People v. Orey ( 2021 )

Filed 3/30/21; certified for publication 4/27/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058040
v. (Super. Ct. No. M-13340)
TRAMPAS MICHAEL OREY, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Jeannie
M. Joseph, Judge. Affirmed.
Christian C. Buckley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth
Friedman and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
A jury found Trampas Michael Orey to be a sexually violent predator
pursuant to the Sexually Violent Predator Act, Welfare and Institutions Code
section 6600 et seq. (SVPA) (undesignated code sections are to the Welfare and
Institutions Code). The trial court ordered him committed to the California Department
of State Hospitals (DSH) for an indeterminate term. Orey appeals from the order of
commitment.
We affirm. We conclude: (1) Any error in admitting into evidence two
photographs of victims was harmless; (2) The trial court did not err by admitting into
evidence prison records and Coalinga State Hospital records reflecting statements
concerning or attributed to Orey; (3) substantial evidence supports the order of
commitment; (4) the trial court did not err by denying Orey’s motions, made pursuant to
People v. Marsden (1970) 2 Cal.3d 118 (Marsden), for the discharge of his appointed
counsel and for the appointment of other counsel to represent him; (5) the trial court did
not err by denying Orey’s request to give a special instruction on the issues of “volitional
impairment” and “serious difficulty controlling sexually violent behavior”; (6) the SVPA
does not violate equal protection, due process, the prohibition on ex post facto laws, and
double jeopardy under either the federal or state constitution; and (7) there was no
cumulative error.
SVPA STATUTORY FRAMEWORK
The SVPA authorizes the state to civilly commit persons found to be
sexually violent predators after they conclude their prison terms. (Reilly v. Superior
Court (2013) 57 Cal.4th 641, 646-647.) Section 6600, subdivision (a)(1) defines a
sexually violent predator as “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.”
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The Welfare and Institutions Code provides an outline of the procedure for
determining whether a person is a sexually violent predator. (§ 6600 et seq.) When the
Secretary of the Department of Corrections and Rehabilitation determines that a person in
custody may be a sexually violent predator, the secretary refers that person for an initial
screening. (§ 6601, subds. (a)(1), (b).) “If as a result of this screening it is determined
that the person is likely to be a sexually violent predator, the Department of Corrections
and Rehabilitation shall refer that person to the [DSH] for a full evaluation.” (§ 6601,
subd. (b).)
The full evaluation is conducted by two mental health experts, either
psychologists or psychiatrists, designated by the Director of the DSH (the Director).
(§ 6601, subd. (d).) Each mental health expert must evaluate the person in accordance
with a standardized assessment protocol “to determine whether the person is a sexually
violent predator as defined in [section 6600].” (§ 6601, subds. (c), (d).)
“If both evaluators concur that the person has a diagnosed mental disorder
so that he or she is likely to engage in acts of sexual violence without appropriate
treatment and custody, the [Director] shall forward a request for a petition for
commitment under Section 6602.” (§ 6601, subd. (d).)1 The attorney petitioning for
commitment may request updated evaluations if it is determined they “are necessary in
order to properly present the case for commitment” and may request replacement
evaluations “[i]f one or more of the original evaluators is no longer available to testify.”
(§ 6603, subd. (d)(1).)
Once a petition for commitment has been filed in the superior court, the
court holds a hearing to determine whether there is probable cause to believe the person
1 If the evaluators disagree on whether the person is a sexually violent predator, then the
Director “shall arrange for further examination of the person by two independent
professionals.” (§ 6601, subd. (e).) The petition “shall only be filed if both independent
professionals who evaluate the person pursuant to subdivision (e) concur that the person
meets the criteria for commitment specified in subdivision (d).” (§ 6601, subd. (f).)
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named in the petition is likely to engage in sexually violent predatory criminal behavior
upon release. (§ 6602, subd. (a).) If the court finds probable cause, then the court orders
a trial to determine whether the person is a sexually violent predator under section 6600.
(§ 6602, subd. (a).)
Although a trial under the SVPA is civil in nature, the person being tried is
guaranteed several rights accorded defendants in criminal trials. (Reilly v. Superior
Court, supra, 57 Cal.4th at p. 648.) These rights include the right to a jury trial (§ 6603,
subd. (a)), the right to assistance of counsel (ibid.), and the right to a unanimous jury
finding the person being tried is, beyond a reasonable doubt, a sexually violent predator
before he or she may be committed (§ 6604). (Reilly v. Superior Court, supra, at p. 648.)
In an SVPA trial, the People must prove three elements beyond a
reasonable doubt: (1) the person being tried has been convicted of at least one sexually
violent offense as defined in section 6600, subdivision (b); (2) the person has “a
diagnosed mental disorder that makes the person a danger to the health and safety of
others” (§ 6600, subd. (a)(1)); and (3) the diagnosed mental disorder means in the future
“it is likely the person will engage in sexually violent criminal behavior” (ibid.). (People
v. Yates (2018) 25 Cal.App.5th 474, 477 (Yates).)
If the court or jury finds the person is a sexually violent predator, then he or
she is committed for an indeterminate term to the custody of the DSH. (§ 6604.)
Following commitment, the sexually violent predator is subject to annual mental
examinations to determine whether he or she continues to meet the definition of a
sexually violent predator. (§ 6604.9, subds. (a), (b).)
In accordance with these provisions, the Orange County District Attorney
in May 2011 filed a petition to commit Orey as a sexually violent predator. In August
2014, the trial court found probable cause following a two-day hearing. In July 2019,
following trial, the jury found it to be true that Orey was a sexually violent predator, and
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the trial court issued an order committing him to DSH custody for appropriate treatment
and confinement for an indeterminate term.
FACTS
I.
Qualifying Offenses
Orey was born in June 1975. He has been incarcerated or confined to the
Coalinga State Hospital since July 2001. The parties stipulated that Orey had been
convicted of the following qualifying offenses within the meaning of section 6600,
subdivisions (a)(2) and (b):
1. In 1995, Orey was convicted of one count of annoying or molesting a
child under 18 years of age (victim C.A.) in violation of Penal Code section 647.6. He
was sentenced to 270 days in jail.
2. In 2000, Orey was convicted of one count of annoying or molesting a
child under 18 years of age (victim E.M.), with a prior conviction, in violation of Penal
Code section 647.6, and peeking (victim E.M.) in violation of Penal Code section 647,
subdivision (i). He was sentenced to 365 days in jail and probation for five years.
3. In 2002, Orey was convicted of two counts of kidnapping for child
molesting (victims El.B. and E.B.) in violation of Penal Code section 207, subdivision
(b), three counts of annoying or molesting a child after entering an inhabited dwelling
(victims El.B., E.B., and J.L.) in violation of Penal Code section 647.6, subdivision (b),
and one count of first degree burglary of an inhabited dwelling in violation of Penal Code
sections 459 and 460. Orey was sentenced to a prison term of 11 years four months.
II.
Victim Testimony
Three victims—C.A., J.L., and El.B.—testified at trial. C.A., who was 33
years old at the time of trial, testified about an incident involving Orey in 1995, when she
was nine years old. As C.A. was watching fireworks while standing outside of her
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apartment complex on July 3, she noticed Orey “lingering around” the area. Orey
approached her from behind, reached between her legs, and, over her clothing, grabbed or
squeezed her vagina. He then forced her to the ground and tried to kiss her. C.A.
struggled, kicked Orey in the chest, and ran way. As C.A. was running, Orey yelled, “no,
come back, I was just kidding.” C.A.’s mother contacted the police.
Several months later, C.A. saw Orey near her school. Both were riding
bicycles. Orey followed C.A. She rode home and told her mother, “I saw him again”
and “he was chasing me.” C.A. saw Orey again several days later.
J.L., who was 27 years old at the time of trial, testified about an incident
involving Orey in 2001, when she was nine years old. J.L. lived at an apartment complex
that did not allow children to use its swimming pool without an adult present to
supervise. J.L.’s parents were not home on July 2, 2001, so when her brother announced
there was a man outside the apartment who was willing to supervise them, she put on her
swimsuit and went with her brother to the pool. While J.L. was swimming, Orey got in
the pool, followed her, and began touching her. He was mainly touching her legs but at
some point touched her buttocks and bit her. J.L. asked Orey to stop and tried to swim
away from him, but he followed her and persisted in touching her. J.L. got out of the
pool and started walking back to her apartment. Orey followed her. She asked him
where he was going; he replied that he needed to use the restroom. She told him there
was a restroom by the pool; he claimed it had no toilet paper.
Orey followed J.L. to her apartment and stood in the doorway. J.L. gave
him some toilet paper and told him that her dad was home. Orey left. J.L. shut the door
and locked it. She reported the incident to the police.
El.B., who was 26 years old at the time of trial, testified about another
incident on July 2, 2001 at the same apartment complex pool. At that time, she and her
twin sister, E.B. were eight years old. On July 2, Orey approached El.B. and E.B. and
asked if they wanted to go to a “secret place” with him. El.B. thought it would be safe to
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play with Orey because she had seen him in the pool with J.L. Orey had El.B. and E.B.
follow him to the apartment complex’s laundry room. After taking other people’s
clothing, he said, “let’s go to your room, I know where your room is at.” Orey, El.B., and
E.B. walked to the girls’ apartment. Nobody was home. They went into the bedroom.
Orey asked El.B. and E.B. to change their underwear in front of him. When El.B. and
E.B. balked, Orey said, “okay, I’ll go first,” removed his trousers, and put on children’s
underpants over his boxer shorts. E.B. announced that her mother was coming home.
Orey ran out of the apartment and back to the pool area, where police officers were
waiting for him.
Suspicious items had been found in Orey’s car on December 21, 1999 in a
search attendant to a traffic stop. Police officers searched Orey’s car and found some
residual marijuana, a teddy bear, a photograph of a teenage girl, and a drawing of a
preteen girl with her top pulled down and her dress pulled up. In the trunk, the officers
found lotion, a Polaroid camera, a pair of children’s sunglasses, a child’s comb, three
pairs of little girl’s underwear, and two or three girl’s tops. Orey told the officers the
teddy bear did not belong to any child he knew, and he declined to say why he had it.
Orey said he had taken the clothes from the laundry room at an apartment complex about
four months earlier.
During the traffic stop, Orey told one of the officers that he was
“struggling” with “fantasies about young girls who were around the age of seven.” He
said he had attended counseling but was no longer doing so.
III.
Conduct and Statements Made While in Prison and at
Coalinga State Hospital
Following his conviction in 2002, Orey was incarcerated in state prison. In
May 2011, near the end of his sentence, the Orange County District Attorney filed the
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petition to commit Orey as a sexually violent predator pursuant. In August 2011, Orey
was transferred to Coalinga State Hospital, where he has remained ever since.
In October 2002, Orey told prison mental health staff that he was dreaming
of having sex with young children. In May 2003, he told prison staff that he was having
ongoing urges and fantasies regarding sexual behavior towards young children and that
he wanted to get help. In March 2005, Orey acknowledged that that he was terrified that
he would reoffend, was plagued by sexual fantasies of molesting children, and was
terrified of hurting another child.
In April 2005, Orey acknowledged to prison staff that he felt out of control
of his own sexual behavior and in August 2006 acknowledged to prison staff that he had
ongoing thoughts regarding young children. He expressed concern that he was never
going to be allowed to live a free life in society. In 2008, he reported that his mother had
once caught him trying to cut off his own penis.
IV.
Treatment History
The parties stipulated to the following regarding Orey’s treatment history:
On December 21, 2009, Reverend Diogo Bautista, Roman Catholic
chaplain, signed a prison record stating that Orey had “actively participated in the
Criminals and Gang Members Anonymous or CJA victims workshop, a four-week
workshop dealing with the impact of sex crimes on victims, societies and families, what
fuels the victimization of others, collateral damage of an individual’s crime, as well as
forgiveness and the healing process. The workshop was from June 30th, 2009 through
July 11th, 2009. Mr. Orey attended two of four meetings.”
On December 21, 2009, Bautista signed a prison record stating that Orey
had “attended 10 out of 15 meetings of Criminals and Gang Members Anonymous or
CJA, a 12-step self-help program for men convicted of sex crimes that met once a week
for one hour.” On October 25, 2010, Bautista signed a prison record stating that Orey
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“had completed the first phase [six month phase] of the 12-step Recovery Methodology
of Spiritual Transformation to Overcome Destructive Addictive Traits and Character.”
In October 2011, Orey enrolled in the Coalinga State Hospital’s sex
offender treatment program and fully participated in sex offender treatment and in
treatment team meetings from October 2011 until June 2012. In the spring of 2012, Orey
was enrolled in Phase II sex offender treatment program but in June 2012 he chose to
stop participating in sex offender treatment.2 Since June 2012, Orey has declined sex
offender treatment at Coalinga State Hospital and stopped participating in treatment team
meetings. His treatment team has continued to encourage him to resume participation in
the sex offender treatment program and has made treatment available to him.
V.
Testimony of SVPA Evaluators
At trial, the prosecution offered testimony from two psychologists who had
conducted sexually violent predator evaluations of Orey: Mark Patterson, Ph.D., and Jay
Malhotra, Ph.D.
A. Patterson’s Testimony
In 2011, Patterson, a contract psychologist for the DSH, conducted the
initial SVPA evaluation of Orey. Patterson prepared updated evaluations of Orey in
2013, 2016, 2017, and 2018.
Patterson testified that, in his opinion, Orey had several qualifying mental
disorders, namely, pedophilic disorder, fetishistic disorder, antisocial personality
disorder, and a number of substance abuse disorders. Patterson explained that pedophilic
disorder is the presence of a strong sexual interest in prepubescent children occurring
over the course of at least six months and which causes distress or social and
psychological impairment. Patterson testified that pedophilic disorder tends to be a
2 Phase I is an overview of the treatment program; Phase II is the actual start of treatment.
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chronic, lifelong condition. Fetishistic disorder is a condition in which a person is
strongly aroused by and responds to nonliving things, for example, underwear.
In reaching his conclusions, Patterson relied upon his interview with Orey
in 2011, the details of his criminal offenses, criminal reports and court records of his
qualifying offenses, Coalinga State Hospital records, and Orey’s conduct documented in
police reports, prison records, and hospital treatment notes.
Patterson interviewed Orey for about two and a half hours for the 2011
evaluation; however, Orey declined to meet with Patterson for the updated evaluations.
Orey admitted during the 2011 interview that he had committed the qualifying sexual
offenses. He said he had been using LSD when he grabbed C.A. in 1995. He admitted
he had tried to coax El.B. and E.B. to take off their clothing because he wanted to orally
copulate them. He also admitted that he had taken a pair of the girls’ underwear with him
and that he would steal girls underwear from the apartment complex laundry room so he
could masturbate into them. He told Patterson, “I knew it was wrong what I did.”
Orey committed the offenses against E.M. during a period of time in which
he had been engaging in voyeuristic behavior. He was on methamphetamine and, while
prowling around an apartment complex looking for something to steal, he looked through
a window and spied on a girl taking a shower. He thought she was three years old.
When the girl saw Orey, she screamed, and a neighborhood watch member caught him.
Orey blamed himself for his sexual offenses. He acted on the spur of the
moment and could not stop himself from doing things he knew were wrong. Orey had
been lonely and committing the offenses was “a high” and “a rush” for him.
Orey told Patterson that about 10 percent of the time while masturbating he
would have fantasies about prepubescent girls and would try to stop the fantasies by
picturing more adult women. Orey said he was sexually interested in children and could
become aroused by seeing images of children in magazines or on television. At the time
of the interview, Orey’s sexual fantasies about prepubescent children were “ongoing.”
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He preferred girls under the age of 10, in particular, girls age 6 or 7, and liked to
masturbate with girls underwear. When asked to identify sexual “triggers,” Orey replied,
“young girls wearing tight clothes.”
During the interview, Orey said he had started masturbating when he was
12 and his first sexual encounter was at age 13 when a seven-year old girl jumped on his
lap and aroused him. Orey said had about four adult sexual partners. When he was 18,
he had a girlfriend of the same age, and they had been sexually active. When Orey was
21, he had a sexual encounter with a 15-year-old girl.
Orey had started drinking when he was five or six years old, started
smoking marijuana when he was 12 or 13, and used LSD, methamphetamine, cocaine,
and “psilocybin mushrooms.” He ran away from home at one point and was arrested for
shoplifting when he was 15 or 16. He described himself as a loner and a risk taker. He
got into a lot of fights at school before he dropped out in the tenth grade, had worked a
variety of jobs, and by age 18 or 20 was selling drugs to support himself.
Orey said he would benefit from sex offender treatment: He did not want
to reoffend, felt badly about what he had done, and had never meant to hurt anyone.
Orey told Patterson that he “would be doing treatment.” But since 2012, Orey had
avoided all forms of treatment and had not attended team meetings.
Patterson considered Orey’s statements and conduct recorded in prison
records and Coalinga State Hospital records, which are described in part III of this
section and part II of the Discussion section. Patterson considered it to be significant that
while in prison Orey had committed several serious rules violations, two of which were
for fighting or aggressive behavior. While Orey has been at Coalinga State Hospital, he
has had angry outbursts and defied the rules. Patterson believed that Orey’s inability to
control his aggressive behavior and sexual interest in children impaired his emotional and
volitional capacity. Patterson concluded that Orey has “demonstrated that he has not
been able to manage his behavior . . . despite treatment and despite punishment.”
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Patterson evaluated Orey using four actuarial instruments designed to
assess risk factors associated with sexual reoffending. Orey’s score of six on the
Static-99R instrument placed him in the highest risk group of offenders—those who
offended at a rate of 25 percent after five years and 37 percent after 10 years. Orey’s
score of eight on the Static-2002R placed him in the highest group of offenders. Orey
scored in the moderately high-risk group on the Sex Offender Risk Appraisal Guide
(SORAG) and the Violence Risk Appraisal Guide Revised (VRAG), which predict
criminally violent reoffending, including sexual reoffending. Patterson believed such
actuarial assessments generally underestimate sexual offense recidivism because many
sexual offenses go unreported. Patterson determined that Orey had no “protective
factors” (such as advanced age) that might reduce the level of risk, in particular, Patterson
found it to be significant that Orey had refused treatment at Coalinga State Hospital.
Patterson opined that Orey, as a result of his diagnosed disorders, was a
danger to the health and safety of others because it is likely he will engage in sexually
violent criminal behavior. Patterson concluded that it would be necessary to keep Orey
in a secure facility to ensure the safety of others. Patterson’s opinion had not changed
since 2011.
B. Malhotra’s Testimony
Malhotra, a contract psychologist for the DSH, conducted an evaluation of
Orey in 2018. In conducting the evaluation, Malhotra reviewed Orey’s criminal, state
hospital, and prison records, and the prior reports prepared by Patterson. Malhotra placed
a telephone call to Coalinga State Hospital to interview Orey. The call was answered by
a staff member, who tried to get Orey to speak with Malhotra, but Orey would not come
to the phone.
Malhotra diagnosed Orey as having pedophilic disorder, fetishistic disorder,
and a number of substance abuse disorders. Malhotra testified that pedophilia is
“generally thought of as a lifelong condition” but pedophilia is different than pedophilic
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disorder, “which involves implementing those pedophilic urges and fantasies into
behaviors.” Malhotra testified that all of these disorders were qualifying disorders under
the SVPA and the substance abuse disorders impaired Orey’s ability to control his
pedophilic and fetishistic desires. Orey’s history of acting out impulsively and his
inability to control his actions were connected to and made worse by his substance abuse
disorders.
Malhotra testified that Orey had pedophilic disorder because he had acted
on his urges and fantasies by molesting children in 1995, 1999, and 2001. Orey had
fetishistic disorder because in 2001 he had become aroused by a child’s panties.
Malhotra concluded: “[Orey] has indulged in pedophilic behavior, he’s indulged in
fetishistic behavior and so that’s the basis of the diagnosis.”
Malhotra assessed Orey’s risk of reoffending by using the Static-99
instrument. Malhotra, like Patterson, gave Orey a score of six, the highest risk category.
Malhotra found that Orey has all five dynamic risk factors found to have significant value
in predicting risk—significant social influences, intimacy deficits, general self-regulation,
sexual self-regulation, and lack of cooperation with supervision. Malhotra noted that
Orey had not accepted any treatment while at Coalinga State Hospital and described him
as “generally anti-treatment.”
Malhotra concluded that, as a result of Orey’s diagnosed mental disorders,
Orey posed a danger to the health and safety of others and it is likely he will engage in
sexually violent predatory criminal behavior. Malhotra also concluded it is necessary to
keep Orey in a secure facility to ensure the health and safety of others.
VI.
Testimony of Defense Experts
Two clinical psychologists—Brian Abbot, Ph.D., and Christopher Fisher,
Ph.D.—testified on Orey’s behalf.
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A. Abbot’s Testimony
Abbot, who had conducted about 500 sexually violent predator evaluations
in his career, reviewed the evaluations prepared by Patterson and Malhotra “to determine
whether the information they provided in their reports was sufficient to justify their
findings that Mr. Orey meets the criteria as a sexually violent predator.” Abbot did not
interview Orey, review his records, or evaluate whether he is a sexually violent predator.
Abbott reached the conclusion that, with the exception of the existence of
qualifying offenses, Patterson’s evaluation and Malhotra’s evaluation provided
insufficient information to support a finding that Orey met the criteria for commitment as
a sexually violent predator. The basis for this opinion was that neither Patterson’s
evaluation nor Malhotra’s evaluation presented any evidence of a current or recent desire
for prepubescent girls. Abbott testified that Patterson’s evaluation and Malhotra’s
evaluation recited only Orey’s criminal history without “presenting any current
symptoms” of the diagnoses. Abbott believed it was improper to base a diagnosis on
convictions or criminal acts that had occurred long before the current period at issue.
Abbott testified there was no substantial research to support a conclusion
that pedophilia is a lifelong disorder. He believed that pedophilia could qualify as a
current pedophilic disorder only if the person was currently acting on it; a person who
suffered from pedophilic disorder at one point in life would not necessarily continue to suffer
from the disorder for the rest of his or her life. Abbott opined that Patterson and Malhotra
had incorrectly diagnosed Orey with pedophilic disorder because, since 2011, there had been
no evidence of any current arousal or other institutional signs of pedophilic thoughts and
actions.
Abbott also testified that Patterson’s evaluation and Malhotra’s evaluation
presented no evidence that Orey was having any current difficulty controlling his behavior:
The mere existence of more than one diagnosis and Orey’s history were insufficient to
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support those opinions. According to Abbott, Orey had shown no objective indications of
difficulty controlling his behavior.
B. Fisher’s Testimony
Fisher testified that he was asked to determine whether Orey meets the
commitment criteria as a sexually violent predator. Fisher reviewed the state sexually
violent predator evaluations for Orey, his police reports, prison and hospital records
(including disciplinary reports), treatment plans and records, and release plan. Fisher
interviewed Orey for three and a half hours in 2019.
Fisher testified that Orey’s records showed that he had been a “mess” until
approximately 2005, when his condition and mental state changed. Before 2005, Orey
had not faced his pedophilic disorder, had rationalized his actions, and both physically
and mentally had indulged his improper interest in children. By 2006 or 2007, Orey had
begun to stabilize emotionally and, by 2009, had begun to seek treatment. Between 2009
and 2011 Orey attended regular treatment groups and indicated a desire to participate in
any available sex offender treatment. Once Orey was at Coalinga State Hospital, he
continued his focus on treatment: He completed Phase I of the then existing treatment
and started Phase II in 2012, when the hospital changed its program. Orey and other
committed sexually violent predators believed the new treatment program did not give
them credit for their past work and forced them to start over.
Fisher testified the new treatment program at Coalinga State Hospital was
inconsistent in that treatment providers were being shifted around with no notice. Staff
turnover made it difficult for patients to form any significant trust and relationship with
the staff. Fisher believed the combination of programs Orey had completed while in
prison and at Coalinga State Hospital constituted “focused treatment” for his disorders.
Fisher acknowledged that Orey had refused a treatment program available at Coalinga State
Hospital but believed that his commitment to treatment was genuine and that he would
remain committed to some form of appropriate treatment if released.
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Fisher diagnosed Orey with historic pedophilic and fetishistic disorders and
concluded those disorders were not causing him serious difficulty controlling his sexual
behavior as of the time of the trial. Those diagnoses, though accurate based on Orey’s
past actions and admissions, did not qualify Orey for commitment as a sexually violent
predator because he had shown no behavioral control issues and had not taken any
actions to suggest he was still trying to satisfy improper urges.
Fisher testified that recent studies support the conclusion that pedophilia is
not a lifelong condition and a diagnosis of pedophilia or pedophilic disorder does not
necessarily mean a person has “difficulty controlling that aspect of himself.” In order to
show a person is a sexually violent predator, the diagnosed mental disorder must be
current and there should be current, observable evidence of serious difficulty controlling
behavior.
Although Fisher gave Orey a score of six on the Static-99R, Fisher did not
believe the Static-99R was an accurate assessment tool because it does not take into
account a person’s growth, maturity, or positive changes made through treatment. Orey
had gone through a period from 2009 to 2012 in which he worked diligently in treatment,
and had continued to apply those treatment concepts he had learned.
Fisher concluded that Orey would not be likely to reoffend or engage in
sexually violent predatory behavior in the future and that he no longer has any interest in
molesting a child or fantasies about sex with children. Fisher testified that Orey’s release
plan was complete, comprehensive, and addressed Orey’s treatment needs.
DISCUSSION
I.
Any Error in Admitting the Victim Photographs
into Evidence Was Harmless
Orey challenges the commitment order on the ground the trial court denied
his motion to exclude, and permitted the People to introduce into evidence, three
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photographs: a photograph of El.B. and a photograph of E.B. at age eight (exhibit 72)
and a photograph of C.A. at age nine (exhibit 76). The trial court engaged in an analysis
under Evidence Code section 352 and concluded that exhibits 72 and 76 were relevant to
“whether [Orey] has a diagnosed mental disorder.” The district attorney showed Exhibit
72 to the jury during El.B.’s testimony, showed exhibit 76 to the jury during C.A.’s
testimony, and referred to both exhibits in closing argument.
Orey argues the photographs of El.B. and C.A. were irrelevant to any issue
presented at trial. Exhibits 72 and 76 appear to have had little or no probative value. As
Orey points out, he conceded at trial that he had committed the qualifying offenses. His
own expert testified that before 2005 he had pedophilic disorder and fetishistic disorder.
The victims’ identities and ages at the times of the offenses were not in dispute. Orey’s
knowledge at the time of the offenses that the victims were children was not in dispute.
The primary issue at trial was whether it was likely Orey would continue to engage in
sexually violent criminal behavior if released from custody.
But any error in admitting exhibits 72 and 76 into evidence was harmless.
Error under Evidence Code section 352 is evaluated under the standard of harmless error
set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Marks
(2003) 31 Cal.4th 197, 227; People v. Earp (1999) 20 Cal.4th 826, 878.) Under the
Watson standard, reversal is required only if “it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.”
(Watson, supra, 46 Cal.2d at p. 836.) Only two photographs were admitted. The jurors
certainly knew already what an eight- or nine-year-old girl looked like and had created a
mental image of one without a photograph. As the Attorney General posits, “the
admission of the three photographs would be harmless because the jury would just as
well have visualized a similar image to the ones shown at trial.” It is not reasonably
probable the jury would have reached a result more favorable to Orey if exhibits 72 and
76 had not been admitted into evidence.
17
II.
Orey’s Prison Records and Coalinga State Hospital
Records Were Admissible
A. Background: Admission of Double Hearsay
Orey contends the trial court erred by permitting the People to introduce
into evidence notes made by prison officials between 2002 and 2009 reflecting statements
allegedly made about or by Orey (exhibits 16-19, 22, 24), and notes made by Coalinga
State Hospital staff and various treatment providers that include statements allegedly
made about or by Orey regarding his condition and treatment history (exhibits 32, 34-37,
39-45, 48-49). Orey contends the statements and notes found in the prison records and
Coalinga State Hospital records were inadmissible hearsay and the contents of the records
were not authenticated. He argues that the People did not offer foundational testimony or
other evidence provided by the persons who recorded his statements in order to prove the
veracity of the contents of the records.
Hearsay is “evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter stated.”
(Evid. Code, § 1200, subd. (a).) Public records and business records often contain double
hearsay. Double hearsay is not categorically inadmissible; instead, a double hearsay
statement is admissible if each level of hearsay comes within an exception to the hearsay
rule. (People v. Anderson (2018) 5 Cal.5th 372, 403; People v. Zapien (1993) 4 Cal.4th
929, 951-952.) In People v. Ayers (2005) 125 Cal.App.4th 988, 995, the appellate court
held that a domestic violence organization’s records contained double hearsay: The first
hearsay layer was the victim’s statements to the organization’s employee, and the second
hearsay layer was the employee’s recordation of those statements.
An example of double hearsay in this case would be a prison record in
which a prison staff member has recorded (verbatim or in paraphrase) a statement made
by Orey to the staff member. The first level of hearsay is the statement made by Orey to
18
the prison staff member (if Orey’s statement were offered for its truth). (Evid. Code,
§ 1200, subd. (a).) In that situation, the statement’s probative value depends on Orey’s
credibility. (See People v. Fayed (2020) 9 Cal.5th 147, 169-170.) The second level of
hearsay is the prison staff member’s recordation of Orey’s statement in the prison record.
The public records exception will satisfy the second level of hearsay; that
is, it will obviate the need for the prison staff member to testify about what Orey said or
the staff member’s impression of or thoughts about Orey. The first level of hearsay (if
the statement indeed is hearsay) must come, however, within its own hearsay exception.
(See People v. Ayers, supra, 125 Cal.App.4th at pp. 994-995; Hutton v. Brookside
Hospital (1963) 213 Cal.App.2d 350, 355 [the business records exception “does not make
admissible that which would be inadmissible if it were presented by oral testimony”].)
We therefore undertake a two-step analysis to determine whether the trial
court erred by admitting into evidence statements about or attributed to Orey that were
reported in the prison records and the Coalinga State Hospital records. First, we address
authentication and the second level of hearsay: whether the prison records and Coalinga
State Hospital records were themselves admissible as public records and/or business
records. Second, we address the first level of hearsay: Whether specific statements and
assertions concerning Orey or attributed to him, if hearsay, came within an exception to
the hearsay rule.
B. Two-step Analysis for Considering Double Hearsay
1. Step One—Second Hearsay Level: Authentication, Public Records Exception,
Business Records Exception
“Authentication of a writing is required before it may be received in
evidence.” (Evid. Code, § 1401, subd. (a); see Continental Baking Co. v. Katz (1968) 68
Cal.2d 512, 525 [“Generally speaking, documents must be authenticated in some fashion
before they are admissible in evidence.”].) “Authentication of a writing means (a) the
introduction of evidence sufficient to sustain a finding that it is the writing that the
19
proponent of the evidence claims it is or (b) the establishment of such facts by any other
means provided by law.” (Evid. Code, § 1400.)
Evidence of a writing made by a public employee is not made inadmissible
by the hearsay rule if the writing was made within the scope of the public employee’s
duty, was made at or near the act, condition or event reflected in the writing, and the
sources of information, method, and time of preparation indicate the writing’s
trustworthiness. (Evid. Code, § 1280.) The requirement of trustworthiness may be
established by showing that a written report is based on the observations of a public
employee who has a duty to observe the events and to report and record them accurately.
(People v. George (1994) 30 Cal.App.4th 262, 273-274.) Hospital records, if properly
authenticated, are admissible under the business records exception to the hearsay rule.
(Yates, supra, 25 Cal.App.5th at p. 486; People v. Landau (2016) 246 Cal.App.4th 850,
872, fn. 7.) The business records exception is codified at Evidence Code section 1271.3
“Compliance with a subpoena duces tecum may dispense with the need for a live witness
to establish the business records exception if the records are produced by the custodian or
other qualified witness, together with the affidavit described in Evidence Code section
1561.” (Yates, supra, at p. 486.)
Orey’s prison records and Coalinga State Hospital records were
authenticated and made admissible under the public records exception or the business
records exception to the hearsay rule. To authenticate the records and satisfy the
foundational requirements of Evidence Code sections 1271 or 1280, the district attorney
3 Evidence Code section 1271 states: “Evidence of a writing made as a record of an
act, condition, or event is not made inadmissible by the hearsay rule when offered to
prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of
a business; [¶] (b) The writing was made at or near the time of the act, condition, or
event; [¶] (c) The custodian or other qualified witness testifies to its identity and the
mode of its preparation; and [¶] (d) The sources of information and method and time of
preparation were such as to indicate its trustworthiness.”
20
presented custodian of records declarations from Coalinga State Hospital and the State
Department of Corrections and Rehabilitation. These declarations were admitted into
evidence as exhibits 6 through 13. During trial, the district attorney filed a “People’s
Guide to Custodian Declarations” that contained two tables, one matching each exhibit
with the authenticating custodian of records declaration, and the other matching each
custodian of records declaration with the exhibits it authenticated. According to the
Attorney General, exhibits 6 through 13 identified the prison records and Coalinga State
Hospital records as properly prepared public records and business records under sections
1271 and 1280.
The trial court found that exhibits 6 through 13 were “adequate to admit”
the prison records and the Coalinga State Hospital records under the public records
exception and the business records exception. Orey does not challenge that ruling or
contend exhibits 6 through 13 were inadmissible or failed to satisfy the foundational
requirements of Evidence Code sections 1271 and 1280. The notations on the prison
records and the Coalinga State Hospital records were made by public employees having
an official duty to accurately record statements during the normal course of business,
thereby providing an exception to the second level of hearsay. (People v. George, supra,
30 Cal.App.4th at pp. 273-274.) Testimony by each of these public employers was not
required because the records had been authenticated as public records or business
records. (See People v. Valdez (2011) 201 Cal.App.4th 1429, 1434-1435.)
2. Step Two—First Hearsay Level: Nonhearsay, Party Admission Exception
We next examine each challenged statement in the records to determine
whether the statement was admissible. In so doing it is important consider what is and
what is not hearsay. “‘When evidence that certain words were spoken or written is
admitted to prove that the words were uttered [or written] and not to prove their truth, the
evidence is not hearsay.’” (Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442, 447.)
“For example, suppose A hit B after B said, ‘You’re stupid.’ B’s out-of-court statement
21
asserts that A is stupid. If those words are offered to prove that A is, indeed, stupid, they
constitute hearsay and would be inadmissible unless they fell under a hearsay exception.
However, those same words might be admissible for a nonhearsay purpose: to prove that
A had a motive to assault B. The distinction turns not on the words themselves, but what
they are offered to prove.” (Id. at pp. 447-448.)
Also relevant to this case is the hearsay exception for statements made by a
party opponent (we refer to this as the party admission exception) codified at Evidence
Code section 1220. The party admission exception applies as follows: “The evidence
was of statements, defendant was the declarant, the statements were offered against him,
and he was a party to the action. Accordingly, the hearsay rule does not make the
statements inadmissible.” (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
We conclude that all the challenged statements were admissible:
Exhibit 16. This is a Department of Corrections and Rehabilitation record
called “Condensed Mental Health Assessment & Treatment Setting Transfer.” It
identifies the inmate as Orey and his interview date as September 18, 2002. Orey
challenges a handwritten note on exhibit 16 that he “feels helpless with his problems and
unable to get help.” The challenged passage, to the extent if reflects the note maker’s
impressions, comes within the public records exception. The challenged passage, to the
extent it reflects a statement made by Orey, comes within the party admission exception.
It is clear from the record and the context of the notation that the statement refers to Orey.
Exhibit 17. This is a Department of Corrections and Rehabilitation record
called “Chronological Interdisciplinary Progress Notes.” It identifies Orey as the subject
of the notes. Next to the date October 28, 2002 is this handwritten note: “self-referral [¶]
. . . [Inmate] reports mixture of dream states and being awake when these occur—
scenarios include . . . believing he can fly; dreams of having sex with young children.”
The quoted passage reports statements made by Orey. These statements come within the
party admission exception.
22
Exhibit 18. This is a Department of Corrections and Rehabilitation record
called “Chronological Interdisciplinary Progress Notes.” It identifies Orey as the subject
of the notes. Next to the date May 6, 2003 is this handwritten note: “acknowledges
ongoing urges and fantasies i.e.—pedophilic behaviors—states desire to get help.” The
quoted passage reports statements made by Orey. These statements come within the
party admission exception.
Exhibit 19. This is a Department of Corrections and Rehabilitation record
called “Chronological Interdisciplinary Progress Notes.” It identifies Orey as the subject
of the notes. Next to the date March 24, 2005 is this handwritten note: “Self-Referral
[¶] S—‘I’m having anxiety attacks. My uncle had liver cancer surgery yesterday.’ [¶] Is
terrified that he will reoffend. Is plagued by sexual fantasies of molesting children. He is
terrified of hurting another child. [¶] Feels alone & abandoned by his fellows in the
Jehova[h’s] Witnesses & Celebrate Recovery. [¶] O. Tearful, genuinely anxious and
remorseful ⁓ his sexual addiction/illness. Very pessimistic ⁓ the future. Feels shunned
by the world, an exile. Feels exhausted or ‘too awake.’” The note is signed by G.
Savage, Ph.D., clinical psychologist. The quoted passage reports both the note maker’s
impressions and statements made by Orey. The note maker’s impressions come within
the public records exception or business records exception. The statements made by
Orey come within the party admission exception.
Exhibit 22. This is a Department of Corrections and Rehabilitation record
called “Chronological Interdisciplinary Progress Notes.” It identifies Orey as the subject
of the notes. Next to the date August 9, 2006 is a handwritten note stating, in part:
“Inmate reports he has little hope. He described compulsive pe[do]philia and said they
are not going to let him ever live a free life in society.” The quoted passage, to the end of
the word “pedophilia,” comes within the party admission exception. The rest of the
quoted passage is not hearsay because it would not have been offered for the truth of the
statement.
23
Exhibit 24. This is a Department of Corrections and Rehabilitation record
called “Chronological Interdisciplinary Progress Notes.” It identifies Orey as the subject
of the notes and bears a date of March 10, 2009. Handwritten notes state, in part:
“[Inmate] gives history of growing up in alcoholic family, he has troubled relationships ͞c
his family, was ‘heavy into drugs’, especially meth, LSD and MJ. He was not treated for
ADD as a child, in part, because his mother’s involvement ͞c Jehovah’s Witnesses.
[Inmate] expresses both strong spirituality and pedophilic fantasies ͞c strong
impulsivity. . . . No psych meds. M.S.E. alert oriented x3, cooperative, expresses good
motivation for treatment but is in [illegible] beds where no privacy to study relevant
workbooks ͞s being exposed.” The note is signed by A.S. Abrams, M.D., psychiatrist.
The quoted passage reports both the note maker’s impressions and statements made by
Orey. The note maker’s impressions come within the public records exception or
business records exception. The statements made by Orey come within the party
admission exception.
Exhibit 32. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date June 21, 2012 are handwritten
notes stating: “Team met ͞c Mr. Orey to inform him of his transfer to unit 8, he stated, ‘no
I’m not going.’ He became aggressive and angry ‘you do what you have to do.’ Mr.
Orey is being transferred due to multiple medical complaints which RRV can not [sic]
provide. Team recommends ICF for increased monitoring/providing medical attention.”
The quoted passage reports both matters within the note maker’s personal knowledge
(e.g., the team met with Orey), the note maker’s impressions (Orey became “aggressive
and angry”), and statements made by Orey. Matters within the note maker’s personal
knowledge and the note maker’s impressions come within the public records exception or
business records exception. The statements made by Orey come within the party
admission exception or do not constitute hearsay.
24
Exhibit 34. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. There is an entry for September 14, 2012 at
11:35 a.m. that “Ind was seen coming up front stairway while unit was down in courtyard
during fire drill. His level placed on hold.” The entry is signed by D. Scott. The notes
reflect matters within the note maker’s personal knowledge and come within the public
records exception or business records exception.
Exhibit 35. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date September 14, 2012 are lengthy
handwritten notes concerning breaches of protocol and discipline issues. The notes
reflect that Orey wandered off his level while it was on hold during a drill. When
confronted, Orey said, “‘As far as I’m concerned I was kidnapped in March 2011 and this
is none of your business’” and “‘[i]t’s too late for you to work with me.’” When told it
would be easier for him to accept the fact he had been committed to the hospital, Orey
stated, “‘I’m not going to stop trying to get what I need . . . I will continue to do what I
want, do my program . . . I owe you nothing.’” The statements made by Orey either are
not hearsay because they were not offered for their truth (“I was kidnapped in March
2011”) or come within the party admission exception.
Exhibit 36. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date January 29, 2013 are
handwritten notes stating, in part: “Monthly Tx team meeting with team psychologist,
R.N., RT, CSN, PT. Mr. Orey did not attend, although invited. He has not attended team
in many months. Plan updated per chart review and team member input.” The quoted
passage reflects matters within the note maker’s personal knowledge and therefore comes
within the public records exception or business records exception.
Exhibit 37. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date May 6, 2013 at 22:42 is an
entry stating, in part: “At approx. 11[:]15 Patient did not return back to unit for the
25
11[:]30 Actual Count time (unauthorized movement). Patient was located in the mall
area participating in a patient protest. Staff members went to the mall area to account for
patient and to observe and monitor behavior.” The note is signed by Samantha Amaro,
PT. The quoted passage reflects matters within the note maker’s personal knowledge and
comes within the public records exception or business records exception.
Exhibit 39. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date April 21, 2014 at 12:44 p.m. is
an entry stating, in part: “Patient Participated in a sit down protest located in the Mall
area at 11[:]00 count on 4/17/14. Unit 6 and patients are protesting for the removal of a
specific staff member from being assigned to the unit.” The note is signed by James
Walter, nursing coordinator. The quoted passage reflects matters within the note maker’s
personal knowledge and therefore comes within the public records exception or business
records exception.
Exhibit 40. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date June 23, 2014 are handwritten
notes reporting that Orey had failed to attend a monthly team meeting, was still not
enrolled in any groups, and “remains aloof from staff and team.” The quoted passage
reflects matters within the note maker’s personal knowledge, including the note maker’s
impression of Orey (“remains aloof . . .”) and therefore comes within the public records
exception or business records exception.
Exhibit 41. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date July 23, 2014 are handwritten
notes reporting that Orey was found to have possession of a DVD belonging to another
patient. Next to the date July 24, 2014 are handwritten notes reporting that Orey had
failed to attend a team meeting. The notes reflect matters within the note maker’s
personal knowledge and therefore come within the public records exception or business
records exception.
26
Exhibit 42. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date July 24, 2014 are handwritten
notes stating in part: “Mr. Orey remains adamantly opposed to treatment and continues
to pursue his claims through legal means. He has not approached CSW for services and
usually remains aloof from staff and team.” Although the note does not expressly say
that Orey made a statement that he was “adamantly opposed to treatment” it is clear from
context that the note is reporting that Orey made such statement. Thus, that part of the
note comes within the party admission exception. The rest of the note comes within the
public records exception or business records exception.
Exhibit 43. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the dates February 24 and 25, 2016 are
notes reporting that Orey removed food from the “PDR” and his level was going to be
placed on hold. Next to the date February 26, 2016 are handwritten notes reporting that
Orey had stated, “‘so I brought food back so now I’m in trouble. I’m a bad guy trying to
get by. I understand the need for rules. You have this big expensive hospital but all the
people inside are empty. I’m a program failure as far as you guys are concerned. I’m
just a person that fills up one of the beds don’t ever think you can help me.’” The quoted
passage, “‘I’m a program failure as far as you guys are concerned’” comes within the
party admission exception. The rest of the quoted material is not hearsay because it
would not have been offered for the truth of the matter stated. It was not relevant
whether or not Coalinga State Hospital was in fact big and expensive, whether or not the
people inside are empty, whether or not Orey just filled a bed, and whether or not hospital
staff could help him. What was relevant was that Orey had made those statements. The
credibility of the note maker in accurately recording what Orey said, and not Orey’s
credibility in making assertions of fact, is the critical issue.
Exhibit 44. This a Coalinga State Hospital record called “Social Work
Progress Note.” It identifies Orey as the patient. Next to the date August 18, 2016 is an
27
entry reporting an incident in which Orey had asked his social worker to make a phone
call to his attorney. The social worker had asked Orey to complete a form allowing her to
do so; Orey returned with a tampered form. When the social worker asked Orey to
properly complete the form, he replied “‘I can do whatever I want!’” The social worker
told Orey the phone call would not be made. He tore the form into pieces and walked
away while saying “‘he had rights.’” The note is signed by Jennifer Voss, CSW. The
note reports both matters within the note maker’s personal knowledge and statements
made by Orey. The matters within the note maker’s personal knowledge come within the
public records exception or business records exception. The statements made by Orey
are not hearsay because they would not have been offered for the truth of the matter
stated, e.g., that Orey in fact could do whatever he wanted.
Exhibit 45. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to the date January 21, 2017 is a
handwritten note stating, in part: “Patient approached this writer stating ‘I want you to
put what I’m saying in my chart, all the patients get their medical needs met, do I have to
throw chairs and act up because that[’s] what works around here and I want a complaint
form.’” The note reports both matters within the note maker’s personal knowledge and
statements made by Orey. The matters within the note maker’s personal knowledge are
come within the public records exception or business records exception. The statements
made by Orey are nonhearsay because they would not have been offered for the truth of
the matter stated, e.g., that Orey in fact had to throw chairs and act up to have his medical
needs met.
Exhibit 48. This a Coalinga State Hospital record called “Social Work
Progress Note.” It identifies Orey as the patient. Next to the date April 19, 2017 are
handwritten notes reporting an incident in which a social worker saw Orey taking
headphones from another patient. When asked what was going on, Orey said the
headphones were his and he was taking them back. The other patient said that Orey had
28
agreed to give him the headphones in exchange for two sodas. When the social worker
reminded Orey of the policy against bartering, he replied he did not care about hospital
policy and “‘I did not ask to be here.’” The note reports both matters within the note
maker’s personal knowledge and statements made by Orey. The matters within the note
maker’s personal knowledge come within the public records exception or business
records exception. The statement made by Orey that he did not care about hospital rules
comes within the party admission exception. Orey’s statement that he did not ask to be at
the hospital is not hearsay.
Exhibit 49. This a Coalinga State Hospital record called “Interdisciplinary
Notes.” It identifies Orey as the patient. Next to a date in March 2018 (the date is cut
off) there is an entry reporting an incident in which Orey was seen in the quiet room
looking at a tablet computer. Staff asked to see the tablet to make sure it was not
contraband. Orey refused the request and stated, “‘I’m standing up for my rights, you
need a [search] warrant these are my rights I have not done anything wrong, you are
violating my rights and I am going to be the first one to stand up for my rights.’” Orey’s
person and room were searched and a wireless keyboard and wireless mouse were found.
The note reports both matters within the note maker’s personal knowledge and statements
made by Orey. The matters within the note maker’s personal knowledge come within the
public records exception or business records exception. The quoted statements made by
Orey are not hearsay because they would not have been offered for the truth of the matter
stated, e.g., the hospital did in fact need a search warrant and was violating Orey’s rights.
C. Admission of the Prison Records and Hospital Records Did Not Violate Orey’s Due
Process Rights
Orey argues that admission of the prison records and Coalinga State
Hospital records violated his due process rights because he could not confront and
cross-examine the authors of the notes and entries. We conclude otherwise.
29
In civil proceedings, including proceedings under the SVPA, the right to
confront and cross-examine witnesses is found in the due process clauses of the federal
and state constitutions. (People v. Otto (2001) 26 Cal.4th 200, 214 (Otto).) Due process
under the SVPA is measured by the standard applicable to civil, not criminal,
proceedings (People v. Fulcher (2006) 136 Cal.App.4th 41, 55), which means the
procedure must comport with fundamental principles of fairness and decency (Murillo v.
Superior Court (2006) 143 Cal.App.4th 730, 738). More specifically, under the SVPA,
“hearsay statements must contain special indicia of reliability to satisfy due process.”
(Otto, supra, at p. 210 [victim’s hearsay statement].)
The prison records and the Coalinga State Hospital records bear indicia of
reliability sufficient to satisfy due process. The records were public records authenticated
by custodian of record declarations. The notes and entries contained in the records were
made by public employees in the course their official duties or by medical professionals
in their course of assessing and treating Orey. Several statements in the records, such as
Orey’s refusal to participate in treatment starting in 2012, were corroborated by other
evidence. The trial court had the discretion to exclude unreliable hearsay under Evidence
Code section 352, “which acted as a further safeguard against any due process violation.”
(Otto, supra, 26 Cal.4th at p. 214.) Orey had the opportunity to present his own experts
and to cross-examine the People’s experts. (Ibid.)
In addition, the Civil Discovery Act applies to SVPA proceedings. (People
v. Landau (2013) 214 Cal.App.4th 1, 25 (Landau).) Orey therefore could have exercised
his right to confront and cross-examine witnesses by deposing the authors of the notes
and entries in the prison records and Coalinga State Hospital Records and, if necessary
and permitted, using the deposition transcripts at trial. (People v. Fulcher, supra, 136
Cal.App.4th at p. 56; People v. Angulo (2005) 129 Cal.App.4th 1349, 1368; see Code
Civ. Proc., §§ 2025.010, 2025.620.) Other forms of discovery could have been used to
learn an author’s name if it were illegible or not disclosed in the record.
30
D. Admission of the Prison Records and Coalinga State Hospital Records Did Not
Violate Evidence Code Section 352
Orey argues the admission of the prison records and Coalinga State
Hospital records violated Evidence Code section 352. We disagree.
Evidence Code section 352 grants the trial court discretion to exclude
relevant evidence if “its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid.
Code, § 352.) The prejudice referred to in section 352 means the evidence tends to evoke
an emotional bias against the defendant as an individual and has little effect on the issues.
(People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
The prison records and Coalinga State Hospital records were highly
probative of the issues at trial, in particular, whether after 2005 there was a substantial
risk that Orey would engage in sexually violent criminal behavior. Nothing in the
appellate record suggests that admission of Orey’s records used up an undue amount of
time. The information in the records was not more inflammatory than other evidence of
Orey’s behavior and therefore would not have evoked an emotional bias against Orey. In
addition, Orey requested redactions in the records and his requests were granted. The
information in the records was so closely aligned with the issues at trial that there was
little if any chance they would have confused or misled the jury.
III.
Substantial Evidence Supports the Order of Commitment
Orey argues substantial evidence does not support a finding that he
qualified for commitment as a sexually violent predator pursuant to the SVPA. The
appellate court reviews the sufficiency of the evidence in SVPA cases under the same
substantial evidence test used in criminal appeals. (People v. McCloud (2013) 213
Cal.App.4th 1076, 1088 (McCloud).) “In assessing the sufficiency of the evidence, we
31
review the entire record in the light most favorable to the judgment to determine whether
it discloses evidence that is reasonable, credible, and of solid value such that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Bolin
(1998) 18 Cal.4th 297, 331.) Reversal for insufficiency of the evidence is warranted only
if it appears that “‘upon no hypothesis whatever is there sufficient substantial evidence to
support [the judgment].’” (Ibid.)
To establish that Orey is a sexually violent predator, the People had the
burden of proving (1) Orey had been convicted of at least one qualifying sexually violent
offense, (2) he has a diagnosed mental disorder that makes him a danger to the health and
safety of others, and (3) his diagnosed mental disorder makes it likely he will engage in
sexually violent criminal behavior in the future. Orey does not challenge the sufficiency
of the evidence supporting element one and the sufficiency of the evidence supporting a
finding that he once had the requisite diagnosed medical disorder. He argues the
evidence was insufficient to show that, at the time of trial, his diagnosed medical
disorders made him a danger to the health and safety of others and made it likely he
would engage in future acts of sexually violent behavior. Orey contends the evaluations
prepared by Patterson and Malhotra and their testimony do not constitute substantial
evidence on those issues because their opinions were not supported by evidence of actual
current and future threat of sexually violent behavior. Instead, Orey argues, their
testimony and evaluations were based solely on their belief that because he had qualified
as a sexually violent predator between 1995 and 2005, he remains one today.
Based on the evidence presented at trial, a rational jury could have found
that Orey was, as of that time, a sexually violent predator under the SVPA. (Jackson v.
Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576.)
Both Patterson and Malhotra concluded that Orey suffered from pedophilic disorder,
fetishistic disorder, and various substance abuse disorders. Patterson interviewed Orey in
2011 and concluded Orey was a sexually violent predator at that time. In the 2011
32
interview, Orey said his sexual fantasies about prepubescent children were “ongoing,” he
preferred girls under the age of 10, he liked to masturbate with girls underwear, and he
would benefit from treatment. Patterson prepared evaluations of Orey in 2011, 2013,
2016, 2017, and 2018. In each evaluation, and in testifying at trial, Patterson reached the
same conclusion: Orey was, and continued to be, a sexually violent predator. Malhotra
prepared an evaluation of Orey in 2018 and, in that evaluation and in testifying at trial,
likewise reached the conclusion that Orey was a sexually violent predator.
Patterson testified that pedophilic disorder tends to be a lifelong condition,
and Malhotra testified that pedophilia is generally thought to be lifelong. The jury was
entitled to accept this testimony and reject Abbott’s and Fisher’s testimony to the
contrary. (People v. Carter (1961) 56 Cal.2d 549, 560 [“it was for the jury to resolve the
conflicts in the expert testimony, accepting such of it, or none of it, as they saw fit”];
People v. Mercer (1999) 70 Cal.App.4th 463, 466 [credibility of experts and their
conclusions is for trier of fact to resolve].)
Patterson and Malhotra based their conclusions that Orey likely would
engage in future acts of sexually violent criminal behavior on several factors, not just the
chronic nature of pedophilic disorder or pedophilia. First, his scores on the Static-99R
and Static-2002 at the time of trial placed Orey in the highest risk group of offenders, and
Orey’s score on the SORAG and VRAG placed him in the moderately high-risk group.
Patterson determined that Orey had no “protective factors” (such as advanced age) that
might reduce the level of risk; Malhotra found that Orey has all five dynamic risk factors
found to have significant value in predicting risk.
Second, both Patterson and Malhotra considered the prison records and
Coalinga State Hospital records, which we have concluded were properly admitted into
evidence, in reaching their conclusions.4 Prison records show that in August 2006 Orey
4 Patterson and Malhotra were permitted to rely on, and testify to the contents of, the
prison records and the Coalinga State Hospital records because those records, and Orey’s
33
reported having compulsive pedophilia and in March 2009 he reported having pedophilic
fantasies. The Coalinga State Hospital records show that from June 21, 2012 (the date of
the note on exhibit 32) to March 2018 (the date of the note on exhibit 49) Orey engaged
in several acts of unruly and aggressive behavior, violated hospital rules, would not
accept the fact of being committed, and did not attend team meetings. Patterson
considered Orey’s poor performance while under supervision at Coalinga State Hospital
and concluded that Orey has “demonstrated that he has not been able to manage his
behavior . . . despite treatment and despite punishment.”
The most significant fact gleaned from the Coalinga State Hospital records
is that Orey refused treatment and considered himself “‘a program failure.’” Malhotra
described Orey as “generally anti-treatment.” Although Orey had told Patterson in 2011
that he would participate in treatment, he declined treatment after 2012. The parties
stipulated that Orey declined further treatment starting in 2012, and Coalinga State
Hospital records confirm the veracity of this stipulation. An SVPA defendant’s refusal to
participate in any phase of treatment supports a finding that the defendant would not be
able to control his dangerous behavior by voluntary means if released into the
community. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 929; People v.
Sumahit (2005) 128 Cal.App.4th 347, 354-355 (Sumahit).)
It is also significant that Orey refused to meet with Patterson after 2011 and
declined to come to the telephone to speak with Malhotra, but did allow himself to be
interviewed by Fisher in 2019. “[W]e cannot overlook the significance of defendant’s
refusal to be interviewed by either of the state’s experts. The law has a strong interest in
seeing to it that litigants do not manipulate the system, especially where to hold otherwise
would permit them to ‘“trifle with the courts.”’ [Citations.] Here, defendant fully
cooperated with his own psychologist, while denying the People’s doctors the
statements reflected in them, had been properly received in evidence. (People v. Sanchez
(2016) 63 Cal.4th 665, 686; People v. Burroughs (2016) 6 Cal.App.5th 378, 407.)
34
opportunity to interview him . . . . A sex offender cannot deny the state access to the
workings of his mind and then claim a lack of proof that he has a ‘current’ psychological
disorder. Because he refused to be interviewed by the state’s experts, who could have
formed an opinion as to his present dangerousness, defendant has forfeited the claim that
the state did not prove that he was currently dangerous.” (Sumahit, supra, 128
Cal.App.4th at pp. 353-354, fn. omitted.) Although we decline to find that Orey
completely forfeited his contention that the People had failed to prove he is currently
dangerous, Orey’s refusal to meet with Patterson and Malhotra constitutes evidence that
Orey remained a sexually violent predator at the time of trial.
Orey argues the Coalinga State Hospital records “included nothing that
would suggest he was currently acting out” his pedophilic and fetishistic desires, and
points out that Malhotra “conceded that there were no outward manifestations of [Orey]’s
disorders while he ha[s] been confined at [Coalinga State Hospital].” That is to be
expected: “The fact that defendant has not misbehaved in a strictly controlled hospital
environment does not prove he no longer suffers from a mental disorder that poses a
danger to others. Defendant has an abnormal attraction to female children. Because he
currently lacks access to children, his lack of outward signs of sexual deviance is not
dispositive of whether he is likely to reoffend if released into society at large. Such an
assessment must include consideration of his past behavior, his attitude toward treatment
and other risk factors applicable to the facts of his case.” (Sumahit, supra, 128
Cal.App.4th at p. 353.)
IV.
Denial of Orey’s Marsden Motions Was Not Erroneous
A. The Marsden Motions and Hearings
On three or four occasions before trial commenced, Orey moved, under
Marsden, supra, 2 Cal.3d at page 118, for the discharge of his appointed counsel and for
35
appointment of other counsel to represent him. We refer to these as Marsden motions.
He argues the trial court erred by denying these motions, both individually and
collectively.
1. First Marsden Motion, October 19, 2018
Orey’s first Marsden motion was heard before Judge Prickett on October
19, 2018. Orey was represented by Denise Crawford of the office of the Orange County
Public Defender. She represented Orey through trial.
Orey stated he was not asking for substitution of counsel, but removal of
the entire public defender’s office, as well as the district attorney and the judge. He
objected to any substitute counsel who would not file a motion to dismiss the SVPA
petition pursuant to People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36(Vasquez)5 and People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon).6 Orey argued
5 In Vasquez, a person was detained in state hospitals for over 17 years while awaiting
a trial on an SVPA commitment petition. (Vasquez, supra, 27 Cal.App.5th at p. 40.)
After 16 years, the trial court granted the detainee’s motion to relieve the public
defender’s office as counsel and appointed a bar panel attorney to represent him. (Id. at
p. 41.) Eight months later, the detainee’s new counsel filed a motion to dismiss the
SVPA petition for violation of the detainee’s due process right to a speedy trial. (Ibid.)
The trial court granted the motion, and the Court of Appeal upheld the dismissal.
(Vasquez, supra, 27 Cal.App.5th at p. 41.) The appellate court concluded that although a
substantial portion of the delay resulted from the failure of individual appointed attorneys
to move the case forward, “the extraordinary length of the delay resulted from ‘a
systemic “breakdown in the public defender system,”’ and must be attributed the state.”
(Ibid.) The detainee had never objected to the many continuances of the trial date but had
told his attorney he wanted to go to trial. (Id. at p. 62.) Although the extreme length of
the delay in bringing the SVPA petition to trial (17 years) was not dispositive, it was
significant that dramatic staffing cuts in the public defender’s office was a cause of a
substantial amount of the delay. (Id. at pp. 69, 77.) In addition, “the trial court failed
Vasquez” by not considering whether to remove the public defender’s office. (Id. at
p. 77.)
6 In Litmon, the detained person was found by a jury to be a sexually violent predatory
and was committed for a two-year period. (Litmon, supra, 162 Cal.App.4th at p. 390.)
Several recommitment petitions were filed well-past the end of the two-year commitment
36
that he had “sat at the hospital there at Coalinga State Hospital for eight years without a
trial,” the only reason why the matter was proceeding was Vasquez, and had Vasquez not
been issued, “I would still be sitting at Coalinga.” Orey claimed his due process right to
“a timely trial” had been violated, his counsel was not prepared for trial and had failed to
give him his case records, and the due process violations were being covered up by
“rushing me into trial unprepared.”
Crawford explained that she had tried to bring Orey his records but that he
had not appeared for the visit. Crawford stated she believed she would be prepared for
trial in January 2019 and would need at least 20 hours of consulting with Orey to prepare.
Crawford stated she did not intend to bring a speedy trial (Vasquez) motion. Orey stated
that waiting eight years for trial was “ridiculous” and counsel’s refusal to bring a speedy
trial motion created a conflict of interest.
Judge Prickett confirmed that Crawford would be able to prepare for trial
by speaking with Orey by telephone and that Orey would take her telephone calls. Judge
Prickett denied the Marsden motion.
period and a two-year recommitment period. (Id. at pp. 390-391.) The recommitment
petitions were consolidated for trial. (Id. at p. 391.) At a hearing conducted nearly two
years after the end of the recommitment period, the detainee’s counsel told the court the
detainee did not want to delay the case and requested a trial be set for the following week.
(Id. at p. 392.) The trial court continued the matter for eight months because the district
attorney had scheduling conflicts and wanted to get updated evaluations. (Ibid.)
The detainee filed a motion to dismiss the petition based on a violation of his due
process rights. (Litmon, supra, 162 Cal.App.4th at p. 392.) After the trial court denied
that motion, and just before the trial date, the district attorney moved to continue the trial
for two more months because he had learned his witnesses were scheduled to testify in
other cases. The trial court denied the motion to dismiss and granted the requested
continuance. (Id. at p. 394.) The Court of Appeal reversed. Although the eight-month
continuance appeared to comport with due process, the two-month continuance could not
be reconciled with due process given the detainee’s “complete loss of liberty” while
awaiting trial. (Id. at p. 404-406.)
37
2. Second Marsden Motion, January 17, 2019
Orey’s second Marsden motion was heard on January 17, 2019 before
Judge Makino. Orey made the claim that his counsel, Crawford, had divulged information
about his case to other patients at Coalinga State Hospital. Orey said that a patient named
Rick Kelly had talked in front of other patients and staff about Orey’s case and had posted
information on a website. According to Orey, Kelly had spoken with Crawford by
telephone.
Orey again argued that his counsel’s refusal to bring a motion to dismiss
pursuant to Vasquez and Litmon created a conflict of interest. He claimed his case was
being delayed over his objection and asserted that counsel would be lying if she claimed
otherwise. He also complained that he had had “eight separate attorneys” and that
attorneys simply “dropped off the map” without notifying him. Orey claimed that
Crawford had told him she would not file a Vasquez motion because “that would require
her to indicate that her coworkers didn’t do their job and she couldn’t do that,” Crawford
had ignored his “liberty interest in getting out of here,” Coalinga State Hospital had
falsified his records and Crawford had done nothing about it, and Crawford should have
sought to disqualify Malhotra as an evaluator.
Judge Makino asked Crawford whether Orey had objected to any trial
continuances. She replied that, since the hearing on the first Marsden motion, there had
been one trial setting. Orey was not present at the trial setting because at the hearing on
the first Marsden motion he had requested to be returned to Coalinga State Hospital and
not to be transported to Orange County for the next hearing.
Judge Makino denied Orey’s second Marsden motion on the ground there
had been no showing that counsel’s performance was deficient.
3. Written Marsden Motion, February 11, 2019
Orey submitted a written Marsden motion dated February 11, 2019. He
claimed a new conflict of interest with the public defender’s office had arisen because he
38
had given notice to the public defender “and his subordinates” that “he is and will sue
them for professional negligence in the[ir] handling and moving the case forward.” In a
notice of intent to sue, directed to the public defender, Orey wrote: “Your office has had
my case for 8 years. Your policies of rotating attorneys, unavailable expert funds and
other issues brought up in the recent Marsden motions I have filed demonstrate this
claim.”
4. Fourth Marsden Motion, March 1, 2019
A hearing on Orey’s Marsden motion was conducted on March 1, 2019 by
Judge Pham. (Whether this was a hearing on Orey’s written Marsden motion or a fourth
Marsden motion is not clear from the record.) Orey said he had a letter informing the
court that he intended to sue the public defender’s office on the ground his right to a
timely trial had been violated as he awaited trial for the past eight years. He claimed to
have had a “series of attorneys” and to have never been told why his attorneys were
“rotating out.”
Crawford stated that Orey had made the same claim in his prior Marsden
motions and explained why Orey had had several attorneys represent him and the reasons
for the delay in getting to trial. Orey’s first attorney was involved in representing him in
a motion to dismiss the SVPA petition and subsequent petition for writ of mandate
proceeding that culminated in a published opinion, Orey v. Superior Court (2013) 213
Cal.App.4th 1241. Orey had been informed of and had agreed to each step of the motion
to dismiss and writ of mandate proceedings. Orey’s next attorney had discussed many
times with Orey the status of the case and ability to go to trial. Counsel was preparing
the case for trial, but Orey did not want to go to trial and stopped communicating with
counsel, refused her visits, and would not cooperate in trial preparation. Crawford stated,
“the issue that arose from my review of the file was Mr. Orey’s adamant desire not to go
to trial.” When that counsel retired, Crawford replaced her on the case.
39
When Crawford first started work on the case, she asked Orey if he wanted
to go to trial. He told her he did not want to go to trial and had been frustrated with prior
counsel because she had pushed him to go to trial. Orey also was suffering back pain that
was so severe he did not even want to discuss trial. Crawford eventually told Orey that it
was necessary to prepare for trial. There were times when Orey did not want to
communicate with Crawford, but they were able to continue the attorney-client
relationship, he still worked with her, and trial preparation was going well.
Judge Pham asked Orey if he had told his counsel that he did not want to go
to trial. Orey responded by saying, “I’ve always said from the beginning that the stance
should be the abuse of the law and the abuse of the science and not trial” and “trial was
not the answer.” He claimed that a motion or writ petition challenging the legal and
scientific soundness of the SVPA itself (“against the abuse of the law or the abuse of the
science”) was “the way to go.” He argued, based on Vasquez, that the entire public
defender’s office should be disqualified from representing him.
Judge Pham stated that Orey had provided no reason to relieve Crawford
from representing him and that doing so would be detrimental to him because it would
cause another delay in starting trial. In response, Orey said he was not troubled by trial
delay because, he claimed, under Vasquez the appropriate relief for violation of his due
process rights was dismissal, not trial. Judge Pham denied the Marsden motion.
B. Background Law
An indigent person subject to a commitment petition under the SVPA has a
statutory right to the appointment of counsel. (§ 6603, subd. (a).) Although the Sixth
Amendment right to counsel does not apply to such civil commitment proceedings, a
defendant has a due process right to the effective assistance of counsel, and thus the right
to make Marsden motions to discharge his or her appointed counsel. (People v. Hill
(2013) 219 Cal.App.4th 646, 652.)
40
“‘A defendant is entitled to have appointed counsel discharged upon a
showing that counsel is not providing adequate representation or that counsel and
defendant have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result.’” (People v. Panah (2005) 35 Cal.4th 395, 431.) We
review the trial court’s denial of defendant’s Marsden motion under the abuse of
discretion standard. (Ibid.) Denial of a Marsden motion is not abuse of discretion unless
the defendant has shown that a failure to replace the appointed attorney would
substantially impair the defendant’s right to assistance of counsel. (People v. Hart (1999)
20 Cal.4th 546, 603.)
“‘[A] Marsden hearing is not a full-blown adversarial proceeding, but an
informal hearing in which the court ascertains the nature of the defendant’s allegations
regarding the defects in counsel’s representation and decides whether the allegations have
sufficient substance to warrant counsel’s replacement.’” (People v. Alfaro 2007) 41
Cal.4th 1277, 1320.) A Marsden hearing provides the defendant a confidential forum in
which to present complaints about counsel’s performance (Marsden, supra, 2 Cal.3d at
p. 126) and provides appointed counsel the opportunity to address the defendant’s
concerns and to explain counsel’s performance (People v. Horton (1995) 11 Cal.4th
1068, 1123). Although the trial court must afford the defendant the opportunity to
express specific reasons why he believes he is not being adequately represented, the court
is not required to accept defendant’s assertions of inadequate representation. (People v.
Vera (2004) 122 Cal.App.4th 970, 979-980.)
C. Orey Failed to Show Inadequate Representation or an Irreconcilable Conflict
Orey argues that Crawford, and the entire public defender’s office,
provided inadequate representation, and that he and counsel had become embroiled in an
irreconcilable conflict, in three respects: (1) counsel had refused to file a motion to
dismiss the SVPA petition pursuant to Vasquez and Litmon; (2) he had provided notice of
his intent to sue the public defender for the failure to bring a motion to dismiss; and
41
(3) counsel had broken confidentiality, was not “attending to the violation of his rights at
[Coalinga State Hospital],” was not allowing him to attend hearings, and “was not
operating in his best interest.”
As to Orey’s first point, counsel’s decision not to file a motion to dismiss
the SVPA petition pursuant to Vasquez and Litmon was essentially a tactical decision,
and “‘[t]actical disagreements between the defendant and his attorney do not by
themselves constitute an ‘irreconcilable conflict.’” (People v. Welch (1999) 20 Cal.4th
701, 728-729.) “A defendant does not have the right to present a defense of his own
choosing, but merely the right to an adequate and competent defense.” (Ibid.) “When a
defendant chooses to be represented by professional counsel, that counsel is ‘captain of
the ship’ and can make all but a few fundamental decisions for the defendant.” (People v.
Carpenter (1997) 15 Cal. 4th 312, 376.)
Whether a motion to dismiss the SVPA petition pursuant to Vasquez and
Litmon would or would not have been successful is not an issue we need decide. It is
sufficient that Crawford’s explanation for the tactical decision not to file such a motion
demonstrated that Orey was receiving adequate representation and that no irreconcilable
conflict had arisen. At the hearing on March 1, 2019, Crawford related the history of the
case and explained why neither she nor Orey’s prior counsel had not brought a motion to
dismiss the SVPA petition. Of the eight years that had elapsed since that petition was
filed, two full years had been spent pursuing the motion to dismiss and petition for writ of
mandate proceedings that had culminated in Orey v. Superior Court, supra, 213
Cal.App.4th 1241, an opinion filed on February 19, 2013. On our own motion, we take
judicial notice of the fact that Orey filed a petition for review of that opinion, the
Supreme Court denied the petition, and remittitur was issued on May 23, 2013. (Evid.
Code, §§ 452, subd. (d), 452.5, subd. (a), 459, subd. (a).)
Crawford explained that three attorneys from the public defender’s office,
not eight as Orey claimed, had been primarily responsible for representing Orey. The
42
first attorney represented him through the writ of mandate proceedings. The second
appointed attorney was preparing the case for trial but her relationship with Orey broke
down because he did not want to go to trial, stopped communicating with counsel, and
would not cooperate in trial preparation. When Crawford took over the case, Orey
confirmed his desire not to go to trial. At the March 1, 2019 hearing, Orey expressed his
desire not to go to trial because “trial was not the answer.” Counsel’s explanation
supports a finding that any delay in bringing the SVPA petition to trial was not the result
of “‘a systemic “breakdown in the public defender system”’” (Vasquez, supra, 27
Cal.App.5th at p. 41) or any dereliction of duty by the trial court (id. at p. 77). If there
were any conflict in credibility between Crawford and Orey, the trial court was entitled to
accept Crawford’s explanation. (People v. Smith (1993) 6 Cal.4th 684, 696.)
Other distinctions between Orey’s case and Vasquez and Litmon further
demonstrate that Orey received adequate representation. Although the length of delay is
not dispositive, it is significant that the delay in Vasquez was 17 years, over twice the
eight-year period of time between the filing of the SVPA petition against Orey and the
trial. (See Vasquez, supra, 27 Cal.App.5th at p. 40.) In Litmon, the Court of Appeal’s
decision was based on a two-month continuance that was granted solely to accommodate
the People’s witness and after the detainee had brought a motion to dismiss the SVPA
petition based on a violation of his due process rights. (Litmon, supra, 162 Cal.App.4th
at pp. 404-406.) No such continuances were sought or granted in Orey’s case.
As to Orey’s second point, Orey’s notice of intent to sue the public
defender’s office did not ipso facto create a conflict of interest justifying appointment of
new counsel. It was within the trial court’s discretion to determine whether Orey’s threat
was serious and justified, or simply an attempt to “manufacture a possible conflict of
interest.” (People v. Hardy (1992) 2 Cal.4th 86, 138; see People v. Horton, supra, 11
Cal.4th at p. 1106 [trial court has discretion to determine whether the filing of a
malpractice lawsuit against appointed counsel created an actual conflict of interest
43
requiring withdrawal of appointed counsel]; People v. Smith, supra, 6 Cal.4th 684, 696
[“a defendant may not force the substitution of counsel by his own conduct that
manufactures a conflict”].)
As to Orey’s third point, the trial court was not required to accept Orey’s
assertion that counsel had divulged confidences, was not looking into alleged violations
of his rights at Coalinga State Hospital, and was not permitting him to attend hearings.
These asserted transgressions, even if true or believed by Orey to be true, did not cause
an irreconcilable breakdown in the relationship between him and Crawford. At the
March 1, 2019 hearing, Orey said he would allow Crawford to continue representing him
if she were to “quit her job at the Public Defender’s office and start her own private
practice.” Crawford said she would be able to continue the attorney-client relationship,
she and Orey had discussed trial preparation, which was going well, and Orey was
“cooperative and helpful” during their meetings.
In sum, Orey failed in each of Marsden motions to show his appointed
counsel was not providing adequate representation or he and counsel had become
embroiled in an irreconcilable conflict that likely would result in ineffective
representation. The trial court did not err by denying the motions.
V.
The Trial Court Did Not Err by Denying
Orey’s Request for a Special Instruction
CALCRIM No. 3454 is the standard jury instruction on the elements the
People must prove beyond a reasonable doubt in order to prove the person subject to an
SVPA commitment petition is a sexually violent predator. CALCRIM No. 3454 includes
definitions of the terms “diagnosed mental disorder”7 and “likely to engage in sexually
7 “The term diagnosed mental disorder includes conditions either existing at birth or
acquired after birth that affect a person’s ability to control emotions and behavior and
predispose that person to commit criminal sexual acts to an extent that makes him or her
a menace to the health and safety of others.” (CALCRIM No. 3454.)
44
violent predatory criminal behavior.”8 Orey’s trial counsel requested the trial court to
give a special instruction on the topics of “volitional impairment” and “serious difficulty
controlling sexually violent behavior.” The trial court denied the request on the grounds
that CALCRIM No. 3454 had been “approved and was upheld” and that the instruction’s
definition of diagnosed mental disorder covered the topics on which Orey had requested a
special instruction.
The appellate record does not include a proposed instruction or recite the
language requested by Orey. We granted Orey’s requested to augment the appellate
record with the proposed instruction, but the superior court clerk submitted an affidavit
stating a special jury instruction had not been filed. A trial court does not err by refusing
to give proposed instructions not presented in writing before closing arguments begin.
(People v. Ramos (1997) 15 Cal.4th 1133, 1180-1181.)
In any case, the trial court did not err by declining to instruct the jury on
issues of “volitional impairment” and “serious difficulty controlling sexually violent
behavior.” In People v. Williams (2010) 31 Cal.4th 757, 774-776 (Williams), the SVPA
defendant challenged his commitment under the SVPA on the ground the jury was not
given a special instruction on the need to find serious difficulty in controlling behavior.
(Williams, supra, at pp. 759-760.) The Supreme Court held that specific instructions on
impairment of control are not constitutionally required in California. (Id. at pp. 776–
777.) The court reasoned the language of the SVPA “inherently encompasses and
conveys to a fact finder the requirement of a mental disorder that causes serious difficulty
in controlling one’s criminal sexual behavior.” (Williams, supra, at p. 759.)
Thus, a standard jury instruction based on the SVPA’s language, such as
CALCRIM No. 3454, is sufficient. (Williams, supra, 31 Cal.4th at p. 759; see People v.
8 “A person is likely to engage in sexually violent predatory criminal behavior if there
is a substantial danger, that is, a serious and well-founded risk that the person will engage
in such conduct if released into the community.” (CALCRIM No. 3454.)
45
Field (2016) 1 Cal.App.5th 174, 182-184 (Field) [following Williams and rejecting
claims of error based on failure to provide a pinpoint instruction stating that defendant’s
mental diagnosis must cause him serious difficulty in controlling his behavior]; People v.
Paniagua (2012) 209 Cal.App.4th 499, 527-529 [rejecting claim of error based on trial
court’s refusal to give instruction that defendant must have an inability to control his
sexually predatory behavior].) It was sufficient here for the trial court to instruct the jury
with CALCRIM No. 3454 without special or pinpoint instructions on volitional
impairment and difficulty controlling sexually violent behavior.
VI.
Commitment under the SVPA Does Not Violate Federal
or State Constitutional Protections
Orey contends his commitment under the SVPA violates equal protection,
due process, the prohibition on ex post facto laws, and double jeopardy. He makes these
claims to preserve them for further state or federal review.
The SVPA does not violate equal protection under the federal constitution
or state constitution. (Field, supra, 1 Cal.App.5th at pp. 190-192; People v. McDonald
(2013) 214 Cal.App.4th 1367, 1377 (McDonald); Landau, supra, 214 Cal.App.4th at
p. 48; McCloud, supra, 213 Cal.App.4th at pp. 1085-1086; People v. McKnight (2012)
212 Cal.App.4th 860, 863-864; People v. McKee (2012) 207 Cal.App.4th 1325,
1347-1348.) The SVPA does not violate the due process clause or the ex post facto
clause of either the federal constitution or the state constitution. (People v. McKee (2010)
47 Cal.4th 1172, 1193, 1195; McDonald, supra, at p. 1382; Landau, supra, at p. 44;
McCloud, supra, at p. 1085.) Commitment under the SVPA does not constitute double
jeopardy. (Field, supra, 1 Cal.App.5th at pp. 189-190; McDonald, supra, 214
Cal.App.4th at p. 1383; Landau, supra, at pp. 44-45.)
46
VII.
There Is No Cumulative Error
Orey argues cumulative error. The only error we have found was the
admission into evidence of exhibits 72 and 76, and that error was harmless. Because
there was no other error, there was no cumulative error.
DISPOSITION
The order of commitment is affirmed.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
47
Filed 4/27/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058040
v. (Super. Ct. No. M-13340)
TRAMPAS MICHAEL OREY, ORDER
Defendant and Appellant.
The Office of the District Attorney of San Bernardino County has filed a
request that our opinion, filed on March 30, 2021, be certified for publication. It appears
that our opinion meets the standards set forth in California Rules of Court, rule
8.1105(c)(2), (3) and (6). The request for publication is GRANTED. The opinion is
ordered published in the Official Reports. Respondent’s request for partial publication is
DENIED as moot.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
2