P. v. Jackson

Filed 9/28/06 P. v. Jackson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

Melvin Lee Jackson appeals from the trial court order for recommitment to the State Department of Mental Health (DMH) pursuant to a jury verdict that he is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (the Act).^[1] He maintains that the trial court committed reversible error in (1) permitting experts to testify about findings of a nontestifying expert and (2) admitting into evidence the report of that expert. Appellant further asserts that he was denied a fair trial because of pervasive instances of prosecutorial misconduct. We affirm.

I. FACTUAL BACKGROUND

A. Procedure

Appellant was first committed to the custody of the DMH on October 16, 1998. We affirmed the order of commitment in an unpublished opinion. (People v. Jackson (Feb. 17, 2000, A084974) [Jackson I].) On September 20, 2000, the Alameda County District Attorney petitioned for recommitment pursuant to section 6604. The court ordered recommitment for an additional two years commencing October 16, 2000. This court affirmed the order of the recommitment in an unpublished opinion. (People v. Jackson (Aug. 12, 2002, A096066) [Jackson II].) In July 2002, the Alameda County District Attorney once again petitioned for recommitment. Due to trial court delays the recommitment time was about to expire. Consequently, in August 2004, the district attorney filed a third petition to recommit for the period October 16, 2004 through October 15, 2006, and moved successfully to consolidate the two recommitment trials. A jury found appellant to be an SVP and the court ordered his commitment extended to October 16, 2006.

B. Prior Convictions and Sexual Assaults

The details of appellant’s criminal history were treated fully in Jackson I and summarized in Jackson II. At the present trial appellant admitted to the fact of the prerequisite predicate convictions, namely (1) the forced oral copulation of Pamela A., conviction date of January 13, 1978; (2) forcible rape and forced oral copulation of Lisa S., conviction date of September 17, 1982; and (3) forcible rape and attempted sodomy of Joanne F., conviction date of September 17, 1982. The victims’ testimony from the respective preliminary hearings was read into the record. Each assault occurred in the victim’s home. Appellant blindfolded each victim, threatened each with a knife, and also made verbal threats. He tied the wrists of one victim and the hands of another, also hitting and strangling her.

Evidence of nonpredicate offenses against the three victims was also admitted at trial, subject to instruction that the testimony and documents concerning these offenses were offered for the limited purpose of showing the information upon which the expert witnesses based their opinions, and not to prove the facts stated. Again, the victims’ preliminary hearing testimony was read into the record, which we summarize as follows: Elfie T. had just gone inside her house when she heard a noise and then saw a stranger whom she identified as appellant. Elfie tried to run outside but appellant grabbed her and they struggled. She made it out the back door, screaming all the time. Appellant picked Elfie up, slammed her on the concrete driveway and grabbed her legs when she started to run. Appellant ran off when a neighbor said she would call the police.

Jeannie G.’s doorbell rang and as she started to open the door, a man forced himself inside, grabbed her, and pulled her sweater over her face. He pushed Jeannie against the stairs and punched her face as she screamed. He threatened her, ran a knife across her back and after forcing her upstairs, bound her hands and blindfolded her. He forced his penis in her mouth and then raped her. Jeannie G. contracted gonorrhea as a result of the attack. Appellant had gonorrhea at the time.

Paula R. entered her home to find a stranger with a sock over his hand. He put that over her face and pushed her to the floor. They struggled until they were out the front door. Paula fell down the stairs. The man jumped over Paula and ran off. Paula later found one of her kitchen knives on the bed upstairs.

C. State Experts

1. Dr. Robert Owen, forensic psychologist, conducted a recommitment evaluation of appellant in 2002 and updated the evaluation in 2004 and 2005. He discussed the case with appellant’s treating psychologist, interviewed appellant each time and reviewed the relevant documents, reports and criminal history. Dr. Owen diagnosed appellant as suffering from paraphilia, not otherwise specified (N.O.S.), and antisocial personality disorder. The diagnosis has remained the same since 2002.

As Dr. Owen explained, the paraphilia diagnosis “involves at least six months of deviant fantasy urges or behaviors, in this case, directed towards a nonconsenting person. . . . [T]his disorder tends to be chronic . . . . [I]t’s a problem that does not just magically go away. It endures over the years.” And more specifically, “There is a deviant interest in nonconsenting persons. When I examine the crimes again, I see a lot of similarity between them. I see that he’s used a knife in every single one of them. He’s broken into a home in every single one. He told me he targeted White women. The women, most were of similar age. He used quite a bit of force with every single victim. He degraded every single woman calling them bitches, telling them to shut up. He hit the women. He held a knife to them. He was very aggressive with them. He threatened to kill one of the women’s baby. He . . . became sexually aroused in these scenarios. . . . [H]e was turned on . . . and with the victim he’s trying to start all over because there’s something really exciting to him about overpowering a woman in her own home, holding a knife to her, striking her, and raping her. This is the exciting element to it. Now he had plenty of time to think about it, to think about the immorality of his behavior. In fact he had a whole prison term to think with it. After he got out, he continued with it. So even time in prison didn’t stop this kind of paraphilic activity.”

Dr. Owen also alluded to the fact that appellant escaped from Highland Hospital in 1982 and committed a violent rape in the same general area, a very telling example “of volition impairment in a man who has a serious paraphilia.”

Dr. Owen believed that appellant has an entrenched, chronic paraphilia, explaining that appellant still uses terms that he used during rapes that reflect negative, ugly attitudes towards women. For example, there were repeated incidents where appellant called female staff members “bitches.” With respect to the antisocial personality disorder diagnosis, Dr. Owen pointed out that appellant had a very long criminal history dating back to age ten. He was committed to the California Youth Authority several times and committed numerous offenses as a juvenile. Dr. Owen administered the Hare PCL-R test, which rates psychopathy. Appellant scored within the severe range, indicating that he was a psychopath. Dr. Owen testified that when a person is antisocial, he or she becomes even more reckless and less concerned about other people, and more willing to violate the rights of others and lie about it. Moreover, such persons are unlikely to be deterred or changed by consequences. Having an antisocial personality disorder increases the risk of reoffending.

Dr. Owen also administered the Static-99, an instrument designed to predict the likelihood of reoffense. Appellant’s score indicated a 52 percent chance he would reoffend if released. Other factors, such as appellant’s general criminality, sexual deviance preference, refusal to participate in treatment, or complete anger management and interpersonal skills programs also contribute to the risk of reoffense. Dr. Owen opined appellant posed a “substantial risk of committing sexually violent offenses.” 2. Dr. Dawn Starr, licensed psychologist, also evaluated appellant in 2002, with updates in 2004 and 2005. She had the same diagnosis as Dr. Owen and also concluded it was likely appellant would reoffend. Dr. Starr related that appellant continued to have verbally aggressive and threatening episodes at Atascadero State Hospital (Atascadero). She relied on the Hare PCL-R test administered by Dr. Phenix in 1996, in which appellant received a very high score for future and violent offending, as well as pathological lying.

That appellant had not acted out in a sexually violent way in approximately 23 years did not change her diagnosis. While locked up, appellant does not have the opportunity to operate under his “M.O.” Most sex offenders do not act out in custody. Appellant’s refusal to participate in treatment indicates he has no insight into what leads him to offend, and what he might do differently. His numerous rules violations while in prison and behavioral write-ups at Atascadero--including a 2005 incident--underscored his inability to follow rules and supported a continuing diagnosis of antisocial personality disorder. Another high-risk factor is his anger and feeling of being mistreated by others, whether real or based on a misperception.

Dr. Starr testified that in general the risk that a paraphilic will reoffend diminishes with age; the same is true for the antisocial personality disorder.

D. Appellant’s Testimony

The state called appellant as a witness. He admitted to approximately 21 felony convictions, including residential burglaries and several sexually violent offenses against different women. Appellant said he has taken responsibility for his acts and feels remorse for what he has done to the victims.

Appellant denied targeting White women. He also denied that his commission of another sex crime after escaping from custody indicated that he had difficulty controlling his urge to have nonconsensual sex with women. Rather, he said: “I was in control of everything that I did, everything I decided to do. It wasn’t like my body was just running around and my mind was catching up with it later.”

Appellant also acknowledged committing numerous rules violations while in custody, and having issues with authority. He also acknowledged that some staff members at Atascadero complained about his disruptive behavior.

While in prison appellant read a number of self-help books “that helped me progress over the years.” Other than attending phase one of the sex offender treatment program which was mandatory at the time, he has not participated in treatment at Atascadero. His reason: “There is no cure for the type of crimes that I committed. There is no treatment. There is no cure. What they’re offering me is behavior modification. And they want to show me how [to] think differently. I have been doing that since 1982.” “I today I know I don’t have a problem.” Appellant does not believe he has a mental disorder. He stated that “at no time in my [criminal] history” had he been diagnosed with a mental disorder, nor was any mental health issue raised in court during proceedings on his prior convictions. Appellant said he made a decision to change, he has grown up and realizes that under no circumstances does he have the right to inflict pain on another. Now he is engaged and, if released, plans to go to truck driving school and live a crime-free life.

E. Defense

Clinical psychologist Theodore Donaldson testified on appellant’s behalf. He opined that there was “grossly insufficient evidence“ that appellant had a qualifying mental disorder. Although appellant has a history of antisocial behavior sufficient for a diagnosis of antisocial personality disorder, he does not have paraphilia. Dr. Donaldson testified that “[o]nly the paraphilias predispose a person to sexual violence.”

In appellant’s case, the state’s experts rendered a diagnosis of paraphilia N.O.S. However, appellant’s relevant criminal history is based entirely on rape. Dr. Donaldson explained that the paraphiliac committee has excluded rape as a diagnostic category. Indeed, he believes there is no empirical evidence for a diagnosis of paraphilia N.O.S. for rape, and that currently there is no reliable diagnosis to capture most offenders who have committed rape.

Dr. Donaldson observed that anger was integral to the commission of the offenses, not a preference for nonconsensual sex. Appellant was angry at society, felt discriminated against in prison and did not care about anyone else’s rights. Appellant had a “turn around” in prison, telling Dr. Donaldson that after he learned his sister had been beaten, he wanted to “get the guy.” But then he reconsidered that someone might want to kill him for what he had done to others. At that point appellant began to think differently about his victims and said he apologized to them in 1998 when they appeared in court. Dr. Donaldson thought it significant that appellant had been married several times, had numerous girlfriends, and had not committed a sex offense in 23 years. When he was out for a time in 1994 he did not reoffend--he was brought back in on parole violations.

Antisocial behavior and psychopathy decrease significantly after age 40 to 50 and the risk of reoffense for rapists in the high-risk category also declines by age 50. Dr. Donaldson opined that if appellant had a mental disorder, he would put his risk for sex reoffense at 10 to 20 percent. But from his review and evaluation, there was no indication that appellant had a currently diagnosed, qualifying mental disorder.

II. DISCUSSION

A. Findings and Report of Nontestifying Expert

Appellant is adamant that the court committed prejudicial error in allowing the prosecution to elicit testimony from a state expert concerning the opinion of Dr. Phenix, a nontestifying expert, who had evaluated appellant in his initial commitment proceeding. He also complains the court erroneously admitted her report as an exhibit.

1. Background

During examination of Dr. Starr, the prosecutor elicited testimony that she had relied on Dr. Phenix’s administration of the Hare PCL-R test in 1996. In her own assessment Dr. Starr used Dr. Phenix’s very high score of 35. Defense counsel also probed Dr. Starr on the point. The issue was revisited on redirect, in particular the fact that Dr. Owen scored appellant as a 30, as opposed to a 35. Finally, the prosecutor queried the defense expert on (1) the Hare PCL-R test, eliciting that Dr. Phenix gave appellant a fairly high score of 35; and (2) the RAZOR instrument, eliciting that Dr. Phenix had given appellant a score of 5, indicating a probability of reoffending in the neighborhood of 50-73 percent.^[2]

Over objection, the trial court admitted Dr. Phenix’s Hare PCL-R Psychopathy Checklist into evidence, subject to the limiting instruction that it is introduced to show material expert relied upon, not the truth of the matter.

2. Legal Framework

The California Supreme Court recently summarized the pertinent principles: “[W]e have explained[,] ‘[a]n expert may generally base his opinion on any “matter” known to him, including hearsay not otherwise admissible, which may “reasonably . . . be relied upon” for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, “ ‘under the guise of reasons,’ “ the expert’s detailed explanation “ ‘[brings] before the jury incompetent hearsay evidence.’ “ ‘ [Citations.] In this context, the court may ‘ “exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” ‘ [Citation.] Nonetheless, ‘[b]ecause an expert’s need to consider extrajudicial maters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment.’ [Citation.] Although it is appropriate for a physician to base his or her opinion in part upon the opinion of another physician [citations], it generally is not appropriate for the testifying expert to recount the details of the other physician’s report or expression of opinion. [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 137-138.)

3. Analysis

We need not decide whether the testimony about Dr. Phenix’s findings and submission of her report went beyond the legitimate purpose of allowing the jury to evaluate the basis of the various experts’ opinions. Even if error occurred, in light of the record as a whole it was not prejudicial.

First, the test itself which Dr. Phenix administered was subject to a limiting instruction. The court also delivered the following instruction at the conclusion of the trial: “There has been testimony by expert witnesses regarding the contents of certain documents and reports prepared by others which were reviewed by the witnesses for the purpose of rendering opinions. The contents of these materials are hearsay and are not introduced for the truth of the matters asserted therein. Rather, they are introduced for the limited purpose of showing the information upon which the witness’s opinions are based and not to prove the facts stated in the documents are true.”

Second, the state experts both opined that appellant currently met the SVP criteria and spoke at length about his paraphilia and psychopathy. In short, the emphasis was on appellant’s current diagnosis.

Third, Dr. Phenix’s findings and reports with respect to the Hare PCL-R test went to the present diagnosis that appellant was a psychopath; that diagnosis was not necessary to establish the statutory criteria. The diagnosis of antisocial personality disorder bolstered the experts’ finding that appellant was likely to reoffend. But that finding in turn also turned on other factors such as his repeated offenses after incarceration or escape from custody.

Fourth, the references to Dr. Phenix’s work were drops in the bucket compared with the magnitude and gravity of the in-person testimony offered by the state’s experts concerning appellant’s psychopathy and likelihood of reoffending. For example, Dr. Owen stated: “Kind of [a]mazing in my mind that a man can get out of prison after being sentenced to six years for a sexual crime and in less than a month he’s committed a new sexual crime equally as violent and quite similar to the other one. What it tells us is this is a very antisocial psychopathic man who does not learn from consequences.” Even more compelling were these words from Dr. Owen: “When you’re psychopathic and you’re sexually deviant and that’s exactly what we have here, we have a man who’s very psychopathic and antisocial criminally oriented and has clearly demonstrated his sexual deviance, . . . I would agree that this is a deadly combination.”

Dr. Starr described appellant’s diagnosis of paraphilia and antisocial personality disorder this way: “It’s like pouring gas on a fire. Synergistic. The combination of those, like the person poses significant risk of violent and sexual danger when they have this history of paraphilic behavior.” Dr. Starr said appellant’s case was not “a close call” either in terms of diagnosis or risk assessment.

Fifth, that appellant ballyhoos the fact that Dr. Phenix’s conclusions were more severe than those of the testifying experts and were out of date does not make the references to her work prejudicial. Dr. Phenix gave appellant a score of 35 on the Hare PCL-R test in 1996, while Dr. Owen’s score was 30 for the present evaluation. Thirty and above is the severe range supporting a diagnosis of psychopath. Dr. Starr indicated that the variance in scores did not change her opinion that appellant was a psychopath, noting that both scores are in the severe range. Further, the diagnosis of psychopath is consistent with his clinical presentation. Additionally, she explained that one might expect some change over time by virtue of his aging, plus the norms have been revised since 1996.

Sixth, that Dr. Phenix wrote the guidebook on SVP evaluations and this was brought out at trial does not button up appellant’s prejudice argument in light of the overwhelming evidence supporting the state experts’ opinions.

For all these reasons we conclude it is more likely than not that the result would have been the same whether or not the evidence concerning Dr. Phenix had been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)

B. Prosecutorial Misconduct

Appellant also charges the prosecutor with numerous instances of misconduct which rendered his trial unfair. These include what appellant calls “prejudicial references” to his past SVP determinations and “vilification” of him during closing argument.

“Prosecutorial misconduct is reversible under the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) As a general matter a defendant may not, on appeal, complain of prosecutorial misconduct unless he or she has, in a timely fashion and on the same ground, requested an assignment of misconduct and an admonishment to the jury to disregard the impropriety. (Ibid.)

In People v. Munoz (2005) 129 Cal.App.4th 421 (Munoz) the reviewing court reversed an order committing defendant as an SVP because the manner in which the prosecutor questioned witnesses, the evidence admitted and the manner in which the state argued its case suggested that the issue was whether anything had changed since defendant’s prior SVP commitment. (Id. at pp. 432-433.) The court reasoned: “It is tempting in the SVP recommitment context to characterize the issue as whether anything has changed since the last determination such that the defendant is no longer an SVP. This, however, is a potentially prejudicial mischaracterization. Petitioner is required in a recommitment proceeding to prove beyond a reasonable doubt that the defendant is an SVP, not that he is still an SVP. The danger in this mischaracterization is that it may suggest to a jury that the defendant must prove he is no longer an SVP; in any case it certainly lessens petitioner’s burden by improperly establishing a datum of mental disorder and dangerousness. As we have concluded, each recommitment requires petitioner independently to prove that the defendant has a currently diagnosed mental disorder making him or her a danger. The task is not simply to judge changes in the defendant’s mental state.” (Id. at p. 430.) The court also recognized that “[i]t may be impossible to avoid the jury’s learning that the defendant has already been committed as an SVP, e.g., it may be necessary for experts to discuss the defendant’s treatment and behavior while in the state hospital. Still, it is necessary that nothing be done that suggests to the jury that its task is to compare the defendant’s present mental status with an earlier finding that he or she is an SVP.” (Id. at p. 432.)

Here, during in limine motions, the defense attorney requested that prior SVP findings be kept from the jury if possible. The court agreed with the prosecutor that it might be impossible to prevent the jury from learning that appellant had previously been commited because the experts might need to discuss his behavior and treatment while confined in Atascadero. After the prosecutor indicated that she did not intend to argue to the jury the issue of whether anything had changed since the prior commitment, the court granted appellant’s motion.

Appellant highlights the following portion of closing argument as violating Munoz and the court’s ruling: “He’s still the same man. And based on that fact, they’ve told you he is still at a very high risk to reoffend in a sexually violent nature. He has done nothing to decrease his risk over the years. What we know is he’s still acting out in a psychopathic manner. He’s still acting out in an antisocial manner.” Other references were to the fact that he “still exhibited” negative behaviors, “still has deep-seated anger,” and is “still the same today” as he was during a prior evaluation.

Apparently appellant believes that using the word “still” several times during closing argument amounted to prosecutorial misconduct and caused the jury “to be unclear of the question before them, effectively lowering the prosecution’s burden.” We disagree.

Throughout closing argument the prosecutor focused on the proper question, namely appellant’s current diagnosis. She began this way: “It’s your turn to make the decision whether or not Mr. Jackson is, in fact, a sexually violent predator based on all the evidence you heard.” She argued at length the elements sufficient for a current determination of SVP status. Summing it up in conclusion, the prosecutor said: “We have a long history of sexually deviant behavior that has been analyzed by these doctors in a very thorough, professional, objective way. And based on their testimony and their opinions, Mr. Jackson does suffer from a mental disorder that makes him likely to reoffend in a sexually violent way in the future. And because of that, Mr. Jackson, today, is a sexually violent predator.”

There was no misconduct and no Munoz error. There was nothing egregious, reprehensible or deceptive about the prosecutor’s summation of the facts supporting a current diagnosis, notwithstanding that there was some reference to his past condition. The argument was not fashioned to confuse the jury about its job so as to suggest a shifting or lowering of the burden of proof. There was no reference to past SVP findings. Instead the prosecutor properly focused on appellant’s criminal history, his behavior in prison and Atascadero, and his testimony and the testimony of the experts.

Appellant further complains that the prosecutor chose improper descriptive terms when she referred to him as a “dangerous” and “sick” man, called him “vicious” and “evil,” and when she reiterated the state experts’ assessment that his diagnoses made for a “very deadly combination.” These unfavorable descriptions of appellant’s character and disposition did not amount to misconduct. A prosecutor has wide latitude during closing argument. As long as the argument amounts to fair comment on the evidence and the reasonable inferences or deductions therefrom, it can be vigorous. During summation the prosecutor may state matters not in evidence which are common knowledge or illustrations drawn from common experience and history. (People v. Hill (1998) 17 Cal. 4th 800, 819.) Prosecutors may vigorously argue their cases, are not limited to “ ‘Chesterfieldian politeness’ “ (People v. Bandhauer (1967) 66 Cal.2d 524, 529) and may “ ‘use appropriate epithets’ “ (People v. Fosselman (1983) 33 Cal.3d 572, 580; see People v. Hill, supra, 17 Cal.4th at p. 819).

The descriptive language emphasized above was a fair comment on the evidence, nothing more than recourse to appropriate epithets. Indeed, given a statutory scheme that is built around the concept of a “sexually violent predator“ who has a “diagnosed mental disorder“ making him or her a “danger“ and “menace“ to others (§ 6600, subds. (a), (c), italics added), any offensiveness in the descriptions loses the sting of intemperateness given the prosecutor’s job of folding the evidence into the statutory definitions.

III. DISPOSITION

We affirm the order of recommitment.

_________________________

Reardon, J.

We concur:

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Ruvolo, P.J.

_________________________

Sepulveda, J.

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^[1] Welfare and Institutions Code section 6600 et seq. Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

The Act allows for involuntary civil commitment of persons incarcerated in state prison who have been (1) convicted of a sexually violent offense against two or more victims, and (2) have a diagnosed mental disorder making them a “danger to the health and safety of others in that it is likely that [they] will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) A “diagnosed mental disorder” is “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.” (Id. at subd. (c).)

^[2] Appellant argues that the prosecutor improperly cross-examined Dr. Donaldson about the RAZOR test administered by Dr. Phenix because Dr. Donaldson did not rely on the test and did not remember the outcome. Appellant omits a key aspect of the context in which the exchange took place. The prosecutor questioned Dr. Donaldson about his role and testimony in Jackson’s 1998 trial. During the course of that trial Dr. Donaldson agreed that appellant was a psychopath, based on the results of the Hare PCL-R test which Dr. Phenix had administered. The prosecutor probed whether he testified in 1998 that “it was pretty much a slam-dunk that [appellant] would likely reoffend if let out in the community.” To refresh Dr. Donaldson’s memory, the prosecutor referred him to the following prior testimony: Question: “Are you familiar with Mr. Jackson’s entire criminal history?” Answer: “Yes I am. The chance of probability he will commit some kind of crime in the future is slam-dunk.” Immediately thereafter the prosecutor clarified that in 1998 Dr. Donaldson was using the RAZOR instrument, and then asked about the score Dr. Phenix had ascribed to appellant. Dr. Donaldson proceeded to correct the prosecutor, pointing out that appellant received a score of four and in fact could not have gotten a score of five. The score of four meant the “percentage of reoffense” was just under 50 percent.

This exchange was proper and not prejudicial (see discussion below). Dr. Donaldson had reviewed Dr. Phenix’s work, whether or not he relied on it. The prosecutor was testing his credibility and inquiring in good faith about relevant information which he may have overlooked or ignored. Such cross-examination of an expert can include relevant hearsay. (People v. Montiel (1993) 5 Cal.4th 877, 923-924.)