Opinion
D047707 D049686
1-2-2008
THE PEOPLE, Plaintiff and Respondent, v. WAYNE P. DeBERRY, Defendant and Appellant. In re WAYNE P. DeBERRY on Habeas Corpus.
NOT TO BE PUBLISHED
After a jury determined that defendant Wayne P. DeBerry was a sexually violent predator (SVP) as defined by the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code section 6600, subdivision (a)(1), the trial court entered an order recommitting him to the custody of the State Department of Mental Health for a period of two years. On appeal, DeBerry seeks reversal of the recommitment order on grounds (1) the court and prosecutor made assertedly improper comments about the consequences of a true finding, to which his counsel did not object; (2) the court prejudicially erred by admitting evidence concerning an unrelated Washington State case for purposes of impeaching DeBerrys expert witness; (3) the jurys finding that he suffers from a currently diagnosed mental disorder under the SVPA lacks sufficient evidence; and (4) the court made prejudicial evidentiary errors, including the admission of certain expert opinions and testimony into evidence. DeBerry maintains the errors cumulatively require reversal. In his petition for writ of habeas corpus, DeBerry repeats some of these contentions, asserting his counsel provided constitutionally ineffective representation.
All statutory references are to the Welfare and Institutions Code unless otherwise specified. At the time of DeBerrys trial, section 6600 defined a sexually violent predator as "a person who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Former § 6600, subd. (a)(1), as amended by Stats. 2000, ch. 643, § 1, p. 333.) The SVPA has since been amended to, inter alia, reduce the number of victims required for the predicate offenses. (See Prop. 83, § 24, approved by voters, Gen. Elec. (Nov. 7, 2006) eff. Nov. 8, 2006; see People v. Carlin (2007) 150 Cal.App.4th 322, 328, fn. 2.)
Though we agree the trial court erred by permitting the prosecutor to cross-examine DeBerrys expert as to matters concerning the unrelated Washington State case, we nevertheless affirm the order on grounds that error, and any resulting improper questioning by the prosecutor, is harmless. Because we conclude his counsel did not render constitutionally ineffective assistance and Deberry cannot show prejudice in any event, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2005, the People filed a petition in San Diego County Superior Court to determine whether DeBerry should be recommitted as an SVP. At the time, DeBerry was serving his second two-year commitment under the SVPA at Atascadero State Hospital (Atascadero). The People alleged that in September 1983, DeBerry pleaded guilty to offenses against three victims, specifically (1) forcible rape with personal use of a deadly weapon, and assault with a deadly weapon or by means of force likely to produce great bodily injury against Teresa W.; (2) forcible oral copulation with personal use of a deadly weapon and assault with a deadly weapon or by means of force likely to produce great bodily injury against Stacy P.; and (3) attempted murder, assault with a deadly weapon or by means of force likely to produce great bodily injury, and assault with the intent to commit rape, with personal infliction of great bodily injury and personal use of a dangerous or deadly weapon against Angela I.
Prosecution Evidence
The parties stipulated at trial that the convictions with regard to Teresa W. and Stacy P. served as the predicate offenses required by the SVPA. The people presented testimony from expert psychologists Jack Vognsen and Kathleen Longwell. Dr. Vognsen evaluated DeBerry at Atascadero in November 2004. He met with DeBerry for two hours and ten minutes, and reviewed DeBerrys prior psychological and psychiatric evaluations, police and probation officer reports, hospital records, and legal documents concerning his charges and convictions. Dr. Vognsen concluded DeBerry met the criteria for an SVP. Looking essentially to the facts of DeBerrys prior offenses, he opined that DeBerrys predicate sexual offenses were predatory, explaining that he understood the term to include relationships formed or promoted primarily for victimization. Dr. Vognsen described DeBerrys offenses against Teresa W., Stacy P. and Angela I.; both Teresa W. and Stacy P. were fellow students of DeBerrys, had known him for about a year and a half, and were raped at knifepoint by him after DeBerry lured them into isolated places by sympathy (telling Teresa W. he wanted to commit suicide) or necessity (telling Stacy P. he missed his bus and needed a ride). DeBerry denied committing the offenses against Teresa W. and Stacy P. to Dr. Vognsen.
Dr. Vognsen also summarized prior misconduct by DeBerry against DeBerrys then wife and set out details of other alleged but uncharged offenses against two other victims, based on sheriffs reports contained within DeBerrys Department of Mental Heath records. Dr. Vognsen noted DeBerrys offenses were characterized by forced sex acts against vulnerable women, typically using a knife, and DeBerrys peculiar desire to be seen as a benefactor while committing the offenses.
Dr. Vognsen described the phases of Atascaderos sex offender commitment program. He explained that while studies differed and the question was complicated, in general some studies showed the type of therapy provided would reduce offense rates by up to 30 percent. During Dr. Vognsens interview, DeBerry related he did not want to participate in sex offender treatment because his offenses were mistakes; that he was not a sex offender and that alcohol caused him to commit his crimes. He told Dr. Vognsen he would not seek such counseling if released, only perhaps Sex Addicts Anonymous" for the heck of it. " While DeBerry involved himself in substance abuse counseling and treatment at Atascadero, Dr. Vognsen explained this treatment did not lower DeBerrys risk of reoffending because alcohol dependency neither lowered nor increased reoffense risk.
Dr. Vognsen diagnosed DeBerry with paraphilia not otherwise specified (NOS), with a sexual interest in nonconsenting women, nonexclusive. He also diagnosed DeBerry with personality disorder with paranoid and narcissistic features, a disorder connected with his increased risk of reoffending. He explained DeBerry was both emotionally and volitionally impaired in that, despite his arrests on several occasions, he still went out and committed his predicate offenses. Dr. Vognsen testified that, if presently released without treatment, DeBerry was likely to commit another sexually violent and predatory offense. These conclusions were reached using various psychological and actuarial tests and instruments to predict DeBerrys risk of reoffending. Given DeBerrys refusal of treatment and the lack of financial resources, Dr. Vognsen concluded there was no assurance if DeBerry were to be released he could safely and effectively be treated in the community.
Observing that research showed psychopaths with deviant sexual urges are at much greater risk for sexual reoffending, Dr. Vognsen applied the Hare Psychopathy Checklist, and scored DeBerry with a 27 indicating he was not clearly a psychopath, but had a greater risk of sexual reoffending. He assigned DeBerry with a score of four or five on the Static-99 (an actuarial tool to estimate risk of reoffending), placing him in the moderate-high risk range. He also used the Sexual Offender Recidivism Appraisal Guide (SORAG), which predicts the risk of violent reoffending. DeBerry received a "huge high score" on this instrument, estimating a 58 percent chance of being recharged or reconvicted, and an 80 percent chance over ten years.
Licensed psychologist Kathleen Longwell evaluated DeBerry in December 2002 and again in November 2004. Her first evaluation consisted of reviewing DeBerrys records and a brief telephone conversation with him in which he confirmed his intent not to speak with her. On her second evaluation, she met with DeBerry at Atascadero for about three and a half hours and reviewed records from the Department of Mental Health and Atascadero, psychological and probation reports from 1983, and DeBerrys prison records. Dr. Longwell diagnosed DeBerry with paraphilia NOS, alcohol dependence in institutional remission, and personality disorder not otherwise specified, with antisocial and paranoid traits. Dr. Longwell gave DeBerry consistently high risk scores using the Static-99, the SORAG and the MnSOST-R, all actuarial measures of recidivism, predicting based on statistical evidence the risk a convicted sex offender will commit another violent sex offense at the time they are being considered for release from custody. She gave him a high score of 27.4 on the PCL-R, which measures psychopathy.
Dr. Longwell scored DeBerry with a six on the Static-99, in the highest risk range, correlating with a 52 percent risk of being convicted of another sex offense in 15 years. Dr. Longwell gave DeBerry a score of 24 on the SORAG, indicating a 58 percent risk of committing another sex offense in seven years, and an 80 percent risk in ten years. On the MnSOST-R, DeBerry received a 13, indicating a 72 percent chance of committing another violent sex offense in the first six years a person is released from custody, putting him in the highest risk level where civil commitment is recommended.
Dr. Longwell also reviewed tools that looked at "dynamic" or changing variables to measure DeBerrys likelihood of committing or not committing another sex offense. These included the fact DeBerry had not completed the sex offender treatment program, his history of general criminality and his criminal, unstable lifestyle (indicating generally that a person is more likely to recidivate) and his intimacy deficits, in DeBerrys case his poor history of romantic relationships. She noted DeBerry had been violent with his wife and had sexually assaulted her, and he had made a sexually inappropriate comment to a female staff person at Atascadero. Dr. Longwell found DeBerry to be sexually preoccupied and continued to hold subtle attitudes suggesting he supported the notion that sexually assaulting women might be acceptable, exhibited by his claims that two of his victims lied about the offenses and one he "just got angry with." Dr. Longwell also relied upon DeBerrys age and his diagnosed personality disorder with antisocial and paranoid traits, because the disorder was a pervasive character trait. Explaining that the great majority of sex offenders do not normally commit another offense once they are arrested or accused, she disagreed DeBerry acted out "just because he was a criminal"; Dr. Longwell stated that from all indications he acted out because he could not control himself and because he had "deviant, perverted urges to force himself sexually on people." Based on all of her evaluation procedures, Dr. Longwell concluded DeBerry had a mental disorder that predisposes him to future sex offenses, and opined he is highly likely to sexually reoffend in a sexually and predatory manner.
Defense Evidence
Theodore Donaldson, a clinical psychologist specializing in forensic psychology, testified on DeBerrys behalf. Dr. Donaldson did not interview DeBerry, but he studied Dr. Vognsens and Dr. Longwells conclusions and testified they did not produce evidence consistent with the science in the field for reaching their diagnoses. In particular, they did not have sufficient evidence for finding a paraphilic mental disorder in DeBerrys case because the DSM does not specify a paraphilic rape disorder, such a disorder was rejected by the DSM because the criteria were too vague and difficult to measure, and there was no science describing such a disorder. Dr. Donaldson testified DeBerry did not have a preference for rape as evidenced by his prior relationships and friendships with his victims, indicating he was trying to develop a consensual relationship with them, not that he had a desire for nonconsensual sex. He found no signs of mental illness in DeBerry or any evidence that he acted out sexually in an manner consistent with a sexual psychopathology. Since according to Dr. Donaldson DeBerry had not shown signs or symptoms in 22 years, one would have to assume any mental illness was never present in the first place.
Dr. Donaldson testified to the validity and reliability of the DSM, explaining that validity depended upon reliability. According to Dr. Donaldson, the DSMs validity had been proven only as to one or two categories, and as to paraphilia, the DSM had no known reliability and thus no validity. He believed the scientific community would take the position that paraphilic rape did not exist, and if it did, it was not measurable. Dr. Donaldson criticized the reliability and usefulness of the actuarial tests used by Drs. Vognsen and Longwell. In Dr. Donaldsons opinion, no one had established that DeBerry suffered from a qualifying mental disorder, so he could not have serious difficulty controlling something he did not have, and he could not be at risk. On cross-examination, Dr. Donaldson testified he was not asked to interview DeBerry, but such an interview would only have been helpful if he was going to reach his own diagnosis, which he did not do.
DeBerry also presented Tim Cousino, an Atascadero psychiatric technician who worked in small groups with the Atascadero patients including DeBerry, who he had known for two or three years. He testified that the female employees at Atascadero interacted with DeBerry and other patients on a daily basis, and for approximately six months, DeBerry worked in the kitchen within three to four feet from the female staff members. During Cousinos time at Atascadero, DeBerry had not assaulted anyone, even sexually, had never suggested a sexual assault on anyone, and to Cousinos knowledge, he had not been caught staring at a female, making sexually suggestive comments, or possessing sexually suggestive material. Cousino testified DeBerry had responded appropriately in his interactions with him and had always behaved appropriately with female staff. He responded very well to other patients. Cousino admitted he had never discussed DeBerrys crimes and his feelings about them, and they never discussed whether or not he felt guilt or remorse.
After approximately three days of testimony, the jury found DeBerry to be an SVP within the meaning of section 6600, subdivision (a)(1). The court ordered him recommitted to the Department of Mental Health for another two-year term.
DISCUSSION
I. Commentary and Argument Pertaining to "Consequences of True Finding"
Relying on People v. Rains (1999) 75 Cal.App.4th 1165 (Rains ), DeBerry contends he received ineffective assistance of counsel when his attorney failed to object to, and participated with the court and the prosecutor in making, comments about the consequences of a true finding during voir dire. He further contends the prosecutor committed misconduct by (1) referring to the fact he had been in Atascadero in opening statements; (2) eliciting Dr. Vognsens favorable descriptions of Atascaderos facilities during trial; and (2) telling the jury in closing arguments that DeBerry could only lower his risk of reoffending by going through Atascaderos sex offender program.
A. Background
Before commencing voir dire, the court advised the jury panel generally about the case, telling them that the Peoples petition alleged DeBerry was a person coming within the provisions of the SVP law and the petition "seeks to recommit the respondent to Atascadero State Hospital for two years, for treatment in the hospitals program for sexually violent predators."
That afternoon, one of the prospective jurors told the court that after someone was convicted once, it bothered her to let them go, but at the same time she was hesitant to "put people away," characterizing the prison system as a "really . . . just warehouse there. . . ." The prospective juror related she was "horrified about what goes on in the prison system, so I dont know." The court observed that her concerns were probably shared by others, but advised her the law asked her to set aside her social or political feelings about the prison system without any influence by her desire to change the law: "Can you set aside your desire, maybe, to keep somebody incarcerated forever rather than have any chance they would be a danger and rather follow the dictate of the law in this case and stay within those limits?"
After the prospective juror continued to express hesitation about "just incarcerat[ing] somebody" and "just throw[ing] the key away," the court clarified: "Now, you do understand — I want to reiterate this — the question is keeping within a secure facility of a hospitalized nature. But it is secure — its like a prison in that regard — for the purposes of treatment for a limited period of time, which is two years. So thats the question." The prospective juror replied, "That, I can be objective about, yeah."
Later that afternoon, DeBerrys counsel questioned the prospective jurors about how they would handle hearing about DeBerrys prior 20-year-old offenses, prompting the court to re-read a portion of a jury instruction telling jurors they were to consider all the evidence in the case including prior convictions, but could not find DeBerry to be a SVP based on those offenses "without relevant evidence of a currently diagnosed mental disorder that makes him a danger to the health and safety of others in that it is likely that he will engage in sexually violent predatory criminal behavior unless confined within a secure facility."
The prosecutor later questioned the same prospective juror who had expressed hesitation to the court that morning. The prosecutor confirmed that the prospective juror believed it was the governments "responsibility . . . [to] try to treat sexual offenders before releasing them to the community." She then asked whether the prospective juror had anything against the concept of the government trying to treat sexual offenders through the SVP law, and the prospective juror responded: "Well, I hope he would be sent somewhere where he would be rehabilitated. Is that — is that what you are asking for?" The prosecutor responded, "Yes." The prosecutor also asked, "Do you believe that the sex offenders should have this opportunity to go through treatment through the sexually violent predator law?" The prospective juror responded, "Absolutely."
B. Claim of Ineffective Assistance of Counsel
We reject DeBerrys contention that his counsel was ineffective for failing to object to the above referenced questioning and commentary based on Rains, supra, 75 Cal.App.4th 1165. Rains involved a defendants first SVP commitment. When asked what would happen if the jury found the defendant to be an SVP, the two prosecution experts testified he "will receive a civil commitment to a psychiatric facility and receive treatment there," and explained the commitment would be subject to review every two years. (Rains, supra, 75 Cal.App.4th at p. 1171.) They also testified briefly about the type of treatment they expected the defendant to receive. (Ibid.) The Court of Appeal held that such evidence of the consequences of a true finding, "i.e., that [the defendant] would be committed to a hospital for a period of two years and would receive treatment" (id. at p. 1167) had no relevance to the issues at hand: whether the defendant had a diagnosed mental disorder, and whether that disorder makes the defendant a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior. (Id. at p. 1170.) However, the court held the evidentiary error did not result in a miscarriage of justice in view of the undisputed evidence that defendant was an SVP, the fact the "relatively brief" expert testimony was presented in response to a jurors concern about sending the defendant to prison, the jury instructions advising jurors they were not to consider the subject of penalty or punishment, the lack of any meaningful defense case, and the deputy district attorneys comment to the jurors that, "[I]t is not your function to decide what should happen to" the defendant. (Id. at p. 1172.)
Similar issues are on review before the California Supreme Court in People v. Shazier (S144419) review granted Aug. 30, 2006, which, like Rains, involved an initial SVP commitment order.
To succeed on an ineffective assistance of counsel claim, DeBerry must first prove his counsels assistance was so deficient that it was unreasonable. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 216.) Second, DeBerry must prove "a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; Ledesma, at pp. 217-218.) The court must affirm the conviction if the record demonstrates that counsels omissions may have resulted from an informed tactical choice within the range of reasonable competence. (People v. Bolin (1998) 18 Cal.4th 297, 317.)
Here, defense counsels failure to object to the comments by the court and prosecutor in questioning the jury panel was not constitutionally ineffective representation because in the context of DeBerrys recommitment trial, and in view of his refusal to undergo SVP treatment, the jury is necessarily presented with evidence of his past confinement at Atascadero, his progress at Atascadero and his treatment history there. This is because DeBerrys refusal to undergo or cooperate with mandatory treatment under the SVPA is part of the evidence to be considered by evaluators (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 929 [those evaluating a person for recommitment under the SVP Act should consider "the persons progress, if any, in any mandatory SVPA treatment program he or she has already undergone"]) and is "potent evidence he is not prepared to control his untreated dangerousness by voluntary means." (People v. Sumahit (2005) 128 Cal.App.4th 347, 354.) Thus, DeBerrys attitude toward and amenability to SVP treatment, as well as his progress, is relevant to the determination of whether he is an SVP. Sumahit explains that "[t]he availability of treatment is at the heart of the SVPA. [Citation.] `Through passage of the SVPA, California is one of several states to hospitalize or otherwise attempt to treat troubled sexual predators. [Citation.] Accordingly, one of the key factors which must be weighed by the evaluators in determining whether a sexual offender should be kept in medical confinement is `the persons progress, if any, in any mandatory SVPA treatment program he or she has already undergone; [and] the persons expressed intent, if any, to seek out and submit to any necessary treatment . . . . [Citation.] A patients refusal to cooperate in any phase of treatment may therefore support a finding that he `is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community. " (Id. at pp. 354-355.)
Thus, in this case, the jury appropriately learned through Drs. Vognsen and Longwell that DeBerry did not consider himself amenable to the SVP treatment provided at Atascadero and did not take part in such treatment, in part underlying their conclusions as to his present inability to control his behavior. If we were to apply Rains, supra, 75 Cal.App.4th 1165 in recommitment cases, a jury would not be permitted to hear about a defendants prior evaluations and his or her course of treatment, whether favorable or unfavorable, during prior commitments at Atascadero. Indeed, Rains would preclude DeBerry from introducing the evidence via Cousino that his behavior at Atascadero was uneventful. Rains does not compel us to conclude admission of the voir dire questions and commentary in this case was ineffective assistance of counsel.
DeBerry also maintains his counsel was ineffective for making his own improper coments during voir dire. After questions to the panel about what they may have heard in media and television, DeBerrys counsel asked whether it would affect their decision knowing DeBerry would be released in San Diego County; he asked the jury panel collectively: "[D]o you all understand that if you find in favor of the respondent that he may be released into San Diego County? Anybody got a problem and think that might influence their decision? Nobody." We decline to conclude this constituted ineffective assistance when DeBerrys habeas petition reveals that counsel had an informed tactical choice in asking this question, namely, to ensure jurors would not reach their true finding just because DeBerry would otherwise be released in their county. We disagree with DeBerrys assertion that this was not an informed tactical choice because it revealed a lack of familiarity with Rains, supra, 75 Cal.App.4th 1165. For the reasons stated above in rejecting the ineffective assistance claim, faced with the Peoples recommitment petition, counsel would not have had a legitimate objection under Rains to exclude evidence of DeBerrys Atascadero confinement at trial.
C. Claims of Prosecutorial Misconduct
For the reasons stated above, we reject DeBerrys contentions that the prosecutors comments during opening statement and closing arguments constituted prejudicial misconduct. A prosecutors behavior violates the federal Constitution when it comprises a pattern of conduct "`"so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) If the conduct does not render a criminal trial fundamentally unfair, it amounts to prosecutorial misconduct under state law only if it involves "`"`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" (Id. at p. 1215.)
DeBerry points to the prosecutors opening statements that he "has been in Atascadero . . . "; that her experts would tell the jury he was "at risk to reoffend if out in the community" and the risk could be lowered by going through a treatment program operated by Atascadero. Again, these contentions are premised on Rains, supra, 75 Cal.App.4th 1165, and the unsupportable notion that any testimony or reference to confinement at Atascadero is wholly irrelevant to the jurys determination in the context of this recommitment proceeding. As for the prosecutors other comments, the issue at trial was whether a mental disorder within the meaning of the SVPA made him likely to engage in sexually violent predatory behavior, and thus the Peoples experts focused their opinions on DeBerrys risk of reoffending "at the time theyre being considered for release from custody." It was not misconduct for the prosecutor to summarize for the jury testimony from experts Vognsen and Longwell and their opinions that DeBerrys risk of reoffending would be reduced if he were to attend a SVP treatment program at Atascadero.
We are likewise unpersuaded by DeBerrys challenge to the evidence elicited about Atascadero and its facilities. DeBerrys habeas petition reveals his trial counsels decision to permit such testimony was expressly tactical: he intended "to have the jury understand that Mr. DeBerry was living on an open campus with full and free access to other patients and staff, including female staff and therefore had the opportunity to act in a sexually aggressive or assaultive manner towards others and yet did not do so."
Dr. Vognsen testified without objection that Atascadero was a very large state hospital with "dormitory style" housing units and having vocational training, gym and exercise facilities, physical and recreational therapy, "popcorn social[s]," and computer and wood shop training. Dr. Vognsen also explained Atascadero made other counseling services available to patients, including anger management counseling, substance abuse treatment programs, and a relapse prevention program. This was in addition to the phased Sex Offender Commitment Program geared to study the patients behavior and reduce reoffense rates.
II. Admission of Evidence Concerning Washington State Case
DeBerry contends the court erred by permitting the prosecutor to cross-examine his expert with information pertaining to a Washington State case in which Dr. Donaldson had testified on behalf of an unrelated defendant (Curtis Thompson) who prosecution experts had diagnosed with paraphilia NOS after he had been convicted of raping several women. DeBerry maintains the prosecutors questions were outside the scope of Dr. Donaldsons direct testimony; the information was irrelevant, based on unreliable hearsay police reports, speculative and inflammatory; and the prosecutors offer of proof was so grossly inadequate that it did not support Dr. Donaldsons continued questioning as to Thompsons case. DeBerry further argues that the courts erroneous ruling opened the door to cross-examination so improper and inflammatory that it constituted prosecutorial misconduct. As we explain, DeBerrys claim of evidentiary error has merit, but we conclude that error, and the ensuing questions by the prosecutor, were harmless.
A. Background
During cross-examination, the prosecutor confirmed that Dr. Donaldson had testified in the Thompson case in Washington State, and asked whether it was true that Thompson had been diagnosed with paraphilia NOS by state evaluators "because he had been convicted of several brutal rapes of women in Alaska and Washington." Dr. Donaldson answered, "Correct." She asked, "And you gave the opinion that [Thompson] did not suffer from paraphilia NOS and you were 95 percent certain [he] was not going to reoffend. Correct?" Dr. Donaldson answered, "Oh, absolutely not. I would never make a statement like that."
In an ensuing sidebar on defense counsels nonspecific objection, the prosecutor gave the court the following offer of proof on her line of questioning: "For someone he opined did not suffer from paraphilia NOS and who was not likely to reoffend, and he went out and reoffended [sic]. And so to just sort of attack [Dr. Donaldsons] credibility as to whether or not hes ever mistaken in his diagnosis." DeBerrys counsel objected to the questioning on grounds it lacked foundation, was speculation and misleading, and irrelevant under Evidence Code section 352. The court asked the prosecutor for further information:
"The Court: Could I just get what information — was the person convicted after release?
"[Prosecutor]: Yes. Actually, all the police reports of the new reoffense were sent to Dr. Donaldson, so hes quite familiar with his offenses. And he was arrested, and I think now he has been convicted of this new offense. Actually, he committed two offenses. And Dr. Donaldson has all those police reports that were sent to him.
"The Court: So I want to make sure these are sexual offenses committed by a person that Dr. Donaldson had testified about in a Washington State case.
"[Prosecutor]: Correct.
"The Court: And Dr. Donaldson, based on your information, had given the opinion to a jury that this person would not be at risk for recidivism?
"[Prosecutor]: Correct."
After the court questioned why such information would not be relevant, DeBerrys counsel further objected on grounds the informations relevance was overwhelmingly outweighed by its prejudicial effect, and it was not proper impeachment because Dr. Donaldson had not testified DeBerry did not have a mental disorder, he only addressed the propriety of the other experts opinions.
The court proceeded to permit the prosecutor to question Dr. Donaldson about whether he was aware that Thompson "went out and brutally raped in the same manner he had previously" upon his release from confinement, and whether he had received police reports in Thompsons case reflecting his later offenses. Dr. Donaldson testified he only knew what had been reported in a newspaper; that Thompson had assaulted coeds at a university and had been arrested for further sexual assaults. He admitted receiving a package of police reports from the Washington State district attorney, but stated he never looked at them because he did not testify in Thompsons subsequent case. The prosecutor then asked whether he was "concern[ed] as far as whether or not you were mistaken in your diagnosis knowing that Curtis Thompson had gone out and committed all these offenses after you said he was not a paraphilic rapist." Dr. Donaldson answered, "You see, that question shows a fundamental error in your thinking about it. The fact he commits a crime does not mean he has a mental disorder. In fact, if he has a mental disorder, if he committed those crimes because hes mentally disordered, hes going to have a defense at his next trial. Washington [state] has diminished capacity. If he suffered some paraphilia, he had serious difficulty controlling his behavior, hes got a mental defense."
B. The Trial Court Erred by Permitting the Prosecutor to Cross-Examine Dr. Donaldson About the Washington State Defendant
While a trial court considering the scope of proper cross-examination is "expected to allow a wide-ranging inquiry as to any factor which could reasonably lead the witness to present less than reliable testimony" (In re Anthony P. (1985) 167 Cal.App.3d 502, 507), it is not prevented from imposing reasonable limits on counsels inquiry based on concerns about harassment, confusion of the issues, or relevance. (People v. Brown (2003) 31 Cal.4th 518, 545 [addressing defendants right to cross-examine prosecuting witnesses]; People v. Ayala (2000) 23 Cal.4th 225, 301 [court has broad discretion under Evidence Code section 352 to restrict cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance]; see e.g., People v. Panah (2005) 35 Cal.4th 395, 483.) "The proponent of proffered testimony has the burden of establishing its relevance, and if the testimony is comprised of hearsay, the foundational requirements for its admissibility under an exception to the hearsay rule. [Citations.] Evidence is properly excluded when the proponent fails to make an adequate offer of proof regarding the relevance or admissibility of the evidence." (People v. Morrison (2004) 34 Cal.4th 698, 704.)
Here, the foundational facts necessary to establish the relevance of Dr. Donaldsons previous diagnosis of a Washington State defendant were minimal to non-existent. The prosecutors offer of proof encompassed only her assertion that police reports indicated Thompson had reoffended in some unspecified manner and speculation that he had been convicted. The prosecutor made no showing that the underlying circumstances of the Thompsons were sufficiently similar to DeBerrys case, nor did she adequately explain how she would show, by admissible evidence, Thompsons diagnosis and reoffense impacted Dr. Donaldsons professional conclusions in this case when Dr. Donaldson was not retained for the purpose of diagnosing, and did not diagnose, DeBerry. Dr. Donaldson explained that he had been retained only for purposes of critiquing Drs. Vognsens and Longwells conclusions. For these reasons, the prosecutors nonspecific offer of proof was insufficient. (See People v. Brady (2005) 129 Cal.App.4th 1314, 1332 [an offer of proof "`must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued "].) The court abused its discretion by allowing potentially prejudicial and time-consuming, yet barely relevant information to be used to impeach Dr. Donaldson.
We disagree with the Peoples argument that prosecutors proposed cross-examination questions tended to show Dr. Donaldsons bias. Such an argument was recently rejected in People v. Buffington (2007) 152 Cal.App.4th 446 (Buffington). There, Dr. Donaldson testified for the defense, stating he did not diagnose the defendant with paraphilia because such a diagnosis was "`[v]ery, very controversial " for "`rape behaviors. " (Id. at pp. 451-452.) The trial court permitted the prosecution to cross-examine Dr. Donaldson about his opinion in three other SVPA cases, including their underlying facts, on its finding it had "`some relevance. " (Id. at pp. 452-453.) The court of appeal disagreed that the admitted evidence was relevant to Dr. Donaldsons bias. It first explained that evidence pertinent to bias would include the fact he was a well-paid expert witness who routinely reached conclusions favorable to the defense. (Id. at p. 455.) On such evidence, "a rational inference can be drawn that the more defendants for whom Dr. Donaldson testifies, the more he is not giving his true opinion in these cases, or that his analysis is not as trustworthy as it might be." (Ibid.)
However, the Buffington court did not extend its conclusion to evidence of the three other SVPA cases in which Dr. Donaldson testified: "Eliciting Dr. Donaldsons opinion about those three cases only had a tendency in reason to suggest bias if the jury had some other basis for concluding that the given facts reasonably should have led to a different opinion. If a state had put on an expert witness who offered an opinion that under the bare bones facts described, regardless of anything else, it would not be reasonable to find the absence of a mental disorder, then it might have been permissible to elicit testimony that Dr. Donaldson reached the opposite conclusion under those facts. That would go, not so much to show bias, but to undercut the value of Dr. Donaldsons opinion in this case." (People v. Buffington, supra, 152 Cal.App.4th at p. 455.) Despite the courts conclusion, it found the evidentiary error in admitting the evidence was not prejudicial since the facts of the other SVPA cases were not more graphic than the defendants offense, the other cases were not a focus of the case against the defendant since he had stipulated to the predicate offenses, and the People did not mention the facts of the cases at all in closing argument. (Id. at pp. 456-457.) It concluded there was no reasonable probability of a more favorable outcome had the trial court excluded the evidence. (Ibid.) We agree with Buffingtons analysis, and conclude the fact of Dr. Donaldsons diagnosis of the Washington State defendant was not admissible as tending to prove his bias in this case.
C. The Trial Courts Error and Any Resulting Improper Questioning was Harmless
Despite the foregoing conclusion, as in Buffington, we hold the trial courts error in permitting the prosecutor to cross-examine Dr. Donaldson on these matters was harmless. As we point out more fully below, all of the circumstances relied upon by the Buffington court to find harmless error are present here. Likewise, as we explain, we conclude the statements and insinuations by the prosecutor in her ensuing cross-examination, assuming those questions could be characterized as misconduct, were harmless under the applicable state standard.
DeBerry contends the prosecutor committed prejudicial misconduct by (1) insinuating information that could not be proven, namely Thompsons commission of "brutal" rapes upon release and his later conviction for them; (2) engaging in "character assassination" of Dr. Donaldson by suggesting he ignored police reports and mischaracterizing evidence, and (3) misleading the court by falsely claiming she had proof Dr. Donaldon had made a risk prediction in the Washington case.
Technically, DeBerry has forfeited this appellate argument. However, we reach the merits given his ineffective assistance claim. It is true that a prosecutor commits misconduct when he or she asks a witness "`a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means. " (People v. Earp (1999) 20 Cal.4th 826, 859-860.) To constitute misconduct, such a question must "put before the jury information that falls outside the evidence and that, but for the improper question, the jury would not have otherwise heard." (Id. at p. 860, italics omitted.)
DeBerrys counsel did not object to the prosecutors questions on grounds they constituted misconduct, nor did he request that the jury be admonished to disregard the prosecutors assertedly improper questions. (People v. Gray (2005) 37 Cal.4th 168, 216;People v. Brown, supra, 31 Cal.4th at p. 553.) Such an objection is excused only if an admonition would not have cured the harm, or the misconduct is so pervasive, egregious, and unrestricted, and the atmosphere so poisonous, that a request would have been futile. (E.g., People v. Hill (1998) 17 Cal.4th 800, 820-821; People v. Hillhouse (2002) 27 Cal.4th 469, 501-502.) Here, a timely admonition to the jury instructing that questions are not evidence and insinuations suggested by a question should not be assumed to be true, would have cured any alleged harm. (People v. Sapp (2003) 31 Cal.4th 240, 279; see CALJIC No. 1.02.) We disagree with DeBerrys contention that such objections would have been futile in view of the trial courts rulings on his objections following the prosecutors offers of proof. The circumstances do not reflect the sort of extreme case where futility has been found. (Hillhouse, supra, 27 Cal.4th at pp. 501-501; People v. Hinton (2006) 37 Cal.4th 839, 903.) Further, after its relevance ruling, the court considered defense counsels objections when they were made, instructing the jury at one point on counsels objection to disregard one of the prosecutors questions. The record does not clearly reflect a situation justifying a departure from the rule requiring objection and timely admonition to avoid forfeiture. (People v. Riel (2000) 22 Cal.4th 1153, 1212.)
Such circumstances arguably occurred here. However, our review of the record does not reveal a constant barrage of unethical conduct or egregious questioning that "infects the trial with such unfairness" that the result is a denial of due process implicating the federal harmless error standard under Chapman v. California (1967) 386 U.S. 18. (People v. Gionis, supra, 9 Cal.4th at pp. 1214-1216; People v. Hill, supra, 17 Cal.4th at p. 819.) The questions sought to test Dr. Donaldsons theory, and indeed in response, Dr. Donaldson was permitted to explain the validity of his conclusions in DeBerrys case. Contrary to DeBerrys assertion, the prosecutors questioning was not lengthy, pervasive or her main focus of cross-examination; she asked Dr. Donaldson 11 questions about the Washington defendant interspersed in approximately 24 pages of cross-examination, and she did not repeat any of the information in her closing argument.
Thus, we apply the state harmless error standard to the prosecutors line of questioning. (People v. Roldan (2005) 35 Cal.4th 646, 719; People v. Gionis, supra, 9 Cal.4th at p. 1215; People v. Watson (1956) 46 Cal.2d 818, 836.) Doing so, and having reviewed the entire record, we are compelled to conclude reversal is not warranted because it is not reasonably probable that a more favorable result would have been reached absent the questioning. (Watson, at p. 836; People v. Barnett (1998) 17 Cal.4th 1044, 1133-1134.) DeBerry argues Dr. Donaldsons credibility was "completely destroyed" by the impeachment but in fact there was other damaging cross-examination including the fact Dr. Donaldson was fired from the Department of Mental Health and thereafter wrote a letter to public defenders offering to assist them in their cases. The trial court instructed the jury with CALJIC No. 1.02: that statements made by the attorneys are not evidence, the jury should not guess what an answer might have been if an objection to a question is sustained, and not to assume the truth of any insinuation suggested by a question asked a witness. It instructed: "A question is not evidence and may be considered only as it helps you understand the answer." We presume the jury follows the trial courts instructions (People v. Mayfield (1993) 5 Cal.4th 142, 179), and DeBerry has not pointed to evidence to rebut that presumption. Because in our view the prosecutors questions were not so inflammatory that the jury could not be expected to follow the courts instructions, we conclude the prejudicial effect of those questions, if any, was cured by the courts instructions. Further, as stated, the prosecutors questioning was not lengthy or the focus of her cross-examination, and nothing about the Washington defendant was mentioned during her closing argument. Finally, as we hold below, Drs. Vognsens and Longwells testimony constituted substantial evidence to support the jurys findings as to DeBerrys SVP status. It is not reasonably probable DeBerry would have received a more favorable verdict had the prosecutor not committed the assumed misconduct. (Watson, supra, 46 Cal.2d at p. 836.)
III. Sufficiency of the Evidence
DeBerry advances two sufficiency of the evidence challenges to the jurys findings. First, he contends the prosecution presented no "current evidence" that he lacks emotional or volitional control. Second, he argues Dr. Vognsens and Dr. Longwells evaluations were too stale to support the jurys conclusion that DeBerry had a currently diagnosed mental disorder, and thus the court should have granted him a judgment notwithstanding the verdict. As to the latter argument, DeBerry maintains the undisputed evidence consists only of DeBerrys lack of control from his early 1980s offenses.
At the time of DeBerrys trial, the Peoples burden to establish he was an SVP required it to prove: "(1) [DeBerry] was convicted of two separate sexually violent offenses; (2) he had a diagnosable mental disorder that made him a danger to the health or safety [of] others; (3) his disorder makes it likely he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature." (People v. Fulcher (2006) 136 Cal.App.4th 41, 52, italics omitted; see also People v. Williams (2003) 31 Cal.4th 757, 759 [explaining that language of SVP "inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling ones criminal sexual behavior"].) A person is " `likely " to engage in sexually violent predatory behavior when " `the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community. " (People v. Roberge (2003) 29 Cal.4th 979, 986, quoting People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 922; see also In re Howard N. (2005) 35 Cal.4th 117, 128 [to be involuntarily civilly committed as an SVP, the person must, as a result of mental illness, have serious difficulty controlling his dangerous behavior].)
In determining the sufficiency of the evidence to support a commitment under the SVPA, we apply the same test as we do when reviewing the sufficiency of the evidence to support a criminal conviction. (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) We thus review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination made in the trial court. (People v. Sumahit, supra, 128 Cal.App.4th at p. 352.) To be substantial, the evidence must be" " `of ponderable legal significance . . . reasonable in nature, credible and of solid value. " [Citation.] [ Citation.] `In reviewing the record to determine the sufficiency of the evidence this court may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. " (Ibid.) Sufficient evidence may consist of a single expert witnesss testimony that an individual has a diagnosed mental disorder that presents a serious and well-founded risk that the individual will engage in sexually violent predatory criminal behavior if free in the community. (People v. Scott (2002) 100 Cal.App.4th 1060, 1064.)
A. Evidence of Current Lack of Volitional or Emotional Control
Asserting Dr. Vognsen provided an "erroneous legal analysis — that a diagnosis of paraphilia NOS proved lack of volitional/emotional control," DeBerry attacks Dr. Vognsens conclusion as to DeBerrys impaired volitional and emotional capacity on grounds it was proven only by DeBerrys impaired functioning in the 1980s, which cannot constitute evidence of current impaired control. DeBerry also criticizes the use of a paraphilia NOS diagnosis to satisfy the statutory finding, arguing, "The deduction to be drawn from this testimony is that once a paraphilia NOS diagnosis is made, lack of emotional/volitional control is thereby proven for life." DeBerry maintains there is no evidence that during the past two-year commitment at Atascadero he had been unable to control his sexual urges volitionally or emotionally.
These weight-of-the-evidence based arguments are without merit. First, the SVPA recognizes that a conviction for an enumerated offense "shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator." (§ 6600, subd. (a)(3).) While such a conviction "shall not be the sole basis for the determination" that the person is an SVP (§ 6600, subd. (a)(3)), there is no restriction of the use of prior conduct in diagnosing a person with a mental disorder. (See People v. Poe (1999) 74 Cal.App.4th 826, 830-832 [relying on appellants offense history in rejecting claim that record lacked sufficient evidence to support the finding that appellant was likely to engage in sexually violent behavior].) Thus, Dr. Vognsen properly relied upon the facts and circumstances of DeBerrys offenses, as well as the nature of his psychological and personality disorders, in reaching his conclusion that DeBerry was emotionally and volitionally impaired.
Further, DeBerrys arguments ignore the fact that Drs. Vognsen and Longwell, qualified experts, rendered direct conclusions about DeBerrys inability to control his behavior based on accepted psychological testing and analytical techniques. Section 6601, subdivision (c) requires the standardized assessment protocol for SVP evaluations to include an assessment of risk factors such as criminal and psychosexual history, type, degree and duration of sexual deviance, and severity of mental disorder. The facts and opinions presented by Drs. Vognsen and Longwell expressly addressed volitional impairment and correspond to various factors "known to be associated with the risk of reoffense among sex offenders." (Ibid.) Thus, Drs. Vogensen and Longwell did not rely solely on DeBerrys prior predicate offenses in reaching their conclusions, they also relied upon the manner in which he committed the offenses (using manipulation and force on vulnerable, nonconsenting female partners and the progressively increased violence of the assaults), the frequency and continuous nature of those offenses (over a two-year period), his poor self-regulation including the fact he reoffended after arrest, his antisocial personality disorder, and actuarial test results measuring present risk, as supporting their opinions. Both experts opined DeBerry had a diagnosed mental disorder that rendered him a danger to the health and safety of others, and that his risk of reoffending in a sexually violent predatory manner rose to the level required for commitment as an SVP. Both concluded it is likely DeBerry would engage in sexually violent behavior. The experts conclusions constitute substantial evidence; it is not the role of this court to redetermine the credibility of experts or to reweigh the relative strength of their conclusions. (People v. Mercer, supra, 70 Cal.App.4th at pp. 466-467.)
We reject DeBerrys suggestion that lack of volitional or emotional control can only be shown by evidence that he acted in an inappropriate sexual manner while institutionalized, and that the evidence is insufficient absent such a showing. The record is not absent such evidence; Dr. Longwell testified DeBerrys behavior at Atascadero was "variable," and she noted he made an sexually inappropriate comment to one Atascadero female staff member during his confinement. In any event, there is no merit to the contention that an SVP finding requires evidence that DeBerry engage in recent overt manifestations of sexually predatory behavior: "The fact that defendant has not misbehaved in a strictly controlled hospital environment does not prove he no longer suffers from a mental disorder that poses a danger to others. . . . Such an assessment must include consideration of his past behavior, his attitude toward treatment and other risk factors applicable to the facts of his case. [Citation.] This was precisely the methodology followed by the prosecutions experts." (Sumahit, supra, 128 Cal.App.4th at p. 353, citing People v. Superior Court (Ghilotti), supra, 27 Cal.4th at p. 929; accord, § 6600, subd. (d) ["Danger to the health and safety of others [in definition of SVP] does not require proof of a recent overt act while the offender is in custody"].) Drs. Vognsen and Longwell followed this methodology. Any flaws or deficiencies in their reasoning, inferences, or opinions were challengeable through cross-examination. (See Evid. Code, § 721, subd. (a).)
Nor does People v. Williams, supra, 31 Cal.4th 757, relied upon by DeBerry, compel a different result. Contrary to DeBerrys suggestion, Williams does not require evidence of inappropriate sexual behavior during confinement to support an SVP determination. It held there was "ample evidence" of the defendants serious difficulty in controlling his dangerous behavior by reason of expert witness testimony that the defendant suffered from paraphilia as well as other mental disorders such as psychosis, paranoia and severe antisocial personality disorder, the defendants admission as to his lack of control, and also the defendants acts of indecent exposure and public masturbation while confined. (Id. at p. 778.) Our rejection of DeBerrys premise as to Dr. Vognsens analysis disposes of his contentions regarding the courts ruling on his directed verdict motion.
B. Expert Evaluations
DeBerry contends the expert evaluations conducted in November 2004 are too old to constitute substantial evidence in his November 2005 recommitment proceeding, and are irrelevant to the determination of whether DeBerry is an SVP based on a currently diagnosed mental condition. He maintains they are probative only of his past mental state. In part, DeBerry relies upon Albertson v. Superior Court (2001) 25 Cal.4th 796 (Albertson), claiming that case "found an express intent in section 6600, subdivision (a)(3) of the SVPA that evaluations be updated every year."
In making this argument, DeBerry sets out a lengthy recitation of his efforts to obtain an updated evaluation, which are referenced in a handwritten letter that was ultimately sent to the trial court and present in its file. He asks us to take judicial notice of this letter as a court record. We deny the request on relevance grounds. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)
On a sufficiency of the evidence challenge, such arguments are misplaced. It is not our role to judge the weight to be given the expert evaluations based on how long ago they took place. And DeBerry has not shown his counsel made an objection (1) before the trial court contemporaneously with the proffer of evidence and (2) that was sufficiently specific. (Evid. Code, § 353, subd. (a); People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) Thus, DeBerry forfeited his asserted challenges to the courts admission of the psychologists reports on the issue of his status as an SVP.
In any event, we conclude the evaluations were not stale for use in DeBerrys November 2005 recommitment proceeding. Albertson involved a prosecutors request for updated SVP evaluations, and because it is factually inapposite in that regard, it does not assist DeBerry. In part, Albertson held section 6603, subdivision (c) set out "express authority" for updated evaluations sought by the district attorney. (Albertson, supra, 25 Cal.4th at page 805.) In the course of its decision, the Albertson court stated: "The SVPA also sheds light on what the Legislature considers to be `current for purposes of the Act. Section [6605, subdivision (a)] requires that each person actually committed as an SVP undergo a `current examination of his or her mental condition . . . at least once every year. (Italics added.) This suggests the Legislatures recognition that diagnoses can change in light of treatment, severity of mental disorder, changed circumstances, and the passage of time. As observed in Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 1180, evaluations . . . `performed at the initial commitment stage would not reflect the [petitioners] current medical condition at a subsequent stage, well more than a year later." (Albertson, at p. 802, italics added.)
In Albertson, at the time of the prosecutors request, the evaluations at issue were more than a year and half old. (Id. at pp. 800-801.) Thus, even assuming Albertson is apposite here, it does not compel the conclusion that the year-old evaluations present in this case are irrelevant on the question of DeBerrys current medical condition. Yet, because the definition of the term "current" for purposes of the SVPA was not an issue, Albertson is dicta on that point. Further, its holding does not support DeBerrys proposition that evaluations approximately one-year old do not reflect a "current" diagnosis as a matter of law. We conclude the term "current," which is set forth in section 6600, subdivision (a)(3) but not defined by the SVPA, refers to a reasonable period of time, and the passage of a period of one year between the interview and evaluation of an inmate is reasonable, rendering a diagnosis resulting from such interview and evaluation "current" for purposes of the SVPA.
IV. Evidentiary Errors
DeBerry sets out several categories of evidentiary error relating to the courts admission of certain opinions and testimony by Drs. Vognsen and Longwell. We address them in turn, generally to ascertain manifest abuse of discretion. (People v. Smith (2003) 30 Cal.4th 581, 627; People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.)
A. Expert Opinion on Legal Issues
DeBerry contends the court erred by permitting Dr. Vognsen to render an expert opinion on legal issues and effectively instruct the jury on the law and how it should be applied. He maintains the testimony lacked foundation in experience or expertise, and "in effect" invaded the province of the jury.
Having reviewed Dr. Vognsens testimony, we disagree with DeBerrys characterization (in some instances, mischaracterization) of his testimony and opinions as "legal analysis" amounting to an instruction on the law or how the law should be applied. An otherwise admissible expert opinion is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.) The courts recognize that this area is not subject to hard and fast rules, and the fact that a particular aspect of an experts opinion is admitted in one case does not necessarily mean it must be admitted in another case. (People v. Smith, supra, 30 Cal.4th at p. 627; People v. Wilson (1944) 25 Cal.2d 341, 349.) "The circumstances in which evidence is offered and its exact nature, and the exercise of the trial courts discretion, can vary from case to case." (Smith, at p. 627.) The guiding principles are that the trial court should admit expert opinion testimony that would help the jury because it refers to matters requiring some expertise, but should exclude the opinion testimony if it merely addresses matters the jury can fully understand and judge for itself. (See id. at p. 628; Wilson, supra, at p. 349.) Under these principles, Dr. Vognsens testimony was within proper parameters.
For example, contrary to DeBerrys suggestion, Dr. Vognsen did not instruct the jury as to the legal or statutory definition of the term predatory; he was asked to give the definition "that you use in your understanding of the word `predatory and how you used it in your evaluation." Likewise, Dr. Vognsens explanation of the meaning of the phrase "affecting the emotional or volitional capacity" by describing the type of conduct reflecting such impairment did not amount to an improper recitation of the law, nor did it express his belief on "how a case should be decided." (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183.) The court did not abuse its discretion in admitting the testimony. And because Dr. Vognsen did not cross the line into inadmissible or improper testimony that either exceeded the scope of his expertise or usurped the courts or jurys function, DeBerrys counsel did not provide constitutionally ineffective assistance in failing to object on those grounds.
B. Testimony Pertaining to Other SVP Evaluators Conclusions
When asked whether he diagnosed DeBerry with a personality disorder, Dr. Vognsen testified, "I did, yes. It seems to me clear and other people have felt the same way that he suffers from a personality disorder." Later, after Dr. Vognsen was cross-examined about the length of time he spent interviewing DeBerry, the court agreed to the prosecutors request, over defense counsels hearsay objection, that he could testify that his diagnosis was consistent with what other evaluators said without going into further details. Over defense counsels hearsay objection, Dr. Vognsen testified he had reviewed two other SVP evaluations dating back from DeBerrys original commitment; when asked, "And is your diagnosis of paraphilia NOS inconsistent with their conclusions," he responded, "We are all in agreement on that."
DeBerry contends this was improper and prejudicial hearsay, the probative value of which was outweighed by its prejudicial effect, and the court abused its discretion in allowing it. On the relevant review standard, we must conclude the court exercised its discretion in this regard in an " ` "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." " (People v. Jones (1998) 17 Cal.4th 279, 304.) It did not. As DeBerry concedes, experts are allowed to base their opinions on reliable hearsay, including the opinions or statements of other persons. (Evid. Code, §§ 801; 804, subd, (d) [otherwise admissible expert opinion is not made inadmissible because it is based on the opinion or statement of a person who is unavailable for examination pursuant to this section]; People v. Gardeley (1996) 14 Cal.4th 605, 618.) We need not further address whether Dr. Vognsens brief statement went beyond that permitted by the Evidence Code, for even if we were to find that the trial court abused its discretion in permitting Dr. Vognsen to testify as he did, we would deem any such error harmless. Reversal for evidentiary error is required only when it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (Evid. Code, § 353, subd. (b); People v. Watson, supra, 46 Cal.2d at p. 835.)
Here, Dr. Vognsens reference to the other evaluators opinions was extremely brief with no details, and the prosecutor made no further reference to those opinions in her closing argument. Nor is there any indication the prosecutor sought to rely on those earlier SVP findings to prove DeBerrys SVP status in the current proceeding as we found improper in People v. Munoz (2005) 129 Cal.App.4th 421. The psychologists evaluations did not merely judge changes (or the lack thereof) in DeBerrys mental state, and in that respect they are unlike the evidence and argument offered by the petitioner in Munoz. Under these circumstances, in combination with the other evidence supporting the jurys findings, we cannot say it is reasonably probable DeBerry would have achieved a more favorable result had the court excluded that brief testimony.
In People v. Munoz, supra, 129 Cal.App.4th 421, this court reversed an SVP recommitment order because "[t]he manner in which the prosecutor questioned witnesses, the evidence the trial court admitted and the manner in which petitioner argued the case suggested that the issue was whether anything had changed since [the defendants] prior SVP commitment," and, "given the contradictory evidence in [the] case, it [was] reasonably probable that but for these errors a finding more favorable to [the defendant] might have been returned." (Munoz, at p. 432.) Noting, "It is tempting in the SVP recommitment context to characterize the issue as whether anything has changed since the last determination such that the defendant is no longer an SVP," we held that the petitioner in a recommitment proceeding under the SVP Act is required to "prove beyond a reasonable doubt that the defendant is an SVP not that he is still an SVP." (Munoz, at p. 430, italics added.) Having reviewed the expert testimony, the prosecutors closing argument, the jury instructions and the verdict form, which asked the jury to determine whether DeBerry "is" or "is not" an SVP within the meaning of the SVPA, we find no similarity between this case and Munoz.
C. Evidence of Uncharged Misconduct/Due Process Violation
Asserting section 6600, subdivision (a)(3) of the SVPA does not allow victim hearsay with regard to alleged prior bad acts, DeBerry contends the court erred and violated his right to due process when it permitted the Peoples experts, over his counsels hearsay objection, to provide details about alleged misconduct against three women different from those involved in the predicate offenses (including his ex-wife), which had not resulted in an arrest or conviction. He complains he did not have an opportunity to confront or cross-examine those witnesses because the matters never went to trial, and that they cannot be admitted under People v. Otto (2001) 26 Cal.4th 200, because they are "only unproven allegations."
The contentions are without merit. Contrary to DeBerrys assertion, section 6600, subdivision (a)(3) does not preclude or bar evidence of other misconduct in the determination of whether a person is an SVP, it merely states that the existence of any prior conviction and the details underlying the commission of an offense that led to a conviction may be shown with specified documentary evidence. (§ 6600, subd. (a)(3).) To the contrary, as we have pointed out above, section 6601 requires SVP evaluators to consider all risk factors "known to be associated with the risk of reoffense among sex offenders," including "criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (§ 6601, subd. (c), italics added.) It was entirely appropriate for the experts to relate these aspects of DeBerrys history as the basis for and to shed light on their opinions, including their reliance upon information within DeBerrys Department of Mental Health file. Because DeBerry had a full and fair opportunity to confront and cross-examine the experts on the bases for their opinions, there was no due process violation. (E.g. People v. Fulcher, supra, 136 Cal.App.4th at pp. 54-57.)
D. Confrontation Clause Violation
We reject DeBerrys contention that hearsay from crime reports (consisting of victim statements) and prior SVP evaluations (prior expert diagnoses) were admitted in violation of his Sixth Amendment right of confrontation. DeBerry asserts these statements are testimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36, 51-52 (Crawford).)
As DeBerry acknowledges, his counsel did not raise an objection on confrontation clause or Crawford grounds, and the contention is thus forfeited. He does not raise this claim in his petition for writ of habeas corpus. We are unpersuaded by DeBerrys argument the matter is reviewable for "plain error" as affecting his constitutional rights. He cites the Ninth Circuits opinion in U.S. v. Huber (9th Cir. 1985) 772 F.2d 585, 588 and People v. Mitchell (2005) 131 Cal.App.4th 1210. DeBerry has not cited to any published decision of a California appellate court that has applied the federal "plain error" doctrine to state court appeals, and we are not bound by the Ninth Circuits application of that doctrine to a defendants claim of a Crawford violation based on admission of a coconspirators statement. (U.S. v. Huber, 772 F.2d at p. 588 [noting split of Ninth Circuit authority on whether Crawford claim is cognizable on appeal absent a proper objection]; see People v. Bradford (1997) 15 Cal.4th 1229, 1292.) Indeed, the California Supreme Court has declined to adopt a rule of plain error review in state capital cases to reach the merits of otherwise forfeited claims of error. (People v. Benavides (2005) 35 Cal.4th 69, 115.) We decline to do so under these circumstances. Mitchell does not assist DeBerry, because the court in fact held the defendants claim of Crawford error was forfeited for his failure to timely assert the right. (Mitchell, at p. 1220, fn. 18.) It nevertheless stated its decision did not need to depend on that technical flaw; that the challenged testimony was not subject to Crawford analysis at all in that it was subject to cross-examination and was not offered to establish the truth of the matters at issue. (Mitchell, at pp. 1224-1225.) Mitchell does not stand for the proposition that a defendants failure to object on confrontation clause grounds is of no consequence, or that such a claim is reviewable for plain error.
DeBerry has no state or federal right to confrontation in an SVP proceeding because of its civil nature. (Otto, supra, 26 Cal.4th at p. 214 ["There is no right to confrontation under the state and federal confrontation clause in civil proceedings, but such a right does exist under the due process clause"]; People v. Fulcher, 136 Cal.App.4th at p. 55; People v. Angulo (2005) 129 Cal.App.4th 1349, 1367 [addressing admission of police reports]; People v. Whitney (2005) 129 Cal.App.4th 1287, 1299.) Nevertheless, he argues Ottos due process analysis is no longer good law in view of Crawford, supra, 541 U.S. 36. We agree with the recent assessment of our colleagues in Division Two that "Crawford neither expressly nor impliedly extended the Sixth Amendment right of confrontation to civil proceedings. Courts of this state and the United States Supreme Court have repeatedly rejected the notion that the use of some criminal procedural protections in civil commitment proceedings transforms them into criminal prosecutions." (People v. Fulcher, supra, 136 Cal.App.4th at p. 55.)
Furthermore, the confrontation clause does not bar the use of testimonial statements "for purposes other than establishing the truth of the matter asserted." (Crawford, supra, 541 U.S. at p. 59, fn. 9.) Accordingly, " `Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. " (People v. Cooper (2007) 148 Cal.App.4th 731, 747, quoting People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.) This is so for two reasons. First, the materials upon which the expert relies are not elicited for their truth but, rather, are examined to assess the weight of the experts opinion. (Cooper, at p. 747;Thomas, at p. 1210;People v. Fulcher, supra, 136 Cal.App.4th at pp. 56-57; People v. Coleman (1985) 38 Cal.3d 69, 90, 92-93.) Secondly, an expert is subject to cross-examination about his or her opinions. (Thomas, at p. 1210.) As stated previously, an expert may rely on hearsay in forming his opinion. (Evid. Code, § 801; People v. Arias (1996) 13 Cal.4th 92, 184.)
Here, the record does not show that Dr. Vognsens testimony about DeBerrys other victims was received for its truth, and thus it was not hearsay subject to a hearsay objection. (Evid. Code, § 1200; Cal. Law Revision Com. com., 29B pt. 4 Wests Ann. Evid. Code (1995 ed.) foll. § 1200, p. 4.) Assuming the victim statements in the police reports and prior diagnoses contained in prior SVP evaluations are "testimonial," their admission as a basis for the experts opinions did not violate DeBerrys Sixth Amendment confrontation rights, assuming they exist under Crawford. For that reason, any failure by DeBerrys counsel to object to the testimony on Sixth Amendment grounds was not ineffective because it was not subject to Crawford.
Finally, we reject DeBerrys assertion that Crawford renders Evidence Code section 804 unconstitutional. He concedes that Evidence Code section 801 permits experts to testify as to their opinions on relevant matters and may relate the information and sources on which they rely in forming those opinions, including sources that include hearsay. (Evid. Code, § 801, subd. (b); People v. Gardeley, supra, 14 Cal.4th at pp. 618-619; People v. Fulcher, supra, 136 Cal.App.4th at p. 56.) Yet, he argues, " `[A]morphous notions of reliability were never meant by the Framers of the Constitution as an exception to the [Sixth] Amendments right to confront and cross-examine witnesses." We fail to see how this applies in the expert context, where confrontation is not dispensed with because the testifying expert is subject to cross-examination, as were the experts here. (People v. Cooper, supra, 148 Cal.App.4th at p. 747; People v. Thomas, supra, 130 Cal.App.4th at p. 1210.) Hearsay in support of expert opinion is not the sort of testimonial hearsay the use of which was condemned by Crawford.
V. Petition for Writ of Habeas Corpus/Ineffective Assistance of Counsel
As we have stated, to prevail on a claim of ineffective representation, the defendant must show that defense counsel "fail[ed] to perform as a reasonably competent attorney, and it is reasonably probable that, absent counsels deficiencies, a more favorable result would have been obtained." (People v. Wader (1993) 5 Cal.4th 610, 636; People v. Lucas (1995) 12 Cal.4th 415, 436.) "Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, . . . the conviction should be affirmed." (People v. Bunyard (1988) 45 Cal.3d 1189, 1215.) If the record does not show prejudice from the alleged incompetence, a reviewing court may reject the claim without determining whether counsels performance was deficient. (People v. Kipp (1998) 18 Cal.4th 349, 366.)
DeBerry argues his counsel was constitutionally deficient by either participating in, or failing to object to, the asserted evidentiary errors and misconduct as to Dr. Vognsens asserted legal conclusions, the statements pertaining to the consequences of a true finding, and the impeachment of Dr. Donaldson with evidence of Thompsons case. However, we have rejected DeBerrys claims of error and prosecutorial misconduct with regard to the evidence pertaining to DeBerrys stay and treatment at Atascadero, as well as DeBerrys characterization of Dr. Vognsens testimony and conclusions as improperly invading the province of the judge and jury. For those reasons, DeBerrys counsel did not provide constitutionally ineffective assistance with respect to those matters. Further, as for the evidence concerning the Washington defendant used to cross-examine Dr. Donaldson, we have explained why the trial courts error and any resulting prosecutorial misconduct was harmless.
Even assuming counsel rendered ineffective assistance in failing to object on misconduct grounds to the prosecutors line of questioning about the Washington State case (see footnote 7, ante), we would conclude DeBerry cannot establish prejudice, namely, a reasonable probability that but for counsels supposed errors, the result would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin, supra, 18 Cal.4th 297, 333.) While DeBerrys case was stronger than that presented by the defendant in Rains, supra, 75 Cal.App.4th 1165, it was no stronger than that presented by the defendant in Buffington, supra, 152 Cal.App.4th 446, in which the court found harmless error in admitting evidence of Dr. Donaldsons testimony concerning other prior SVP cases. We disagree that DeBerrys case was "close" or that the Peoples evidence was not overwhelming. DeBerry stipulated to the commission of the predicate offenses. As for the other required elements, the jurys findings were amply supported by the testimony of Drs. Vognsen and Longwell, who particularly noted DeBerry refuses SVP treatment. The jury plainly credited the testimony of these experts over Dr. Donaldson, and reached its verdict after only approximately two hours and 45 minutes of deliberations uninterrupted by questions. Thus, we dispose of each of these claims on grounds DeBerry cannot show prejudice from any asserted incompetence of his counsel.
DISPOSITION
The order is affirmed. The petition for writ of habeas corpus is denied.
We concur:
McCONNELL, P. J.
HUFFMAN, J.