PEOPLE v. DEAN








Filed 3/10/09




CERTIFIED FOR PARTIAL PUBLICATION^*


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. JEFFREY FARRAR DEAN, Defendant and Appellant.

E041513 (Super.Ct.No. RIC305960) O P I N I O N

APPEAL from the Superior Court of Riverside County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Jeffrey Dean appeals from a judgment and order committing him to the State Department of Mental Health as a sexually violent predator (SVP).^[1]
Defendant contends: (1) the trial court erroneously permitted plaintiff’s experts to testify to inadmissible hearsay; (2) as implemented in Riverside County, the appointment of only one expert for defendant violated his due process rights; and (3) his recommitment is illegal in that the protocols relied upon by plaintiff’s experts had not been adopted as administrative regulations. We affirm the judgment and order of recommitment.
II. SUMMARY OF FACTS
The present recommitment petition was filed on December 13, 2005.^[2] Attached to the petition were the reports of Drs. Harry Goldberg and Dawn Starr, both Department of Mental Health evaluators. For purposes of the recommitment petition, the qualifying offenses were a 1982 forcible rape conviction and a 1983 sodomy conviction. Following a probable cause hearing, a jury trial commenced in August 2006. In support of the petition, the prosecutor called Drs. Goldberg and Starr. In addition, plaintiff called defendant and submitted into evidence redacted versions of his Penal Code section 969b packet and portions of the probation reports dealing with both qualifying offenses. Testifying for defendant were John Peterson, a psychiatric technician at Atascadero State Hospital (ASH), and Dr. Theodore Donaldson.
The jury returned a “true” finding on the recommitment petition. To the extent relevant, the evidence and facts will be discussed infra.
III. ANALYSIS
The purpose of the Sexually Violent Predator Act (SVPA) “‘is to identify persons who have certain diagnosed mental disorders that make them likely to engage in acts of sexual violence and to confine [them] for treatment of “their disorders only as long as the disorders persist and not for any punitive purpose.” [Citation.]’ [Citation.]” (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735.)
At trial, the plaintiff bears the burden of proving beyond a reasonable doubt that the defendant is an SVP. (Welf. & Inst. Code, § 6604;^[3] Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1147.) At the time relevant here, the SVPA defined an SVP as “a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (Former § 6600, subd. (a), italics added; People v. Vasquez (2001) 25 Cal.4th 1225, 1231.)
The SVPA requires a determination that the defendant is likely to commit “sexually violent predatory criminal behavior.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1186-1187, italics added.) A defendant is “likely . . . [to] engage in sexually violent [predatory] criminal behavior” if he or she “is found to present 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, 982, 988, fn. omitted.)
Under the SVPA as of the time relevant here, “where the requisite SVP findings are made, ‘the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health . . . .’” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1147, quoting former § 6604.) “Confinement generally cannot exceed two years unless a new petition is filed and an extended commitment is obtained from the court.” (Hubbart v. Superior Court, supra, at p. 1147.)^[4]
A. There Was No Reversible Error in Allowing Plaintiff’s Experts to Testify to Inadmissible Hearsay
Defendant contends that, “[d]uring the course of the prosecution’s experts’ testimony, [defendant’s] trial counsel objected to the inadmissible hearsay on a number of occasions. On each occasion, the trial court overruled this objection. . . . These evidentiary rulings were error. The trial court should have excluded some or all of the hearsay testimony presented by the prosecution’s experts. By failing to do so, the trial court abused its discretion and deprived [defendant] of a fair trial.”
Defendant argues that plaintiff’s experts were allowed to testify to inadmissible hearsay in three specific areas: (a) facts of the qualifying offenses, (b) the fact that defendant was convicted of and/or pled guilty to the qualifying offenses, and (c) information gleaned from the records of ASH and other institutions.
“As a general matter, a trial court is vested with broad discretion in ruling on the admissibility of evidence. The court’s ruling will be upset only if there is a clear showing of an abuse of discretion, i.e., that the court exceeded the bounds of reason.” (In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 661.) Defendant has failed to demonstrate an abuse of discretion. The vast majority of the hearsay testified to by plaintiff’s experts on direct was properly admitted from other sources. To the extent plaintiff’s experts testified to inadmissible hearsay, the jury was given proper limiting instructions. Additionally, in light of the overall nature of the evidence, any error was harmless.
As a general rule, 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. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.)
“‘[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.’”’” (People v. Catlin (2001) 26 Cal.4th 81, 137, italics added.) Here, other than some testimony as to the ASH records and other institutional records, the facts testified to by the experts did not bring before the jury incompetent hearsay evidence. The facts testified to were admissible and, in fact, were admitted into evidence from other sources. Because of this, the plaintiff’s experts were not precluded from reiterating the same facts during their direct examination.
1. The Trial Court Did Not Err in Allowing Expert Testimony as to the Facts of the Qualifying Offenses
Under section 6600, subdivision (a)(3), “The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health.” (Italics added.) As interpreted by People v. Otto (2001) 26 Cal.4th 200 (Otto), section 6600, subdivision (a)(3) is a hearsay exception for victim hearsay statements, including multiple level victim hearsay statements, when offered to prove a qualifying prior conviction. (Otto, supra, at pp. 206-209.) Here, plaintiff, by way of exhibits 2A and 3A and pursuant to the hearsay exception established by Otto, submitted into evidence redacted portions of two probation reports which contained the multiple level hearsay statements of the respective victims. Details of each of the offenses were therefore the proper subject matter of both experts’ testimony.
Relative to the first qualifying offense, the 1982 forcible rape, the probation report contained the following statement given by the victim to the investigating officer: “[T]hat at approximately 9:30 P.M. the previous evening, while dressed in her pajamas and robe, [victim] heard something at the window of her bedroom. [Victim] investigated further and observed a male subject pointing a gun at her. At this time, the suspect instructed [victim] to open the door which led from the bedroom to the outside. The victim was afraid the suspect would shoot her, so she complied. Once inside, the suspect demanded [victim] tell him where her money and valuable jewelry were hidden. When [victim] explained that she was poor and did not have any, the suspect became angry and hit her on the back of the head with his sawed-off rifle, knocking her to the floor. He stated that all old people have hidden money and jewelry. All during this time, the suspect made [victim] stand with her back to him so she could not see him. After being knocked to the floor, [victim] remained there on orders from the suspect as he started ransacking her purse and the drawers in her residence. After the suspect removed $22.00 from her purse [victim] told him that there was some money in the freezer in a bandaid box . . . . [¶] The suspect proceeded to the refrigerator, removed a root beer, poured some in a plastic glass for [victim]. [Victim] stated that he put something in the cup but she does not know what it was. [Victim] spilled the drink on the ground for fear that it might be poison. The suspect drank the contents from the can. The suspect then led [victim] to the bathroom where he ordered her to strip off her clothing. The suspect told her that he did this so he could get away without her following him. [Victim] complied, then the suspect started filling the bathtub and forced her to get into the tub. After several minutes, he instructed [victim] to get out of the tub and led her into the bedroom. At this point, [victim] was forced to lay down on the bed. The suspect turned off the lights, then rolled [victim] on her back and attempted to rape her. [Victim] stated that the suspect tried to insert his penis into her vagina several times, however, it was very painful to her and she started screaming. The suspect then stopped and got a bottle of lotion and spread it on [victim’s] vagina. Then, he attempted to insert his penis, still it was painful and the suspect could not penetrate. The suspect then told [victim] to masturbate him which she complied because she was afraid of being hurt. After several minutes, he instructed [victim] to lay face down on the bed and not to move. The suspect then went into the kitchen and got a paper bag and began filling it with can[ned] goods. As the suspect was leaving, he took [victim’s] rape whistle so she could not call for help and pulled the phone wire off of the wall. Then, he took the lotion and threw it out the door and onto the lawn. The suspect told [victim] that if she called the police he would be back to get her. The suspect then left the residence without further incident and because [victim] was afraid that the suspect would return, she did not call the police. However, she did contact her neighbor at 11173 Norwood who in turn called the police.”
As to the second qualifying offense of sodomy, the probation report contained the following statement given by the victim to an investigating officer: the victim indicated “approximately two or three weeks ago, . . . [defendant] had sodomized [victim] while they were in the ‘day room.’ Although there were approximately 30 other inmates in the same ‘day room,’ [victim] stated that everyone else was asleep. [¶] [Victim] related that he was sitting on the floor next to [defendant] and at first [defendant] tried to persuade [victim] to orally copulate [defendant]. [Victim], who is smaller than [defendant], said that he was afraid of him. [Victim] related that [defendant] grabbed his head with one hand and forced it down to [defendant’s] penis. [Victim] said that he refused to open his mouth. After unsuccessfully attempting to get [victim] to orally copulate [defendant], [defendant], who was wearing only boxer shorts, unsnapped [victim’s] jumpsuit and pulled it down below his buttocks. [Defendant] then forced [victim] to lay beside him. Then, [defendant] forced his penis into [victim’s] anus. [Victim] said that he tried to resist by tightening his anus, however, [defendant] told him to relax or he would let a guy in the day room beat him up. [¶] [Victim] related that he does not know how long [defendant] was behind him pushing his penis on his anus. All [victim] could say is that [defendant] was hurting him and he does not know if [defendant] ejaculated inside him. . . .”
Under Otto, plaintiff’s experts could properly testify on direct to all of the above referenced facts as being a basis for their respective opinions. All of the facts were provided by the victims of the qualifying offenses and were therefore admissible into evidence under section 6600, subdivision (a)(3).
2. The Trial Court Did Not Err in Allowing Expert Testimony as to the Fact That Defendant Was Convicted of and/or Pled Guilty to the Qualifying Offenses
Under Welfare and Institutions Code section 6600, subdivision (a)(3), “‘[t]he existence of any prior convictions may be shown with documentary evidence.’” (Otto, supra, 26 Cal.4th at p. 206.) Here, plaintiff properly established by documentary evidence and otherwise that defendant had sustained two qualifying convictions. Thus, there was no error in allowing plaintiff’s experts to testify on direct to the fact of said prior convictions. The Penal Code section 969b package, which was properly admitted into evidence, showed that defendant suffered both of the relevant convictions.
Furthermore, defendant testified that a jury found him guilty in the matter involving the forcible rape. He pled guilty to a violation of Penal Code section 286, subdivision (e) dealing with sodomy in the case involving a fellow inmate. At a 2004 hearing, he admitted that he had committed the above two crimes qualifying him as an SVP. He made the same admission in 2000. On January 29, 1998, he was asked by a judge if he wished to admit that he had been convicted of sexually violent predatory offenses against two or more victims and he responded, “yes.”
To the extent the experts testified on direct to the fact of the qualifying convictions, there was no error. The evidence of said convictions was not only admissible, but was admitted into evidence by way of other sources.
3. The Court’s Error in Allowing Plaintiff’s Experts to Testify to Information in the ASH Records and Other Institutional Records Was Harmless
Plaintiff’s experts should not have been allowed to testify in the detail they did from the ASH records and other institutional records.
On direct, Dr. Goldberg testified as follows. He reviewed the ASH records generated between August 2003 and August 2005. Defendant was first admitted to ASH in 1998. While in ASH, defendant did not participate in treatment. ASH has a five-phase treatment program. Defendant started attending phase 1, but dropped out. He did not complete phase 1 and there was no indication that defendant returned to treatment. There was also treatment available at ASH for substance abuse, but defendant did not participate. Defendant did not follow his diabetic regimen at ASH, which caused severe medical problems. At ASH, defendant had problems verbally mouthing off to staff. He was aggressive and verbally hostile to people at ASH. He has a hostile relationship towards women and once called a female staff member at ASH a dog who pees all over the place. He has a poor employment record. There have also been a number of incidents, such as attempting to buy pain pills and associating with a staff member who had some questionable relationships and was under suspicion for bringing drugs into the institution. Presently, defendant is noncompliant with the program in terms of treatment.
Dr. Goldberg also viewed other documents in which there were allegations of a rape in 1978 when defendant was 17. He further testified that defendant began committing crimes at a young age (around 12 or 13), which resulted in placement in juvenile camps and eventually the California Youth Authority (CYA); defendant continued to engage in illegal activity during his adult years. Additionally, the victim of the 1983 sodomy accused defendant of having raped other males in the jail setting.
Dr. Starr testified as follows. She reviewed the records generated by the state hospital facilities. Defendant was sent to ASH in 1998. When he first arrived, he told the evaluating psychiatrist that he received sexual gratification from the robbery. He also spoke of using marijuana, PCP, and crank. He was put on an individualized treatment plan, which not many patients receive. He did not participate in treatment at ASH. He violated various boundary rules with female staff. On one occasion, a female staff person who was suspected of being involved in illegal drugs was observed coming from his room; a drug dog was brought in, which immediately hit on defendant. Defendant then went to the library without permission. They did not find any drugs in the room. On another occasion, he wrote “cunt” in large capital letters on a dry erase board in the hospital. She noted the score given by another doctor on the PCL-R test was 34.
Dr. Starr also looked at documents from the Department of Corrections and Rehabilitation. As it relates to defendant, she looked at the correctional file, disciplinary write-ups, and rap sheet. Based on these documents, she testified that defendant has been in prison since 1983. He spent time at juvenile facilities, CYA, and mental hospitals. His juvenile offenses include arson by setting a school on fire, assault with a BB gun on a neighbor, and throwing rocks at vehicles. In 1976, he was charged with burglary, brandishing a firearm, and trespassing. He also escaped from a psychiatric hospital as well as from juvenile hall. In 1978, while at CYA, it was alleged that he committed a forcible rape, sodomy, and oral copulation. While in prison in 1983, he spoke of plans to kill six people. He had serious disciplinary write-ups, including possession of sedatives, stimulants, and marijuana. He was convicted of two counts of burglary in Alabama. There are reports of defendant engaging in nonconsensual sex with at least three other male victims in 1983 while he was in custody.
None of the above testimony, taken from hospital and institutional records, is admissible under Otto, in that they are not victim statements showing the qualifying offenses. Under Evidence Code section 1271, business records are admissible to prove the occurrence or existence of an act, condition, or event recorded in the record. Likewise, under Evidence Code section 1272, the records are admissible to prove the nonoccurrence or nonexistence of an act, condition, or event not recorded in the record. Hospital and prison records, if properly authenticated, fall within the umbrella of the business record exception. (See People v. Moore (1970) 5 Cal.App.3d 486, 492-493; People v. Lopez (1963) 60 Cal.2d 223, 253-254.)
None of defendant’s incarceration records or ASH records were marked as exhibits. Additionally, the record contains no foundation relative to the authentication of said records. While we believe that some of the above matters testified to on direct by Drs. Goldberg and Starr would have been admissible if introduced through the business records, we cannot so find in the absence of a proper foundation for the records relied upon. (See Garibay v. Hemmat (2008) 161 Cal.App.4th 735.)^[5] Thus, the testimony of both doctors that placed before the jury entries from the ASH records and from other institutional records was inadmissible hearsay.
Nonetheless, we believe the experts’ reiteration on direct of these matters is harmless. As indicated earlier, an expert should not testify to the details of matters on direct if they are otherwise inadmissible. “‘The rule rests on the rationale that while an expert may give reasons on direct examination for his opinions, including the matters he considered in forming them, he may not under the guise of reasons bring before the jury incompetent hearsay evidence. [Citation.] Ordinarily, the use of a limiting instruction that matters on which an expert based his opinion are admitted only to show the basis of the opinion and not for the truth of the matter cures any hearsay problem involved, but in aggravated situations, where hearsay evidence is recited in detail, a limiting instruction may not remedy the problem. [Citations.]’ [Citation.]” (People v. Coleman (1985) 38 Cal.3d 69, 92, quoting Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 788-789.)
TO BE CONTINUED AS PART II….



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