ORDER MODIFYING OPINION AND DENYING REHEARING [CHANGE IN JUDGMENT]
It is ordered that the opinion filed herein on May 19, 2017, be modified as follows:
On page 15, delete part III of the Discussion and the Disposition and replace it as follows:
The Error Was Harmless
Defendant argues the admission of case-specific hearsay testimony "constituted a miscarriage of justice" requiring reversal without consideration of the effect the inadmissible evidence had on the result of his case. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1142 [the absence of an express admonition and personal waiver of the right to a jury trial requires reversal regardless of prejudice].) The People argue that the state law standard of error announced in People v. Watson (1956) 46 Cal.2d 918 applies because this is a case involving the erroneous admission of hearsay evidence. We agree with the People.
The erroneous admission of hearsay evidence is not the type of error requiring reversal per se. "[E]rrors, which operate to deny a defendant an `"orderly legal procedure"' [citation], can entail a `miscarriage of justice' under California Constitution, article VI, section 13" notwithstanding the strength of the evidence contained in the record. (People v. Blackburn, supra, 61 Cal.4th at p. 1133.) A denial of "orderly legal procedure" includes depriving a defendant of counsel, using a defendant's coerced confession in a criminal trial, or trying a defendant before a biased judge. (People v. Shiga (2016) 6 Cal.App.5th 22, 45-46, citing Arizona v. Fulminante (1991) 449 U.S. 279, 290 [113 L.Ed.2d 302, 318].) This was not the type of error that occurred here. Thus, we will apply the Watson standard of error. (People v. Watson, supra, 46 Cal.2d at p. 836 [reversal is required when it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error].)
On the issue of prejudice, defendant argues that "[w]ithout the inadmissible case-specific hearsay, the government's case would have consisted of the documents proving that [defendant] committed qualifying offenses, [defendant's] statements to the testifying experts, and the expert's [sic] opinions which would have been generally untethered to any supporting facts." Sanchez, however, did not change the rule that experts are permitted to consider and rely upon inadmissible evidence when forming their opinions; Sanchez held only that they could not testify to the details of that inadmissible evidence. (People v. Roa (2017) 11 Cal.App.5th 428, 448, citing People v. Sanchez, supra, 63 Cal.4th at pp. 685-686.) Thus the experts' opinions would not have been "untethered" from supporting facts. The prejudice question here is whether it is reasonably probable the court would have reached a decision more favorable to defendant if the court had not heard the inadmissible evidence related by the experts while explaining the basis of their opinions.
A "`[s]exually violent predator' means a person who has been convicted of a sexually violent offense against one 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." (§ 6600, subd. (a)(1).) The trial court found defendant had been convicted of a sexually violent offense, had a diagnosed mental disorder, and was a danger to the health and safety of others because he was likely to engage in sexually violent criminal behavior. The court based this finding on the experts' opinions and testimony, which contained both admissible and inadmissible evidence. We conclude, however, that had the experts not testified to the inadmissible case-specific details of defendant's predicate and alleged offenses, the trial court still would have found defendant met the requirements of the SVPA.
The first element — whether defendant had been convicted of a sexually violent offense — was established as a matter of law. The fact of defendant's two prior convictions for lewd and lascivious acts (Pen. Code, § 288, subd. (a)) was proven by the admission of an abstract of judgment and two CLET's reports. Section 6600.1 provides that any crime enumerated in section 6600, subdivision (b) constitutes a sexually violent offense if the victim of the offense was "a child under the age of 14." Penal Code section 288 is enumerated in section 6600, subdivision (b), and subdivision (a) of Penal Code section 288 explicitly provides that the victim must be under the age of 14. Thus, a violation of Penal Code section 288, subdivision (a) is always a sexually violent offense for purposes of the SVPA. (§ 6600.1.) Therefore, regardless of the experts' testimony regarding the facts of defendant's prior convictions, the trial court had to find this element of the SVPA met.
A closer question is presented on the issues of defendant's mental disorder, dangerousness, and risk of reoffending. When opining that defendant had a mental disorder, Dr. Goldberg stated that he had considered defendant's medical records and his interviews with defendant. The specific facts Dr. Goldberg testified about to support his opinion included defendant's offenses involving prepubescent children, his arousal during the offenses, his inability to control himself despite being punished for his behavior, and his unsuccessful treatment. Dr. Brook based his identical finding regarding defendant's mental disorder on his conversations with defendant, a mental status examination he administered to defendant, and comparison of defendant's statements with the official record. Dr. Brook testified about the case-specific fact that defendant exhibited intense sexual fantasies toward children and targeted multiple children during his offenses and not just the children who were named victims. These opinions were supported by admissible evidence in the form of defendant's statements and inadmissible evidence in the form of the circumstances of defendant's crimes.
Dr. Goldberg's opinion that defendant posed a danger to the community was based on defendant's failure to take responsibility for his actions and claim that he did not need treatment. Dr. Brook's identical opinion was based on defendant's history of reoffending, which showed he could not control his deviant behavior, and also his claimed prior unsuccessful treatment. These opinions were supported by admissible evidence in the form of defendant's statements and the fact of his convictions and when they occurred. It does not appear the experts' opinions that defendant posed a danger to the community were based on any inadmissible evidence.
Dr. Goldberg's opinion that defendant would reoffend in a sexually violent way was based on the fact that defendant had three or more victims, had a high density of offenses when in the community, did not have the ability to form positive adult relationships, felt he was victimized by the people who accused him of sexual offenses, made poor decisions in the face of stress, had participated in unsuccessful treatment, failed to take responsibility for his crimes, was unable to conform his behavior to the law after his first offense, and refused to go into treatment in the event of release from prison. Dr. Brook's identical opinion was based on defendant's history of reoffending despite the presence of consequences, his denial that he had a problem, and his claim that he was the victim of circumstance and was not in the wrong. He also based this opinion on defendant's inability to stop his behavior even though his victims verbally and physically protested. These opinions were based mostly on defendant's statements during his interview with the experts, except for the number of his victims, the density of his crimes, and the fact that the victims verbally and physically protested during the assault.
In summary, had the experts not testified to the inadmissible details of defendant's predicate and alleged offenses, the court still would have been aware of the fact of defendant's convictions and when they occurred. The court would have known that the experts had reviewed the record of defendant's convictions, including police reports and probation reports, and defendant's medical records, and based their opinions on their review of these documents. As to specific details concerning defendant, the court still would have been aware that defendant did not accept responsibility for his crimes, felt that he was the victim of circumstance, and denied needing treatment for his mental disorder, despite the fact that he reoffended after being punished for his conduct. Although the experts testified about inadmissible case-specific evidence to support their conclusions that defendant had a mental disorder and would likely commit a sexually violent offense in the future, the court's finding that defendant had a mental disorder and was dangerous was not tethered to this inadmissible evidence. When finding defendant to be an SVP, the court did not cite any inadmissible evidence for the basis of its ruling but simply found defendant met the elements listed in the SVPA.
Two published opinions have addressed the effects of Sanchez on SVPA proceedings — Burroughs and Roa — both of which reversed a jury's finding that the defendant was an SVP. In Burroughs, the court concluded that because the facts underlying the defendant's qualifying offenses had been proven independently by admissible documentary evidence, "the experts were permitted to relate the facts to the jury as the basis of their opinions." (People v. Burroughs, supra, 6 Cal.App.5th at p. 403.) The experts were not allowed to testify, however, about hearsay evidence relating to the defendant's uncharged offenses, or "`information about [his] prior record, adult history, personal history, physical/mental/emotional health, education, employment, and terms and conditions of probation.'" (Id. at p. 410.) The Burroughs court concluded that the evidentiary errors were prejudicial because the testimony "related a significant amount of hearsay to the jury" by describing, "in lurid detail, numerous sex offenses that appellant was not charged with or convicted of committing." (Id. at p. 412.) Further, the defendant did not participate in an interview, leaving the experts to rely on the documentary evidence to form their opinions, testimony about which "enhanced the credibility of the experts' conclusions about appellant's mental state and likelihood of reoffending." (Id. at pp. 391, 412.) The appellate court accordingly reversed the judgment and remanded the matter to the trial court for further proceedings.
The same occurred in Roa. There, the defendant declined interviews with the experts, leaving them to base their opinions on documentary evidence. (People v. Roa, supra, 11 Cal.App.5th at pp. 434, 437.) The court reversed a jury's finding that the defendant was an SVP because "[t]he experts related a substantial amount of hearsay to the jury, including details of sex offenses [he] was not charged with or convicted of committing" and the experts relied on these details to form their opinions that the defendant had a mental disorder and posed a risk of reoffending. (Id. at pp. 454-455.)
The reasons for reversing in Burroughs and Roa are not present here. Here, defendant granted interviews with the experts and related a significant amount of information the experts relied upon and testified about to support their opinions that defendant had a mental disorder and would likely reoffend by committing a sexually violent offense, including the fact that defendant did not think he had a problem and refused treatment. Further, defendant was found to be an SVP after a court trial and not a jury trial, making it unlikely that defendant was prejudiced by the admission of the lurid details of his sexual offenses. (See People v. Miranda (2000) 23 Cal.4th 340, 351 [a judge is presumed to be able to avoid the risk of prejudice posed by matters raised in pretrial proceedings]; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1408 ["[t]he California courts also presume that a professional jurist is capable of weighing admissible evidence without being prejudiced by extraneous matters"]; People v. Lashley (1991) 1 Cal.App.4th 938, 952 [rejecting prejudice from claimed prosecutorial misconduct "in light of the fact that the arguments advanced by the parties were heard by an experienced trial judge and not a lay jury"].) Additionally, the inadmissible evidence made up only a limited part of the basis for the experts' opinions, which were supported mainly by the fact of defendant's crimes and his own statements denying responsibility for the crimes and refusing to acknowledge that he needed treatment.
Because the experts' opinions were based mainly on admissible evidence, the court did not cite any inadmissible evidence as the basis for its findings, and the court was not likely to be prejudiced against defendant due to the details of his crimes, defendant cannot show that he would have received a more favorable result had the experts not testified about case-specific hearsay details. Accordingly, the admission of the hearsay details of defendant's predicate and alleged crimes was harmless.
The judgment is affirmed.
This modification changes the judgment. Respondent's petition for rehearing is denied.
Hull, Acting P. J., Robie, J., Duarte, J.