APPEAL from the Superior Court of Riverside County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed. (Super. Ct. No. RIC305960).
The opinion of the court was delivered by: King J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Jeffrey Dean appeals from a judgment and order committing him to the State Department of Mental Health as a sexually violent predator (SVP).*fn2
Defendant contends: (1) the trial court erroneously permitted plaintiff‟s experts to testify to inadmissible hearsay; (2) as implemented in Riverside County, the appointment of only one expert for defendant violated his due process rights; and (3) his recommitment is illegal in that the protocols relied upon by plaintiff‟s experts had not been adopted as administrative regulations. We affirm the judgment and order of recommitment.
The present recommitment petition was filed on December 13, 2005.*fn3 Attached to the petition were the reports of Drs. Harry Goldberg and Dawn Starr, both Department of Mental Health evaluators. For purposes of the recommitment petition, the qualifying offenses were a 1982 forcible rape conviction and a 1983 sodomy conviction. Following a probable cause hearing, a jury trial commenced in August 2006. In support of the petition, the prosecutor called Drs. Goldberg and Starr. In addition, plaintiff called defendant and submitted into evidence redacted versions of his Penal Code section 969b packet and portions of the probation reports dealing with both qualifying offenses. Testifying for defendant were John Peterson, a psychiatric technician at Atascadero State Hospital (ASH), and Dr. Theodore Donaldson.
The jury returned a "true" finding on the recommitment petition. To the extent relevant, the evidence and facts will be discussed infra.
The purpose of the Sexually Violent Predator Act (SVPA) ""is to identify persons who have certain diagnosed mental disorders that make them likely to engage in acts of sexual violence and to confine [them] for treatment of "their disorders only as long as the disorders persist and not for any punitive purpose." [Citation.]‟ [Citation.]" (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735.)
At trial, the plaintiff bears the burden of proving beyond a reasonable doubt that the defendant is an SVP. (Welf. & Inst. Code, § 6604;*fn4 Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1147.) At the time relevant here, the SVPA defined an SVP 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), italics added; People v. Vasquez (2001) 25 Cal.4th 1225, 1231.)
The SVPA requires a determination that the defendant is likely to commit "sexually violent predatory criminal behavior." (People v. Hurtado (2002) 28 Cal.4th 1179, 1186-1187, italics added.) A defendant is "likely... [to] engage in sexually violent [predatory] criminal behavior" if he or she "is found to present a substantial danger, that is, a serious and well-founded risk,of committingsuch crimes if released from custody." (People v. Roberge (2003) 29 Cal.4th 979, 982, 988, fn. omitted.)
Under the SVPA as of the time relevant here, "where the requisite SVP findings are made, "the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health....‟" (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1147, quoting former § 6604.) "Confinement generally cannot exceed two years unless a new petition is filed and an extended commitment is obtained from the court." (Hubbart v. Superior Court, supra, at p. 1147.)*fn5
A. There Was No Reversible Error in Allowing Plaintiff's Experts to Testify to Inadmissible Hearsay
Defendant contends that, "[d]uring the course of the prosecution‟s experts‟ testimony, [defendant‟s] trial counsel objected to the inadmissible hearsay on a number of occasions. On each occasion, the trial court overruled this objection.... These evidentiary rulings were error. The trial court should have excluded some or all of the hearsay testimony presented by the prosecution‟s experts. By failing to do so, the trial court abused its discretion and deprived [defendant] of a fair trial."
Defendant argues that plaintiff‟s experts were allowed to testify to inadmissible hearsay in three specific areas: (a) facts of the qualifying offenses, (b) the fact that defendant was convicted of and/or pled guilty to the qualifying offenses, and (c) information gleaned from the records of ASH and other institutions.
"As a general matter, a trial court is vested with broad discretion in ruling on the admissibility of evidence. The court‟s ruling will be upset only if there is a clear showing of an abuse of discretion, i.e., that the court exceeded the bounds of reason." (In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 661.) "A trial court enjoys broad discretion in ruling on foundational matters on which expert testimony is to be based. [Citations.] However, the discretion to admit or exclude evidence is not unlimited. "The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown. [Citation.]‟ [Citations.]" (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523, fn. omitted.) The vast majority of the hearsay testified to by plaintiff‟s experts on direct was properly admitted from other sources. To the extent plaintiff‟s experts testified to inadmissible hearsay, defendant has failed to demonstrate a prejudicial abuse of discretion.
As a general rule, out-of-court statements offered to support an expert‟s opinion are not hearsay because they are not offered for the truth of the matter asserted. Instead, they are offered for the purpose of assessing the value of the expert‟s opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.)
""[A]n expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably... be relied upon" for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, ""under the guise of reasons,"‟ the expert‟s detailed explanation ""[brings] before the jury incompetent hearsay evidence.‟"‟" (People v. Catlin (2001) 26 Cal.4th 81, 137, italics added.) Here, other than some testimony as to the ASH and other institutional records, the facts testified to by the experts did not bring before the jury incompetent hearsay evidence. The facts ...