying about the details of the crimes
underlying the prior convictions. Moreover, since the
SVP proceeding may occur years after the predicate
offense or offenses, the Legislature may have also
been responding to a concern that victims and other
percipient witnesses would no longer be available.
Given these purposes, the only reasonable
construction of section 6600(a)(3) is that it allows the
use of multiple-level hearsay to prove the details of
the sex offenses for which the defendant was
convicted. If the amendment to section 6600,
subdivision (a) is construed as excluding multiple
hearsay, i.e., victim statements, contained in
probation and sentencing reports, then victims would
be required to testify -- an interpretation that would
defeat the apparent purposes of the amendment.”
(Otto, supra, 26 Cal.4th at p. 208.)
The existence of a prior conviction for a sexually violent
offense may also be established by documentary evidence. (Pen.
Code, § 969b; People v. Burroughs, supra, 6 Cal.App.5th 378
17
(Burroughs); People v. Dean (2009) 174 Cal. App. 4th 186, 196
(Dean).) Penal Code section 969b allows the admission into
evidence of records or certified copies of records “of any state
penitentiary, reformatory, county jail, city jail, or federal
penitentiary in which” the defendant has been imprisoned to
prove that a person has been convicted of a crime.
Conviction of a qualifying sexually violent offense may
support a determination that a person is an SVP, but it cannot be
the sole basis for that determination. (§ 6600, subd. (a)(3).) The
SVPA mandates that jurors “be admonished that they may not
find a person a sexually violent predator based on prior offenses
absent relevant evidence of a currently diagnosed mental
disorder that makes the person a danger to the health and safety
of others in that it is likely that he or she will engage in sexually
violent behavior.” (Ibid.)
B. Diagnosed mental disorder
The SVPA defines a current diagnosed mental disorder as
“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).) To
prove at trial that a defendant suffers from a mental disorder, the
People have one or more experts evaluate the defendant to make
a diagnosis.7 A trial court may order an alleged SVP to submit to
__________________________________________________________________
7 Before a petition to commit a defendant as an SVP can be
filed, the SVPA requires the defendant to be evaluated by two
practicing psychiatrists or psychologists, who must both agree
that the defendant comes within the statute. (§ 6601, subd. (d).)
After the petition is filed, and before a trial on the petition
commences, the defendant is entitled to a full evidentiary hearing
to determine whether there is probable cause to believe he is
likely to engage in sexually violent predatory criminal behavior
upon release. (§ 6602, subd. (a).)
18
a mental examination by an expert retained by the People (People
v. Landau (2013) 214 Cal. App. 4th 1, 25-26); however, defendants
often refuse to meet with the expert. The diagnosis is therefore
frequently based on documentary evidence such as state hospital
records, police reports, probation reports, and prison records.
(See Burroughs, supra, 6 Cal.App.5th 378.)
C. Likelihood of reoffending
The third element the People must prove in order to
commit a defendant as an SVP is that the defendant will likely
engage in sexually violent criminal behavior as a result of a
diagnosed mental disorder. (§ 6600, subd. (a).) A person is likely
to engage in sexually violent criminal behavior if the jury finds
that the person presents “a substantial danger, that is, a serious
and well-founded risk, of committing such crimes if released from
custody.” (People v. Roberge (2003) 29 Cal. 4th 979, 987-988, fn.
omitted.) Expert testimony is admissible regarding the
dangerousness of the defendant and the likeliness of the
defendant to reoffend. (People v. Therrian (2003) 113
Cal. App. 4th 609, 614-615.) Such testimony is typically based on
diagnostic tools that are used to predict future violent sexual
behavior. A common diagnostic tool for predicting violent sexual
behavior is the STATIC-99,8 “an actuarial instrument that allows
an evaluator to place sexual offenders in different risk categories
based on historical (static) factors such as age, marital status, the
number of prior offenses, the relationship of the offender to the
victims and the gender of the victims.” (Therrian, at p. 612.) The
STATIC-99 assigns the offender a numeric score that reflects a
percentage chance of the offender being convicted of a future
__________________________________________________________________
8 Penal Code section 290.04, subdivision (b) designates the
STATIC-99 as the State-Authorized Risk Assessment Tool for Sex
Offenders (SARATSO) for adult males required to register as sex
offenders.
19
sexual offense. (Ibid.) A score of 0-1 indicates a low risk of
committing a new violent sexual offense, 2-5 indicates a moderate
risk, and 6 indicates a high risk of reoffending. (Couzens &
Bigelow, Sex Crimes: Cal. Law & Procedure, supra, § 13:6, p. 13-
28.)
IV. Hearsay and expert testimony in SVP proceedings
A. Scope of permissible expert testimony
As discussed, the existence of a qualifying SVP conviction
and the details underlying the offense can be established by
multiple-level hearsay evidence such as preliminary hearing and
trial transcripts, probation and sentencing reports, and
evaluations by the State Department of State Hospitals. (§ 6600,
subd. (a)(3); Otto, supra, 26 Cal.4th at p. 208.) Because the facts
underlying the qualifying offense are admissible under section
6600, subdivision (a)(3), experts may relate those facts to the jury
as the basis for their opinions. (Burroughs, supra, 6 Cal.App.5th
at p. 403.) Experts may also testify that the defendant was
convicted of a qualifying offense, as evidence of such a conviction
is admissible under Penal Code section 969b. (Dean, supra, 174
Cal.App.4th at p. 196.) Finally, experts may testify as to a
defendant’s likelihood of reoffending. (People v. Therrian, supra,
113 Cal.App.4th at p. 615.)
B. Pre-Sanchez limitations on expert use of hearsay
evidence
At the time of Roa’s trial, “the general rule was that ‘out-of-
court statements offered to support an expert’s opinion are not
hearsay because they are not offered for the truth of the matter
asserted. Instead, they are offered for the purpose of assessing
the value of the expert’s opinion.’ [Citation.]” (Burroughs, supra,
6 Cal.App.5th at p. 405.) That general rule, however, was not
without limitation. For example, experts are generally prohibited
from disclosing the details of a defendant’s state hospital and
20
custody records if those records have not been properly admitted
into evidence. (People v. Landau (2016) 246 Cal. App. 4th 850,
876-877 (Landau); see also Dean, supra, 174 Cal.App.4th at p.
197.)
In Dean, experts testified in detail at the defendant’s SVP
trial about incidents disclosed in state hospital and custody
records which had not been admitted into evidence. These
incidents included a drug sniffing dog “hit[ting] on defendant”
while at the state hospital; defendant’s derogatory statements to,
and writings about, female hospital staff; his juvenile criminal
offenses for arson, assault, burglary, and brandishing a firearm;
and his alleged acts of rape, sodomy, and oral copulation while in
custody. (Dean, supra, 174 Cal.App.4th at pp. 197-200.)
Although the court in Dean found the testimony to be “highly
inflammatory” and “of questionable reliability” (id. at pp. 200-
201, fn. omitted), it concluded that the error was harmless
because the trial court had instructed the jury not to consider
expert testimony about statements made by other persons and
sources for their truth. (Id. at pp. 201-202.)
In, Landau, an expert in the defendant’s SVP commitment
trial testified in detail about the defendant’s conduct in the state
hospital, as documented in hospital records that were not
admitted into evidence. The testimony included manifestations
of the defendant’s obsessive-compulsive behavior, such as
hoarding of food and newspaper clippings; his refusal to
participate in treatment; his physical altercation with another
patient over a menu; and specific instances in which he used
epithets and racial slurs against other patients and hospital staff.
(Landau, supra, 214 Cal.App.4th at p. 876.) The court in Landau
found admission of this hearsay evidence to be prejudicial
because it “cast appellant [who had previously been found to be
an SVP] in a most unfavorable light as someone who will not
21
follow rules, demonstrates no concern for others, and engages in
some form of violence.” (Id. at p. 877.) The court accordingly
reversed the judgment. (Ibid.)
V. Sanchez
Expert testimony that discloses hearsay evidence was
further circumscribed by the California Supreme Court in
Sanchez. In that case, a gang expert testified about statements
the defendant had made to police officers, as documented in
various police records that were not admitted into evidence. The
expert had never met the defendant, but opined that the
defendant was a gang member, based in part on the defendant’s
statements to the officers. (Sanchez, supra, 63 Cal.4th at pp.
672-673.) 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.” (Id.
at p. 670.)
The court in Sanchez distinguished between expert
testimony about general knowledge in the expert’s area of
expertise, which traditionally has not been excluded as hearsay,
and testimony relating “case-specific facts,” which has been
subject to exclusion. (Sanchez, supra, 63 Cal.4th at p. 676.) The
court observed that over time, the line between expert testimony
as to general background information and case-specific hearsay
had become blurred, and that trial courts sought to remedy the
problem by instructing jurors that matters admitted through an
expert should not be considered for their truth but only as the
basis for the expert’s opinion. (Id. pp. 678-679.) This approach,
the Supreme Court reasoned, obviated the “need to carefully
distinguish between an expert’s testimony regarding background
information and case-specific facts.” (Id. at p. 679.) The court
22
articulated the problem as follows: “When an expert relies on
hearsay to provide case-specific facts, considers the statements as
true, and relates them to the jury as a reliable basis for the
expert’s opinion, it cannot logically be asserted that the hearsay
content is not offered for its truth. In such a case, ‘the validity of
[the expert’s] opinion ultimately turn[s] on the truth’ [citation] of
the hearsay statement.” (Id. at pp. 682-683.)
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 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.”9 (Id. at pp. 685-686.)
__________________________________________________________________
9 The court in Sanchez imposed additional limitations, not
applicable here, on testimonial hearsay statements offered by the
prosecution in a criminal case. (Sanchez, supra, 63 Cal.4th at p.
680.)
23
VI. Burroughs
Burroughs is the only published appellate court decision to
date that applies the principles articulated in Sanchez in the
context of an SVP commitment proceeding. In Burroughs, the
People’s experts testified about the facts of the defendant’s
qualifying offenses and opined that those offenses constituted
qualifying prior convictions under the SVPA. (Burroughs, supra,
6 Cal.App.5th at pp. 384-385.) The defendant objected on the
ground that experts are not qualified to opine on what constitutes
a qualifying prior conviction or a sexually violent, predatory
offense, and that opinion testimony on these subjects would
usurp the function of the jury. (Id. at pp. 398-401.) The court in
Burroughs agreed that “[e]xperts are not necessary . . . to
establish that the defendant suffered a conviction for a sexually
violent offense.” (Id. at pp. 402-403.) The court pointed out,
however, that the fact that the defendant had been convicted of
an enumerated SVPA offense had been proven by the
introduction of “a ‘section 969b prison packet’” and that the
People had proven that the conviction was for a sexually violent
offense by admitting documentary evidence made admissible into
evidence by section 6600, subdivision (a)(3). (Ibid.) Because the
facts underlying the defendant’s qualifying offenses had been
proven independently by admissible documentary evidence, the
court in Burroughs concluded that “the experts were permitted to
relate the facts to the jury as the basis of their opinions”
consistent with the Supreme Court’s holding in Sanchez.
(Burroughs, at p. 403.)
The defendant in Burroughs also objected to expert
testimony and documentary evidence referring to uncharged
offenses and conduct other than his qualifying offenses.
(Burroughs, supra, 6 Cal.App.5th at p. 408.) He argued that
while section 6600, subdivision (a)(3) allows admission of
24
evidence pertaining to his qualifying offenses, there was no basis
to admit evidence regarding offenses that were dismissed,
uncharged, or otherwise nonqualifying. The defendant had
preserved his objections to documentary evidence containing such
information by adequately specifying, in a motion in limine, the
inadmissible portions of the challenged documentary evidence.
(Id. at p. 409.) The court in Burroughs reviewed the challenged
documentary evidence, which included documents enumerated in
section 6600, subdivision (a)(3), and found that they contained
not only references to uncharged offenses, but also “‘information
about appellant’s prior record, adult history, personal history,
physical/mental/emotional health, education, employment, and
terms and conditions of probation.’” (Burroughs, at p. 410.)
Because this information was not used to prove the qualifying
offenses, the court in Burroughs concluded that documents and
any portions of documents containing such information was
inadmissible hearsay and that the trial court erred by allowing
the experts to relate such hearsay to the jury. (Id. at pp. 410-
411.) The court further concluded that the evidentiary errors
were prejudicial because the documentary evidence and expert
testimony “related a significant amount of hearsay to the jury” by
describing, “in lurid detail, numerous sex offenses that appellant
was not charged with or convicted of committing.” (Id. at p. 412.)
The court in Burroughs accordingly reversed the judgment and
remanded the matter to the trial court for further proceedings.
VII. The instant case
In the instant case, Roa contends his SVP commitment
must be reversed because the trial court committed prejudicial
error by admitting the following inadmissible hearsay evidence:
(1) expert testimony regarding the facts and circumstances of the
qualifying predicate offenses; (2) expert testimony concerning the
content of the 1999 district attorney investigator reports; and (3)
25
expert testimony and documentary evidence regarding Roa’s
personal life, employment status, substance abuse history, and
conduct in the state hospital. Roa further contends the trial court
violated his due process rights by allowing the People to use
unreliable hearsay from an investigation conducted decades after
the subject events.
A. Testimony regarding predicate offenses
Roa claims expert testimony regarding the case-specific
facts of his qualifying offenses is inadmissible hearsay under
Sanchez. We disagree. The limitation on expert testimony
imposed by the Supreme Court in Sanchez applies to case-specific
facts that are not independently proven or covered by a hearsay
exception. (Sanchez, supra, 63 Cal.4th at p. 686.) Here, the facts
underlying Roa’s qualifying offenses were independently proven
by documentary evidence such as preliminary hearing transcripts
and probation and sentencing reports that were admitted
pursuant to section 6600, subdivision (a)(3). (§ 6600, subd. (a)(3);
Otto, supra, 26 Cal.4th at pp. 207-208.) Because the facts were
independently proven, the experts were permitted to relate those
facts to the jury as the basis for their opinions. (Sanchez, supra,
at p. 684.)
B. District attorney investigator reports
Roa contends the trial court committed prejudicial error
and violated his due process rights by allowing the experts to rely
upon and testify as to statements contained in two reports
prepared by a district attorney investigator in 1999 about events
that occurred decades earlier, specifically, a 1967 attempted rape
that resulted in a juvenile adjudication for assault, a 1974 arrest
for the attempted rape of two teenage girls, and allegations by
Roa’s ex-wife about abusive conduct during their marriage. The
trial court excluded the reports themselves as inadmissible
26
hearsay but allowed the experts to rely upon the reports and
testify as to their contents as the basis for their opinions.
1. Expert reliance on reports
Roa cites People v. Carlin (2007) 150 Cal. App. 4th 322
(Carlin) as support for his argument that allowing the experts to
consider and rely upon the investigator’s reports violated his due
process rights. Carlin involved use of investigator reports in an
SVP commitment proceeding to prove the existence of a
qualifying predicate offense. It did not address an expert’s
reliance on such reports as a basis for opinion testimony (see id.
at pp. 337-345) and is therefore inapposite
In Carlin, the People presented, as evidence that the
defendant had committed a qualifying SVP offense, two
investigator’s reports prepared in 2000 and 2001 containing
victim statements about a 1990 incident that resulted in the
defendant’s 1991 conviction. (Carlin, supra, 150 Cal.App.4th at
pp. 336-337.) Before the SVP trial commenced, the trial court
denied the defendant’s request to have the victim testify about
the 1990 incident and the subsequent statements made to the
investigator but admitted the reports as evidence that the
underlying offense for the 1991 conviction involved substantial
sexual conduct with a child under the age of 14.10 (Id. at p. 337,
342.) The appellate court in Carlin concluded that use of the
reports to prove a qualifying SVP offense violated the defendant’s
due process rights. (Ibid.) The court focused in particular on the
reliability of the 2000 and 2001 statements, noting that they were
__________________________________________________________________
10 Before 2006, a sex crime against a child under the age of 14
qualified as a predicate offense under the SVPA if the offending
act involved “substantial sexual conduct.” (Former § 6600.1;
Stats. 1996, ch. 461, § 3.) In 2006 the SVPA was amended to
provide that any designated sex crime against a child under the
age of 14 qualifies as a predicate offense. (§ 6600.1, amended by
initiative measure, Prop. 83, § 25, eff. Nov. 8, 2006.)
27
inconsistent with the victim’s 1991 statements, had not been
corroborated, and were not made in close proximity to the crime.
(Id. at p. 341.) The court found that a critical factor
demonstrating the reliability of the victim’s hearsay statements
was absent -- “the fact that the defendant ‘was convicted of the
crimes to which the statements relate[,]’” i.e., “that ‘some portion,
if not all, of the alleged conduct will have been already either
admitted in a plea or found true by a trier of fact after trial.’”
(Ibid., quoting Otto, supra, 26 Cal.4th at p. 211.) The court in
Carlin noted that the defendant’s 1991 conviction was the result
of a plea that could not have contemplated the victim’s 2000 and
2001 statements, which were made 10 years after the plea and
which vary greatly from the victim’s statements at the time of
conviction.” (Carlin, supra, at p. 341.)
Carlin did not address an expert’s consideration of or
reliance on an investigator’s reports as a basis for opinion
testimony. That case accordingly does not support Roa’s
argument that allowing the experts in this case to consider the
investigator’s reports violated his due process rights.
The investigator reports, even if inadmissible hearsay,
could be relied upon by the experts in forming their opinions.
Evidence Code section 801, subdivision (b) allows an expert to
render an opinion “[b]ased on matter (including his special
knowledge, skill, experience, training, and education) perceived
by or personally made 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.” The California Supreme Court
reaffirmed this principle in Sanchez: “Any expert may still rely
on hearsay in forming an opinion, and may tell the jury in
28
general terms that he did so.” (Sanchez, supra, 63 Cal.4th at p.
685.) Roa has cited no authority that would preclude an expert
from relying on the investigator reports as a basis for their
opinions. The trial court did not err by allowing the experts to do
so in this case.
2. Expert testimony on content of investigator
reports
That the experts could rely on the investigator reports in
forming their opinions does not mean they could relate case-
specific facts contained in those reports to the jury, unless those
facts were independently proven by competent evidence or
covered by a hearsay exception. (Sanchez, supra, 63 Cal.4th at p.
686.) The experts in this case testified extensively about case-
specific facts they obtained from the investigator’s reports and
treated those facts as true and accurate to support their opinions.
The investigator’s reports themselves were not admitted into
evidence, and there is no other evidence of the case-specific facts
concerning the 1967 assault against Cecilia, Roa’s alleged abuse
of his ex-wife, or his 1974 arrest for the alleged sexual assault
against two teenage girls. Admission of expert testimony relating
case-specific facts about these incidents was error. (Sanchez,
supra, 63 Cal.4th at pp. 684-686.)
C. Expert testimony on content of state hospital
records
The People concede that Roa’s state hospital and medical
records are hearsay, and that those records were not admitted
into evidence pursuant to any hearsay exception. They further
concede that expert testimony relating information contained in
the records was inadmissible hearsay but claim that the error in
allowing such testimony was harmless. We address prejudice,
post, in subsection E.
29
D. Documentary evidence
Roa contends the trial court erred by admitting into
evidence seven documents he claims should have been redacted
or excluded in their entirety: (1) exhibit 11, the probation report
concerning the incident involving the victim Helen, case number
A522726; (2) exhibit 12, the transcript of Roa’s no contest plea in
case number A522726; (3) exhibit 13, the transcript of the
sentencing hearing in that same case; (4) exhibit 16, the
probation officer’s report for the case involving the victim
Michelle, case number A531314; (5) exhibit 17, a supplemental
probation officer’s report in case number A531314; (6) exhibit 18,
a certified copy of the CLETS printout listing Roa’s criminal
history; and (7) exhibit 21a-21e (exhibit 21), a prior prison term
information packet prepared pursuant to Penal Code section
969b.
1. Forfeiture of objections
Roa’s trial counsel objected to the victim impact statement
portions of exhibits 11 and 16 and Michelle’s statement in exhibit
16 that Roa should be put away for life as unduly prejudicial
pursuant to Evidence Code section 352. The trial court agreed
and ordered those sections redacted. Roa now claims that
additional portions of exhibits 11 and 12 relating to his family,
personal life, employment status, substance abuse history, and
criminal record should have been redacted because this
information does not prove the details of the qualifying offense.
He further contends that pages 10 and 11 of exhibit 11 should
have been excluded because they do not come within the hearsay
exception accorded by section 6600, subdivision (a)(3). He did not
raise these additional objections in the trial court below and
accordingly forfeited them on appeal. (People v. Doolin (2009) 45
Cal. 4th 390, 448 (Doolin).)
30
Roa’s trial counsel objected to exhibit 18, a certified copy of
the CLETS printout detailing Roa’s criminal history on the
grounds that it was prejudicial, cumulative of the abstract of
judgment, and did not prove prior convictions. The trial court
ruled that the printout was relevant because the experts relied on
it to support their diagnosis of antisocial personality disorder.
The CLETS printout is admissible under the official records
exception to the hearsay rule (People v. Martinez (2000) 22
Cal. 4th 106, 134), and Roa has demonstrated no error in the trial
court’s ruling.
As to exhibit 21, the prior prison packet prepared pursuant
to Penal Code section 969b, Roa’s trial counsel objected to the
portion containing the prison chronological history logs on the
ground that they did not “show[] anything in regards to his -- the
prior convictions that the People need to prove in this case.” The
trial court overruled the objection because the logs showed
disciplinary write-ups in prison that the experts relied upon as
the basis for their antisocial personality disorder diagnosis. In
this appeal, Roa now contends the records do not come within
section 6600, subdivision (a)(3), and are prejudicial and
irrelevant. He failed to raise these objections in the trial court
below and accordingly forfeited them on appeal. (Doolin, supra,
45 Cal.4th at p. 448.) Roa failed to raise any objection in the trial
court below to exhibits 12, 13, and 17 and forfeited his objections
to those documents as well. (Ibid.)
2. Ineffective assistance
Roa contends that if his trial counsel’s failure to object to
the documentary evidence he now challenges on appeal resulted
in a forfeiture of those objections, he was denied effective
assistance of counsel under the Sixth Amendment.
To establish ineffective assistance of counsel, a defendant
must show that counsel’s representation failed to meet an
31
objective standard of professional reasonableness and that he
was prejudiced by that deficient representation. To demonstrate
prejudice, the defendant must show that absent the deficient
representation, there is a reasonable probability the result would
have been more favorable. (Strickland v. Washington (1984) 466
U.S. 668, 687-688; People v Frye (1998) 18 Cal. 4th 894, 979.) A
conviction may not be reversed on appeal for ineffective
assistance of counsel unless the record shows there was no
rational tactical purpose for counsel’s act or omission. (People v.
Frye, at p. 979.)
Roa did not meet his burden of showing deficient
performance. He concedes that exhibit 18 is admissible under
People v. Martinez, supra, 22 Cal. 4th 106. Section 6600,
subdivision (a)(3) specifically allows admission of exhibits 11, 12,
13, 16, and 17, and Penal Code section 969b allows admission of
exhibit 21. Roa also concedes that many of the entries in the
objected to portions of the exhibits are irrelevant, “meaningless to
the jury” and not prejudicial. For these reasons, we conclude that
he failed to establish ineffective assistance of counsel.
E. Prejudice
Admission of the hearsay testimony in this case was
prejudicial. The experts related a substantial amount of hearsay
to the jury, including the details of sex offenses Roa was not
charged with or convicted of committing, such as the 1967 assault
against Cecilia, his 1974 arrest for an alleged rape or attempted
rape against two teenage girls, and his alleged sexual abuse of
his ex-wife during their marriage. Vognsen testified that he
relied on the investigator’s report concerning Roa’s alleged abuse
of his ex-wife as the basis for diagnosing Roa with sexual sadism,
that he relied on the assault against Cecilia as the basis for a
conduct disorder diagnosis, and that he relied on the attempted
rape of the two teenage girls as the basis for the paraphilia
32
diagnosis. Vognsen testified that he did not take into account the
assault against Cecilia when evaluating Roa’s risk of reoffending
using the STATIC-99 diagnostic instrument because that
instrument takes into account only formal charges for sexual
offenses, and Roa was not charged with a sexual offense against
Cecilia. Vognsen explained that had Roa been charged with a
sexual assault rather than a simple assault against Cecilia, he
would have received a higher score under the STATIC-99 test,
indicating a higher risk of reoffending.
Murphy testified that Roa’s assault against Cecilia
occurred in an alley, consistent with a pattern of isolating the
victim and attempting to perpetrate a sexual act. Murphy
further testified that Roa’s beating of his ex-wife before sex had a
sadistic theme.
Korpi testified that his review in 2014 of Roa’s ex-wife’s
statements about Roa’s abusive behavior during sex caused him
to change his diagnosis to include sexual sadism.
Had this inadmissible evidence been excluded from the
trial, there is a reasonable probability that the jury would have
returned a verdict more favorable to Roa. (People v. Watson,
supra, 46 Cal.2d at p. 836.)
F. Due process
Roa contends the trial court’s admission of case-specific
hearsay violated his due process right of confrontation. “There is
no right to confrontation under the state and federal
confrontation clause in civil proceedings, but such a right does
exist under the due process clause. [Citation.]” (Otto, supra, 26
Cal.4th at p. 214.) Because we conclude that the admission of
inadmissible hearsay prejudiced Roa and requires reversal, we
need not determine whether admission of the same evidence also
violated his due process right of confrontation. (Landau, supra,
246 Cal.App.4th at p. 878.)
33
DISPOSITION
The judgment is reversed.
CERTIFIED FOR PUBLICATION
_________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.*
GOODMAN
____________________________________________________________
* Retired Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
34