P. v.  Buros

Filed 1/31/07  P. v. Buros CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

            Following completion of a sentence for a rape conviction, defendant was found by a jury to be a sexually violent predator.  He had three prior rape convictions, two in 1972 and one in 1989.  At the commitment hearing, the prosecution read into the record preliminary hearing testimony from (1) the victim of a 1972 rape of which he was found guilty, (2) the victim of a 1972 rape to which he pled guilty, and (3) three other women who were the victims of rape around the same time and place as the first two.  Defendant contends that admission of the transcript testimony of these victims was prejudicial error.  In addition, he asserts that the prosecutor committed prejudicial misconduct during questioning and argument.  We affirm.

I.  BACKGROUND

            Defendant was charged in 1972 with the rape or attempted rape of five women, Babette S., Ellen R., Mary F., Janet S., and Mona M.  The assaults had all occurred in the space of a few months in the same area of Oakland, and the attacks were somewhat similar in execution.  The charges associated with Mona M. were dismissed after the preliminary hearing because she became unavailable to testify.  Defendant was convicted of the rape of Babette S., but he was acquitted of the rape of Janet S.  The jury hung on the charges associated with the remaining two women, Ellen R. and Mary F.  Defendant later pleaded guilty to the rape of Ellen R.  In 1989, defendant was convicted of the forcible oral copulation and penetration with a foreign object of a sixth woman, Kimberlee S.  Much later, he admitted to psychologists that he had, in fact, assaulted and raped Mona M. 

            Near the end of defendant's sentence for the assault of Kimberlee S., in September  2004, the district attorney petitioned to have defendant committed as a sexually violent predator pursuant to Welfare and Institutions Code section  6600.  The petition cited as predicate offenses the convictions for crimes against Babette S., Ellen R., and Kimberlee S. 

            Prior to trial, the prosecutor indicated that she intended to read into the record the preliminary hearing testimony given by Mary F., Janet S., and Mona M.  The prosecutor argued that because her experts had reviewed this testimony and had relied on it in reaching their conclusions that defendant suffered from a diagnosed mental disorder, the testimony could be admitted for the limited purpose of explaining and supporting the experts' opinions.  Over defense objection, the court found that the materials were proper reliance material and therefore could be admitted for a limited purpose.  During her opening statement, the prosecutor described the rapes of Janet S., Mary F., and Mona M., characterizing the acts as those of defendant, although she did caution the jury that the evidence of those acts â€