California Court of Appeals, Second District, Second Division
from a judgment of the Superior Court of Los Angeles County,
No. ZM011271 James R. Dabney, Judge. Reversed.
Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and Douglas L. Wilson, Deputy
Attorneys General, for Plaintiff and Respondent.
Roa (Roa) appeals from the judgment and order committing him
indefinitely to the custody of the Department of State
Hospitals after a jury found him to be a sexually violent
predator (SVP) under the Sexually Violent Predators Act
(SVPA) (Welf. & Inst. Code, § 6600 et
seq.). Roa contends the trial court committed
prejudicial error and denied him his due process rights by
allowing the expert witnesses to testify as to case-specific
facts that constitute inadmissible hearsay under People
v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and
by admitting into evidence hearsay statements contained in
documents that should have been redacted or excluded in their
conclude that the trial court erred by allowing the experts
to recite case-specific facts that were not independently
proven by admissible evidence and that the error was
prejudicial under the standard set forth in People v.
Watson (1956) 46 Cal.2d 818. We therefore reverse the
February 14, 2007, the Los Angeles County District Attorney
(the People) filed a petition pursuant to the SVPA to commit
Roa as an SVP. The trial court reviewed the petition
and ordered a probable cause hearing pursuant to section
6602. A probable cause hearing was conducted on June 25,
2009, at which Dr. Jack Vognsen and Dr. Jeffrey Davis
testified. At the conclusion of the hearing, the trial court
found that the petition stated sufficient facts that would
constitute probable cause to believe that Roa was likely to
engage in SVP criminal behavior upon release. The matter
proceeded to a jury trial that commenced on May 26, 2015.
relevant here, Roa's counsel filed two motions in limine
to preclude the People's experts from considering,
relying upon, or discussing the contents of two reports
prepared by a district attorney investigator in 1999 and to
preclude the experts from testifying as to “the details
or contents of hearsay statements, including those contained
in police and probation reports and psychiatric and medical
records, when disclosing hearsay statements that were relied
upon in forming their opinions unless the statements
themselves are admissible.” The trial court ruled that
the experts could testify regarding the “general
substance” of information they gleaned from documentary
evidence, including the investigator's reports, as the
basis for their opinions, but that the reports and any other
documents reviewed by the experts would not be admitted into
evidence unless they came within a hearsay exception.
conclusion of the trial, the jury returned a verdict finding
true the allegation that Roa was an SVP and a danger to the
health and safety of others because he is likely to engage in
acts of predatory sexual violence. The trial court ordered
Roa committed indefinitely to Coalinga State Hospital. This
Vognsen, a forensic psychologist who contracts with the
California Department of State Hospitals (DSH) to provide SVP
evaluations, testified as an expert witness. He evaluated Roa
in 2004 and prepared updated evaluations in 2006, 2009, and
2013, and an addendum to the 2013 evaluation in 2014. Because
Roa repeatedly refused to be interviewed, Vognsen based his
evaluations on Roa's state hospital records, court
records, police reports, probation officer reports, prison
records, and criminal history reports prepared by the
Department of Corrections and the Department of Justice. He
also reviewed and relied upon the two district attorney
investigator reports prepared in 1999.
Convictions for SVP offenses
opined that Roa had been convicted of two qualifying SVP
offenses. He testified as to the details of those offenses,
based on his review of probation officer's reports and
police reports in both cases. The first offense occurred in
1977, when Roa sexually assaulted a realtor named Helen who
was conducting an open house. Roa held a knife to Helen's
throat and forced her to undress and orally copulate him. He
sodomized her with his fingers and bit her genitals, anus,
and buttocks. Roa was convicted in 1978 of oral copulation by
force for the offense against Helen and was sentenced to two
years in prison.
second qualifying offense occurred in 1984. Roa went to the
home of a woman named Michelle whom he had met on a previous
occasion, said his car had broken down, and asked to use the
bathroom. When he was finished, Roa told Michelle he had
something in his car to show her, and she went outside with
him. Roa opened the car door, grabbed Michelle by the hair
and forced her into the car. He told Michelle that he had a
knife and drove to an abandoned pallet yard. There, Roa raped
and orally copulated Michelle over a two-hour period. When
Michelle resisted, Roa struck her in the face. He was
convicted in 1984 for oral copulation by force, penetration
of the anus with a foreign object, rape, and kidnapping.
diagnosed Roa with a paraphilic disorder with nonconsenting
others, sexual sadism, antisocial personality disorder, and a
substance abuse disorder.
based his sexual sadism diagnosis on the circumstances of the
offense against Helen, which he said demonstrated Roa's
interest in sexually humiliating the victim rather than
having sexual intercourse with her. Vognsen testified that he
was not “totally comfortable” with the sexual
sadism diagnosis until he reviewed a district attorney
investigator's report on a 1999 interview with Roa's
ex-wife, Bertha. According to Bertha, Roa had to beat her,
humiliate her, and see her cry and scream before he could
become sufficiently aroused to have sexual intercourse with
her. Bertha stated that she was 17 years old and Roa was 16
when they married and that the marriage lasted between six
and eight years.
based the paraphilia diagnosis on the circumstances of the
offense against Michelle, in which Roa sexually coerced the
victim using force and threats. Vognsen found further support
for that diagnosis in two additional incidents he learned of
after reviewing a second district attorney investigator's
report prepared in 1999. Vognsen then testified as to the
details of those two incidents.
first incident was a 1967 juvenile adjudication for assault.
Roa was 17 at the time and was sent to the California Youth
Authority for that offense. Vognsen stated that Roa was
attempting to rape a 12- or 13-year-old girl named Cecilia in
an alley when a witness heard her cries for help and came to
her aid. Roa then fled, but was subsequently arrested and
pleaded to assault. The second incident occurred in 1974 when
Roa was arrested for attempting to rape two inebriated
teenage girls who were asleep in a van outside a party Roa
had attended. Roa was not convicted for that offense because
the girls refused to testify.
explained that a diagnosis of antisocial personality disorder
requires evidence of a conduct disorder before the age of 15
and that he found such evidence in Roa's juvenile
criminal history. Vognsen testified that Roa's juvenile
history included curfew violations, driving under the
influence and without a license, and disciplinary problems in
school because of fighting. Vognsen found further support for
his diagnosis in Roa's adult criminal history, which
included multiple robbery offenses, assault with a deadly
weapon, and theft; his prison record, which showed
disciplinary sanctions for fighting; and hospital records
indicating that Roa had never financially supported his
children and that he had disengaged from his family,
including his children and grandchildren.
based his diagnosis of polysubstance abuse on hospital
records indicating that Roa began consuming alcohol and using
marijuana as a teenager and that he used other stimulants and
drugs up until the time of his imprisonment, and prison
records indicating that he was found in possession of inmate
manufactured alcohol in 1986.
Likelihood of reoffending
opined that the four principal disorders he had diagnosed --
paraphilia with nonconsenting women, sexual sadism,
antisocial personality disorder, and substance abuse,
interact with one another and make it more likely that Roa
would reoffend in a sexually violent, predatory manner if he
were to be released. Vognsen further opined that Roa lacks
volitional control over his urge to humiliate women. He based
this opinion on the fact that Roa raped Michelle after being
arrested and convicted for the sexual assault against Helen.
also used several diagnostic tools to assess Roa's risk
of reoffending. One of these tools was the STATIC-99, an
actuarial instrument that calculates a defendant's risk
of reoffense based on the number of sex offenses, sentencing
dates, and convictions for nonsexual violence. The STATIC-99
also takes into account the defendant's age at the time
of evaluation and whether any sex offenses were against
unrelated victims or strangers.
the STATIC-99 factors, Vognsen testified that Roa's
criminal history included long periods of custody between
1966 and 1974; previous convictions for nonsexual violence,
including robbery and assault with a deadly weapon; and
repeated sexual offenses against unrelated victims or
strangers. He gave Roa a score of 4, indicating a moderate
risk of reoffending. Vognsen stated that Roa would have
qualified for a score of 5, indicating a high-moderate risk,
had he been charged with a sex offense against Cecilia
instead of assault.
also assessed Roa using two other diagnostic tools -- the
sexual violence risk tool and the sexual recidivism SRA
tool. Vognsen concluded that Roa presented a
high risk of sexual reoffending when assessed under both of
testified that the additional information he obtained from
the district attorney investigator's reports about
Roa's assault against Cecilia and the alleged abuse of
Roa's ex-wife, caused him to assess Roa at a higher risk
of sexual reoffending than he had previously determined in
his 2013 evaluation.
Murphy, a forensic psychologist who contracted with the
Department of State Hospitals from late 2006 until June 2014,
testified regarding her evaluation of Roa in September 2013.
Because Roa declined to be interviewed, Murphy based her
evaluation on probation reports, police reports, disciplinary
reports from the Department of Corrections, and records from
the state hospitals in which Roa had been housed. She also
reviewed Roa's psychosocial history, his educational and
employment history, and his relationship history, as
documented in his medical records and prior psychological
Qualifying SVP offenses
opined that Roa had been convicted of two qualifying SVP
offenses against two different victims in two separate cases.
She then described the details of Roa's 1977 sexual
assault against Helen and the 1984 rape against Michelle.
diagnosed Roa with two mental disorders that predispose him
to criminal sexual acts -- other specified paraphilic
disorder, and antisocial or criminal personality disorder.
formulating her opinions, Murphy considered, in addition to
the two qualifying SVP offenses, Roa's 1967 sexual
assault against Cecilia and the 1974 sexual assault against
the two inebriated teenage girls. She stated that the four
incidents involved attempted or completed sexual assaults
against nonconsenting females and demonstrated a pattern of
interest in sexually assaulting people.
found significant the fact that the assault against Cecilia
occurred in an alley, as it showed isolation of the victim
and perpetration of a sexual act. With regard to the 1974
assault against the teenaged girls, Murphy testified that a
police report indicated that one of the victims saw blood in
her underwear, evidence that the assault included completed
penile or digital penetration.
responded affirmatively when asked whether she had reviewed a
report of an interview with Roa's ex-wife and whether
that report contained information suggesting sexual sadism.
She then related Bertha's statements that Roa had been
physically aggressive with her during sex, and sometimes beat
her prior to sex. Murphy acknowledged that Roa's abuse of
Bertha and his behavior during the 1977 offense against Helen
had sadistic themes.
testified that antisocial personality disorder is one in
which an individual has a lifelong pattern of lawless
behavior and violating the rights of others. She found
evidence of that behavior in Roa's extensive history of
juvenile misconduct that included fighting, driving under the
influence, and the sexual assault against Cecilia when Roa
was 17. She stated that Roa's juvenile adjudications
resulted in a succession of California Youth Authority
commitments for a total of seven years. Murphy found
additional evidence of the personality disorder in Roa's
adult conduct, which included several drug related offenses,
a robbery conviction, and an assault against two state
hospital patients that had occurred the previous August.
Murphy testified that a staff member who had witnessed the
August assault believed Roa was experiencing auditory
hallucinations at the time because he had cotton stuffed in
his ears. Murphy further testified that an officer who
interviewed Roa after the August attack said that Roa was not
making sense, which suggested thought disorganization.
testified that Roa's history of meeting with the state
hospital treatment staff was poor and that he had expressed
delusional ideations that the hospital was a ...