Opinion
A153254
12-17-2019
THE PEOPLE, Plaintiff and Respondent, v. FRAISURE SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR208822)
Appellant Fraisure Smith was declared a sexually violent predator (SVP) and was granted conditional release from custody under Welfare and Institutions Code section 6608. He appeals from an order revoking his release pursuant to petitions filed under Penal Code sections 1608 and 1609, and contends it must be reversed because (1) expert witnesses were allowed to testify to case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and to offer the opinions of nontestifying experts in violation of People v. Campos (1995) 32 Cal.App.4th 304 (Campos); (2) a condition of release was modified in violation of Welfare and Institutions Code section 6608.8; (3) the court admitted inadmissible evidence of polygraph results; and (4) there was no substantial evidence appellant would engage in sexually violent criminal behavior if allowed to remain in the community on conditional release. We affirm.
I. BACKGROUND
A. Conviction and SVP Status
Appellant pled no contest to assault with intent to commit rape and admitted prior conviction and prison term allegations. (Pen. Code, §§ 220, 667.5, subd.(b), 1170.12.) He was sentenced to prison. Before his release on parole in 2010, he was declared an SVP under Welfare and Institutions Code section 6600 et seq. and was committed to Coalinga State Hospital.
B. Conditional Release
On December 2, 2013, the superior court granted appellant's petition for conditional release under Welfare and Institutions Code section 6608. He was released from Coalinga State Hospital on November 15, 2015, and placed in the California Conditional Release Program (CONREP) operated by Liberty Healthcare, a for-profit company that contracts with the California Department of State Hospitals (DSH) to provide supervision and treatment services for SVPs who are conditionally released into the community. CONREP locates housing for its clients, monitors their participation in treatment, and drives them to where they need to go when necessary.
Benjamin Hoffman, a case manager and driver for CONREP, worked with appellant for about a year and a half and presented him with an extensive list of terms and conditions upon his release. Paragraph A.17 provided in part, "I agree to submit all monthly credit statements and account statements for review." Paragraph B.4(m) stated, "I agree to submit to polygraph examinations upon the demand of my Outpatient Supervisor. I agree to answer polygraph questions regarding my treatment and any events occurring after my release to outpatient treatment. I also agree to answer questions related to my history of sexually deviant behavior." Paragraph C.16 provided, "I will communicate to CONREP staff my intentions with others regarding sexual and/or romantic relationships. In addition, I will also report to CONREP staff any sexual contact, whether consensual or nonconsensual. This report will include the range of behaviors from hand-holding to intimate sexual contact." Paragraph C.36 stated, "I will not lie to, omit significant information or deceive my treatment providers or CONREP representatives. If I do, I will immediately report [these] transgressions. In addition, I will log and discuss any impulses to deceive that I may experience." Appellant appeared to understand the terms and conditions, initialing each and signing the last page of the document on February 16, 2015.
Appellant was a "transient release," meaning he was not going to have a permanent residence and had to move every five days to comply with the sex offender registration statutes. (Pen. Code, § 290.011.) Hoffman placed appellant in various motels and would typically give him an envelope containing cash to cover the motel fees, a system designed to allow sex offenders to familiarize themselves with handling money. Appellant regularly attended Alcoholics Anonymous (AA) meetings.
C. Physical Contact at AA Meetings
At the beginning of February 2017, appellant was driven to AA meetings by CONREP driver Steve Mervau. At one meeting, Mervau saw appellant walk out of the meeting with a female, holding her hand as they walked down the driveway, which was sloped. They dropped their hands at the end of the driveway. A week later, appellant walked out of the meeting with the same woman, walked her to her car, had a long conversation and then hugged her for eight to ten seconds. Appellant was also seen hugging a woman at a store he frequented on a weekly basis.
Appellant's community safety team (CST) was composed of his therapist Dr. Christina Bennett, his psychiatrist Dr. Douglas Tucker, polygraph examiner James Adams, CONREP regional coordinator Michael Lim, case manager Hoffman, CONREP's clinical director Dr. Cecelia Groman and a representative from the DSH. The CST met and discussed concerns it had about appellant hugging females at AA meetings and other places in the community.
Hoffman met with appellant on February 28, 2017 and told him that he was not allowed to initiate physical contact with anyone, should make every effort to avoid physical contact, and was required to report any physical conduct to CONREP staff. According to Hoffman, "We didn't come out and say, you know what, you cannot absolutely have a handshake or a hug, because we know that in certain public situations it's unavoidable, people will grab you and hug you. In AA meetings it's frequent. So we discussed, well, what can you do? We did make it clear that Mr. Smith is not to initiate any hugging, any physical contact with females. So that was made clear. [¶] However, if someone touched him, patted him on the back, hugged him, whatever, he was to immediately report that."
Yordy Velasquez was hired by CONREP to surveil appellant at an AA meeting on March 3, 2017. He arrived at the meeting before appellant and a woman named "Kim" said he looked familiar and gave him a hug. When appellant arrived, Kim greeted him with open arms and they hugged. Appellant spoke with a female attendant during a break. At the end of the meeting, at which appellant was designated secretary, he shook hands with everyone and thanked them for coming. Appellant did not tell Mervau or Hoffman he had physical contact with anyone at the meeting, despite Hoffman asking him.
D. Keeping Cash Designated for Motel
Hoffman gave appellant $111 in cash for a stay at the Fairfield Inn that began on April 9, 2017. The Fairfield Inn took Marriot Rewards points and appellant arranged to pay using points rather than using cash. He did not tell CONREP and kept the cash; it was not until Hoffman collected the motel receipts from appellant at the end of the month that he knew the motel had been paid for with points. Mervau asked appellant if he had used reward points to pay for the room, and although appellant initially said he had paid in cash, he texted Mervau a few minutes later to say he had been mistaken and forgot he had used reward points. When asked what he had done with the $111, appellant said he must have got the money mixed up with his own and that is why he had more money in his account than he should have.
On May 3, 2017, Mervau met appellant at his credit union to verify that he had put the money into his account. Mervau told appellant he needed receipts and appellant told him as they were waiting in line that Mervau could not accompany him to the window. Although Mervau had specifically asked for a statement covering April 1 through May 3, appellant returned with a statement covering April 21 to May 2. When Mervau clarified what he wanted, appellant said, "This is all they gave me" and seemed frustrated and "you could tell he wanted to leave." Mervau told appellant to go back and get him the requested statement and appellant came back and said that was all they could give him. He gave Mervau back the $111, but never provided documentation he had deposited that amount in his account.
Also on May 3, 2017, the executive director of CONREP spoke to appellant about the missing money. Appellant said, "I forgot about the money I deposited in my account. I paid it back. Why is there a problem? I made a mistake." When asked how he would view the situation if he were a staff person, appellant said it looked like the client stole the money, but he denied that he did so.
After the Marriot points incident, it was decided that CONREP would pay the motels directly rather than giving the client cash. Mervau had already given appellant cash to pay for a room starting May 4, but he forgot and paid for the room directly. Appellant never reminded Mervau of that fact or returned the unpaid cash to CONREP.
E. Petitions to Revoke Conditional Release
On May 8, 2017, CONREP filed a petition requesting recommitment under Penal Code section 1608, which alleged that appellant had violated the terms and conditions of his release because he claimed to have deposited funds into his account that were meant to pay for a room and was unable to provide bank statements; he also didn't inform CONREP of the deposit until weeks later. On May 15, 2017, the district attorney filed a petition to revoke appellant's conditional release pursuant to Penal Code section 1609, based on an allegation he was a danger to the health and safety of others given his "continual rule violations." Exhibit A to the petition included a copy of the petition to revoke filed by CONREP based on the room payment, as well as a copy of a notice sent to appellant by CONREP outlining the rule violation of hugging women at AA meetings. A contested hearing was held at which the previously recited facts were adduced. Additionally, members of appellant's CST testified to his progress and participation in the program.
Dr. Tucker was a psychiatrist who testified that he had met with appellant for a total of 15 hours from April 2016 to April 2017. Appellant was cooperative to the extent he showed up for his appointments, but did not believe he needed treatment or that treatment had anything to offer him. Appellant did not take responsibility for his sex offense and believed he was wrongly accused. He had been diagnosed with Other Specified Paraphilic Disorder, Nonconsent, also known as "rape paraphilia." Dr. Tucker also diagnosed appellant as having a Mixed Personality Disorder, with Anti-Social, Narcissistic, Histrionic and Borderline Traits. On two separate occasions, he met the criteria for psychopathy under the Psychopathy Checklist Revised.
Dr. Tucker did not believe appellant was ready for conditional release and believed he wasn't ready when he was released. "And you know, I have done many evaluations with SVP and non SVP sex offenders. He really just struck me as being at square one in terms of just the most basic understanding of what might be going on with him and his behavior and sort of recognition that we got a problem here and agreement that maybe treatment has something to offer." Dr. Tucker was not surprised that fellow AA members might think highly of appellant: "[H]e's very engaging. He's extroverted. So, one of the diagnostic items on the psychopathy is glib and superficial. So, somebody who can read a room and can engage and can effectively connect and manipulate people . . . . And this, everyone in the church, everyone at the school, or the work place thinks he's a great guy, would be pretty standard for that." Dr. Tucker believed that one of the problems with appellant's treatment is he never really did inpatient treatment and never engaged in the outpatient treatment.
Dr. Jay Malhotra was a psychologist contracted by the DSH to conduct forensic examinations of SVPs. He examined appellant in April 2017 to determine whether he was ready for unconditional release. Dr. Malhotra diagnosed appellant with "paraphilic disorder, sex with nonconsenting females" and "personality disorder, NOS, with narcissistic and antisocial aspects," and he concluded that these disorders had contributed to appellant's sexual offenses. He assessed appellant using the STATIC 99R actuarial assessment and determined that appellant scored a 6, which placed him at a well above-average risk of re-offense. He noted that appellant had violated the terms and conditions of his release, including lying to CONREP about physical contact with an AA member, lying about bank account information relative to his payment of rent, and talking to a newspaper reporter despite a gag order. Dr. Malhotra believed appellant was not ready to be released, conditionally or unconditionally, into the community.
Appellant had pending a petition for unconditional release. The court ruled that the order revoking his conditional release and returning him to custody rendered this petition moot. Issues related to this ruling are pending before this court in appeal no. A155689.
Dr. Cecelia Groman was a psychologist and the clinical director of CONREP. Appellant had completed none of the four modules of sex offender treatment offered at Coalinga State Hospital, and had not even signed a consent form for treatment. Dr. Groman believed appellant would be a danger to the health and safety of others if he remained in the community on conditional release, in that it was likely he would engage in sexually violent behavior. Dr. Groman thought that appellant had failed to report a sexual touching when he did not report the hug at the AA meeting.
Dr. Christina Bennett was a licensed Marriage and Family Therapist who was certified to treat sex offenders and contracted with CONREP to provide treatment for appellant. She did not personally diagnose appellant, but agreed with the diagnoses he had been given of personality disorder, paraphilia not otherwise specified and substance abuse in remission. In treatment, he was sometimes engaged and sometimes distant, and was less willing to look at his own behavior after he learned from the trial court that his trial for unconditional release might not happen as quickly as he had hoped. After that, he was more focused on how he was being treated unfairly by CONREP. Dr. Bennett believed appellant took partial responsibility for his prior crimes in that he acknowledged the acts happened, but he indicated he did not have any intention of wrongdoing and most of the things were a misunderstanding. He did not have good insight into his past conduct. Appellant did not believe he needed supervision, but Dr. Bennett believed he did. Dr. Bennett believed appellant was at risk to engage in criminal behavior, though she did not know whether it would be specifically sexual.
Appellant was not engaged fully during the first six months of treatment with Dr. Bennett, was reasonably engaged between month six and month twelve, and became increasingly disengaged over the next six months.
James Adams was a polygraph examiner contracted by CONREP and had conducted four polygraph examinations of appellant. Adams concluded appellant was untruthful during two of these tests. Appellant appeared to give dishonest answers about his sexual history and recent sexual conduct.
Alan Stillman, CONREP's executive director, opined appellant was not safe in the community under supervision. Stillman testified that appellant needed further inpatient treatment and would be likely to engage in sexually violent criminal behavior if released into the community.
Appellant presented the testimony of John Podboy, Ph.D., who had examined appellant in 2013 and 2017 and did not find any indication he was actively mentally ill. Dr. Podboy believed the term rape paraphilia to be without significance, and that rape is simply criminal conduct rather than a sexual disorder or paraphilia. He thought appellant had antisocial personality disorder at one point, but had aged out of his antisocial behavior. Dr. Podboy opined that appellant would not pose a risk if released into CONREP. Appellant also presented the testimony of Richard Sorrinto, Ph.D. and Marguerite Saunders, Ph.D., of the Seeking Safety program at Coalinga State Hospital, where participants talked about trauma they had experienced. Appellant had attended the group since May 2017 (after his return to Coalinga) and he was a focused, enthusiastic participant. Finally, several people who had attended AA meetings with appellant, including Kimberly Cortner, the woman who had hugged him at a meeting, testified to his good character.
F. Ruling
After hearing the evidence, the superior court stated that it had initially thought the basis for the petition—not reporting the hugs at AA meetings and using Marriot points to pay for the motel while initially keeping the cash—was "ticky-tacky." But it was impressed by the psychiatrists and psychologists saying it was not so much what appellant did, but his failure to report it that was the problem. It found by a preponderance of the evidence that appellant would be a danger if released back on CONREP into the community, and found there were no programs other than CONREP which were available. (See People v. DeGuzman (1995) 33 Cal.App.4th 414, 419 (DeGuzman) [standard for revocation of outpatient status under Penal Code, §§ 1608 and 1609 is preponderance of the evidence].) Appellant was recommitted as an inpatient to Coalinga State Hospital.
II. DISCUSSION
A. Sanchez Error
Appellant contends the court allowed expert witnesses to testify to case-specific hearsay in violation of Sanchez, supra, 63 Cal.4th 655. He notes that the rule in Sanchez has been applied in trials to determine whether a person is an SVP in the first instance. (People v. Yates (2018) 25 Cal.App.5th 474, 483-485; People v. Burroughs (2016) 6 Cal.App.5th 378, 405-406, 407, fn. 7; see also Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 878-882.) We disagree that Sanchez requires reversal.
In Sanchez, the California Supreme Court rejected the "paradigm" that allowed an expert witness to describe the material supporting an opinion, even if that material was case-specific hearsay, on the theory that such material was offered as a basis for the expert's opinion rather than for its truth. (Sanchez, supra, 63 Cal.4th at p. 679; see People v. Stamps (2016) 3 Cal.App.5th 988, 994-995.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, at p. 686.)
Sanchez involved a criminal trial. The instant appeal is from an order revoking appellant's outpatient status pursuant to petitions under Penal Code sections 1608 and 1609. Penal Code section 1609 allows a revocation on the prosecutor's petition "after a hearing in court conducted using the same standards used in conducting probation revocation hearings pursuant to Section 1203.2 . . . ." Hearsay evidence which would presumably be inadmissible if introduced in a criminal trial is sometimes admissible in a probation revocation proceeding upon a showing of "good cause" to excuse the giving of live testimony, or upon a showing that routine documentary hearsay is trustworthy. (People v. Winson (1981) 29 Cal.3d 711, 713-714; People v. Arreola (1994) 7 Cal.4th 1144, 1155-1156; People v. Maki (1985) 39 Cal.3d 707, 709; People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197, 1201-1202; People v. Johnson (2004) 121 Cal.App.4th 1409, 1410-1413 (Johnson).)
Penal Code section 1608, which allows a petition for revocation of outpatient status to be filed by the treatment provider, does not explicitly refer to Penal Code section 1203.2, but our analysis applies to petitions filed under that statute as well. (In re McPherson (1985) 176 Cal.App.3d 332, 340 (McPherson).) Both types of petition were filed in this case.
This rule of relaxed admissibility was not changed by Sanchez. Thus, the question becomes, would the evidence now challenged under Sanchez have been admissible in a probation revocation proceeding? The Attorney General argues that hearsay relied upon by appellant's CST would have been admissible under People v. Sword (1994) 29 Cal.App.4th 614, 635, in which the court approved the introduction of handwritten hearsay notes in hospital records at an outpatient status hearing under Penal Code section 1600 et seq. Ultimately, we need not decide whether Sword authorized the challenged hearsay in this case because any error was harmless.
Appellant contends the following testimony by Dr. Malholtra violated Sanchez and was excludable: (1) that he had relied on the results of appellant's polygraph and "a newspaper article that appeared that had direct quotes from [appellant], and that was in contravention of a court order asking that he not speak to the media"; (2) that appellant had been accused of sexual offenses five times and had been convicted three times, that two of the victims were minors, and that prior doctors had diagnosed appellant with the same disorder that he (Dr. Malholtra) had diagnosed him as having; (3) that Dr. Bennett had told him appellant's sexual self-regulation was not robust; (4) and that Dr. Tucker had told him appellant's prostate surgery did not affect his current testosterone levels and that appellant was difficult, suspicious and emotionally immature.
Dr. Bennett testified during direct examination (without objection) that appellant had initially lied about talking to a reporter, but eventually admitted doing so. She then testified on cross-examination that appellant had told her he was with his attorney when approached by a reporter and that the attorney talked to the reporter.
Appellant also complains that Dr. Groman testified appellant had lied to treatment staff about talking to a reporter. (See fn. 4, ante.) Also challenged is CONREP Director Stillman's testimony that (1) the CST had told him appellant was not engaged actively in treatment, that his narcissism was getting in the way and that he was becoming defensive and (2) the staff was concerned that appellant had filed complaints against them, as well as testimony by Hoffman, Dr. Groman and Dr. Tucker that appellant had been seen hugging a female at a medical supply store he frequented. Finally, appellant challenges testimony by Dr. Tucker that a Dr. Flinton (or Flavan), who did not testify, had tested appellant and found "a lot of fairly serious cognitive distortions," and that in 2007 and 2009, other nontestifying experts had categorized appellant as a psychopath.
The erroneous admission of nontestimonial hearsay is a state law error which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Crawford v. Washington, supra, 541 U.S. at p. 59; Sanchez, supra, 63 at p. 685.) The Watson test asks if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, at p. 836.) Here, the witnesses were personally involved in appellant's treatment and their testimony focused mostly on their own experiences and observations. The challenged hearsay constituted a small portion of the experts' testimony and was largely duplicative of other evidence. The court's ruling was based primarily on appellant's lack of forthrightness concerning the hugs at AA meetings and his use of Marriot points to pay for the motel, incidents which were proven by admissible evidence and which are not affected by the alleged inadmissible hearsay. A result more favorable to appellant was not reasonably probable.
Because the procedural protections afforded in probation violation hearings (and hearings on outpatient status) are born out of the due process clause, the rule of Crawford v. Washington (2004) 541 U.S. 36, which bars testimonial hearsay under the Sixth Amendment's Confrontation Clause when the declarant is not unavailable and has not been subject to cross-examination, does not govern here. Crawford is founded on the Sixth Amendment and does not apply to probation violation hearings. (Johnson, supra, 121 Cal.App.4th at 1411.) In any event, none of the hearsay evidence identified by appellant is arguably "testimonial" within the meaning of Crawford.
We also note that the majority of the hearsay statements were made by witnesses who testified at the hearing and were available for cross-examination (Drs. Tucker, Bennett and Groman, as well as Hoffman and Adams). While this did not render their out-of-court statements nonhearsay, it suggests appellant was not deprived of due process by the admission of the statements as a basis for the expert opinions even if they were hearsay in nature, as he could have questioned them about the statements.
Appellant complains that the hearsay declarants were not asked about their statements to others during their direct examination, and notes that cross-examination is generally limited to matters within the scope of a witness's examination. (Evid. Code, § 761, 773.) But, " '[c]ross-examination . . . "may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given . . . ." ' " (People v. Farley (2009) 46 Cal.4th 1053, 1109.) A court has broad discretion to control the scope of cross-examination. (People v. Farnam (2002) 28 Cal.4th 107, 187.) That defendant might have had to recall certain witnesses, or to seek permission from the court to examine them on certain subjects, does not mean he was deprived of due process by the introduction of their hearsay statements. The statements by Dr. Flinton (or Flavan) to Dr. Tucker do not fall in the category of hearsay statements by witnesses who testified, but their content (that appellant had cognitive distortions, that he had been diagnosed as a psychopath) was largely redundant of other testimony.
Appellant also urges us to find error under Campos, in which the court held an expert could rely on reliable hearsay evidence, including reports prepared by other experts, in forming an opinion. (Campos, supra, 32 Cal.App.4th at pp.307-308.) But, an expert "may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts." (Id. at p. 308.) The reason for this rule is lack of the opportunity to cross-examine the other experts as to the basis for their opinions. (Ibid.) Appellant contends the court violated this rule in admitting the evidence recited above.
There is no reasonable probability the statements by the other experts (almost all of whom testified) changed the outcome of this proceeding. (Campos, supra, 32 Cal.App.4th at p. 309.) They consumed only a small portion of the experts' testimony and were largely duplicative of other evidence. There was no miscarriage of justice. (Ibid.; Cal. Const., art. VI, § 13.)
B. Terms and Conditions of Release
Appellant contends the court violated his rights under Welfare and Institutions Code section 6608.8 by modifying the terms and conditions of his release without advising the court and without giving him notice and an opportunity to object to the change. He argues that the change deprived him of due process by impairing his statutory right to reasonable conditions of release. We disagree that reversal of the order revoking his conditional release is required.
After appellant was released from Coalinga State Hospital, he signed an agreement regarding the terms and conditions of his release on February 16, 2015. Paragraph C.16 provided, "I will communicate to CONREP staff my intention with others regarding sexual and/or romantic relationships. In addition, I will also report to CONREP staff any sexual contact, whether consensual or nonconsensual. This report will include the range of behaviors from hand-holding to intimate sexual contact." This term and others presupposes that appellant was not absolutely prohibited from having physical contact or a sexual relationship, subject to certain restrictions and disclosures.
On February 28, 2017, after appellant's CST became concerned about the incidents of hugging and holding hands at AA meetings and at a medical supply store, Hoffman spoke to appellant and conveyed those concerns. He indicated that appellant should not initiate any physical contact and should report any contact that did occur. Appellant argues this effectively changed the terms and conditions of his release in a manner that was not authorized, because it prohibited him from initiating any physical contact whatsoever.
Welfare and Institutions Code section 6608.8 provides in relevant part: "(a) For any person who is proposed for community outpatient treatment under the forensic conditional release program, the department shall provide to the court a copy of the written contract entered into with any public or private person or entity responsible for monitoring and supervising the patient's outpatient placement and treatment program. [¶] (b) The terms and conditions of conditional release shall be drafted to include reasonable flexibility to achieve the aims of conditional release, and to protect the public and the conditionally released person. [¶] . . . [¶] (d)(1) Except in an emergency, the department or its designee shall not alter the terms and conditions of conditional release without the prior approval of the court. [¶] (2) The department shall provide notice to the person committed under this article and the district attorney or designated county counsel of any proposed change in the terms and conditions of conditional release. [¶] (3) The court on its own motion, or upon the motion of either party to the action, may set a hearing on the proposed change. The hearing shall be held as soon as is practicable. [¶] (4) If a hearing on the proposed change is held, the court shall state its findings on the record. If the court approves a change in the terms and conditions of conditional release without a hearing, the court shall issue a written order. [¶] (5) In the case of an emergency, the department or its designee may deviate from the terms and conditions of the conditional release if necessary to protect public safety or the safety of the person. If a hearing on the emergency is set by the court or requested by either party, the hearing shall be held as soon as practicable. The department, its designee, and the parties shall endeavor to resolve routine matters in a cooperative fashion without the need for a formal hearing." (Italics added.)
We reject for several reasons appellant's claim that CONREP violated Penal Code section 6608.8. First, to the extent appellant is challenging the original terms and conditions, he did not object. Second, Hoffman testified appellant's terms and conditions were never changed—he did not tell appellant in February 2017 that all physical contact was prohibited, as appellant suggests, but rather, that he should refrain from initiating contact and should report any such contact to CONREP. Third, even if the terms and conditions did change materially when Hoffman clarified appellant should not initiate contact, the basis for the revocation of his conditional release was not that he had such contact, but that he failed to report it. Reporting sexual contact has been a requirement since the outset of conditional release. Finally, appellant has not established that the prohibition against initiating physical contact was not in response to an emergency or necessary to protect public safety. Notably, appellant did not request a hearing on this issue with the court as provided for in Welfare and Institutions Code section 6608.8, subdivision (d)(1) and (d)(5).
To the extent that appellant complains a restriction on all physical contact was not the least restrictive means supported by the evidence, we are unpersuaded by his reliance on case law stating that a person committed under the Lantermann-Petris-Short Act has a due process right to the least restrictive condition of treatment available. (Foy v. Greenblott (1983) 141 Cal.App.3d 1, 10, fn. 2.) We note that for purposes of addressing an equal protection challenge to the treatment of SVPs relative to the treatment of persons under other programs of commitment, courts have rejected claims that SVPs are entitled to the least restrictive means of treatment available. (People v. Gray (2014) 229 Cal.App.4th 285, 291.)
C. Polygraph Evidence
Appellant contends the court erred in allowing evidence of the polygraph tests administered to him by James Adams. He argues that such evidence is "without evidentiary effect" and is inadmissible under Evidence Code section 351.1, subdivision (a), which provides, "Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results." We conclude that polygraph evidence was not statutorily inadmissible and that assuming the prosecution failed to lay an adequate foundation, any error in admitting the evidence was harmless.
An SVP commitment is not a criminal proceeding, but is a special proceeding of a civil nature. (People v. Yartz (2005) 37 Cal.4th 529, 532.) Evidence Code section 351.1 thus does not bar polygraph results or the opinions of a polygraph examiner in an SVP proceeding. (People v. Fields (2009) 175 Cal.App.4th 1001, 1017 (Fields).) However, in cases not subject to Evidence Code section 351.1 because they are civil in nature, a party seeking the admission of polygraph evidence must show it is generally accepted as reliable in the scientific community. (In re Jordan R. (2012) 205 Cal.App.4th 111, 122, 133-134 [court did not err in excluding polygraph evidence offered by father in child dependency proceeding under Welf. & Inst. Code, § 300 because evidence not reliable]; see People v. Wilkinson (2004) 33 Cal.4th 821, 846-847 [defendant's failure to make offer of proof that polygraph was accepted as reliable technique by scientific community barred her challenge to Evid. Code, § 351.1 as infringing on constitutional right to present a defense].) Appellant argues polygraph evidence is inherently unreliable and was therefore inadmissible in this case. The Attorney General responds that the evidence shows polygraphs are accepted as reliable in the treatment of SVPs and the evidence was therefore admissible.
Polygraph testing is considered a valuable tool in the context of treating sex offenders. (See People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) This does not, however, render it reliable for evidentiary purposes. (Ibid.) But even assuming Adams's testimony should have been excluded, reversal is not required because it is not reasonably probable the court would have allowed appellant to continue on conditional release absent the evidence. (Fields, supra, 175 Cal.App.4th at p. 1018.)
After explaining the general procedure for giving polygraph tests, Adams testified that he gave appellant a total of four such tests on June 23, 2016, August 25, 2016, March 23, 2017 and April 28, 2017. During the June 23 test, appellant was asked about his sexual history, because while he had admitted the act of sexual contact with one of the victims of his underlying crimes, he claimed the act was consensual. Appellant's reactions during this test indicated he was withholding information or not being truthful. For the March 23 test, after it had come to the CST's attention that appellant was hugging women at AA meetings, appellant was asked, "Since your last polygraph test have you engaged in any unwanted touching of another person? [¶] Since your last polygraph test have you touched another person in a sexual way?" Appellant's responses indicated he was withholding information or not telling the truth. After he was unhooked from the polygraph machine, appellant denied any unwanted touching and said the test was wrong and explained that he had hugged some women at a birthday party. Appellant passed the August 25 test and the April 28 test, though during the April 28 test he refused to be questioned about his conduct prior to the March 23 test, and indicated he had not touched anyone against their will since that test.
Even if Adams had not testified, the evidence would have shown that appellant suffered from paraphilia and personality disorders that had contributed to his sexual offenses; that he had participated reluctantly in treatment and did not believe he needed treatment; that he had violated the terms of his release by using Marriot points to pay for a motel room and keeping the cash and by failing to disclose he had been hugging women at an AA meeting; and that his providers were concerned not so much because of these violations per se, but because appellant was not honest about them. Adams testified that appellant was withholding or dishonest on two of the four tests he gave him, but one of these tests involved appellant's past sexual offense rather than his current conduct, and his claim that the offense was in fact a consensual encounter. This left only one "failed" test regarding his nondisclosure of sexual contact. But there was ample evidence appellant had hugged/held hands with women at AA meetings; at issue was whether appellant's dishonesty about the same was enough to revoke his outpatient status. A more favorable result was not reasonably probable had the polygraph evidence been excluded.
D. Evidence of Dangerousness
In reviewing an order revoking outpatient status under Penal Code section 1608 or 1609, we uphold the trial court's factual findings if supported by substantial evidence (DeGuzman, supra, 33 Cal.App.4th at p. 420, 39 Cal.Rptr.2d 137) and apply the abuse of discretion standard in reviewing the court's decision to revoke outpatient status (Sword, supra, 29 Cal.App.4th at p. 619). Appellant argues the order should be reversed in his case as not supported by substantial evidence that there was a danger he would commit a sexually violent offense while under supervision. We disagree. A finding of dangerousness was not required given that petitions were filed under both Penal Code sections 1608 and 1609, and the former does not require a finding of dangerousness. In any event, the court did make a finding of dangerousness, which was supported by substantial evidence.
Persons placed in the conditional release program are subject to Penal Code sections 1605 through 1610 (Welf. & Inst. Code, § 6608.5, subd (c)), which include provisions controlling revocation requests. Revocation of an individual's outpatient status can be initiated by the director of an outpatient program (Pen. Code, § 1608) or by the prosecution (Pen. Code, § 1609). Penal Code section 1608 provides that the director may file a written request for revocation if the outpatient treatment supervisor believes that the patient "requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision." Penal Code section 1609 provides that outpatient status may be revoked at the request of the prosecutor, based on the prosecutor's opinion that the outpatient is a danger to the health and safety of others. Unlike Penal Code section 1609, Penal Code section 1608 does not require a showing of dangerousness. It focuses on the treatment of the outpatient, while Penal Code section 1609 is concerned with the safety of the community. (DeGuzman, supra, 33 Cal.App.4th at pp. 419; McPherson, supra, 176 Cal.App.3d at pp. 339-340.) In this case, both types of petition were filed.
Return of an individual to inpatient treatment under Penal Code section 1608 does not require the People to prove anew that he is mentally ill or dangerous. Appellant's mental illness and dangerousness remains presumed from his SVP status. The revocation procedure under Penal Code section 1608, therefore, need not determine whether he is mentally ill or dangerous, but whether circumstances have changed such that he is no longer suitable for treatment as an outpatient. " 'Outpatient status is not a privilege given [a defendant] to finish out his sentence in a less restrictive setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [patient] and cause no undue hazard to the community." (Sword, supra, 29 Cal.App.4th at p. 620; see DeGuzman, supra, 33 Cal.App.4th at pp. 419-420 ["Like revocation of probation, revocation of outpatient status under either [Pen. Code § 1608 or 1609] does not deprive a person of absolute liberty but rather deprives him of a conditional liberty to which he is entitled only if he observes special restrictions."].) While section 1609 addresses the dangerousness of the individual, section 1608 is based on concerns for his welfare and "does not require the court to find that the patient is a danger to the health and safety of others." (DeGuzman, at p.420.)
The standard of proof required in a proceeding under Penal Code sections 1608 or 1609 is a preponderance of the evidence supporting revocation. (DeGuzman, supra, 33 Cal.App.4th at p. 419.) If the court grants the request to revoke outpatient status, the court must order the defendant to be confined to a treatment facility or a hospital. (Pen. Code, §§ 1608, 1609.)
Although the court could have based its recommitment order on a finding under Penal Code section 1608 that appellant "require[d] extended inpatient treatment or refuse[d] to accept further outpatient treatment and supervision," (Pen. Code, § 1608), it found he was dangerous under Penal Code section 1609. This finding was consistent with and supported by the expert opinions of Drs. Tucker, Malholtra, Groman and Bennett, as well as by Stillman, the Executive Director of CONREP. A single psychiatric opinion that an individual is dangerous may be sufficient. (People v. Bowers (2006) 145 Cal.App.4th 870, 879.)
It is true that an expert opinion based on "guess, surmise or conjecture" cannot constitute substantial evidence. (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318, fn. 3.) But the experts in this case were familiar with appellant and his history and relied upon information gleaned from in-person contact and his records.
Additionally, substantial evidence supported a finding that appellant "require[d] extended inpatient treatment." (Pen. Code, § 1608.) Although the court did not purport to revoke outpatient status on this basis, such a finding was implicit in its finding of dangerousness and in its conclusion that no outpatient program other than CONREP was available. Substantial evidence supports the order revoking outpatient status.
III. DISPOSITION
The judgment (order revoking conditional release) is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.