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People v. Roa

California Court of Appeals, Second District, Second Division

May 2, 2017

THE PEOPLE, Plaintiff and Respondent,
NICKOLAS ROA, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County, No. ZM011271 James R. Dabney, Judge. Reversed.

          Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala 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.

          CHAVEZ, J.

         Nickolas 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.).[1] 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 entirety.

         We 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 judgment.


         On February 14, 2007, the Los Angeles County District Attorney (the People) filed a petition pursuant to the SVPA to commit Roa as an SVP.[2] 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.

         As 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.

         At the 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 appeal followed.


         The People's evidence

         Dr. Jack Vognsen

         Jack 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.

         1. Convictions for SVP offenses

         Vognsen 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.

         The 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.

         2. Mental disorder

         Vognsen diagnosed Roa with a paraphilic disorder[3] with nonconsenting others, sexual sadism, antisocial personality disorder, and a substance abuse disorder.

         Vognsen 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.

         Vognsen 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.

         The 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.

         Vognsen 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.

         Vognsen 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.

         3. Likelihood of reoffending

         Vognsen 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.

         Vognsen 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.

         Applying 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.

         Vognsen also assessed Roa using two other diagnostic tools -- the sexual violence risk tool[4] and the sexual recidivism SRA tool.[5] Vognsen concluded that Roa presented a high risk of sexual reoffending when assessed under both of these tools.

         Vognsen 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.

         Dr. Carolyn Murphy

         Carolyn 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 evaluation reports.

         1. Qualifying SVP offenses

         Murphy 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.

         2. Mental disorder

         Murphy diagnosed Roa with two mental disorders that predispose him to criminal sexual acts -- other specified paraphilic disorder, and antisocial or criminal personality disorder.

         In 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.

         Murphy 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.

         Murphy 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.

         Murphy 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.

         Murphy 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 ...

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