PEOPLE v. CARLIN

Filed 4/26/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Story Continued from Part I..

In this case, the felony complaint alleges only that between June 1 and June 30 of 1990, appellant did willfully and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of ETHAN [F.] . . . with the intent of arousing, appealing to, and gratifying the lust, passion, and sexual desires of the said defendant and of said child. Appellant points to no other evidence in the record that appellant pleaded guilty to specific conduct. Thus, the offense that led to his 1991 conviction is simply a lewd and lascivious act against Ethan, the details of which can be found only in extraneous evidence. (See, e.g., Howard, supra, 70 Cal.App.4th at p. 155; Fulcher, supra, 136 Cal.App.4that pp. 50-51.) Because the 2000 and 2001 statements describe lewd and lascivious conduct against Ethan, they potentially relate to the offense underlying his section 288(a) conviction and are relevant to a determination of whether the offending act or acts involved substantial sexual conduct.

In sum, we find that admission of post-plea evidence is not contrary to the plain language of the statute. We therefore reject appellants claim that the court violated his due process rights by admitting the evidence in contravention of the statute. We consider separately, however, the question of whether the use of the 2000 and 2001 hearsay statements in the investigators reports to prove substantial sexual conduct violated appellants due process rights.

The California Supreme Court, in Otto, supra, 26 Cal.4th 200, 203,considered whether section 6600, subdivision (a)(3) allows the admission of multiple hearsay that does not fall within any exception to the hearsay rule, and if so, whether reliance on this evidence violates a defendants right to due process. The court concluded that the statute does allow admission of multiple hearsayin particular, victim statements contained in probation and sentencing reportsnot otherwise subject to a hearsay exception. (Id. at pp. 206-209.) Here too we are presented with multiple hearsay that does not fall within any other exception to the hearsay rule. Although the victim statements in this case are not in a probation or sentencing report, the evidence is arguably admissible under the broad terms of the statute. Subdivision (a)(3) of section 6600 provides a nonexclusive list of admissible evidence, and expressly allows for the admission of documentary evidence created after the defendants conviction. (See  6600, subd. (a)(3) [authorizing use of, among other things, probation and sentencing reports, and evaluations by the State Department of Mental Health].) Appellant does not contend that there is a meaningful distinction between the investigators report and other documentary evidence admissible under the statute. We therefore focus on the broader question: Does the Peoples reliance on this hearsay evidence violate appellants due process rights? In Otto, the court examined the extent of due process afforded in an SVP proceeding and held that the prosecutions reliance on the hearsay evidence presented in the case did not violate the defendants due process rights. (Id. at pp. 207-209, 211-215.) We review the courts due process analysis in detail to resolve the question presented here.

Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections. (Otto, supra, 26 Cal.4th at p. 209.) The following factors are weighed to determine the extent of due process protection which must be accorded: (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 governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute 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. (Id. at p. 210.)

Applying these factors, we first note that appellant, like all defendants in SVP cases, will be impacted greatly by the outcome of the proceedings; the private interests that will be affected by the official action are significant limitations on [appellants] liberty, the stigma of being classified as an SVP, and subjection to unwanted treatment. (Otto, supra, 26 Cal.4th at p. 210; see also People v. Hurtado (2002) 28 Cal.4th 1179, 1194 (Hurtado) [observing that an SVPA commitment involves a deprivation of liberty, and a lasting stigma and that the proceedings may result in confinement for life].) Appellants private interests are, however, offset by the governments interest in protecting the public from those who are dangerous and mentally illthe third factor in the due process analysis. (Otto, supra, 26 Cal.4th at p. 214.)

Consideration of the second factorthe impact of the procedures used on appellants due process rights and the value, if any, of alternative proceduresrequires a closer examination of the specific circumstances presented. (Otto, supra, 26 Cal.4th at p. 210.) Reliance on victim hearsay statements, in particular, requires that the statements contain special indicia of reliability to satisfy due process. (Ibid.) Facts relevant to the statements reliability, according to the Otto court, include the circumstances surrounding the making of the statement, if known, such as spontaneity and consistent repetition, the mental state of the declarant, use of terminology unexpected of a child of a similar age, lack of motive to fabricate, and whether the hearsay statement was corroborated. (Id. at p. 211.)

Here, the circumstances surrounding the 2000 and 2001 statements do not support their reliability. The statements were not spontaneous, are inconsistent with Ethans 1991 statements, and have not been corroborated. Additionally, the statements were not made in close proximity to the crime and were elicited as part of the Peoples SVP investigation.[1] Although the reports were prepared by an officer in his official capacity, this fact alone is not sufficient to ensure the reliability of the underlying victim statements.

The most critical factor demonstrating the reliability of the victim hearsay statements[,] as determined by the California Supreme Court, also does not support reliability of the statements at issue here. (Otto, supra, 26 Cal.4th atp. 211.) According to Otto, the fact that the defendant was convicted of the crimes to which the statements relate generally means that some portion, if not all, of the alleged conduct will have been already either admitted in a plea or found true by a trier of fact after trial. (Ibid.) The defendant in Otto in fact admitted that the factual basis for his plea was found in the police reports, and thus admitted the truth of the victims statements. (Ibid.) In this case, however, appellants plea could not have contemplated the 2000 and 2001 statements, which were made 10 years after the plea and which vary greatly from the victims statements at the time of conviction. Because the statements were not made until after appellants conviction, this critical reliability factor is absent.

In finding the victim statements in a probation report reliable, the Otto court also noted that the Legislature specifically approved of the use of probation reports, that the Rules of Court contemplate that presentence reports will use police reports, including victim statements, to prepare crime summaries, and that defendants have an opportunity to review and challenge inaccuracies in presentence or probation reports prior to sentencing. (Otto, supra, 26 Cal.4th at p. 212.) The Otto court observed that courts also rely on such reports to impose appropriate sentences and, therefore, rely on victim hearsay found in such reports to make important factual findings about the crime and sentence. (Id. at pp. 212-213.) Again, the indicia of reliability found in Otto are not present in this case: (1) the Legislature did not specifically approve of the use of post-conviction investigative reports prepared at the behest of the district attorneys office to show the details of the underlying offense; (2) appellant did not have the opportunity to challenge the reports accuracy; and (3) courts do not routinely rely on such reports in making critical fact-finding decisions.

As part of its consideration of the second due process factor, the Otto court further noted that the defendant was aware of the statements significance by the time of the SVP proceeding and that all SVP defendants have the opportunity to present the opinions of psychological experts and to cross-examine any prosecution witnesses during the proceeding. (Otto, supra, 26 Cal.4th at p. 214.) Although these same factors are present in this case, we find them insufficient to balance out the serious reliability concerns, described above, which indicate that reliance on these victim hearsay statements violated appellants due process rights.

An examination of the additional procedures available in this case, and not utilized, supports the finding of a due process violation. Prior to trial, appellant requested permission to call Ethan to testify regarding the 1990 incident and his subsequent statements. The People objected, arguing, among other things, that requiring Ethan to testify would subject him to revictimization. The People made no showing that Ethan was unavailable and Ethan, in fact, testified at the prior trial that resulted in a hung jury. The court denied appellants request to call Ethan as a witness, noting that Ethans testimony from the 2001 mistrial, including cross-examination by appellants attorney,[2] was available as an alternative. The People did not call Ethan as a witness at trial, and neither party introduced the 2001 trial testimony.

Although [t]here is no right to confrontation under the state and federal confrontation clause in civil proceedings, [] such a right does exist under the due process clause. (Otto, supra, 26 Cal.4th at p. 214.) [T]he right to confront and to cross-examine [under the due process clause] is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests[,] . . . [b]ut its denial or significant diminution calls into question the ultimate integrity of the fact-finding process and requires that the competing interest be closely examined. [Citation.] (Chambers v. Mississippi (1973) 410 U.S. 284, 295.) As we noted above, because the defendant in Otto did not attempt to call any witnesses other than a psychological expert, the court left open the question of whether a defendant in an SVP proceeding has a due process right to call witnesses such as the victims or other percipient witnesses. (Otto, supra, 26 Cal.4th at p. 214.) The court observed, however, that the defendant in Otto had the opportunity to confront these witnesses at the time the underlying charges were filed, but instead chose to accept a plea bargain. (Ibid.) The court further recognized a competing interest present in SVP proceedingsthe Legislatures apparent intention to relieve victims of the burden and trauma of testifying about the details of the crimes underlying the prior convictions. (Id. at p. 208 [citing 6600, subd. (a)(3)].)

Unlike the situation in Otto (and with regard to Thomas, above), in which the People relied only on statements made prior to or contemporaneously with the conviction, appellant did not have a meaningful opportunity at the time of the underlying charges to challenge the allegations now levied against him. In this context, the general interest in protecting victims from the trauma of testifying cannot justify the Peoples use of unreliable hearsay. The Peoples failure to call Ethan to the stand, or even to introduce his prior trial testimony, supports the finding that the Peoples reliance on the 2000 and 2001 hearsay statements is constitutionally suspect.

The use of hearsay statements, in place of Ethans trial testimony, also implicates appellants ability to present his side of the story, a consideration under the fourth factor in the due process analysis. (Otto, supra, 26 Cal.4th at p. 215.) The absence of live testimony limited the jurys ability to judge Ethans credibility and to consider fully a pivotal issue in appellants defense. (See, e.g., In re Clifton V. (2001) 93 Cal.App.4th 1400, 1404-1405 [recognizing due process right to live testimony in a contested civil proceeding if there is an issue of credibility]; see also Maryland v. Craig (1990) 497 U.S. 836, 845 [recognizing that live testimony compels a witness to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief].)

After examination of the four Otto factors, we conclude that even if the hearsay evidence is admissible under section 6600, subdivision (a)(3), reliance on the 2000 and 2001 hearsay evidence to prove a sexually violent offense violated appellants due process rights.[3]

3. Harmless Error Analysis

The final question is whether this constitutional error was prejudicial. Although the SVPA is a civil proceeding, its procedures have many of the trappings of a criminal proceeding; [a]n SVPA commitment unquestionably involves a deprivation of liberty, and a lasting stigma, . . . . (Hurtado, supra, 28 Cal.4th at pp. 1192, 1194.) The test set forth in Chapman v. California (1967) 386 U.S. 18 therefore governs review of constitutional error in SVPA cases: Federal constitutional error is reversible unless shown to be harmless beyond a reasonable doubt. (Hurtado, supra, 28 Cal.4th at p. 1194.)

The People point to Smiths testimony and the fact that the People presented evidence of two other sexually violent offenses, the convictions involving Matthew and Thomas, to show that any error was harmless beyond a reasonable doubt. We are not persuaded. Smiths testimony was based on the same unreliable hearsay discussed above. Moreover, appellant called Smith as a witness because the court admitted the investigators reports. To use Smiths testimony to find that there was no prejudice would require defendants faced with rulings contrary to their constitutional rights to choose between attempting to lessen the impact and preserving their constitutional rights for possible resolution on appeal. This is unacceptable.

The fact that the People alleged two other qualifying offenses to prove the predicate sexually violent offenses in this case also does not convince us that the error was harmless beyond a reasonable doubt. Appellant contested the Thomas conviction and nothing in the record indicates which convictions the jury relied upon in finding the SVP petition true. It also is likely that Ethans hearsay statementswhich describe the most egregious behavior presented during the trialcontributed to the jurys overall determination that appellant is a sexually violent predator.

Finally, we note that appellants first SVP trial resulted in a hung jury. Yet, in that trial, appellant conceded the mental disorder element of the SVP finding and contested only the convictions. One primary difference between the two trials is the fact that Ethan testified and was subject to cross-examination during the 2001 trial.

We cannot conclude that the error in this case was harmless beyond a reasonable doubt, and we reverse.[4]

C. Jury Instructions

Although we reverse based on the due process violation, we consider appellants claims of instructional error because they relate to the claims addressed above and some of these issues may arise in future proceedings in this case.

1. Failure to Define Offending Act

Appellant argues that the jury instruction given in this case regarding the required elements of an SVP determination (a modified version of CALJIC No. 4.19) was inadequate. Appellant claims specifically that the court was required to inform the jury that the requisite substantial sexual conduct must be part of the discrete touching resulting in conviction. Under the instructions given, appellant argues, the jury could have found substantial sexual conduct in acts other than those to which he pleaded guilty.

The People first contend that appellants request is for a pinpoint instruction and, therefore, appellant waived the issue by failing to request the instruction at trial. We disagree. Appellants request is for a clarification or restatement of the general principles of SVP law. Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jurys understanding of the case. (People v. Roberge (2003) 29 Cal.4th 979, 988.) We therefore consider appellants claim on the merits.

The obligation to instruct the jury, sua sponte, on a general principle of law comes into play when a statutory term does not have a plain, unambiguous meaning, has a particular and restricted meaning [citation], or has a technical meaning peculiar to the law or an area of law [citation]. (People v. Roberge, supra, 29 Cal.4th at p. 988) [t]he language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language. (People v. Estrada (1995) 11 Cal.4th 568, 574, quoting People v. Poggi (1988) 45 Cal.3d 306, 327.)

The modified version of CALJIC No. 4.19 given in this case states, in part: Sexually violent offense includes a violation of Penal Code section 288(a) (Lewd Act on a Child) that results in a conviction, when the victim is a child under the age of fourteen years and the offending act or acts involve substantial sexual conduct. This language closely tracks the language of the SVPA, which at the time of trial provided that a conviction for a violation of section 288(a) may constitute a sexually violent offense if the victim is a child under the age of 14 and the offending act or acts involved substantial sexual conduct . . . . (Former 6600.1, subd. (a); see also 6600, subd. (b).) Additionally, the instruction is clear on its face. The instruction states that the offending act underlying the conviction must involve substantial sexual conduct. This is an adequate statement of the law. (Cf. People v. Williams (2003) 31 Cal.4th 757, 774-775 [rejecting argument to augment definition of diagnosed mental disorder already adequately defined by Legislature in the SVPA].)

Appellant argues, however, that [t]he jury was not informed that a conviction for a lewd act upon a child had a restricted meaning and a particular technical meaning. According to appellant, a conviction for section 288(a) encompasses only a single touching, and, therefore, the court was required to make clear that the offending act is limited to the single touching the led to conviction. We find no support for this argument.

Appellant cites People v. Perez (1979) 23 Cal.3d 545 and People v. Brown (1994) 28 Cal.App.4th 591cases that address the application of Penal Code section 654 (which prohibits double punishment for a single act or omission) to situations in which the defendant committed several sex offenses. Neither case involves the SVPA, nor even discusses section 288(a), and the holdings are inapplicable to the issue before us. (See People v. Perez, supra,23 Cal.3d at p. 554 [finding that Penal Code section 654 does not preclude punishment for each of the sex offenses committed by defendant]); People v. Brown, supra, 28 Cal.App.4th at pp. 601-602 [reaching same conclusion regarding eight counts of forcible rape].) Indeed, we find nothing in either case to suggest that a violation of section 288(a) is limited to a single, discrete touching.

Finally, we observe that appellants argument, in essence, is a restatement regarding the relevancy of the later-disclosed acts involving Ethan and the alleged ambiguity regarding which acts the 1987 conviction encompassed. These arguments are addressed fully in previous sections. We find no reason to augment the clear language of the statute by narrowly defining an offending act and find no instructional error.

2. Unanimity Instructions

Appellant claims the trial court erred in failing to instruct the jurors that they must unanimously agree on which prior convictions involved substantial sexual conduct. Appellant similarly claims that the court erred in failing to instruct the jurors that they must unanimously agree on which acts constituted substantial sexual conduct. We conclude that the court was not required to give either unanimity instruction.

An SVP proceeding is civil, not criminal, and the unanimity requirement for an SVP proceeding is established by statute. (See Fulcher, supra, 136 Cal.App.4th at p. 59 [noting that because SVP proceedings are civil, the criminal rule requiring a unanimity instruction does not apply].) Under the SVPA, the jury must determine whether the requirements for classification as an SVP have been established beyond a reasonable doubt and the jurys verdict must be unanimous. ( 6604, 6603, subd. (f); Hubbart, supra, 19 Cal.4th at p. 1147.) There is no statutory requirement regarding unanimity for each subpart of the SVP determination.

Even under the unanimity rule applicable to criminal cases, a unanimity instruction is required only in specific circumstances. The instruction is required if the evidence shows that several criminal acts may have been committed, but the defendant was not charged with a separate violation for each act; there must be a unanimous verdict regarding each specific act for which the defendant is convicted. (People v. Washington (1990) 220 Cal.App.3d 912, 915; see also People v. Russo (2001) 25 Cal.4th 1124, 1132-1133 (Russo).) If, in contrast, the prosecution presents multiple theories regarding one criminal act or event, a unanimity instruction is not required. (Russo, supra,25 Cal.4th at p. 1132.) As the court in Fulcher, supra, 136 Cal.App.4th at page 59, succinctly observed: [A] unanimity instruction is required concerning acts that could be charged as separate offenses but is not required as to elements of a charged criminal offense. In Russo, for example, the California Supreme Court held that a jury need not unanimously agree which specific action satisfied the overt act element of a conspiracy charge as long as the jurors agreed at least one overt act was committed. (Russo, supra, 25 Cal.4th at p. 1134.)

In this case, the People presented multiple theories to satisfy the first element required to prove appellant is an SVPthe requirement of two sexually violent offenses. Because the 1983, 1987 and 1991 convictions constitute alternative means of satisfying the sexually violent offense element, similar to presentation of multiple possible overt acts in a conspiracy case, we conclude the jury need not unanimously agree on which two convictions satisfied the sexually violent offenses element. The Peoples alleged presentation of multiple acts that could show substantial sexual conduct[,] a relevant factor in establishing a sexually violent offense, is similarly a presentation of alternative theories that does not require unanimity.

Fulcher, supra, 136 Cal.App.4th 41, an SVP case, is analogous. There, the defendant argued that the court erred in failing to give sua sponte a unanimity instruction (CALJIC No. 17.01) on whether the jury found force, duress or substantial sexual conduct. (Id. at p. 59.) The court noted that duress, force, and substantial sexual conduct are alternative factors or elements required in finding the [] offense qualifies as a sexually violent offence [,] and concluded that a unanimity instruction regarding those factors was not required sua sponte. (Ibid.)

D. Constitutionality of the SVPA

One final contention must be resolved on appeal: Appellants claim that the SVPA violates ex post facto and double jeopardy principles of the state and federal Constitutions.

In Hubbart, supra, 19 Cal.4th at pages 1171-1178, the California Supreme Court concluded that the SVPA is not punitive in nature and upheld the law against an ex post facto challenge: Under these circumstances, the SVPA does not impose liability or punishment for criminal conduct, and does not implicate ex post facto concerns insofar as pre-Act crimes are used as evidence in the SVP determination. We are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Appellants double jeopardy claim fails for the same reason. The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. (People v. Bright (1996) 12 Cal.4th 652, 660, overruled on other grounds in People v. Seel (2004) 34 Cal.4th 535, emphasis in original.) Thus, the determination that the SVPA is not punitive removes an essential prerequisite for both . . . double jeopardy and ex postfacto claims. (Kansas v. Hendricks (1997) 521 U.S. 346, 369.) We reject appellants ex post facto and double jeopardy claims as without merit.

III. Disposition

The order is reversed.

_______________________________

Mihara, Acting P.J.

WE CONCUR:

_____________________________

McAdams, J.

_____________________________

Duffy, J.

People v. Carlin

H028513

Trial Court: Santa Clara County Superior Court

Trial Judge: Honorable Joyce Allegro

Attorney for Appellant: J. Wilder Lee

Under Appointment by the Sixth District

Appellate Program

Attorneys for Respondent: Bill Lockyer

Attorney General of the State of California

Robert R. Anderson

Chief Assistant Attorney General

Gerald A. Engler

Senior Assistant Attorney General

Eric D. Share

Supervising Deputy Attorney General

Ann P. Wathen

Deputy Attorney General

People v. Carlin

H028513

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

[1] A letter from Smith to Ethan in January 2000 preceded Ethans 2000 account of the offense. It states, in relevant part: The Santa Clara County Office of the District Attorney is currently attempting to block the release of a potentially violent sex offender. During pre-trial investigation, it was determined that you may have been a witness/victim of a similar incident involving this same defendant. [] It is very important that our office speak to you about this case. Smiths phone conversation with Ethan followed, during which Smith obtained the contested statements found in the 2000 report.

[2] During cross-examination in the 2001 trial, Ethan testified, among other things, that the 2000 report was not entirely correct and did not accurately reflect his statements to Smith.

[3] Throughout the Respondents Brief, the People stress that appellant was given the option of introducing Ethans 2001 trial testimony. The burden, however, was on the People to prove all SVP elements beyond a reasonable doubt. We do not place the onus on appellant to introduce incriminating evidence in an effort to protect his rights. Because the People did not introduce Ethans 2001 trial testimony to establish substantial sexual conduct, we do not consider whether, as a substitute to live testimony, the transcript would satisfy due process. We hold only that the fact that appellant was given the option of introducing such a transcript in his defense is inadequate.

[4] Appellant also claims that the trial courts refusal to allow him to call Ethan to testify violated his due process rights and that because the jury should not have been allowed to rely on the investigator reports, there is insufficient evidence of substantial sexual conduct. We do not reach these claims. Appellant sought to call Ethan to rebut the 2000 and 2001 reports, which we conclude were improperly admitted. Had the court properly excluded the reports, the People may have called Ethan to testify or introduced his prior trial testimony. Thus, any analysis of the sufficiency of the evidence would be speculative. Additionally, because we reverse, we do not reach appellants additional claim regarding bifurcation of the trial.