Filed 12/21/18 P. v. Jones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Mark V. Bacciarini, Judge.

Linda J. Zachritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Robert Gezi and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Durward Jones III was found by court trial to be a sexually violent predator (SVP) pursuant to the Sexually Violent Predators Act (SVPA), commencing at Welfare and Institutions Code section 6600.[1] He was ordered to civil commitment for an indeterminate term. Appellant appeals the commitment order, making several evidentiary challenges to the sole expert witness’s testimony and the written evaluation he submitted. We affirm the commitment order without addressing the merits of appellant’s contentions on the basis that any error in admitting the challenged evidence was clearly harmless.

FACTUAL AND PROCEDURAL BACKGROUND

On January 26, 2016, a court trial was held to determine whether appellant was an SVP. Appellant had been housed at the state hospital pending trial since 2009. The prosecution called a single witness, Dr. Dana Putnam, a licensed clinical and forensic psychologist, who had conducted approximately 900 SVP evaluations. He testified that out of the cases he reviews, he finds approximately 15 percent qualify as SVP’s. He interviewed appellant for an SVP evaluation on May 12, 2015, for approximately three hours. During the interview, he reviewed with appellant the documents he had been provided regarding appellant’s criminal history. Dr. Putnam testified as to the details of his interview with appellant and the mental disorders with which he diagnosed appellant.

Dr. Putnam opined that appellant had a combination of three mental disorders—pedophilic disorder, frotteuristic disorder and exhibitionistic disorder—which made him a danger to the safety of others, and that he had a serious and well-founded risk of sexually violent predatory behavior in the future.

Admitted into evidence as People’s exhibit 1 (exhibit 1) was a written evaluation summarizing Dr. Putnam’s review of the documents pertaining to appellant and his interview with appellant. The court took judicial notice pursuant to Evidence Code section 452, subdivision (d) of documents relating to appellant’s qualifying offense, a 1994 conviction of Penal Code section 288, subdivision (a), including the abstract of judgment, the plea transcript, and the probation report related to the offense, and it received the documents into evidence. A certified copy of appellant’s California Law Enforcement Telecommunications System (CLETS) rap sheet was also admitted into evidence.

Appellant did not present a defense.

At the conclusion of trial, the court found appellant met the criteria for commitment as an SVP. The court ordered appellant to be committed to the custody of the State Department of State Hospitals for appropriate treatment and confinement in a secure facility for an indeterminate term.

Appellant filed a timely appeal.

DISCUSSION

I. The SVPA

The SVPA allows for the involuntary civil commitment of certain offenders following the completion of their prison terms, who are found to be sexually violent predators. (People v. Roberge (2003) 29 Cal.4th 979, 984.) An alleged SVP is entitled to a jury trial, at which the People must prove three elements beyond a reasonable doubt: (1) the person has suffered a conviction of at least one qualifying “sexually violent offense,” (2) the person has “a diagnosed mental disorder that makes the person a danger to the health and safety of others,” and (3) the mental disorder makes it likely the person will engage in future acts of sexually violent criminal behavior if released from custody. (§ 6600, subd. (a)(1); see §§ 6603, 6604; see also People v. McKee (2010) 47 Cal.4th 1172, 1185.)

II. Summary of the Parties’ Contentions[2]

Appellant argues the court improperly admitted four instances of case-specific hearsay from Dr. Putnam’s testimony and exhibit 1 in its entirety.

A. Dr. Putnam’s testimony

Appellant argues Dr. Putnam improperly testified to case-specific hearsay in violation of Sanchez. He narrows his challenge to four specific instances from Dr. Putnam’s testimony:

(1) “[State hospital personnel] did identify some difficulty [appellant] had with frustration about having his video game interrupted and that—that, you know, they felt that maybe the gaming was an issue, but he didn’t—didn’t feel that.

“Q. Right.

“A. And that [appellant] had refused to take his medications on a few occasions. So there were—I’m not saying those are huge issues, but those are things that [state hospital personnel] identified that they have some significance.”

(2) “Well, [state hospital personnel] did indicate that, you know, he had been working diligently but that [appellant] also had a lot of work to do.

“Q. I believe there’s a comment, if I’m not mistaken, that he ‘barely scratched the surface’ from [state hospital personnel]?

“A. [State hospital personnel] also said that, yes.”

(3) “Yes, I understand that while in jail [appellant] was found with sexually explicit drawings that were drawings, I understand, he produced.”

(4) “Yes. [Appellant] was consistently recommended to participate in the sex offender treatment program.”

Appellant argues he suffered prejudice because, without this testimony, there was insufficient evidence appellant resisted treatment and therefore insufficient evidence to support a finding he was likely to reoffend. Appellant argues it is not reasonably probable the court would have found likelihood to reoffend based on his interview alone, which appellant acknowledges was properly admitted as a party admission (Evid. Code, § 1220).

Respondent concedes three of the four instances were admitted in violation of Sanchez but argues one of the instances (no. 3 above) was admitted by appellant during his interview with Dr. Putnam and therefore was admissible as a party admission. (Evid. Code, § 1220.) Respondent also argues some of the inadmissible hearsay was elicited by appellant during cross-examination and therefore appellant is precluded from challenging the error he invited. Respondent also argues appellant was not prejudiced by the testimony’s admission.

B. Exhibit 1

Exhibit 1 contained information regarding the details of appellant’s qualifying offense, as well as other events in appellant’s criminal history, some of which Dr. Putnam obtained from probation reports and other case documents. It contained information regarding appellant’s conduct while in custody, some of which Dr. Putnam obtained from state hospital personnel. It also contained personal details from the interview of appellant. Appellant concedes details of the qualifying offense can be shown through documentary evidence such as exhibit 1. (§ 6600, subd. (a)(3).) However, he alleges all hearsay in exhibit 1 unrelated to the details of the qualifying offense in the report not otherwise admissible was admitted in violation of Sanchez.

Appellant also argues the details of the qualifying offense were admitted in violation of due process because the account of the offense given in exhibit 1, which was derived from the probation report, differed from appellant’s account to Dr. Putnam. In exhibit 1 it was reported that appellant did not commit the offense intentionally and pled out of fear and in his account to Dr. Putnam, he admitted to committing the offense. He argues the document is thus not sufficiently reliable, citing People v. Otto (2001) 26 Cal.4th 200. Thus, he challenges the admission of exhibit 1 in its entirety.

Appellant impliedly acknowledges the only admissible hearsay contained within exhibit 1 are appellant’s own admissions. (Evid. Code, § 1220.) Appellant argues he was prejudiced because the court could not have solely relied on the information admitted by appellant to make its finding appellant would commit a future sexually violent predatory offense.

Respondent argues the majority of the hearsay in exhibit 1 fell under the exception for party admissions and that exhibit 1 properly came in as a business record or a record prepared by a public employee. Respondent also argues the description of the details of the qualifying offense were sufficiently reliable so as to satisfy due process.

We decline to resolve the evidentiary issues raised by the parties because any error by the admission of the challenged evidence is clearly harmless. We proceed to the prejudice analysis.

III. Had the Evidence Challenged by Appellant Not Been Admitted, There is No Reasonable Probability the Outcome Would Have Been More Favorable To Appellant

The erroneous admission of expert testimony, including expert testimony containing inadmissible case-specific hearsay statements, as well as documentary hearsay evidence, is reviewed under the Watson standard. (People v. Watson (1956) 46 Cal.2d 818; see People v. Flint (2018) 22 Cal.App.5th 983, 1003-1004.) Applying the Watson standard, we ask whether it is reasonably probable the outcome would be more favorable to appellant absent the error. (People v. Watson, supra, at p. 836.) In this case, the relevant inquiry is whether sufficient evidence supported the court’s finding had the challenged evidence not been admitted. In reviewing the sufficiency of the evidence, we apply the same test we do for reviewing sufficiency of evidence to support a criminal conviction; we review the entire record in the light most favorable to the judgment to determine whether substantial evidence, i.e. evidence of ponderable legal significance, reasonable in nature, credible, and of solid value, supports the determination. (People v. Carlin (2007) 150 Cal.App.4th 322, 333.)

Had the four instances of case-specific hearsay in Dr. Putnam’s testimony and the entirety of exhibit 1 not been admitted, there is no reasonable probability the outcome would have been more favorable to appellant. There was ample evidence on the record besides the evidence appellant challenges that support the court’s finding that appellant met the SVP criteria. Further, there was no evidence Dr. Putnam nor the court based their conclusions on any of the challenged evidence.

As previously stated, the elements that must be proven beyond a reasonable doubt to sustain an SVP petition are: (1) the person has suffered a conviction of at least one qualifying “sexually violent offense,” (2) the person has “a diagnosed mental disorder that makes the person a danger to the health and safety of others,” and (3) the mental disorder makes it likely the person will engage in future acts of sexually violent criminal behavior if released from custody. (§ 6600, subd. (a)(1); see §§ 6603, 6604; see also People v. McKee, supra, 47 Cal.4th at p. 1185.)

A. Conviction for a Qualifying SVP Offense

In 1994, appellant was convicted of a violation of Penal Code section 288, subdivision (a). The court took judicial notice of the abstract of judgment, the plea transcript, and the probation report, and these documents were admitted into evidence without objection. Dr. Putnam testified that appellant admitted the conviction arose from an incident where he followed a 13-year-old girl who was a stranger to him and touched her buttocks.

A conviction of Penal Code section 288, subdivision (a) is automatically considered a “sexually violent offense” for the purposes of the SVPA because it is an enumerated offense against a victim under the age of 14. (§§ 6600, 6600.1.)

To the extent appellant argues the details of the qualifying offense were improperly admitted through exhibit 1 in violation of due process, this argument is irrelevant. Exhibit 1 was not required to prove the qualifying offense. The court properly took judicial notice of and admitted into evidence the court documents associated with the qualifying offense, which was sufficient to prove appellant had a qualifying conviction. Details of the qualifying offense were not required because Penal Code section 288, subdivision (a) automatically qualifies, and, in any event, appellant admitted to them in his interview with Dr. Putnam.

Sufficient evidence supports the court’s finding appellant had been convicted of a qualifying offense even if the challenged evidence had not been admitted.

B. Mental Disorder

Appellant does not appear to challenge the court’s finding that he suffers from a diagnosed mental disorder that makes him a danger to the health and safety of others. Nonetheless, we note the finding is supported by sufficient evidence even if the challenged evidence had not been admitted.

Dr. Putnam testified he diagnosed appellant with three mental disorders that work in concert to make appellant a danger to the health and safety of others: (1) pedophilic disorder specified as sexually attracted to females, nonexclusive type, meaning he is also sexually interested in adults; (2) frotteuristic disorder, which means he derives pleasure from rubbing up against unsuspecting strangers often in crowded environments; and (3) exhibitionistic disorder, specified as being sexually aroused by exposing genitals to prepubescent children and physically mature individuals. Dr. Putnam limited appellant’s frotteuristic and exhibitionistic disorders by the phrase “in a controlled environment,” meaning appellant is in custody, which limits his opportunities to act on the impulses derived from his disorders.

Appellant expressed to Dr. Putnam that whenever he saw a female, either a child or an adult, he would begin to fantasize about her and that he believed these fantasies would never go away. Appellant admitted he had an attraction to children that was not healthy but was something ingrained in him that needed to be treated. He stated his preference was nine-year-old females. Appellant indicated to Dr. Putnam that there were many more victims and that he had touched some number of women beyond the number he could count, and he has not been caught for all his victims.

Dr. Putnam testified he believes all three of appellant’s disorders work together to impair his volitional capacity to control his actions, which makes him a danger to the health and safety of others by predisposing him to commit sexual acts.

C. Likelihood of Engaging in Future Predatory Acts of Sexually Violent Criminal Behavior if Released From Custody

The main point of appellant’s argument is that without the case-specific hearsay evidence that suggested appellant was resisting treatment, there would be insufficient evidence to support the finding that he was likely to reoffend simply based on his own statements. We disagree.

Appellant told Dr. Putnam he felt he needed sex offender treatment to keep from reoffending and that there would be some risk of reoffending without treatment. Dr. Putnam testified that appellant confirmed he was not in treatment and stated it was because he needed a break. Appellant expressed this was due to the loss of a friend and that he was grieving and felt overwhelmed by the treatment. The court could have inferred from appellant’s statement that, should appellant be released into the community and choose to receive voluntary treatment, he could be dissuaded from continuing the treatment by a difficult life event. In light of appellant’s admission that he needs treatment to keep from reoffending, this evidence supports a finding of risk of future acts.

In addition, even though appellant expressed that he needed treatment, he did not have concrete plans to enroll upon his possible release. Appellant told Dr. Putnam that upon his possible release, he would live in an adults-only community in Oregon. He told Dr. Putnam all arrangements had been made except for his participating in treatment. He was not able to identify any specific treatment options available in the area he was planning to live.

Dr. Putnam believed appellant would seek some sort of treatment if released but opined that it was unlikely appellant would be able to choose as comprehensive of a program as he needed and expressed concern that the level of treatment he needed was not available through voluntary treatment options. Dr. Putnam testified voluntary treatment cannot provide the monitoring appellant needs. Appellant would likely need polygraph and “PPG” monitoring, which is not commonly available through voluntary treatment. Dr. Putnam opined voluntary treatment in the community would not be sufficient to reduce his risk such that he would no longer meet the third criteria of the SVP definition.

Dr. Putnam specifically testified that even based on the information appellant desired to seek voluntary treatment, he still maintained the opinion appellant was at a substantial and well-founded risk to reoffend if released without condition. He testified it was necessary to keep appellant in a secure facility to ensure the health and safety of others based on his disorders.

Appellant acknowledges his statements detailed above were admissible as party admissions. He argues however that the challenged hearsay substantiated appellant’s admissions and contributed to Dr. Putnam’s opinion that treatment in the community would not be sufficient to deter appellant. Appellant appears to suggest his statements alone are not credible and without the hearsay, Dr. Putnam would have come to a different conclusion. We do not agree. First, we note while the Sanchez court held experts cannot testify to the details of case-specific hearsay, Sanchez does not stand for the proposition that experts cannot rely on case-specific hearsay for the basis of their opinion. (Sanchez, supra, 63 Cal.4th at pp. 685-686.) Even so, appellant’s statements alone support the opinions that voluntary treatment would be insufficient and that he could possibly resist treatment. Again, appellant admitted he would need treatment were he to be released into the community, and that he had discontinued treatment in the state hospital because he was experiencing grief. Further, Dr. Putnam’s opinion that voluntary treatment would not be comprehensive or intensive enough was clearly based on his knowledge and experience of voluntary treatment options and the level of care he assessed appellant needed.

In addition to the testimony that appellant may not be able to find adequate treatment in the community and without it, he was likely to reoffend, the court was presented with other substantial evidence to support its finding appellant would likely engage in future acts. Dr. Putnam testified appellant scored in the 99th percentile of all offenders evaluated using the actuarial instrument, STATIC-99R. The risk to reoffend associated with appellant’s score ranges from about 35 percent over five years to 48.5 percent over 10 years. This is the highest risk of all assessed.

In addition, Dr. Putnam testified appellant had demonstrated throughout much of his life an inability to keep from offending once released. Even without exhibit 1 or any mention of details of any of the offenses contained therein, Dr. Putnam’s testimony as to what appellant reported in terms of his criminal history was sufficient to support this inference.

Dr. Putnam stated appellant admitted to rubbing his hand against the crease of three teenage girls’ buttocks in 1986, when he was 15 years old. He also admitted to an incident in 1987 where he was walking around a mall, in his words, “stalking” women. He identified a particular woman and tried to get close enough to touch her buttocks in a way where it would seem unintentional. When he was not able to do so, he followed her to her car, grabbed her breast as she got into the car, and when she was in the car, he exposed his penis against the glass of the window of the car. About a month later, he held two teenage girls against their will using a replica of a gun and told them he was going to rape them. Appellant stated he only intended to touch the girls’ buttocks, and that he did touch one of the girl’s buttocks. He was placed in the custody of the California Youth Authority (now the Division of Juvenile Justice) and was in custody until 1991. When he was released, he was 20 years old.

Appellant admitted to exposing himself to three elementary school girls in 1992. He stated he was holding a rabbit’s fur and touched his penis. Appellant admitted to being in a children’s section of a library in 1993 looking for, in his words, “potential victims” or a chance to touch someone or expose himself.

Dr. Putnam testified to the details of the qualifying offense to which appellant admitted. In 1993, appellant identified a 13-year-old girl in a mall and followed her. He placed his hand on her buttocks, and she thought it was an accident. She walked away but he followed her and again touched her buttocks. He was convicted of a violation of Penal Code section 288, subdivision (a). Appellant was incarcerated until 1996 when he was released on parole. He had four violations of parole between 1996 and 1997.

Appellant admitted to rubbing a postpubescent female stranger’s buttocks in 1998 and was convicted of sexual battery. Appellant was found mentally incompetent and sent to Atascadero State Hospital. In 2007, when appellant was on parole, he was found in possession of child pornography images for which he was convicted and sentenced in federal court to a 60‑month prison term. In 2009, he was sent to the Department of Corrections and Rehabilitation. Appellant acknowledged exposing himself to female officers while in prison.

Dr. Putnam testified appellant exhibits serious difficulty in controlling his behavior, and even in controlled environments, his fantasies are easily triggered. Appellant admitted he is triggered by seeing children on television. Dr. Putnam testified appellant acknowledges that in a noncontrolled environment, there would be little to manage his urges over significant periods of time. Dr. Putnam testified appellant could probably control his urges over a short period of time. Dr. Putnam noted that in appellant’s brief time in the community, he quickly reoffends. Further, all appellant’s victims are strangers, thus his potential danger is predatory in nature.

On cross-examination, appellant’s counsel questioned Dr. Putnam about whether appellant had an opportunity to act on his frotteuristic and exhibitionistic tendencies. In response, Dr. Putnam explained appellant’s disorders were focused on strangers and that he never offended against someone he knew. Thus, he was at a higher risk to reoffend out in the public, where he is more likely to encounter strangers. Dr. Putnam noted appellant would be less likely to get away with his behavior in custody because he would be known to any staff member or person he acted toward. He noted appellant often got away with offending in the community. “ ‘Danger to the health and safety of others’ does not require proof of a recent overt act while the offender is in custody.” (§ 6600, subd. (d).)

The fact finder “must conclude that the person is ‘likely’ to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.) This standard requires “ ‘much more than the mere possibility that the person will reoffend,’ but it does not call for ‘a precise determination that the chance of reoffense is better than even.’ ” (People v. Flores (2006) 144 Cal.App.4th 625, 632.) We find there was ample admissible evidence to support this finding. Dr. Putnam testified he was basing his opinion on his evaluation, his training and experience, and the STATIC-99R. He also testified there is a chance appellant would not reoffend but that he evaluated whether it was likely a serious and well-founded risk and found such a risk was present.

Finally, the court focused on appellant’s admissions as the basis for its ruling: “[I]t seems like the penal system has not taught [appellant] a lesson because it seems like as soon as he gets out of custody, he re-offends by his own admission to Dr. Putnam. There are countless other victims who have … been victimized, and either knowingly or unknowingly … he’s not doing this behavior in the hospital because he’d be punished for it, probably criminally. [¶] … [¶] … [A]s a result of [his] diagnosed mental disorder, he is a danger to the health and safety of others because it is likely that he will engage in sexually violent predatory criminal behavior by … his own admission. He seeks out victims. His targeted victim—ideal is a 9-year-old, and I think there is a strong likelihood that he would offend in the same manner he did back in 1993 when he committed the qualifying offense, the [Penal Code section] 288[,] subdivision (a), lewd and lascivious act on a child under 14, namely a 13-year-old girl.” (Italics added.)

Had the challenged evidence not been admitted, sufficient evidence supports the court’s finding that appellant qualifies as an SVP. Thus, even assuming error, any error was clearly harmless as there is no reasonable probability appellant would have received a more favorable outcome absent the error.

DISPOSITION

The judgment (order of commitment) is affirmed.

______________________

DE SANTOS, J.

WE CONCUR:

_____________________

PEÑA, Acting P.J.

_____________________

MEEHAN, J.