P. v. Badura

Filed 10/18/06 P. v. Badura CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Carl E. Davis, Judge. (Retired judge of the Super. Ct. of San Bernardino County, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.

Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Kathryn Gayle, Deputy Attorney General, for Plaintiff and Respondent.

On October 2, 1997, defendant Michael James Badura was found to be a sexually violent predator (SVP) and was committed to Atascadero State Hospital for a two-year term pursuant to the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) Thereafter, he was recommitted for a second term. This case involves defendant’s third and fourth recommitment terms. Over defendant’s objection, the trial court consolidated both recommitment petitions for trial. A jury once again found defendant to be an SVP. He was therefore recommitted for both terms.

Defendant contends:

1. The trial court erred by consolidating the recommitment petitions when defendant was ready to go to trial on one of them.

2. The trial court erred by preventing defendant’s counsel from questioning expert witnesses about the elements of indecent exposure.

We will hold that any error in consolidating the two recommitment petitions has become moot and that the trial court properly prevented the expert witnesses from testifying about the elements of indecent exposure. Accordingly, we will affirm.

I

CONSOLIDATION OF THE FIRST AND SECOND PETITIONS

Defendant contends the trial court erred by granting the prosecution’s motion to consolidate the two petitions.

A. Additional Factual and Procedural Background.

On July 24, 2001, the People filed a petition to recommit defendant for a further two-year term (first petition). On December 20, 2002, after a probable cause hearing, the trial court found probable cause under the first petition.

On July 17, 2003, the People filed a petition under the same case number to recommit defendant for yet another two-year term (second petition). On March 12, 2004, after a probable cause hearing, the trial court found probable cause under the second petition.

On April 5, 2004, defense counsel indicated that she would be ready for a trial on the first petition on April 8. The prosecutor responded, “It would be my intention to join both petitions for trial.” The trial court set a trial date of April 8 but added that it would “entertain a motion to consolidate . . . .”

After a further continuance, on April 13, defense counsel announced that she was ready for trial on the first petition. The prosecutor requested a continuance so he could file a motion to consolidate. Defense counsel objected and demanded an immediate trial. The trial court, however, granted a continuance to April 16.

On April 16, the prosecution filed a written motion to consolidate. Defense counsel announced that she was ready for trial on the first petition. She argued that the motion should not be heard because it was “untimely,” but if it was heard, she would need more time to respond. The trial court set a hearing on April 19.

Defense counsel filed a written opposition to the motion to consolidate, arguing, among other things, that consolidation would prejudice defendant by delaying the “final determination” on the first petition. On April 19, at the hearing on the motion, defense counsel also moved to dismiss. The trial court granted the motion to consolidate and thus implicitly denied the motion to dismiss.

On August 3, defense counsel filed a written motion for reconsideration of the motion to consolidate and/or for severance. She argued that delays in getting the second case ready for trial had further delayed the trial in the first case. On August 31, the trial court denied the motion.

On September 16, defense counsel sought review of the denial by filing a petition for writ of mandate in this court. (Case No. E036633.) On September 30, we denied the petition. On November 10, the Supreme Court denied a petition for review.

Meanwhile, on November 4, the Sixth District issued its opinion in Litmon v. Superior Court (2004) 123 Cal.App.4th 1156. Litmon held that the trial court has the inherent power to consolidate SVPA petitions for trial. (Id. at pp. 1173-1175.) However, it also stated, among other things, that “it is error to order consolidation over objection when a consolidated trial can occur only if the earlier petition is further delayed.” (Id. at p. 1176.) Accordingly, on December 14, 2004, defense counsel filed a new motion to sever, arguing that severance was required under Litmon.^[1] On January 14, 2005, the trial court denied the motion.

Ultimately, on April 19, 2005, a jury was sworn and the trial commenced.

B. Analysis.

We do not reach the merits of defendant’s contention, because it is doubly moot.

First, it is moot because defendant’s two-year commitment term under the first petition (October 2, 2001 through October 2, 2003) has expired. Defendant argues that the first petition is not moot because a true finding on it was a predicate of a trial on the second petition. However, lawful custody is not a jurisdictional prerequisite for an SVPA proceeding. (People v. Hubbart (2001) 88 Cal.App.4th 1202, 1228-1229; People v. Hedge (1999) 72 Cal.App.4th 1466, 1478.) Accordingly, even assuming that, retrospectively, defendant should not have been committed under the first petition, he could properly be committed under the second petition. In any event, our Supreme Court has held that an SVPA proceeding becomes moot once the two-year commitment term to which it pertains expires. (People v. Hurtado (2002) 28 Cal.4th 1179, 1186.) That holding is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Second, defendant’s contention is also moot because we cannot give him any meaningful relief. “A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief. [Citation.]’ [Citation.] ‘When no effective relief can be granted, an appeal is moot and will be dismissed.’ [Citation.]” (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214, quoting Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888 and In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316, respectively.) Defendant argues that the trial court’s consolidation order prejudiced him by delaying the trial on the first petition. That trial, however, did take place. The delay in no way tainted the jury’s ultimate determination that defendant should be recommitted. Even if we were to agree that the trial court erred by ordering consolidation, we would have no way of undoing the delay that has already occurred. Defendant asks us to “reverse the judgment and remand . . . to the trial court with instructions to sever the two petitions.” But when the asserted error consists of holding a trial one year late, surely the remedy is not to hold a second trial another two years later.

It is significant that Litmon was an original writ proceeding, not an appeal.^[2] Writ review is proper when an appeal would not be a plain, speedy, and adequate remedy (Code Civ. Proc., § 1086), including when -- as here -- the petitioner is claiming to be prejudiced by erroneous delay. (McQuarters v. Superior Court (2006) 138 Cal.App.4th 1357, 1362 [mentally disordered offender proceeding].) Indeed, defendant’s trial counsel did file a petition for writ of mandate. Once we denied that petition, however, and once the Supreme Court denied review, the asserted error became functionally unreviewable.

We recognize that we can decide a moot case if “it presents an important question affecting the public interest that is ‘”’capable of repetition, yet evading review.’”’ [Citation.]” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1190, fn. 6, quoting Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 6.) As just discussed, however, the issues can be reviewed in an original writ proceeding. Moreover, Litmon is already on the books; it provides sufficient guidance to the trial courts.

We conclude that any error in consolidating the two petitions for trial is moot.

II

THE EXCLUSION OF EXPERT TESTIMONY

ON THE ELEMENTS OF INDECENT EXPOSURE

Defendant contends the trial court erred by excluding testimony about the elements of indecent exposure.

A. Additional Factual and Procedural Background.

The STATIC-99 is a checklist that can be used to calculate a male defendant’s probability of being convicted of a future sexual offense, based on a number of risk factors, including his convictions for sexual and nonsexual offenses prior to committing the “index offense.” Index offense, in this context, normally means the most recent sexual offense for which he has been arrested or convicted. However, under certain circumstances, sexual misconduct in prison or another institutional setting could also be used as the index offense, as we will discuss further below.

On February 16, 1998, while defendant was at Atascadero, a staff member reported that: “[Defendant] was observed to be standing outside F dorm staring down the hallway. [Defendant]’s left hand was rubbing the front of his shorts. He appeared to be masturbating. When [defendant] heard this door closed, he made eye contact with [me] and rapidly walked into dorm F.”

1. The Prosecution Experts.

a. Dr. Gabrielle Paladino.

According to Dr. Gabrielle Paladino, a prosecution expert, if a defendant was in an institution, sexual misconduct that would have been a crime if committed “in the community” counted as an index offense.

She used the 1998 Atascadero incident as defendant’s index offense. She explained: “[I]f we took Mr. Badura masturbating in front of my staff in the hallway and plopped him right down in the middle of Market Street in Riverside, the question is would he get a sanction? The answer is yes. He’d get arrested for indecent exposure in the community. Therefore, by definition, there’s no quibbling on this, it has to be that the incident that occurred February 16, 1998, is going to be the index offense for Mr. Badura . . . .” She also testified that the staff member’s report constituted a “behavior note.”

Dr. Paladino found that defendant’s score on the STATIC-99 was 6, meaning that he had a 39 percent probability of reoffending within five years, a 45 percent probability of reoffending within 10 years, and a 52 percent probability of reoffending within 15 years. She conceded, however, that if she did not use the 1998 Atascadero incident as the index offense, defendant’s score would be only 3.

b. Dr. Dawn Starr.

Dr. Dawn Starr, also a prosecution expert, agreed that defendant’s score on the STATIC-99 was a 6. She, too, used his sexual “act[ing] out while in custody” as the index offense. She also agreed that, if this did not count as an index offense, defendant’s score on the STATIC-99 would be only 3.

c. Dr. Douglas Korpi.

According to Dr. Douglas Korpi, another prosecution expert, sexual misconduct in an institution counted as an index offense “if you got in trouble for something that would have gotten you arrested on the streets.” He added: “[I]f you are an adult in a hospital and you get a write up for doing something, that’s considered the index [offense].”

Dr. Korpi had originally reported that defendant’s score on the STATIC-99 was 3. He had not used the 1998 Atascadero incident as the index offense, because defendant had gotten an “interdisciplinary write up” rather than a more serious “behavior note.” Later, however: “I checked with one of the people that made up the darn manual, and they said I should score it,” because the misconduct was “targeted.” He testified, however, that even with the 1998 Atascadero incident as the index offense, defendant’s score was still 3.

2. The Defense Experts.

a. Dr. William Jones.

Dr. William Jones, a defense expert, did not use the 1998 Atascadero incident as the index offense because “those things did not appear to constitute a crime.” On that basis, defendant’s score on the STATIC-99 was 3, which meant that he had a 12 percent probability of reoffending within five years, a 14 percent probability of reoffending within 10 years, and a 19 percent probability of reoffending within 15 years.

b. Dr. Mark Schwartz.

Dr. Mark Schwartz, another defense expert, testified that sexual misconduct in an institutional setting could be used as an index offense, provided (1) it could be “charged in the community,” (2) it resulted in a “disciplinary note,” and (3) it “targeted” a victim. He explained: “[I]f you are in your room at night and you are masturbating and nobody sees you, that’s not [an index offense].” However, if “every morning at 3 o’clock [a female correctional officer] looks in your window . . . and you masturbate at that time, then the belief is you’ve targeted her and therefore that’s . . . an index offense . . . .”

He found that defendant’s score on the STATIC-99 was 3. He did not use the 1998 Atascadero offense as the index offense because the misconduct would not have been “chargeable in the community,” because the staff member’s report was an “interdisciplinary note” rather than a “behavior note,” and because the misconduct was not “targeted.”

3. The Trial Court’s Challenged Evidentiary Rulings.

On cross-examination, defense counsel asked Dr. Paladino:

“Q. And the . . . code se[ction]^[[3]] that you were thinking [the 1998 Atascadero incident] could have potentially been actionable under[,] would that be 314 of the Penal Code?

“[PROSECUTOR]: Objection. Calls for a legal conclusion.

“THE COURT: Overruled.

“THE WITNESS: My impression is that it would be indecent exposure, fondling himself, touching himself, openly masturbating, which would definitely be actionable in the community. . . .

“Q. . . . I’m going to show you Penal Code 314.

“[PROSECUTOR]: I’m going to object to this. It’s beyond the scope of the witness’s expertise.

“THE COURT: Well, ask the question.

“[PROSECUTOR]: I’m objecting to the reading of the Penal Code.

“THE COURT: If you are objecting to the analysis of a Penal Code provision, I’ll sustain the objection. . . .

“Q. . . . Now, when . . . the se[ction] talks about the necessity that the person exposed their person or the private parts thereof in a public place [i]n order to be guilty of that offense, is that something different than what you thought, were thinking of, in terms of 314 or indecent exposure?

“A. First of all, I’m not a lawyer . . . . I’m a medical doctor. I will stand by my earlier testimony that what Mr. Badura did on the unit would be actionable in the city as something sexually unacceptable and worthy of arrest. . . .

“Q. And despite the fact that Penal Code se[ction] 314 says that the person is exhibiting willful and lewd conduct where they expose their person or the private parts thereof, you are still thinking in terms of using over-the-clothing conduct as an index offense?

“[PROSECUTOR]: Objection. Argumentative.

“THE COURT: Sustained. . . .

“Q. Well, would you agree that if, indeed, the actual physical exposure of the genitalia is required for a person to be guilty of 314 of the Penal Code, then it would not be appropriate to use the February 16th, 1998 incident as an index offense?

“[PROSECUTOR]: Objection. Asked, answered, irrelevant, and calls for a legal conclusion.

“THE COURT: And improper hypothetical. Sustained.”

Defense counsel also asked Dr. Jones:

“Q. Can you tell us about 314 of the Penal Code, what that is?

“[PROSECUTOR]: Objection. Irrelevant, and calls for a conclusion.

“THE COURT: Sustained.”

B. Analysis.

“In a trial for any offense, questions of law are to be decided by the court, and questions of fact by the jury.” (Pen. Code, § 1126.) “‘[I]t is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide.’ [Citations.]” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884, quoting Carter v. City of Los Angeles (1945) 67 Cal.App.2d 524, 528.) “Even experts may not opine on pure questions of law. [Citation.]” (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 602; accord, People v. Reynolds (2006) 139 Cal.App.4th 111, 135 [Fourth Dist., Div. Two], petn. for review filed Jun. 14, 2006.) Thus, the trial court properly precluded Dr. Paladino and Dr. Jones from testifying about Penal Code section 314.

Defendant argues that he was prevented from impeaching Dr. Paladino’s opinion that the 1998 Atascadero incident was a proper index offense and therefore that his STATIC-99 score supposedly was 6. As he notes, indecent exposure in violation of Penal Code section 314 requires the exposure of the offender’s naked genitals. (People v. Massicot (2002) 97 Cal.App.4th 920, 924-932.) However, for precisely the same reasons that an expert could not testify to this as a matter of fact, the trial court could have determined it as a matter of law. Thus, when Dr. Paladino testified that she used the 1998 Atascadero incident as the index offense, defense counsel could have objected and moved to strike her testimony. The trial court must exclude expert testimony that does not have a reliable basis. (Evid. Code, § 801, subd. (b).) If defendant’s sexual misconduct did not constitute a crime, it could have granted the motion. Alternatively, defense counsel could have requested a jury instruction that defendant’s misconduct was not a crime.

We note that Dr. Paladino never actually testified that defendant’s conduct violated Penal Code section 314. Rather, she testified that his conduct -- which she described in lay terms as “indecent exposure, fondling himself, touching himself, openly masturbating” -- would be “actionable in the community.” The People therefore argue that it actually constituted lewd conduct in public, in violation of Penal Code section 647, subdivision (a). In response, defendant argues that he did not violate Penal Code section 647, subdivision (a) -- because he did not make skin-to-skin contact with his genitals, because he was not in public, and because the only witness (whom defendant mistakenly identifies as Dr. Paladino herself rather than the staff member) could not have been offended.

We need not resolve this dispute. The point is that the legal issue involved was not properly the subject of expert testimony, and the trial court correctly so ruled. Defendant could have asked the trial court to decide whether his conduct violated Penal Code section 314, Penal Code section 647, subdivision (a), or any other potentially relevant statute. Thus, the supposed prejudice resulted, not from the trial court’s ruling, but from defense counsel’s strategic choice.^[4]

Finally, defendant argues that, even assuming that Dr. Paladino should not have been allowed to testify to any legal conclusions at all, the prosecution “open[ed] the door” by eliciting legal conclusions on direct. “Th[is] so-called ‘open the door’ or ‘open the gates’ argument is ‘a popular fallacy.’ [Citations.]” (People v. Gambos (1970) 5 Cal.App.3d 187, 192, quoting People v. Johnson (1964) 229 Cal.App.2d 162, 170.) “Legitimate cross-examination does not extend to matters improperly admitted on direct examination. Failure to object to improper questions on direct examination may not be taken advantage of on cross-examination to elicit immaterial or irrelevant testimony. . . . ‘Questions designed to elicit testimony which is irrelevant to any issue in the case on trial should be excluded by the judge, even though opposing counsel has been allowed, without objection, to introduce evidence upon the subject.’ [Citation.]” (People v. McDaniel (1943) 59 Cal.App.2d 672, 677.) Thus, assuming that the prosecution did elicit some inadmissible evidence, defendant’s remedy was to object and move to strike; it was not to lie doggo in the hope of eliciting more and better inadmissible evidence.

We conclude that the trial court did not err by sustaining objections to questions about Penal Code section 314.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

GAUT

J.

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^[1] We commend defense counsel, Sylvia Graber-Pastrone, for zealously defending her client by raising this issue at every appropriate time in a respectful yet dogged manner.

^[2] Defendant’s briefs tend to obscure this distinction by misciting it as “People v. Litmon.”

^[3] The reporter inadvertently supplied some comic relief by persistently mistranscribing the word “section” as “sex.”

^[4] In his reply brief, defendant argues that forcing Dr. Paladino “to admit that the hallway incident . . . was not a crime” would not have been enough; he should have been allowed to get her to “blow up” on cross-examination, which would have “made the credibility of all her opinions suspect.” Thus, he at least implies that his counsel made a strategic decision that a withering cross-examination would help defendant’s case more than a dry legal ruling by the court.