Opinion
D069810
11-16-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GEORGE ST. MARTIN, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Annie Fraser and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MH99339) APPEAL from an order of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Annie Fraser and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
After a January 2016 bench trial, the court recommitted Michael George St. Martin to a mental hospital for an indeterminate term under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq. (SVPA or the Act)). The court found St. Martin "will be a danger to the health and safety of others in that it is likely [he] will engage in sexually violent criminal behavior due to [his] diagnosed mental disorder." It denied St. Martin's petition for unconditional discharge or conditional release from his SVP commitment, finding he failed to prove by a preponderance of the evidence that he no longer was a danger to the community; moreover, he would not participate in any meaningful treatment.
St. Martin contends the court made several erroneous evidentiary rulings that were individually and cumulatively prejudicial. Solely for purposes of preserving his right to federal court review, he contends the SVPA's requirement that he prove by a preponderance of the evidence that he is no longer an SVP violates his constitutional right to due process. Finally, he contends the SVPA's provisions regarding conditional release of an SVP violate his right to equal protection of the law and, alternatively, we should remand the matter for the trial court to conduct a hearing on this issue. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts of St. Martin's underlying crimes and the related procedural history partly from this court's nonpublished opinion in People v. St. Martin (Sept. 17, 2013, D063116 (St. Martin I)).
Between 1983 and 1993, St. Martin pleaded guilty to five separate sexual offenses against boys between the ages of 10 and 14 years old. He committed the last two offenses while released from custody pending final judgment of one of the earlier offenses. (St. Martin I, supra.) In 1993, he was sentenced to 19 years in prison, and upon his release committed to the Department of Mental Health under the SVPA for two years. (St. Martin I, supra.) In 2004, St. Martin was initially found to be an SVP and committed to the Department of Mental Health for a two-year term. (St. Martin I, supra.) In 2006, the People filed a petition seeking to commit St. Martin for an indeterminate term. (St. Martin, supra.) In 2009, a jury found St. Martin to be an SVP and he was involuntarily committed for an indeterminate term under the SVPA. He currently is housed at the Coalinga State Hospital (Coalinga). St. Martin's Witnesses
At trial, the parties stipulated that the facts surrounding St. Martin's qualifying and nonqualifying sexual offenses set forth in Dr. Joyce Brown's report were accurate.
Philip Kaushall, Ph.D., a clinical psychologist employed at the Folsom prison, interviewed St. Martin and reviewed his extensive hospital records. Dr. Kaushall concluded: "I don't believe [St. Martin] is suffering from pedophilia. He's not a sexually disordered—sexually violent predator. He doesn't fit that profile anymore." Dr. Kaushall stated pedophilia is "a chronic condition that people can grow out of so it diminishes over time, if it's evolving in the right direction." Dr. Kaushall separately and contradictorily testified, "Yes, I believe that, literally, [St. Martin] has a mental disorder, which is pedophilia, just by his actions."
Toni Blake, a jury consultant who hold a juris doctor degree, has known St. Martin since approximately 2003. She often speaks to him by phone and considers herself his "psychological mentor." She stated that if St. Martin were released into the community, she would willingly provide him an opportunity to help her conduct legal research.
Keri de Alba, a behavior specialist at Coalinga, has known St. Martin for nine years, and spoke to him at least once a week. She testified St. Martin had advocated for elderly or sick patients there.
Matthew Collins, a behavior specialist at Coalinga, holds a master's degree in government administration and is licensed in behavior analysis. He writes behavior plans on SVP's, recommending suitable programs for them to join. He testified he knew St. Martin for approximately five years. For approximately 18 months, they sometimes interacted daily to address patients' requests for change at the hospital and conflict or rule issues. Collins testified: "Mr. St. Martin kind of has a reputation of being a pain in the ass at the hospital. He advocates for patients, and usually for licensing changes, and he goes about it following the process. And many staff often don't like that, but he doesn't use threats, doesn't use violence; he follows the actual process. And at times, some of the issues he's brought up are legitimate, and we've had to actually make changes."
Collins has directed substance abuse group sessions and anger management group sessions at the hospital, but not sex offender treatment group sessions. Collins unsuccessfully encouraged St. Martin to participate in a sex offender treatment program. Collins believed St. Martin was equipped to deal with the stress outside the hospital, and would not get himself into trouble if released.
Michael Montrief, a staff psychologist at Coalinga, testified St. Martin did not participate in group therapy sessions. However, over the course of a year and a half, Dr. Montrief "would talk to [St. Martin] three or four times a week. Some of [our conversations] are very short. Some would be 15 minutes. But hour-long sessions, that may have occurred eight times over this period of time." Dr. Montrief added that in those hour-long sessions, St. Martin would talk about his "offense progression chains," which he described as "proclivities or desires which are not acceptable in our society and you recognized it at the beginning of your offense progression chain you stop it when it starts." St. Martin did not present any written work in that regard, and Dr. Montrief did not document those "therapeutic sessions" in St. Martin's hospital charts. Dr. Montrief opined St. Martin is "a very reasonable person. . . . He's very much under control, very rational, high functioning. I would say he's the highest functioning patient that I met at the hospital." Dr. Montrief observed St. Martin altruistically helping others, and found this "shocking" because Dr. Montrief usually sees patients who are "very eccentric, selfish people who are self-absorbed and somewhat narcissistic." Dr. Montrief testified on cross-examination that he did not speak with St. Martin about the specifics of his prior offenses; therefore, he was unaware St. Martin had molested approximately 50 to 60 boys, some as young as ten years old.
St. Martin testified he never denied engaging in pedophilic behavior. He stated that until approximately three-fourths of the way into his prison term, he believed he had not really done anything wrong and that he was misunderstood regarding his offenses. However, around that time his sister told him that his grandfather had molested her. St. Martin realized he had also hurt his own victims. Further, St. Martin's brother recounted that he had gone to a post office around 2002, after St. Martin was first committed as an SVP. When the clerk realized St. Martin's brother's surname, she cried hysterically because she was the mother of one of St. Martin's victim. St. Martin realized that his actions had caused that woman to experience "a horrible thing." St. Martin learned to read in prison and later advocated for a reading program to help inmates learn to read. St. Martin also assumed the role of an advocate, even managing to get defibrillators and handrails installed in the hospital. He sometimes called outside agencies and the media to bring attention to irregularities at the facility.
When St. Martin first was committed to the state hospital he chose not to participate in treatment after talking with staff members and people both in and out of treatment. They advised him against undertaking group treatment because it would be used against him. St. Martin testified that while at Coalinga he educated himself about the SVP law and kept current on the literature about it. He learned that people who participated in the group therapy program were not much helped by it and had a higher rate of reoffense. St. Martin worked with a staff psychologist to change the treatment model at Coalinga; nonetheless, St. Martin did not undergo treatment, claiming it lacked a curriculum and staff turnover was high.
Instead, St. Martin testified he tries to implement new theories from different treatment programs he reads about: "I try and work with my risk factors and work on those and develop strategies that work with the things that I do. And I basically have tried to change my life into something that I think is a lot better, exemplary compared to what it was in the past." St. Martin discussed his reading materials with many treatment providers in the hospital and sought their feedback, which they regularly gave him. St. Martin testified that since 1999, he has taken medication for his prostate, resulting in his diminished sex drive.
Every year St. Martin prepares an updated relapse prevention plan and shares it with certain psychologists for their input. St. Martin does not believe he "currently suffer[s] from pedophilia to the degree that it makes [him] dangerous." He testified that he would never get involved with another child; moreover, he would participate in individual therapy upon conditional release if so required.
The People's Witnesses
Jay Malhotra, Ph.D., a psychologist who conducted annual evaluations for SVP's at Coalinga, interviewed St. Martin and reviewed other psychologists' reports before preparing each of St. Martin's three evaluations to ascertain whether he remains an SVP and, if so, he can be released unconditionally or conditionally. According to Dr. Malhotra, St. Martin failed to participate in the sex offender treatment program, regarding it as flawed and not good enough. Dr. Malhotra testified that pedophilia is a lifelong chronic disorder, and St. Martin had a high probability of reoffending if released. Dr. Malhotra concluded St. Martin's "community release and reassurance plan" was insufficient to ensure community safety as he likely would not participate in a voluntary treatment program if he is unconditionally released. Dr. Malhotra opined that St. Martin's self-study was insufficient to address his dynamic risk factors, particularly because St. Martin had reoffended in 1983. Therefore, despite St. Martin's sincerity, his failure to engage in sex offender therapy program meant that people who knew him never challenged his beliefs in a group setting, and St. Martin did not know whether he has the coping tools to manage the feelings he might experience if released.
Joyce Brown, M.D. a contract psychiatrist at Coalinga, reviewed St. Martin's files for her forensic assessment and concluded he still suffers from pedophilic disorder, he is an SVP, and poses a high risk of reoffending if released to the community: "He exhibited severe sexual urges, fantasies and behaviors towards obtaining sex from preadolescent boys and he acted on these in committing these crimes; he was unable to desist from this behavior given legal intervention, community monitoring, some treatment offered and attended, and this behavior consumed him. This is his complete behavior outside of work by his report." Dr. Brown quoted a doctor at the hospital as saying St. Martin "was the most intimidating patient on the unit who would be threatening when he did not get his way and not amenable to treatment." She related that another doctor said St. Martin "was a ringleader, criticizing and undermining the program, a cold and angry person."
Psychologist Steven Arkowitz, a forensic evaluator with the Board of Parole Hearings, was previously clinical director of Liberty [Liberty Conditional Release Program; CONREP]. He conducted a June 2015 evaluation regarding St. Martin's suitability for placement there. After interviewing St. Martin and reviewing his medical files, Dr. Arkowitz concluded he is "not suitable for supervision out in the community."
The court found the People's witnesses were more credible: "The defense position I think depends very heavily on accepting as true what Mr. St. Martin [said], his testimony. And I don't know that we are obligated to do that. And I don't know that I find him particularly credible. . . . I think—and I'm not placing much credibility on his assessment that—I mean, he doesn't think he should be there to begin with. He doesn't think he is a pedophile anymore and he should be released unconditionally. I find that not credible." The court stated: "And I—frankly as I listened to [St. Martin's] testimony carefully I had a sense that he's—again, he's developed this defense mechanism so he doesn't have to face up to his concerns about himself. As Dr. Hubka said, he's his own personal development. Does not have to internalize the learning." The court added St. Martin took an academic approach to his experience at Coalinga, convincing himself that he was no longer a pedophile and did not have these urges anymore, therefore he would be safe.
DISCUSSION
I.
Claims of Evidentiary Error
We review the trial court's evidentiary rulings, including whether evidence is more prejudicial than probative, under the deferential abuse of discretion standard. (People v. Clark (2016) 63 Cal.4th 522, 572.) " 'The exercise of discretion is not grounds for reversal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (Ibid.) Further, we assess the trial court's ruling, not its reasoning, and affirm if it is correct on any ground. (People v. Brooks (2017) 3 Cal.5th 1, 39; People v. Zapien (1993) 4 Cal.4th 929, 976 [" ' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion" ' "].)
"Only relevant evidence is admissible. [Citation.] Relevant evidence is broadly defined as that having a 'tendency in reason to prove or disprove any disputed fact that is of consequence' to resolving the case. [Citation.] Inferences drawn from the evidence must be logical and reasonable, not merely speculative. [Citations.] All relevant evidence is admissible, unless a specific statutory or constitutional provision bars its admission." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405, fn. omitted.) "But the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (People v. Partida (2005) 37 Cal.4th 428, 439; People v. Watson (1956) 46 Cal.2d 818, 836.)
A.
St. Martin's counsel asked Dr. Arkowitz on cross-examination: "And somebody like Mr. St. Martin, with his history, you are well aware would be a three-striker and in addition to all of the supervision sort of constraints that he would have to be thinking about, he would also have that added, you know, 'if I commit one crime, I'm likely to go to prison for the rest of my life.' " The court sustained the People's objection that the question was speculative.
St. Martin in his opening brief cursorily addresses the issue of speculation, contending instead that the evidence sought was relevant: "It demonstrated a strong incentive for [him] to behave himself. Notwithstanding the district attorney's objection, this was not speculation. [St. Martin] actually faced a life sentence, if he committed another sex offense. [¶] In addition, the evidence was arguably more relevant here because it was being offered by someone who worked with the CONREP Program. Thus, the focus was on the reduced likelihood of reoffending—particularly in the context of conditional release supervision."
St. Martin addresses the issue of speculation in his reply brief; but a reviewing court generally will not consider a point raised for the first time in a reply brief. (People v. Jackson (1981) 121 Cal.App.3d 862, 873.)
"[A]n expert's opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence." (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) A reasonable inference may not be based solely upon suspicion, imagination, speculation, supposition, surmise, conjecture, or guess work. (People v. Raley (1992) 2 Cal.4th 870, 891.) " ' "A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " (Ibid.)
We conclude the court did not err by sustaining the objection on speculation grounds because the question assumed Dr. Arkowitz knew St. Martin risked a harsh sentence if he violated California's Three Strikes law. Moreover, Dr. Arkowitz was asked to speculate about what St. Martin would be thinking when faced with that possibility. Dr. Arkowitz had no basis for knowing St. Martin's thought process on that issue; therefore, his answer would be speculative.
B.
During Collins's direct examination the following discussion occurred:
"[Defense counsel:] Is there a culture of turning a blind eye to victimization of other patients, in your opinion, based on what you've seen [at Coalinga]?
"[Collins:] I would say
"[Prosecutor:] Objection. Relevance.
"The court: [Defense counsel]?
"[Defense counsel:] I think it just speaks to the purpose of Mr. St. Martin's advocacy and the truth behind the nature—or reason, the purpose behind it. In other words
"The court: Well, that's asking him to speculate as to your client's motives and purpose, so, sustained.
"[Defense counsel:] Well, I think Mr. St. Martin
"The court: Sustained, [defense counsel]. Please move on.
"[Defense counsel:] Have you observed the hospital enforcing its own rules in terms of protecting some of those more vulnerable patients' rights?
"[Prosecutor:] Objection. Relevance.
"The court: Sustained.
"[Defense counsel:] During your time that you've been there, how would you characterize Mr. St. Martin's impact on the quality of life in the hospital for patients?
"[Prosecutor:] Objection. Relevance.
"The court: Sustained.
"[Defense counsel:] Are you familiar with the history in Mr. St. Martin's records that suggest there have been occasions where he's been verbally abusive or vulgar with staff members?
"[Collins:] Yes.
"[Defense counsel:] Are you familiar with the specific situations where he may have had a conflict with a particular staff member over some material that was being put up on a bulletin board?
"[Collins:] I don't believe I am.
"[Defense counsel:] There was a—let me ask it this way. Are you familiar with a situation in which Mr. St. Martin's conflicts with an individual eventually resulted in the hospital discovering that the individual was using methamphetamine in the hospital while he was working in [sic] and then firing him?
"[Prosecutor:] Objection. Relevance.
"The court: Overruled. You may answer.
"[Collins:] Yes.
"[Defense counsel:] Can you tell us what you know about that situation?
"[Prosecutor:] Objection. Relevance.
"The court: Sustained.
"[Prosecutor:] Hearsay.
"[Defense counsel:] Is it your understanding that Mr. St. Martin made a report of about [sic] a particular staff member who was eventually let go because he was—he and his wife, who was also a staff member, were using methamphetamine within the hospital while they were working shifts?
"[Prosecutor:] Objection. Relevance.
"The court: Sustained.
"[Defense counsel:] Is the individual that was involved in that capacity one of the people who had written Mr. St. Martin up for use of vulgarity in dealing with that?
"[Prosecutor:] Objection. Relevance. Hearsay. Calling for speculation.
"The court: Sustained."
St. Martin summarily challenges each of the court's adverse rulings. As to all of them, he contends: "These rulings were very prejudicial to [him]. They weakened [his] attacks on the government's experts' misuse of the negative statements about [him] in the hospital records and weakened [his] ability to argue that his testimony about his work at the hospital should be accepted at face value. [¶] The testimony about the individual (and his wife) who were caught using methamphetamine was potentially of great significance. The intent was to show that the staff member who caused the confrontation at the bulletin board and was using methamphetamine in the hospital, was, as [St. Martin] testified later, one of the people who had put bad things into his record. Absent Collins's testimony, the trial court had no particular reason to believe [St. Martin's] version of these events."
Under the relevance principles summarized above, and bearing in mind that the issue to be resolved was St. Martin's likelihood of reoffending if released, the trial court did not err in any of the challenged rulings. The court permitted as much testimony as required regarding St. Martin's advocacy on other patients' behalf. It did not err by excluding evidence regarding: the "victimization of other patients" at the hospital; St. Martin's "advocacy and the truth behind" it; whether the hospital protected "some of those more vulnerable patients' rights"; St. Martin's "impact on the quality of life in the hospital for patients"; and St. Martin's conflicts with a supervisor who used methamphetamine at the hospital. Such evidence was not relevant, as it did not illuminate a disputed fact that is of consequence to resolving the case. The scope and extent of cross-examination " ' "is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted." ' " (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 411.) The court did not abuse its discretion.
C.
Later during Collins's direct examination, the following colloquy occurred:
"[Defense counsel:] Based on what you know about Mr. St. Martin, if one of the components of a supervised release into the community through Liberty required him to go to [sexual offender therapy program], to go to group or individual counseling specifically dealing with sex offender treatment, has he indicated a willingness to do that?
"[Prosecutor:] Objection. Hearsay.
"The court: Yeah. Sustained.
"[Defense counsel:] Do you believe that Mr. St. Martin has the capacity to cooperate with all of the conditions that Liberty CONREP would involve, as you understand them?
"[Prosecutor:] Objection. Speculation. Lack of foundation. Improper opinion.
"The court: Sustained.
"[Defense counsel:] If Mr. St. Martin were given all the conditions that you've addressed with other patients that you've personally talked to and seen released on CONREP, do you believe he would and could comply with those conditions, those types of conditions?
"[Prosecutor:] Objection.
"The court: Sustained.
"[Defense counsel:] Do you personally have any reservations, based on what you've observed and behavior that you've—the interactions that you've had with Mr. St. Martin about his ability to follow the law?
"[Prosecutor:] Objection. Relevance.
"The court: Sustained.
"[Defense counsel:] Compared to the patients that you know of who have been released on CONREP and not returned to the hospital, do you think Mr. St. Martin possesses the same level of functioning or better?
"[Prosecutor:] Objection. Relevance.
"The court: Sustained."
St. Martin does not address each of the court's above evidentiary rulings separately; instead, he makes a global attack on them: "To the extent the questions might have called for hearsay, this case was litigated before the decision in People v. Sanchez (2016) 63 Cal.4th 665. . . . [H]earsay that would now be inadmissible under Sanchez was admitted. The government's witnesses were free to testify at will to inadmissible hearsay that supported their opinion. Once again, appellant contends that there is no reason why a strict hearsay rule should suddenly be applied to his witness's testimony. [¶] That being said, these questions as a whole called for Collins's opinion about [St. Martin] and his ability and likelihood of complying with the terms of conditional release. It is not entirely clear whether the trial court viewed this testimony as inadmissible for other reasons or because Collins was not a qualified expert."
After outlining his reasons for believing Collins was an expert, St. Martin adds: "Even if Collins were not viewed as an expert, opinion testimony from lay witnesses is admissible under Evidence Code section 800 assuming it is rationally based on his perception and helpful to a clear understanding of his testimony. All of the excluded information fit within those requirements. [¶] Collins knew [St. Martin] personally and was in a position to offer an opinion about [his] willingness and ability to understand and comply with the requirements of the treatment program. He also had an experience with other patients who had been released to CONREP and then returned to the hospital and had the ability to compare them to [St. Martin]."
St. Martin also argues: "Given that the government's witnesses believed that [he] could and would not participate successfully, but had less personal knowledge of [him] and less ability to compare [him] to other patients who had failed in the conditional release program, it seems peculiar that the more reliable and relevant evidence should be excluded as hearsay, speculation, an improper opinion, or irrelevant."
To raise a proper challenge to the trial court's evidentiary rulings, St. Martin was required to "demonstrate how each evidentiary ruling was erroneous" and "support such challenge with reasoned argument and citations to authority." (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.) He failed to do that in his opening brief and on that ground we may dismiss his claims as forfeited.
In any event, we conclude that on the merits of the contentions, they fail. Contrary to St. Martin's view, the question regarding whether he in conversations with Collins had "indicated a willingness" to comply with Liberty's requirements was hearsay. "Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a) formally defines hearsay as 'evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' " (People v. Sanchez, supra, 63 Cal.4th at p. 674.) "Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).)" (Sanchez, supra, at p. 674.) St. Martin did not make an offer of proof that his out of court statement made to Collins was being offered other than for its truth. St. Martin fails to explain the ruling in Sanchez and its applicability here. Therefore, we treat this point as forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "].)
We recognize that Evidence Code section 1220 provides an exception to the hearsay rule for statements offered against the declarant in an action to which he is a party. (People v. Becerreda (2017) 2 Cal.5th 1009, 1024.) But St. Martin does not raise the issue here and therefore we deem it forfeited.
The court did not err by sustaining the objection to the question about whether St. Martin had the "capacity to cooperate with all the conditions" if released on CONREP. Considering Collins had not testified regarding all the conditions required of those in the Liberty program, his response would have been speculative and lacking foundation. The court properly sustained an objection to the question asking whether Collins believed St. Martin "would and could comply with those conditions" on CONREP. Although no basis for the objection was mentioned, the question was compound and on that basis alone objectionable. The question asking about Collins's personal reservations about St. Martin's ability to follow the law was vague as to which law was at issue. Further, Collins's personal view was not relevant to the issue before the court because as a behavior specialist, Collins did not interact with St. Martin in a therapeutic setting sufficient to provide a helpful answer to the question posed; therefore, the court did not err by sustaining the objection to it. (Accord, People v. McRoberts (2009) 178 Cal.App.4th 1249, 1258 [concluding in the case of an SVP petitioner that he and "his lay witnesses" were "not competent to express an opinion on the psychological question of whether he was capable of being successfully treated in the community."].) Finally, Collins's opinion about whether St. Martin possessed "the same level of functioning or better" than other patients who had been released on CONREP was not relevant because St. Martin was the only person whose SVP status was under consideration before the court; therefore, the exclusion of the reference to comparators, in the form of other patients, was not error. We point out that question also was vague, although no objection was interposed on that ground.
D.
St. Martin testified on direct examination about an incident with a supervisor who implied St. Martin was racist. St. Martin testified that during the incident he responded strongly to protect his reputation in the hospital community, adding that he "was playing to the gallery," meaning his peers who were looking at him and wondering what was happening. Afterwards, this testimony occurred:
"[Defense counsel:] Did that create additional problems for you with that individual down the line?
"[St. Martin:] Yes.
"[Prosecutor:] Objection. Relevance.
"The court: Sustained. "
St. Martin argues: "This testimony was relevant because the individual was one of the sources of the negative information in [St. Martin's] file. [St. Martin] was entitled to provide an explanation to demonstrate that the government's experts had relied on unreliable information. The trial court's ruling that this information was irrelevant was truly puzzling. The importance of the bad information about [St. Martin] in the hospital files was obviously important to the government's experts. [St. Martin] obviously intended to testify that this person was the source of some of that bad information."
"Although a trial court enjoys broad discretion in determining the relevance of evidence [citations], it lacks discretion to admit evidence that is irrelevant [citations] or excluded under constitutional or statutory law [citations]. 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, 724.) Although St. Martin argues on appeal that he was entitled to explain that the People had relied on "unreliable information," that contention is nonresponsive, as the specific call of the question was whether that supervisor created additional problems for St. Martin. The answer to that question involved irrelevant details regarding St. Martin's negative interactions with that supervisor. The court had already permitted testimony that the supervisor had challenged St. Martin as a racist; therefore, additional evidence along this vein would have been cumulative. The court did not err by excluding further questions on this topic.
E.
Dr. Montrief testified about the importance of the sex offender treatment programs for patients: "They constantly try to get the person to think about consequences of his behavior, to have empathy for the person, and to think about what they are doing to them, and to think about what it is going to do to them, what's it going to do to themselves and their family." Afterwards, this colloquy ensued:
"[Defense counsel:] And so for a patient who comes in who is maybe in the minority and already understands the consequences of the action and has empathy that they developed for whatever reason over time, is [sex offender therapy] as important for those patients in your estimation?
"[Prosecutor:] Objection, lack of foundation, unqualified opinion.
"The court: Sustained.
"[Defense counsel:] Your honor, he was just asked by the people to explain why [sex offender therapy] is important. How is he no longer qualified to answer?
"The court: You did not object to that question.
"[Defense counsel:] I don't have any qualms about his qualification to answer that question.
"The court: Objection is sustained, counsel. Put another question to him. You don't need to shake your head and grimace.
"[Defense counsel:] I am not shaking my head, your honor. I am trying to compose myself. I apologize.
"The court: I certainly wouldn't permit that with the jury. You would be in big trouble if you did that with the jury. I do not have to put up with it either.
"[Defense counsel:] I understand, your honor.
"The Court: Don't do it, counsel. This is not the first time I pointed that out to you.
"[Defense counsel:] Dr. Montrief
"The court: You sacrifice your effective, your advocacy by that sort of behavior in my view. You are not serving the client well. Put another question to him and let's move on.
"[Defense counsel:] Thank you."
Afterwards Dr. Montrief testified he thought St. Martin had "already effectively worked through . . . his offense progress chains," pointing out St. Martin had reported decreased libido, changed sexual interest, maturity, and a lack of attraction to teens. Dr. Montrief stated that St. Martin, "being more rational, he realizes that for him it will be the end of his life. He will be extremely careful not to reoffend." Further, St. Martin's counsel asked Dr. Montrief if he had any reservations about whether St. Martin "would be a success on supervision in the community if released from the hospital." Dr. Montrief replied, "I believe in my heart that he will be successful. He will not offend again." He added, "[St. Martin] would be fine under supervision."
St. Martin argues: "The trial court acknowledged that the district attorney had elicited testimony about the importance of the sex offender treatment program but would not allow [his] trial counsel to elicit information as to why it might not have been as important for someone like [him]. Since Dr. Montrief was a treatment provider at the hospital, he was qualified to talk about these issues. There was no lack of foundation. [¶] Further, while [St. Martin's] trial counsel should have maintained a perfect decorum following that ruling, the trial court's language suggested that the response to the trial court's ruling on this question hurt [St. Martin] to some extent. Since that reaction was triggered by the trial court's erroneous ruling, that demonstrates additional prejudice that arose from just above and beyond the exclusion of the testimony."
"An examiner may ask an expert to assume a certain set of case-specific facts for which there is independent competent evidence, then ask the expert what conclusions the expert would draw from those assumed facts. If no competent evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked to assume it. The expert is permitted to give his opinion because the significance of certain facts may not be clear to a lay juror lacking the expert's specialized knowledge and experience." (People v. Sanchez, supra, 63 Cal.4th at pp. 676-677.) Here, the question posed was not a proper hypothetical because no competent evidence had been presented or would be presented to support Dr. Montrief's assumption regarding a supposed patient who had understood the consequences of his behavior and had developed empathy over time. It therefore would have been improper for Dr. Montrief to assume the truth of that hypothetical and elaborate on it. The court did not err by sustaining the objection. In any event, any error would be harmless because Dr. Montrief testified that in effect St. Martin had worked through his offense progress chains, which is a goal of sexual offender therapy, and he would not reoffend. It is not reasonably probable the court would have made a different ruling on St. Martin's petition absent any evidentiary error related to this question.
To any extent St. Martin suggests judicial bias, we reject it. "When reviewing a charge of bias, '. . . the litigants' necessarily partisan views should not provide the applicable frame of reference. [Citations.]' [Citation.] Potential bias and prejudice must clearly be established [citation] . . . . 'Bias or prejudice consists of a "mental attitude or disposition of the judge towards [or against] a party to the litigation . . . ." ' [Citations.] Neither strained relations between a judge and an attorney for a party nor '[e]xpressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are . . . evidence of bias or prejudice.' " (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724.) Thus, a party cannot premise a claim of bias on a judge's statements made in his official capacity (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031), or the judge's ruling (even erroneously) against him (McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11).
"A trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution. [Citations.] We have read each of the alleged instances of hostility in context. They fall far short of establishing misconduct or 'betray[ing] a bias against defense counsel.' [Citation.] . . . [W]e perceive nothing that crossed the line into improper behavior, and certainly nothing prejudicial to the defense cause. The trial court has the duty to control the trial. [Citations.] It effectively fulfilled that duty." (People v. Carpenter (1997) 15 Cal.4th 312, 353.) Here, too, St. Martin has not established that the trial court committed misconduct, or that the court prejudiced him. The record demonstrates the court's frustration, and even annoyance, with St. Martin's counsel. But the trial court's actions and statements, undertaken in its attempt to maintain control of the trial, did not come close to crossing the boundary into misconduct.
To the contrary, the trial court merely gave defense counsel an admonition regarding her demeanor, noting that if there was a jury present it would not be tolerated therefore it would not be countenanced in a bench trial either. There is no indication St. Martin's counsel interpreted that admonition negatively; to the contrary, in closing argument she alluded to it when responding to the court's concern that St. Martin elected to take an "academic approach" to the hospital's sex offender therapy program to avoid addressing his own need for treatment. St. Martin's counsel explained it was not necessarily a negative thing that St. Martin uses his readings about SVP as a "coping mechanism." She referenced the earlier incident when the court admonished her: "Any one of us benefits from somebody helping us have insight about what it is. I could use some insight on my sarcastic reactions to witnesses when I disagree with what they say." The court responded lightheartedly, saying it was "hoisted on my petard."
F.
Dr. Montrief testified he had two reasons for asking St. Martin to consider participating in treatment: "Number one, by going to the treatment I think he would have a much better chance of being released from the hospital. And the second reason is I believe it would be beneficial for him, but I won't be able to say how beneficial unless he went through the program and I could monitor it and give an opinion. I can't be sure." Immediately afterwards, the following colloquy occurred:
"[Defense counsel:] Is it your belief based on your individual interactions with Mr. St. Martin that he has processed a large amount of the material that he would process if he were in the module two program?
"[Prosecutor:] Objection, vague and speculative, compound. [¶] . . . [¶]
"[Defense counsel:] I can explain my thinking. I don't want to do that if it's going to run afoul of the court's query. My thinking is this [witness] is interacting with module two patients on a daily basis, [and] knows what the content of the material they are asked to complete includes. [He] also has a relationship with Mr. St. Martin on a therapeutic level albeit somewhat limited given his caseload and that this individual is in a position to say if Mr. St. Martin were in module two these are the things we would be talking about and he already gets them. So that's where I am trying to direct my question.
"The court: I think that would be a lack of foundation then. How would he know to address them?
"[Defense counsel:] Well, because he has the therapeutic relationship with him and he's talked about those things.
"The court: I don't think that's a sufficient foundation."
St. Martin argues: "[Dr.] Montrief had a therapeutic relationship with [him] and was familiar with the sex offender treatment program material. In effect, the trial court ruled that a mental health expert who had provided treatment to an individual was not qualified to testify as to that individual's progress in treatment. Implicitly, the only people who are qualified to testify on this issue are forensic evaluators who based their evaluations on hearsay including the hospital records." St. Martin adds that the court's ruling was prejudicial because "[b]y the standards normally applied in SVP cases, there was no one whose testimony was more reliable than Montrief. Everyone else knew less about [St. Martin] and had their information less directly from less reliable sources."
St. Martin's defense counsel conceded Dr. Montrief's relationship with St. Martin was "somewhat limited." Therefore, for St. Martin to classify it on appeal as a "therapeutic" one is misleading because they only talked informally. Dr. Montrief did not see fit to document their discussions in St. Martin's hospital charts, and St. Martin did not submit written documentation regarding his progression chains. Moreover, St. Martin did not attend group sessions at the Hospital, and Dr. Montrief testified he was unable to opine about how beneficial treatment would be for St. Martin unless he went through the program under Dr. Montrief's supervision. Therefore, Dr. Montrief lacked a foundation for opining whether St. Martin had "processed a large amount of the material that he would process if he were in the module two program." At any rate, any error was harmless because, as stated, Dr. Montrief eventually testified he thought St. Martin had worked through his offense progress chains and would succeed if released from the hospital.
St. Martin contends the cumulative impact of the trial court's errors requires reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) " '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Since we have found none of St. Martin's claims of error prejudicial, a cumulative error argument cannot be sustained. No errors occurred, which whether viewed individually or in combination, could possibly have affected the court's ruling in this case. (People v. Martinez (2003) 31 Cal.4th 673, 704.)
II. Due Process Claim
Solely for purposes of potential federal court review, St. Martin contends the SVPA violates his due process rights under the federal Constitution. As he acknowledges, the California Supreme Court has decided against his position on this point. (People v. McKee (2010) 47 Cal.4th 1172 (McKee I); People v. McKee (2012) 207 Cal.App.4th 1325, 1330-1331 (McKee II).) Those cases are binding on us. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.)
III. Equal Protection Claim
St. Martin also contends the current provisions for conditional release of an SVP violate his equal protection rights under the California Constitution, and if we do not agree, he should have an opportunity to litigate his case. He fails to explain how the facts in his case are so different from those presented in McKee II as to warrant an individualized adjudication of his equal protection claim. "The Supreme Court's emphasis on classwide proof, together with its suspension of activity in grant-and-hold cases to avoid an unnecessary multiplicity of proceedings, demonstrates to us the Supreme Court intended the equal protection challenge to the [SVPA] be resolved on a classwide basis in a single case." (People v. McDonald (2013) 214 Cal.App.4th 1367, 1378.) The People's evidence in McKee II addressed the justifications for treating SVP's differently from people found to be mentally disordered offenders and those committed after a finding of guilt by reason of insanity; the evidence presented was not specific to the particular facts of McKee's crimes.
DISPOSITION
The order is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.