Filed 5/19/17 P. v. Rodriguez CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Amador)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY RODRIGUEZ,

Defendant and Appellant.
C078763

(Super. Ct. No. 14MH0220)




Defendant Ricky Rodriguez appeals the trial court’s judgment committing him to a state hospital for an indeterminate term following a court trial finding that he is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) He contends he was prejudiced by voluminous case-specific hearsay evidence elicited from expert witnesses in violation of state hearsay law as recently articulated in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). In the event this court finds he forfeited this claim, he also contends that his trial counsel was ineffective for failing to preserve this claim for appeal.
We conclude defendant was prejudiced by the erroneous admission of hearsay evidence and reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2014, the Amador County District Attorney filed a petition pursuant to section 6601 to commit defendant as an SVP. In the attached declaration, the prosecutor alleged that defendant had been convicted of two predicate offenses -- a 1989 conviction for lewd and lascivious acts in San Francisco County and a 1998 conviction for lewd and lascivious acts in Monterey County. Also attached to the petition were reports from two psychologists who had recently evaluated defendant. (See § 6601, subds. (a)-(h).)
Following a probable cause hearing pursuant to section 6602, the trial court held defendant to answer. After defendant waived his right to a jury trial, a court trial was held. At trial, the prosecution called only the two psychologists who evaluated defendant to testify.
A
Dr. Harry Goldberg
Harry Goldberg, Ph.D., is a clinical psychologist who has conducted over 800 SVP evaluations over his career. To evaluate defendant, Dr. Goldberg reviewed police reports, probation reports, charging documents, abstracts of judgment, preliminary hearing transcripts, prison records, and medical reports. He also interviewed defendant twice and conducted a mental status exam.
Dr. Goldberg determined that defendant was previously convicted of a sexually violent offense against at least one victim based on his review of court records and defendant’s statements. Defendant’s first offense occurred in San Francisco County between January 1, 1986 and March 31, 1986. Rolando, a seven-year-old boy, accused defendant of sodomy. He also claimed defendant fondled his penis multiple times and made him orally copulate defendant. Medical records indicated that Rolando had anal trauma.
Defendant’s second offense occurred in Monterey County on September 21, 1997. Defendant was at a family party with 13-year-old Raymond and at least three “other boys.” Defendant invited Raymond and the other boys to have a sleep over in his van. Raymond said no and tried to convince the other boys not to sleep in the van but they did anyway. When Raymond checked on the other boys the next morning, defendant pulled Raymond into the van and made Raymond get next to him. Defendant then rubbed his penis against Raymond’s anus while both defendant and Raymond were clothed. Defendant kissed Raymond and attempted to fondle Raymond’s penis, but Raymond was able to squirm away from defendant. Two of the boys who spent the night awoke with their pants undone, but had no recollection of being molested. At the time of this offense, Raymond also accused defendant of molesting him five years earlier by having him touch defendant’s penis for several minutes.
To establish whether defendant had a mental disorder, Dr. Goldberg reviewed defendant’s medical records and administered psychological tests to defendant. Defendant reported to Dr. Goldberg he had significant depressive symptoms and had attempted suicide; however, he was not forthcoming with information about his sexual disorder. In fact, defendant denied any responsibility for the sexual crimes of which he was previously convicted. Dr. Goldberg concluded that defendant had “pedophilic disorder, sexually attracted to males, nonexclusive type,” meaning defendant was attracted to both children and adults. Dr. Goldberg’s opinion was based on defendant’s offenses involving prepubescent children, his arousal during the offenses, and his inability to control himself despite being punished for his behavior. Further, defendant claimed that he had sought treatment for his sexual urges, but that treatment was not successful. Defendant’s past behavior showed that he had both volitional and emotional impairment: volitional impairment because he could not control his impulses and emotional impairment because he used children to gratify his sexual urges and rejected the natural tendency to protect them.
Dr. Goldberg concluded that defendant was a menace to the health and safety of others because of his chronic mental disorder. He based this conclusion on the fact that defendant had never taken responsibility for his actions and did not think he needed treatment. Because defendant thought that he did not need treatment, it was not likely he would take the necessary steps to avoid future acts of sexual misconduct against children.
Dr. Goldberg also concluded that defendant was likely to reoffend by committing sexually criminal predatory acts. To come to this conclusion, he used two predictive actuarial tests -- the Static-99R and the Static-2002R -- and analyzed dynamic and protective factors. Defendant scored a five on the Static-99R, which showed defendant had a moderate to high risk of reoffending. He also scored a five on the Static-2002R, which showed defendant had a moderate risk of reoffending.
Analysis of dynamic factors also showed defendant had a moderate to high risk of reoffending. This was based on the fact that defendant had three or more victims, he had a high density of offenses the last time he was in the community, he did not have the ability to form positive adult relationships, he felt like he was victimized by the people who accused him of sexual offenses, and he made poor decisions in the face of stress. An analysis of protective factors, which show a reduced risk of reoffending, did not change Dr. Goldberg’s opinion. Defendant’s age of 49 showed a reduced risk of reoffending, as did his medical history. Defendant was diagnosed with prostate cancer while in prison; however, because he was in remission at the time of trial, Dr. Goldberg did not think defendant’s medical problems would affect his ability to commit another sexual crime. Further, although defendant claimed to have taken part in treatment for his mental disorder, the treatment was unsuccessful because he reoffended after he claimed the treatment had occurred.
Based on Dr. Goldberg’s review, he believed there was a “substantial danger” and a “serious and well-founded risk” defendant would engage in sexually violent and predatory criminal behavior if released into the community. Dr. Goldberg based his conclusion on defendant’s inability to conform his behavior to the law after his first offense and his inability to take responsibility for his crimes. Because defendant did not take responsibility, it is not likely he would take the necessary steps to prevent himself from committing another sexually violent offense. When Dr. Goldberg met with defendant, they talked about defendant’s plans once released. Defendant said he had no plan to go to treatment unless required by law.
B
Dr. Robert Brook
Robert Brook, Ph.D., is a clinical psychologist who also evaluated defendant. He relied on documents given to him by the Department of State Hospitals, which included court documents, police reports, and probation reports. Dr. Brook also interviewed defendant for over an hour. The interview included discussions about defendant’s childhood and schooling, relationship history, work history, alcohol and drug history, criminal history, future plans, and the circumstances that led to his incarceration.
Dr. Brook concluded that defendant was previously convicted of a sexually violent offense based on his review of documents given to him by the Department of State Hospitals. The first offense defendant committed was against Rolando, who was seven years old at the time. Defendant fondled Rolando’s penis, copulated him, sodomized him, and kissed him on the lips. From the court documents it appeared that defendant had been charged with other acts against another child; however, those charges were dropped pursuant to a plea bargain.
The second offense defendant committed was against Raymond, who was eight years old during his first encounter with defendant. Defendant was next to Raymond and fondled his penis while he forced Raymond’s hand on his own penis. Raymond tried to move away, but defendant put Raymond’s hand back on defendant’s penis. At some point, defendant told Raymond to keep his hand on defendant’s penis and Raymond did so for 15 minutes. Five years later, when Raymond was 13 years old, Raymond went into defendant’s van where other children were present. In the van, defendant forced Raymond to get next to him and defendant rubbed his penis against Raymond’s buttocks while also kissing his head and neck. Raymond pulled away and left the van.
Dr. Brook also concluded that defendant had a mental disorder, which he based on his conversations with defendant, a mental status examination, and comparison of defendant’s statements with official documents. Dr. Brook diagnosed defendant with “pedophilic disorder, attracted to males, non-exclusive.” He based this diagnosis on defendant’s intense sexual fantasies and behaviors related to children. During both offenses, defendant had contact with multiple children and not just the children who were the named victims. For example, when defendant fondled Raymond in the van, two of the other children present awoke with their pants undone. Although they did not know whether they had been molested, the children were upset. Defendant was also reported as having kissed the necks and faces of those children.
Dr. Brook concluded that defendant posed a danger to the community because of his history of persistent behavior. Defendant was given a fairly brief sentence following his first offense but was told that the consequences would be dire if he reoffended, yet he still reoffended. This showed that his mental disorder affected his emotional and volitional capacity, and he could not control his underlying sexual deviant urges. Further, defendant reported having undergone treatment, though no documentation supported that claim. If true, treatment was a failure and did not assist defendant in controlling his sexual urges.
Based on his evaluation of defendant and actuarial testing, Dr. Brook expected defendant to reoffend if released into the community by committing a sexual crime against a minor. Dr. Brook administered both the Static-99R and Static-2002R actuarial tests. The Static-99R placed defendant at a moderately high risk of reoffending, while the Static-2002R placed him at a moderate risk of reoffending. Dr. Brook also took into account defendant’s history of reoffending despite the presence of consequences, his denial that he had a problem, and his claims he was the victim of circumstance. From his review of defendant, it was clear to Dr. Brook that defendant’s deviant urges overcame his volitional capacity and the natural response to protect children. His deviant urges also overcame his emotional capacity because he did not stop his conduct when his victims verbally and physically protested, and instead maintained his sexual interest in them. Because defendant completely denied wrongdoing and blamed his victims, he lacked the skills to resist and redirect his sexual urges.
C
Ruling
Following the experts’ testimony, the court admitted two exhibits. Court’s exhibit 1 included defendant’s prison transfer history, an abstract of judgment from his 1998 conviction for one count of lewd and lascivious acts in Monterey County, an abstract of judgment from his 2000 conviction for one count of possessing illegal substances in prison, defendant’s fingerprints and offender photograph, and a California Law Enforcement Telecommunications Systems (CLETS) report from 2014. Court’s exhibit 2 included a second CLETS report, but from 2015.


The court found beyond a reasonable doubt defendant was convicted of committing sexually violent offenses against one or more victims, he had a diagnosed mental disorder as testified to by both doctors, he posed a danger to the health and safety of others, and he would likely engage in sexually violent predatory behavior in the future. Accordingly, the trial court found that defendant is a sexually violent predator within the meaning of section 6600 and committed him to the California Department of State Hospitals.
DISCUSSION
Defendant contends the trial court erred when it admitted expert testimony consisting of case-specific hearsay in violation of state hearsay law as recently articulated in Sanchez. Specifically, defendant points to 20 items of evidence regarding details of his illegal conduct and mental state, which -- for the first time on appeal -- he asserts were improperly admitted. Defendant admits that his trial counsel did not object to the admission of these specific items of evidence but contends the issue was not forfeited because an objection would have been futile in light of the case law at the time of trial. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 [objection not required “if it would have been futile” in light of binding authority at the time].) Defendant notes that at the time of his trial, Sanchez had not yet been decided and California courts rejected hearsay challenges to expert testimony based on our Supreme Court’s decision in People v. Gardeley (1996) 14 Cal.4th 605. (See, e.g., People v. Hill (2011) 191 Cal.App.4th 1104, 1131.) The People counter that an objection would not have been futile because Sanchez was pending in the California Supreme Court at the time of defendant’s trial and its holding was foreseeable given United States Supreme Court authority on the issue. (See Williams v. Illinois (2012) 567 U.S. 50, 103-104 [183 L.Ed.2d 89, 129] (conc. opn. of Thomas, J.); id. at p. 126-127 [183 L.Ed.2d at p. 143] (dis. opn. of Kagan, J.).)


“Though evidentiary challenges are usually waived unless timely raised in the trial court, this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.” (People v. Turner (1990) 50 Cal.3d 668, 703; see also People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.) The experts’ testimony was proper pursuant to decisional law existing at the time of trial. (People v. Gardeley, supra, 14 Cal.4th at p. 605, overruled in part by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Accordingly, objection to each and every basis for the experts’ opinion that defendant was an SVP would have been futile because the court was bound to follow the ruling in Gardeley. (See People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted Mar. 22, 2017, S239442 [“Any objection would likely have been futile because the trial court was bound to follow pre-Sanchez decisions”].) The People’s argument that Sanchez’s holding was foreseeable given United States Supreme Court authority is not well taken because the authority to which the People refer exclusively pertains to the confrontation clause and criminal cases. (See Williams v. Illinois, supra, 567 U.S. 50, 64-85 [183 L.Ed.2d 89, 94, 103-116].) Defendant was in the midst of a civil SVP trial, to which the confrontation clause does not apply. (See Sanchez, supra, 63 Cal.4th at p. 680, fn. 6.) Thus, we reach the merits of defendant’s claim.
I
Expert Testimony After Sanchez
Sanchez overturned existing California law regarding the admissibility of an expert’s testimony relating to the hearsay basis of the expert’s opinion, and it gave the analytical steps for resolving the admissibility of out-of-court statements under California’s hearsay rule. Under the California hearsay rule, the Sanchez court clarified what an expert can testify about under Evidence Code section 802. “Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert’s testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the ‘matter’ upon which his opinion rests.” (Sanchez, supra, 63 Cal.4th at pp. 685-686.) The court continued, “What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.)
The court then adopted the following rule regarding state hearsay law: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 686.)
The California Supreme Court provided several examples to help illustrate the proper admission of expert testimony as follows:
“(1) That 15 feet of skid marks were measured at an auto accident scene would be case-specific information. Those facts could be established, for example, through the testimony of a person who measured the marks. How automobile skid marks are left on pavement and the fact that a given equation can be used to estimate speed based on those marks would be background information an expert could provide. That the car leaving those marks had been traveling at 80 miles per hour when the brakes were applied would be the proper subject of an expert opinion.
“(2) That hemorrhaging in the eyes was noted during the autopsy of a suspected homicide victim would be a case-specific fact. The fact might be established, among other ways, by the testimony of the autopsy surgeon or other witnesses who saw the hemorrhaging, or by authenticated photographs depicting it. What circumstances might cause such hemorrhaging would be background information an expert could provide. The conclusion to be drawn from the presence of the hemorrhaging would be the legitimate subject for expert opinion.
“(3) That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.
“(4) That an adult party to a lawsuit suffered a serious head injury at age four would be a case-specific fact. The fact could be established, inter alia, by a witness who saw the injury sustained, by a doctor who treated it, or by diagnostic medical records. How such an injury might be caused, or its potential long-term effects, would be background information an expert might provide. That the party was still suffering from the effects of the injury and its manifestations would be the proper subject of the expert’s opinion.” (Sanchez, supra, 63 Cal.4th at p. 677.)
“Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) An expert may be asked to assume hypothetically a set of case-specific facts for which there is independent competent evidence, and then be asked what conclusions the expert would draw from those assumed facts. But if no competent evidence of a case-specific fact has been, or will be, adduced, the expert cannot be asked to assume it. (Id. at pp. 676-677.) Sanchez restored the common law rule that the expert is not permitted to supply case-specific facts. (Ibid.)
II
Admissibility Of Challenged Evidence
An SVP is “a person who has been convicted of a sexually violent offense against one 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.” (§ 6600, subd. (a)(1).) To prove this here, the prosecution called two expert witnesses to testify about the details of defendant’s prior predicate offenses, his alleged crimes that were not predicate offenses, and his mental state/psychological history. The evidence defendant now challenges can be broken into these three categories, and we will address them in turn.
A
Predicate Offenses
Defendant points to several items of evidence having to do with his predicate offenses he claims were improperly admitted because they constituted hearsay. This evidence consists of the experts’ testimony about the details of his predicate offenses, including that he was aroused during the offense, he sodomized Rolando 15 times and caused injury, he was under the influence of alcohol during one offense, he victimized children under the age of 13, he committed a high density of sexual offenses when last in the community, and he placed himself in the presence of children after his first conviction.
The People argue that this evidence was properly admitted under the hearsay exception found in section 6600, subdivision (a)(3). This section allows the prosecution to prove the details underlying a defendant’s predicate convictions through “documentary evidence including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals.” (See People v. Otto (2001) 26 Cal.4th 200, 207-208.)
The problem with the People’s argument is the prosecution did not offer police reports, probation reports, or preliminary hearing transcripts into evidence proving the details of defendant’s predicate offenses. The prosecution offered an abstract of judgment showing defendant had been convicted of lewd and lascivious acts in 1998 and two CLETS reports showing he had been convicted of this offense and the same in 1989. The documentary evidence submitted by the prosecution proved the convictions had occurred, but did not prove the details underlying those convictions. Thus, the details of defendant’s predicate offenses were not “independently proven by competent evidence” as required by Sanchez. Because the details of defendant’s predicate offenses were not proven by independent competent evidence, the experts’ testimony about the details of those offenses was hearsay.
B
Alleged Offenses
Defendant also points to several items of evidence he claims constitute details of alleged offenses that were hearsay. This evidence included testimony about the details of a sexual assault defendant committed against Raymond five years before the van incident and assaults against the other boys in the van, the fact that one of defendant’s alleged sexual offenses was dismissed as part of a plea bargain, and the fact that defendant failed to register as a sex offender. The People concede error; however, they also argue the evidence concerning Raymond and the other boys defendant allegedly molested in his van was admissible under section 6600, subdivision (a)(3), because it constituted relevant details of defendant’s predicate offenses.
The prosecution never offered independent competent evidence to prove any of these offenses, whether they constituted details of the predicate offenses or details of alleged offenses. Even had the prosecution offered police reports, probation reports, or preliminary transcripts containing the details of defendant’s offenses, that documentary evidence would only have been sufficient to prove details pertinent to defendant’s predicate offenses. Our colleagues in the Second Appellate District, Division 4 recently addressed this issue in People v. Burroughs (2016) 6 Cal.App.5th 378. There, the court admitted police and probation reports in an SVPA proceeding over the defendant’s objections. (Id. at pp. 393-395.) The Court of Appeal concluded this documentary evidence was sufficient to prove the pertinent details of the defendant’s predicate offenses but not the details of offenses he was never convicted of committing or other facts not pertaining to the predicate offenses. (Id. at pp. 409-411.) The court based its conclusion on our Supreme Court’s decision in Otto, in which the court “confirmed [section 6600, subdivision (a)(3)], by its terms, ‘authorizes the use of hearsay in presentence reports to show the details underlying the commission of a predicate offense.’ ” (Burroughs, at p. 409, quoting People v. Otto, supra, 26 Cal.4th at p. 206.) “Thus, under Otto, ‘the only reasonable construction of section 6600(a)(3) is that it allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted.’ ” (Burroughs, at p. 409.) To prove the details of nonpredicate offenses, the prosecution was required to present other independent competent evidence, in the form of testimony or evidence that fell under a hearsay exception. (Id. at pp. 407, 409.)
Here, the prosecution did not offer independent evidence to prove pertinent or nonpertinent details of defendant’s predicate offenses or details of his alleged offenses. It also did not offer independent competent evidence to prove defendant failed to register as a sex offender. Thus, the experts’ testimony on these subjects was hearsay under Sanchez.
C
Mental State/Psychological History
Defendant’s last category of challenged evidence pertains to evidence that can be classified as relevant to his mental state and psychological history. This challenged evidence included testimony that defendant denied responsibility for his crimes and blamed his victims, had unsuccessfully participated in outpatient treatment, and suffered from depression and had attempted suicide. The People argue that this evidence was properly admitted because it was admissible under Evidence Code section 1220 as a party admission. We agree with the People.
Drs. Goldberg and Brook both testified defendant consented to an interview with them. Dr. Goldberg testified that during this interview defendant denied responsibility for his offenses and stated he did not need treatment. Defendant also claimed to be victimized by the people who accused him of the offenses. He further reported to Dr. Goldberg that he had significant depressive symptoms and had attempted suicide. Defendant claimed he had sought treatment for his sexual urges while on probation. Dr. Brook testified that during his interview with defendant, defendant denied responsibility for his crimes and blamed the victims for his incarceration. Defendant also told Dr. Brook he had undergone treatment. Dr. Brook could not find any documents to support this statement and could rely only on defendant’s claims that treatment had occurred. Defendant’s statements were admissible as party admissions pursuant to Evidence Code section 1220 and thus were covered by a hearsay exception as required by Sanchez.
III
The Error Was Not Harmless
Defendant argues the admission of case-specific hearsay testimony “constituted a miscarriage of justice” requiring reversal without consideration of the effect the inadmissible evidence had on the result of his case. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1142 [The absence of an express admonition and personal waiver of the right to a jury trial requires reversal regardless of prejudice].) The People argue the state law standard of error announced in People v. Watson (1956) 46 Cal.2d 918 applies because this is a case involving the erroneous admission of hearsay evidence. We agree with the People. The erroneous admission of hearsay evidence is not the type of error requiring reversal per se. “[E]rrors, which operate to deny a defendant an ‘ “orderly legal procedure” ’ [citation], can entail a ‘miscarriage of justice’ under California Constitution, article VI, section 13” notwithstanding the strength of the evidence contained in the record. (Blackburn, at p. 1133.) A denial of “orderly legal procedure” includes depriving a defendant of counsel, using a defendant’s coerced confession in a criminal trial, or trying a defendant before a biased judge. (People v. Shiga (2016) 6 Cal.App.5th 22, 45-46, citing Arizona v. Fulminante (1991) 449 U.S. 279, 290 [113 L.Ed.2d 302, 318].) This was not the type of error that occurred here. Regardless, we find defendant was prejudiced under the lower Watson standard. (Watson, at p. 836 [reversal is required when it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error].)
The details of the crimes of which defendant was convicted that came in only through the testimony of the two experts allowed the court to find his predicate offenses constituted “sexually violent offense[s]” for purposes of the SVPA. To be adjudged an SVP, a defendant must have been convicted of a “sexually violent offense.” (§ 6600, subd. (a)(1); In re Lemanuel C. (2007) 41 Cal.4th 33, 42.) Defendant was twice convicted of nonforcible lewd acts pursuant to Penal Code section 288, subdivision (a). Although this offense is one of the enumerated offenses that may qualify as a predicate offense under section 6600, this offense is not necessarily a “sexually violent offense.” (People v. Fulcher (2006) 136 Cal.App.4th 41, 51.) “Therefore, evidence outside the record, such as witness testimony, may be necessary in establishing that a section 288(a) offense qualifies as a sexually violent offense. Otherwise a section 288(a) offense would never qualify when the defendant pled guilty or no contest prior to the preliminary hearing, and often would not qualify even if evidence was limited to the elements or record of conviction of a section 288(a) offense.” (Fulcher, at p. 51.) The record of defendant’s convictions showed the mere fact that he was convicted of nonforcible lewd acts, it did not show that his conduct constituted “sexually violent offense[s].” It was the experts’ hearsay testimony that allowed the prosecution to meet this burden. Accordingly, had the inadmissible hearsay evidence been excluded from trial, the trial court would have been compelled to find that the prosecution had not proved defendant was an SVP and thus would have been compelled to deny the SVP petition. Therefore, the error in admitting the evidence was prejudicial under Watson, and we must reverse.


DISPOSITION
The judgment is reversed.



/s/
Robie, J.



We concur:



/s/
Hull, Acting P. J.



/s/
Duarte, J