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

STORY CONTINUE FROM PART I….




Here, the trial court more than once gave limiting instructions to the jury. Near the beginning of Dr. Goldberg’s testimony, the court instructed the jury as follows: “[T]his might be an appropriate time for me to give you an instruction dealing with the consideration of expert testimony. I’ll give you more instructions on this later on, but I want you to understand at this time that witnesses will be allowed to testify as experts and to give an opinion. . . . [¶] . . . [¶] Now, when the witness refers to information that he’s received from other sources, that’s not being received for the truth of the matter stated from those sources, but it’s being received for the purpose of explaining the reasons for the expert’s opinion.” At the beginning of Dr. Starr’s testimony, the court instructed the jury, “And that’s this, that an expert witness may testify that in reaching their conclusions as expert witnesses they considered statements made by other persons and sources. Now you may consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is true or false.” And later, “Let me educate you a little bit on hearsay. Hearsay statements are made by witnesses outside the court—outside of these proceedings, and those people are not here to see and hear and question. And so their declarations are hearsay. But they can be admitted for the reasons given by the expert for their opinions. And it’s up to you to evaluate the reliability of those sources.” As a whole, the jury was properly admonished. And, at the conclusion of the trial, the jury was further instructed with Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 303 and 360, which directed the jurors to consider evidence only for the purpose for which it was admitted and to not consider expert testimony as proof of the truth of statements relied upon by the expert.^[1]
Additionally, when looking at the general areas in which Drs. Goldberg and Starr testified on direct as to entries in the institutional records, the majority of the information was testified to by defendant either during his direct or redirect examination. Defendant testified that he did not participate in treatment while at ASH. He acknowledged that he was verbally aggressive toward female staff, and that he possessed drugs during confinement. The only matters not otherwise covered by admissible evidence which were testified to by the experts on direct, were various juvenile offenses, including a possible rape in 1978, the fact that defendant may have sodomized other individuals while in jail, and that his PCL-R test score was 34. Based on the entire record, including the court’s limiting instructions and the ultimate opinions rendered by Drs. Goldberg and Starr (which are discussed, infra), it is not reasonably probable that a result more favorable to defendant would have been achieved in the absence of the jury hearing about these matters on the direct examination of the prosecution’s experts. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
B. As Implemented in Riverside County, the Appointment of Only One Expert for Defendant Did Not Violate His Due Process Rights
Defendant contends that the SVP process is unconstitutional under the due process clause. He argues that in Riverside County the plaintiff is able to present two expert witnesses paid for by the Department of Mental Health, whereas the defendant is only able to call one court-appointed expert. As part of this argument, he asserts that his expert should be compensated at a rate commensurate with that paid to the Department of Mental Health experts. We disagree with defendant.
Defendant submits, as he did at trial, that “‘the SVP Law stacks the deck against the indigent respondent by providing the district attorney with a minimum of two expert witnesses and only providing the indigent respondent with one.’” Initially, we believe that defendant’s underlying premise is faulty. There is nothing in the SVP law that mandates that the plaintiff be allowed to call two or more experts to testify. Section 6601 deals with prerelease evaluations by the Department of Mental Health, requests by the Department of Mental Health to file petitions for commitment, and the filing of petitions by the district attorney or county counsel. Section 6601, subdivision (d) mandates that before the Department of Mental Health may request the filing of a petition, two evaluators must concur that the defendant meets the criteria of an SVP. The law does not require the prosecutor to plead and/or prove to a trier of fact that two evaluators agree.
In People v. Scott (2002) 100 Cal.App.4th 1060, the defendant argued on appeal that the People’s evidence was insufficient as a matter of law because only one expert testified that defendant was an SVP. The Court of Appeal disagreed: “Scott’s reasoning is flawed. The Legislature has imposed procedural safeguards to prevent meritless petitions from reaching trial. ‘[T]he requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.’ [Citations.] . . . [¶] . . . [¶] [A]lthough there must be two concurring experts as a procedural prerequisite to commencement of the petition process (§ 6601, subds. (c), (d)), the [SVPA] does not expressly require two experts to testify at trial on behalf of the People.” (Id. at pp. 1063-1064.)
Here, the plaintiff called two experts. From the record, the testimony of Drs. Goldberg and Starr appears to have been cumulative. At trial, defendant filed a nine-page points and authorities titled, “Motion to Dismiss,” dealing with a number of alleged constitutional infirmities of the SVPA. At no time did defendant raise the evidentiary objection that plaintiff should be limited to one expert based on the cumulative nature of the experts’ testimony. As provided in Evidence Code section 723, “[t]he court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party.” This rule was discussed in South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861. “On this record, the trial court acted within its discretion in excluding [the second expert witness’s] testimony as cumulative. As the court properly observed, South Bay’s designation of expert witnesses indicated the scope of [the second expert witness’s] anticipated testimony was a ‘duplicate’ of the subject matter covered by [the first expert witness.] Further, South Bay’s counsel acknowledged that ‘there’s a substantial overlap’ in the two experts’ testimony and that [the second expert’s] testimony would be covering ground already covered by [the first expert witness].” (Id. at p. 906; see also Redondo Beach School Dist. v. Flodine (1957) 153 Cal.App.2d 437, 449 [“The court in its discretion may limit the number of witnesses who may be called upon to testify with reference to a single question, as here, and the court can refuse to receive evidence which is purely cumulative”].)
A proceeding under the SVPA is a special proceeding of a civil nature. (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 988.) In SVPA proceedings, “due process . . . is not measured by the rights accorded a defendant in criminal proceedings, but by the standard applicable to civil proceedings[.]” (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154.) In civil proceedings, including SVPA proceedings, “‘[d]ue process requires only that the procedure adopted comport with fundamental principles of fairness and decency. The due process clause of the Fourteenth Amendment does not guarantee to the citizen of a state any particular form or method of procedure.’ [Citation.]” (In re Parker (1998) 60 Cal.App.4th 1453, 1462.)
The measure of due process that is due in civil proceedings, including proceedings under the SVPA, is a complex determination that depends upon several factors: “(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.” (Otto, supra, 26 Cal.4th at p. 210.) Here, even though an SVPA proceeding is a civil proceeding, due process requires the provision of a qualified expert for defendant. (See § 6603, subd. (a).) An SVP commitment directly affects a defendant’s liberty interest. The provision of an expert allows a defendant the opportunity to present his side of the story before the trier of fact, which in turn lessens or prevents the erroneous deprivation of defendant’s liberty interest. With that said, there is nothing that militates in favor of providing two experts, who in all probability will proffer nothing more than cumulative testimony.^[2] As the trier of fact is instructed, “Do not make any decision simply because there were more witnesses on one side than on the other. If you believe it is true, the testimony of a single witness is enough to prove a fact.” (Judicial Council of Cal. Civ. Jury Instns., CACI No. 107.)
Furthermore, none of the cases relied upon by defendant support the proposition that due process dictates the appointment of more than one expert to deal with the same issues. Here, defendant was fully able to present his side of the story to the trier of fact. Fundamental fairness was accorded.
C. The State’s Experts’ Reliance on the Department of Mental Health’s Assessment Protocol Does Not Render Defendant’s Recommitment Illegal
The Department of Mental Health is required to evaluate a suspected SVP “in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health.” (§ 6601, subd. (c).) Defendant contends that the Office of Administrative Law (OAL) has determined that the protocol relied upon by the plaintiff’s experts in this case is an invalid, underground regulation.^[3] (See People v. Medina (Feb. 25, 2009, A120517) ___ Cal.App.4th ___ [2009 D.A.R. 2763, 2765].) Therefore, defendant argues, the determination that defendant qualified as an SVP “was not made in compliance with the explicit statutory instructions,” and defendant must be released. We reject this argument.
We first note that the issue of the protocol being an “underground regulation” is raised for the first time by way of supplemental briefing on appeal. While we recognize that the OAL did not issue its determination until well after trial and after the filing of defendant’s opening brief, the underlying argument relative to the protocol being an “underground regulation” was nonetheless available at all relevant times. To that extent, the claim has been forfeited. (See People v. Medina, supra, ___ Cal.App.4th ___ [2009 D.A.R. 2763, 2767]; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Additionally, review of this issue is difficult because neither the OAL’s “Determination Issued Pursuant to Government Code Section 11340.5” nor the subject “Clinical Evaluator Handbook and Standardized Assessment Protocol” were provided on appeal. Nor were we asked to take judicial notice of either document. (See Canal Ins. Co. v. Tackett (2004) 117 Cal.App.4th 239, 242-243 .)
Even if the argument has not been forfeited, and regardless of whether the protocol is considered an “underground regulation,” we do not believe use of the protocol infects the legitimacy of defendant’s commitment. While the protocol may dictate the scope, methodology, and relevant considerations of the assessment, they do not tell the evaluator what determination he or she is to make. The opinions reached by the respective evaluators necessarily require the professional experience, knowledge, and expertise of the individual doctors, and are based on accepted criteria and tools within the overall profession.
Dr. Goldberg testified as follows. He has a doctorate in clinical psychology. He reviewed numerous institutional and medical records. He relied on the Static-99 and the MNSOST-R actuarial instruments which are used to assess risk of recidivism. He testified that defendant suffers from a mental disorder. He diagnosed defendant as suffering paraphilia, not otherwise specified, nonconsensual sexual activity, and other unknown substance abuse. Paraphilia is something lasting over six months which deals with reoccurring intense sexually arousing fantasies, urges, or behaviors. In this case, it is nonconsensual sexual activity. It could be obligatory or episodic. Dr. Goldberg further testified that defendant also had an Axis 1 diagnosis of unknown substance abuse. As it relates to the Axis 1 diagnosis, defendant has a pattern of engaging in nonconsensual sex based on the two crimes that have already been described, and he is dealing with vulnerable individuals, namely, a 71-year-old lady and a smaller individual. According to the records, defendant is more interested in engaging in sexual behavior than just robbing the victim. Defendant was also becoming sexually aroused during the crime and most normal individuals don’t get sexually aroused when their partner is resisting the contact; most people would feel compassion for an elderly lady. He obviously is able to be sexually aroused during unusual circumstances. He also has qualities of impulsivity, which is represented in the manner in which he committed some of the crimes. His Axis II diagnosis is an antisocial personality disorder. Some people feel more comfortable incarcerated and have a problem adjusting after being incarcerated for a long period of time, and that results in recidivism. In Dr. Goldberg’s review of the records, defendant was essentially stating that at the time he was arrested he preferred being incarcerated than being out paying taxes. Defendant continues to suffer from paraphilia and engaging in nonconsensual sex. He continues to suffer from an antisocial personality. Dr. Goldberg utilized the Static-99 to estimate defendant’s risk of sexual recidivism. Defendant’s overall Static-99 score was eight. An individual who has a score of one or two is a low risk, a three, four or five is in the low moderate to high moderate range, and anything above six is high range. Presently, defendant is not complying with the program in terms of treatment, and when he committed his sexual crime in 1982, he was on parole. His impulsive personality trait is further manifested by his abusiveness to others at ASH. Regarding defendant’s future recidivism, Dr. Goldberg’s opinion is that defendant is likely to commit predatory sex crimes against individuals, which could include strangers or persons of casual acquaintance. Dr. Goldberg further opined that defendant is at a substantial risk to reoffend. Individuals meet the criteria about 45 percent of the time. The Diagnostic and Statistical Manual IV-Text Revision is accepted and expected to be used in a forensic setting.
Dr. Starr testified as follows. She is a licensed psychologist with the State of California. She has a doctorate in clinical psychology. Immediately after obtaining her doctorate, she began working at ASH doing mentally disordered sex offender evaluations. She worked at ASH for nine years and went into private practice in 1987 doing primarily psychological evaluations. In 1996, she became involved in the SVP panel. In doing the evaluations, she followed the procedures as set forth in a Department of Mental Health protocol. The protocol involves looking at court documents, abstracts of judgment, probation reports, and law enforcement documents. In doing a risk assessment, she uses the Static-99 as a starting point. She also uses the Hare psychopathy checklist if she is able to interview the patient. The general protocol has basically remained the same throughout the years. Defendant is a young man who could probably have found a consensual female partner, but yet elects to have involuntary sex with a screaming 71-year-old female and this goes to a high level of sexual deviance and callousness. Most men will not find themselves getting aroused or remaining aroused while there’s a victim screaming in pain. From defendant’s testimony at trial, it did not appear that he demonstrated any remorse. Dr. Starr gave him four different diagnoses, two of which pertain to being an SVP. He has an Axis I diagnosis of paraphilia not otherwise specified and an Axis II diagnosis of antisocial personality disorder. “[A] paraphilia, according to our Diagnostic and Statistical Manual IV-Text Revision, which is essentially the diagnostic manual used by people in the United States diagnosing mental health issues, describes paraphilia . . . as a recurrent, intense deviant sexual interest, urges or fantasies or behaviors. . . . [¶] With regard to [defendant], the paraphilia not otherwise specified refers to his recurrent deviant, intense sexual urges, fantasies or behaviors directed toward nonconsenting people.” He enjoys nonconsensual sexual contact with people on a current basis. He has a conduct disorder and an antisocial personality disorder. As to his paraphilia, there’s a predilection to acting in that way in the future.
Dr. Starr relied on the Static-99 as a tool. Defendant’s score was nine. Anybody with a score of six or above is in the highest category. Dr. Starr opined that in five years, the risk of defendant sexual reoffending would be at least 39 percent. A 10-year estimate is 45 percent and a 15-year estimate is 52 percent. Defendant’s PCL-R score was 34, and anything above 30 is considered in the severe range. He has intimacy difficulties, which shows a general lack of concern for other people and increases his risk for reoffending. He has sexually deviant interests, as demonstrated by his proclivity for nonconsensual sex with males and females. The antisocial personality disorder makes him more likely to reoffend. He has problems with self-regulation. Finally, Dr. Starr believes defendant is likely to commit future sexual offenses; that is, there is a substantial or a serious and well-founded risk that he will reoffend.
Both experts testified to an Axis I and Axis II diagnosis of paraphilia and antisocial personality, respectively. In doing so, they relied on the Diagnostic and Statistical Manual IV-Text Revision, which is commonly accepted and used by people in the United States for diagnosing mental health issues. Defendant had the full opportunity to, and in fact did, fully cross-examine plaintiff’s doctors as to the basis for their psychological opinions. At no time during their testimony did either of the expert witnesses state that the protocol dictated their opinion.
While the protocol may have been the foundational basis for the methodology of the experts, their opinions were clearly based on commonly accepted psychological diagnostic tools and criteria. Whether the protocol was or was not an “underground regulation” is of no consequence to the commitment of the defendant.
Because of this conclusion, we do not address defendant’s argument that trial counsel was inadequate for failing to raise the issue at trial.
D. The Court Did Not Err in Allowing the State’s Experts to Testify About the SVP Treatment Program.
Defendant contends that the plaintiff’s expert should not have been permitted to testify about the nature of the SVP treatment program at ASH because he was not participating in that program. We hold that the court did not abuse its discretion in allowing the evidence.
The court in People v. Castillo (2009) 170 Cal.App.4th 1156 recently rejected a similar argument. In that case, Castillo—the subject of the SVPA proceeding—participated in the first of five treatment phases, but then opted out of the program. (Id. at p. 1171.) Over Castillo’s objection, the state’s expert testified about the details of the treatment program. The trial court explained that the evidence “was relevant to showing potential future dangerousness. For instance, the jury could reasonably infer that Castillo chose not to go forward with treatment because he did not want to make the effort—which, in turn, would show he did not appreciate the seriousness of his mental condition and that he could not be expected to take the steps required to control his deviant behavior if released.” (Ibid.)
The Court of Appeal affirmed, stating: “‘Evidence of the person’s amenability to voluntary treatment . . . is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody.’ [Citation.] ‘[I]t would be reasonable to consider the person’s refusal to cooperate in any phase of treatment provided by the Department, particularly a period of supervised outpatient treatment in the community, as a sign that the person is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.’ [Citation.] Those principles extend to and justify the trial court’s ruling. Here, Castillo’s reasons for not proceeding with treatment were highly probative as to his amenability to voluntary treatment, since he refused to participate once he was informed what he would be expected to do in that program. As the trial court recognized, the jury could not properly assess those reasons absent some knowledge of what the treatment plan entailed.” (People v. Castillo, supra, 170 Cal.App.4th at pp. 1172-1173.)
Here, Dr. Goldberg testified that defendant began ASH’s five-phase treatment program, but dropped out and failed to complete the program. As in Castillo, defendant’s refusal to participate in the program is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody. Nor was the testimony unduly prejudicial. (See People v. Castillo, supra, 170 Cal.App.4th at p. 1173.) Accordingly, the court did not abuse its discretion in allowing the challenged testimony.
IV. DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION

/s/ King
J.


We concur:

/s/ Gaut
Acting P.J.

/s/ Miller
J.



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