California Court of Appeals, Second District, Second Division
ORIGINAL PROCEEDING; petition for writ of
mandate/prohibition, Los Angeles County Super. Ct. No.
ZM036257 James Bianco, Judge. Petition granted.
G. Kraft, California Appellate Project, under appointment by
the Court of Appeal, for Petitioner.
appearance for Respondent.
Lacey, District Attorney of Los Angeles County, Phyllis C.
Asayama and Matthew Brown, Deputy District Attorneys, for
Real Party in Interest.
Bennett filed a writ petition challenging the trial
court's finding of probable cause (Welf. & Inst.
Code, § 6602, subd. (a)) in a Sexually Violent
Predators Act (SVPA) (§ 6600 et seq.) proceeding.
Bennett contends that the trial court committed prejudicial
error by allowing the admission at the probable cause
hearing, through expert testimony, of case-specific facts
that were inadmissible hearsay under People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez).
Because consideration of inadmissible case-specific facts was
central to the trial court's finding of probable cause,
we conclude that the writ petition must be granted.
to the August 2017 probable cause hearing, the People filed a
petition to commit Bennett as a sexually violent predator
(SVP). At the time, Bennett was nearing the end of a
seven-year sentence for failing to register as a sex offender
(Pen. Code, § 290, subd. (b)) in 2012. Bennett was
initially evaluated by two psychologists, one of whom opined
that Bennett met the criteria to be considered an SVP, while
the other disagreed. Pursuant to section 6601, subdivision
(e), Bennett was reevaluated by two different psychologists,
Douglas Korpi and Christopher Matosich. Both Korpi and
Matosich prepared reports concluding that Bennett met the
criteria for an SVP.
reports noted that Bennett had been convicted of
“sexually violent offenses” (§ 6600, subd.
(b)) with respect to two victims. In August 1986, on two
separate occasions, Bennett broke into a house late at night
and raped a woman inside. On both occasions, Bennett was
under the influence of alcohol. He was convicted of rape and
other offenses. Bennett was also convicted of a March 1986
burglary; he later acknowledged that this burglary involved
an attempted rape. In 1987, Bennett was sentenced to a total
of 42 years 4 months in state prison. He was released in
report recited the contents of a July 2012 Whittier Police
Department report, while Matosich's report cited a
probation report containing essentially the same information.
According to the police report, on July 2, 2012, a
32-year-old woman spoke to an investigating officer regarding
an alleged sexual assault. The woman told the officer that,
on July 1, 2012, she was waiting for a bus when a white man
in his 50's offered to give her a ride in his pickup
truck. The woman accepted, and the man told her he first
needed to go to his home in Whittier to pick up some things.
When they got to the house in Whittier, she helped the man
carry in several bags. He showed her around the house and
when they got to a bedroom, he closed the door, unzipped his
pants, and exposed himself. The woman said, “Stop,
” but the man forced himself on her, made her orally
copulate him, and had vaginal intercourse with her. The man
then told her to take a shower. The woman left the house and
caught a bus home, and went to the hospital the next day.
reporting the incident to police, the woman identified
Bennett's house, and picked him out of a photographic
lineup. A search warrant was served at the house and Bennett
was arrested. According to the police report, when Bennett
was arrested, his cell phone had images of what appeared to
be child pornography. Bennett was not registered as living at
the house in Whittier, but instead was registered as living
at another house in a nearby community.
was charged with forcible rape, forcible oral copulation,
possession of child pornography, and failing to register. The
prosecution eventually dismissed the two rape-related counts
because, after repeated attempts, they were unable to
relocate the alleged victim. In August 2013, Bennett was
acquitted of the child pornography charge, but was convicted
of failing to register, which does not qualify as a sexually
violent offense. (See § 6600, subd. (b).)
consistently denied having nonconsensual sex with the woman.
In an interview conducted by Korpi, Bennett stated that he
met the woman at a gas station and they smoked
methamphetamine together. She then went back to the house
with him, where, according to Bennett, she willingly
performed oral sex on him. Bennett claimed that while she was
at the house, the woman, without his knowledge, took $1, 800
in cash that his father kept there. Bennett claimed that the
woman likely reported a sexual assault ‘“to cover
her tracks.”' Matosich's report also noted that
Bennett denied raping the woman.
diagnosed Bennett with “other specified paraphilic
disorder (coercive type).” Korpi wrote that,
“Had he been arrested only for the offenses in 1986, I
would have been reluctant to term him as serial rapist
inasmuch as the behavior occurred over a period of less than
six months and substance abuse was so prominent during this
period of time. At sole issue in this case is whether or not
we believe the 2012 rape allegations.” Korpi noted that
the allegations had been dismissed, but, based on the
circumstances and allegations of the 2012 incident, Korpi
“tend[ed] to believe the victim, ” and therefore
found that the “rape behavior extended between 1986 and
further opined that Bennett was likely to engage in sexually
violent criminal behavior as a result of his mental disorder.
He based this opinion largely on the use of diagnostic tools,
the Static-99R and the Static-2002R, that estimate a
defendant's risk of reoffense based on various risk
factors. Bennett received a score of seven on the
Static-2002R and six on the Static-99R, both in the
“well above average” range for risk to reoffend.
also diagnosed Bennett with “other specified paraphilic
disorder--non-consent, ” noting that Bennett had
sexually assaulted women who were strangers, and was detained
for indecent exposure when he was 16. Matosich further found
that Bennett was likely to engage in sexually violent
predatory criminal behavior as a result of his diagnosed
mental disorder. Matosich rated Bennett as a five on the
Static-2002R (“above average risk”), and a six on
the Static-99R (“well above average risk”). In
determining Bennett's risk of reoffending, Matosich
considered the 2012 incident, finding Bennett had “not
been in the community for a significant period of time sex
offense free” following his 2008 release from prison.
to the probable cause hearing, Bennett's counsel filed a
motion in limine to exclude any evidence of the alleged 2012
rape or forced oral copulation. He argued that any record of
the 2012 incident was case-specific hearsay not subject to a
hearsay exception, and therefore was inadmissible under
counsel raised the same argument at the beginning of the
probable cause hearing, objecting to any mention of a rape
allegation in 2012, and asking the court to prohibit expert
consideration of the 2012 incident. The trial court overruled
the objection in part, finding that the experts could
properly rely on the 2012 arrest report in formulating their
opinion. The court stated that it would determine
admissibility of the details in the report during the course
of the hearing.
details underlying Bennett's prior convictions for
sexually violent offenses -- the two separate rapes occurring
in August 1986 -- were established at the hearing by
introduction and admission of a “section 969b
packet.” (Pen. Code, § 969b.)
and Matosich both testified at the hearing. Their testimony
was consistent with the contents of their reports.
asked the basis for his determination that Bennett suffers
from a paraphilic disorder, Korpi responded, “Primarily
the arrests in '86 and in 2012.” When questioned
further about how the incidents factored into his opinion,
Korpi noted there were “sexually aggressive
act[s]” and “intense sexual activity” with
respect to the 1986 offenses. Korpi reiterated that he also
considered the alleged rape from 2012. In describing the 2012
incident, Korpi stated Bennett “was interested in
forceful sexual conduct against somebody's will.... She
was a stranger.” The trial court overruled a hearsay
objection and motion to strike. It thereafter stated,
“I'm allowing the testimony to the extent that it
does pertain to fact-specific information. I'm
[admitting] it for the limited purpose of explaining Dr.
continued to testify regarding the 2012 incident and its
importance to his opinion. Discussing Bennett, Korpi stated:
“Had he been arrested in only '86, I would have
been reluctant to say he was a serial rapist, especially
given the substance use.” Korpi noted that Bennett
displayed rape-related behavior between March and August
1986, “[a]nd for a diagnosis we want usually a
six-month period, and really for rapists, much longer
typically. And when you have substance abuse and only a
five-month period, that leads you -- if I didn't have the
2012, I probably wouldn't make the diagnosis. It's
too murky.” Korpi further testified that Bennett was
sexually aroused by acting against a woman's will; he
based this opinion on the 1986 incidents and the 2012
incident, “[j]ust so many repeated violations of
women.” When asked about the importance of the 2012
incident to his diagnosis of paraphilia, Korpi responded,
“It makes or breaks the case for me.”
testimony, Matosich confirmed that he found Bennett had a
diagnosable mental disorder that predisposed him to the
commission of criminal sexual acts. Matosich's diagnosis
of a paraphilic disorder was “based upon a pattern of
offending in sexually aberrant ways over significant periods
of time. I saw indications from 1986 through 2012 where there
was behavior that supports sexually deviant fantasies and
urges.” The trial court overruled an objection as to
testimony regarding the 2012 incident. Matosich was
questioned further about the 2012 incident, and stated that
it involved conduct similar to that engaged in by Bennett in
1986. Matosich testified, over an overruled objection, that
the 2012 incident supported his conclusion that Bennett
engaged in sexual aggression and force upon female victims
who were strangers. The “underlying facts and the
similarities” in the 2012 incident to the 1986
incidents factored into his opinion that Bennett suffered
from a paraphilic disorder. Matosich added that Bennett had a
lack of volitional control, again basing this opinion, in
part, on the 2012 incident. After a long period of
incarceration for the 1986 offenses, following release
“he's again engaged in sexually aberrant behavior,
” and “there was demonstrations of aggression
that was similar to demonstrations of aggressions on earlier
the testimony was given, the court stated, in general terms,
that it would not admit case-specific facts in the expert
reports unless they were based on predicate offenses or
statements made by Bennett himself. After further argument
regarding the admissibility of case-specific facts,