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Bennett v. Superior Court (The People)

California Court of Appeals, Second District, Second Division

September 11, 2019


          ORIGINAL PROCEEDING; petition for writ of mandate/prohibition, Los Angeles County Super. Ct. No. ZM036257 James Bianco, Judge. Petition granted.

          Rudy G. Kraft, California Appellate Project, under appointment by the Court of Appeal, for Petitioner.

          No appearance for Respondent.

          Jackie Lacey, District Attorney of Los Angeles County, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys, for Real Party in Interest.

          CHAVEZ, J.

         Joseph Bennett filed a writ petition challenging the trial court's finding of probable cause (Welf. & Inst. Code, § 6602, subd. (a))[1] 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.


         Prior 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.[2]

         Expert reports

         Predicate offenses

         The 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 2008.

         The 2012 incident

         Korpi's 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.

         After 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.

         Bennett 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).)

         Bennett 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.

         Expert conclusions

         Korpi diagnosed Bennett with “other specified paraphilic disorder (coercive type).”[3] 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 2012.”

         Korpi 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.

         Matosich 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.

         Probable cause hearing

         Preliminary matters

         Prior 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 Sanchez.

         Bennett's 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.

         The hearing

         The 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.)

         Korpi and Matosich both testified at the hearing. Their testimony was consistent with the contents of their reports.

         When 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. Korpi's opinion.”

         Korpi 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.”

         In his 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 counts.”

         After 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, ...

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