People v. Rhoden CA4/3 ( 2016 )

Filed 1/15/16 P. v. Rhoden CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G048677
v. (Super. Ct. No. M10123)
LAWTIS DONALD RHODEN, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Richard
W. Luesebrink (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.), and Sheila F. Hanson, Judges. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
Lawtis Donald Rhoden appeals from a judgment after a jury concluded he
was a sexually violent predator (SVP). Rhoden argues the following: (1) a trial judge
erred by sua sponte continuing the case; (2) another trial judge erred by denying his
motion to dismiss; (3) insufficient evidence supports the jury’s finding he was an SVP;
(4) there were numerous evidentiary errors; and (5) there was cumulative prejudicial
error. As we explain below, we conclude one trial judge erred by continuing the case and
a different trial judge made evidentiary errors but the errors were neither individually nor
cumulatively prejudicial. Rhoden’s other contentions are meritless, and we affirm the
judgment.
FACTS
Procedural History
In January 2004, seven days before he was scheduled to be released, a
petition alleged Rhoden was a sexually violent predator (Welf. & Inst. Code, § 6600
et seq.). In March 2006, after a hearing, the trial court found probable cause supported
the petition. In November 2010, the trial court ordered a new probable cause hearing in
light of In re Ronje (2009) 179 Cal.App.4th 509, disapproved in Reilly v. Superior Court
(2013) 57 Cal.4th 641. In October 2011, after a hearing, the trial court again found
probable cause supported the petition based in part on Dr. Dawn Starr’s expert opinion.
In February 2012, Starr again concluded Rhoden was an SVP but in February 2013 she
changed her opinion, concluding Rhoden suffered a qualifying offense and had a mental
disorder but that he was not likely to reoffend.
In early 2013, the parties filed numerous in limine motions while the matter
was assigned to Judge Sheila F. Hanson. In March 2013, the case was transferred to
Judge Richard W. Luesebrink for trial.
On the day jury trial was set to begin, Wednesday, May 1, 2013, the
in limine motions were litigated before Judge Luesebrink. During the discussion of a
motion, the prosecutor informed Judge Luesebrink that his expert, Starr, would not be
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available to testify until May 16, 2013, at the earliest because a surgery prevented her
from traveling. When Judge Luesebrink stated he was troubled Starr would not testify
until after the prosecution rested, the prosecutor replied that at a hearing in March he
informed the court of Starr’s availability and defense counsel agreed to call witnesses out
of order. The court stated, “No, I recall.” The court added Rhoden’s expert witnesses
should have the opportunity to reply to Starr’s testimony. The prosecutor said that had
defense counsel not agreed to call witnesses out of order, the prosecution would have
requested a continuance. Defense counsel was silent during this exchange.
After Judge Luesebrink discussed the exhibits and afforded defense counsel
an opportunity to speak with Rhoden, defense counsel stated Rhoden was disappointed
the prosecution was proceeding with the case. Counsel explained that in addition to his
two experts who would testify Rhoden did not have a mental disorder and was not likely
to reoffend, the prosecution’s expert, Starr, would testify that although she believed
Rhoden had a mental disorder, paraphilia NOS, she did not think Rhoden was likely to
reoffend. Defense counsel orally moved to dismiss the petition. Judge Luesebrink
analogized the situation to a motion for summary judgment and asked how the prosecutor
intended to prove Rhoden was likely to reoffend. The prosecutor responded there was
other evidence, the victims’ testimony and expert testimony concerning mental disorders
and actuarial tools assessing the likelihood of reoffending. After Judge Luesebrink and
the prosecutor discussed whether the jury could conclude Rhoden was likely to reoffend
despite the fact there was no expert testimony supporting that finding, the prosecutor
stated there was case authority that held summary judgment was not available in SVP
cases. Judge Luesebrink told counsel to return that afternoon to litigate the issue.
When proceedings resumed that afternoon, Judge Luesebrink indicated
Bagration v. Superior Court (2003) 110 Cal.App.4th 1677 (Bagration), held summary
judgment was not available in SVP proceedings. Judge Luesebrink explained there was a
10-day trial estimate and Starr was not available until May 16. He opined the prosecution
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would have a difficult time proving Rhoden was likely to reoffend beyond a reasonable
doubt. Judge Luesebrink asked defense counsel to discuss with Rhoden whether “he’s
willing to waive his due process right to a speedy trial.” He also told defense counsel to
“hit the books” and “explore how to present this issue in a pretrial proceeding.” When
defense counsel inquired whether trial was going to proceed, Judge Luesebrink stated it
would be continued and sent the case back to Judge Hanson. Defense counsel stated
Rhoden would rather proceed with trial. Judge Luesebrink responded: “Well, that may
be true. But, you know, court resources are stretched.” He added that there was a
backlog of cases and it seemed premature to go “through all the preliminaries before
addressing whether or not the [prosecution’s] evidence is going to be satisfactory . . .
until you’ve explored other alternatives.” Defense counsel stated he was prepared to
submit on the written expert reports and he was not willing to waive “Rhoden’s right to a
speedy trial.”
After Judge Luesebrink said Rhoden did not have a right to a speedy trial,
defense counsel said Rhoden had a right to a trial within a reasonable time and they were
ready to proceed. Judge Luesebrink stated the following: “Well, I am not going to
undertake this case in view of the delays until [May 16, 2013], which I agreed to. I will
reset the matter. As I indicated before, I’m having knee replacement [June 3, 2013]. I’ll
be out all of June and July. So I’m going to reset the matter in front of Judge Hanson,
from whence it came.” Judge Luesebrink sent the case back to Judge Hanson, setting the
matter on June 10, 2013. When defense counsel inquired whether he could send the case
to Judge Hanson for the following day, Judge Luesebrink denied the request stating that
allowing trial to proceed “would be a terrible misuse of court time and attorney time.”
He added continuing trial to June 10 would “give [counsel] ample time to exhaust any
further research or effort to present the case prior to that time.”
The next day, on May 2, 2013, Rhoden filed a nonstatutory motion to
dismiss supported by reports from Marianne Davis, Preston Sims, and Starr, none of
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whom concluded Rhoden was likely to reoffend. Rhoden argued the trial court must
dismiss the petition because there was no evidence he was an SVP. The prosecution
opposed the motion, arguing Rhoden’s motion although entitled a nonstatutory motion to
dismiss was in fact a summary judgment motion, which was prohibited in SVP cases.
There was a hearing before Judge Hanson on May 17, 2013. Defense
counsel argued Judge Hanson should dismiss the case because there was no expert
testimony Rhoden met all the SVP criteria. Judge Hanson denied the motion both on the
merits and on procedural grounds.1 Based on Bagration, supra, 110 Cal.App.4th 1677,
and Gray v. Superior Court (2002) 95 Cal.App.4th 322 (Gray), Judge Hanson explained
a nonstatutory motion to dismiss was unavailable in SVP cases because the SVP petition
was properly filed, granting the trial court jurisdiction, and the court had found probable
cause to proceed to trial. Judge Hanson stated she did not have legal authority to rule on
the weight of the prosecutor’s evidence and the issue of whether Rhoden was an SVP
“should be left to the trier of fact” unless the prosecutor dismissed the case.
There were additional hearings on June 17 and 18, 2013, before
Judge Hanson to litigate previously filed in limine motions. As relevant here, the
prosecution moved to limit the testimony of Dr. Brian Abbott pursuant to People v.
Campos (1995) 32 Cal.App.4th 304 (Campos). The prosecutor argued an expert may, in
offering an opinion, state she relied on out-of-court statements, but the expert may not
testify to the out-of-court statements for their truth. Rhoden opposed the motion in a
rather conclusory fashion. At the hearing on the motion, the trial court engaged in a
lengthy discussion about its practice of allowing experts to testify to hearsay in the form
of statistical analysis but not to hearsay in the form of other doctors’ opinions. Relying
1 The Attorney General abandons the procedural argument because the
prosecutor filed written opposition and appeared at the hearing to argue the motion.
(Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [appearance of party cures
defects in notice].)
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on Campos, the court concluded Abbott could testify to studies he considered but he
could not testify to the opinions of the authors of the studies when offering his opinion.
Additionally, the prosecution moved to exclude any reference to the
conditional release program (CONREP) on relevance grounds because the jury was not
permitted to consider the consequences of its verdict. Rhoden responded with one
sentence, “It will be impossible not to reference [CONREP] and [c]onditional [r]elease,
unless [the prosecution] is willing to forego discussing treatment at Coalinga entirely.”
At the hearing, after the prosecutor argued he sought to exclude any reference to the
consequences of the jury’s verdict, defense counsel replied the jury needed to be aware of
the treatment phases and that Rhoden completed all the phases and was ready for
CONREP. The court agreed defense counsel could offer evidence Rhoden completed
treatment but evidence of the verdict’s consequences, CONREP, was not relevant. The
court granted the prosecution’s motion, ruling defense counsel could introduce evidence
of Rhoden’s treatment but could not introduce evidence “concerning what would happen
after commitment or any reference to CONREP or conditional release and how that
would play should [Rhoden] be committed.”
Trial
Prosecution Evidence
Testimony began on Monday, June 24, 2013, before Judge Hanson, six
weeks after Judge Luesebrink continued the case on the day trial was set to begin. That
morning, out of the jury’s presence, the prosecutor informed the trial court,
Judge Hanson, that on the previous Thursday, June 20, 2013, he found a website
apparently created by Rhoden advertising a paralegal business. The prosecutor stated he
informed Starr of the website, Starr reviewed the website, and Starr changed her opinion
to now conclude Rhoden was likely to reoffend and was an SVP. Defense counsel
objected to Starr relying on the website on due process grounds, among others. The court
overruled counsel’s objection and reopened discovery, allowing Starr to consider the
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website. Rhoden and his defense counsel waived any request for additional time or
discovery, or a request for a mistrial.
Offenses
In June 1966, Frances B. met Rhoden at a party and agreed to walk with
him through a nearby university campus. As they walked by a construction site, Rhoden
pulled out a knife, held it to her throat, and threatened to hurt her unless she followed his
instructions. He forced her into the construction site and told her to remove her clothes.
He held the knife to her throat as he raped her. He later walked her back to her
apartment. Frances filed a police report and subsequently identified Rhoden in a lineup.
After speaking with the district attorney, however, she decided not to press charges
because she was ashamed and did not believe the district attorney supported her.
In April 1984, 14-year-old Tina S. was walking to school when Rhoden,
who was in his early 30’s, drove his car in front of her and blocked her path. Through the
driver’s side window, Rhoden told her that he was a photographer and asked her if he
could take modeling photographs of her. She refused and tried to walk around his car.
Rhoden got out of his car, grabbed her arm, and pulled her into the car. Tina tried to
escape, but Rhoden locked the doors and drove to a secluded parking structure. Rhoden
raped Tina. As he did, Tina cried and told him to stop, but Rhoden said, “Shut up and
just let me finish.” Later, Rhoden drove Tina to school and gave her $40. Rhoden
subsequently pleaded guilty to forcible rape charges.
In June 1984, 17-year old Christina S. was walking home when Rhoden
drove his car next to her on the street. As he sat in the car, Rhoden asked her if she was
interested in taking modeling photographs with him. Christina got into his car, and he
drove to a secluded carport. Rhoden raped Christina. Later, Rhoden drove her back to
the street and gave her $20. A jury convicted Rhoden of rape by force, forceful sexual
penetration, and sexual battery.
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In June 1984, 14-year-old Kathryn L. was walking home when Rhoden
drove his car next to her and motioned for her to speak with him. Kathryn initially
refused but eventually acquiesced when Rhoden called out to her. Rhoden told Kathryn
that he was a photographer and asked if she wanted to participate in a modeling photo
shoot. Rhoden’s girlfriend, who was in the car, encouraged Kathryn to participate.
Kathryn agreed, and Rhoden drove to a supermarket parking lot where his girlfriend got
out of the car. He drove away with Kathryn. At a stoplight, Kathryn reached for the door
handle to escape, but Rhoden said, “‘I wouldn’t do that if I were you.’” Kathryn felt
threatened and remained in the car. Rhoden drove to a secluded area. Rhoden leaned
Kathryn against the car door and raped her. When she told him to stop and tried to push
him off, Rhoden said, “‘Just let me finish.’” Later, Rhoden drove Kathryn to a street near
her house and gave her $20. A jury convicted Rhoden of forcible rape.
In December 1984, 13-year-old Kimberly W. met Rhoden in a motel room
to take part in what she believed was a modeling photo shoot. Rhoden took several
photographs of Kimberly in lingerie. He performed oral sex on her and raped her.
During the rape, Kimberly repeatedly told him to stop and at one point kicked him. He
masturbated and ejaculated onto her. Afterwards, Rhoden promised to buy Kimberly a
computer if she agreed not to tell her mother what he had done to her. A jury convicted
Rhoden of rape and use of a minor for obscene purposes.
Expert Testimony2
Starr was a licensed psychologist who had practiced since 1987 and had
conducted approximately 1,700 SVP evaluations since 1996. In the previous seven years,
Starr concluded 80 to 90 percent of the people she evaluated were not SVP’s. She
evaluated Rhoden for the first time in 2002 and subsequently interviewed him seven
times, the most recent time in January 2013.
2 Rhoden’s numerous evidentiary claims require us to provide significant
portions of the trial court proceedings.
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Starr explained Rhoden had the requisite qualifying offenses, including the
April 1984 sexual assault of Tina, the June 1984 sexual assault of Christina, the
June 1984 sexual assault of Kathryn, and the December 1984 sexual assault of Kimberly.
Starr also considered the June 1966 sexual assault of Frances and a 1968 incident where
18-year-old Rhoden had sexual intercourse with a 13-year-old girl three times and
impregnated her.
Starr diagnosed Rhoden with a mental disorder, paraphilia not otherwise
specified (NOS) and a personality disorder with both antisocial and narcissistic features.
She based her opinion on multiple personal interviews with him and a variety of
documents, including probation reports, police reports, depositions, victims’ testimony,
his wife’s and former girlfriend’s statements, and his treatment file from Coalinga State
Hospital (Coalinga), where he had been in custody since 2003.
Starr explained paraphilia requires the person to have “recurrent, intense,
sexually arousing urges, fantasies, or behaviors generally directed towards non-
consenting persons.” She acknowledged the debate in the psychological community over
the validity of paraphilia NOS, but she believed it was a valid diagnosis used in the rare
circumstance where a male has recurrent sexual urges towards non-consenting women
despite the consequences. Her testimony continued:
“[Starr]: In all states where they have [an] SVP statute that diagnosis has
been rendered and upheld. There are some people who are against it for political reasons.
Legal --
“[Defense counsel]: Objection. Calls for improper opinion.
“[Trial court]: Overruled.
“[Starr]: Political reasons, legal reasons. Academic reasons. [¶] Many of
those are people who are not in favor of civil commitments, like an SVP law.
“[Defense counsel]: Objection. Lack of foundation and calls for
speculation and move to strike. Again, improper opinion.
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“[Trial court]: Sustained.”
Starr added the diagnosis was appropriate for Rhoden because of the age of
onset, the string of incidents in 1984, the use of a ruse to lure his victims, the fact most
males do not maintain sexual arousal with a non-consensual partner, he had other willing
sexual partners during the time, and his subsequent insistence the encounters were
consensual. She defined a personality disorder as “an enduring personality pattern or trait
that deviates markedly from the person’s culture and expectations and often creates
distress or problems for themselves or other people.”
Starr opined Rhoden currently suffered from paraphilia NOS and a
personality disorder. She expounded on the antisocial components of his personality
disorder, including lying, operating a website, results of a psycopathy evaluation, his
personal letters, and interviews. She said that in 2002 or 2003, despite having completed
sex offender treatment while incarcerated in Tennessee, Rhoden lied about what he had
done and minimized his conduct. She stated he was more honest but he is very smart and
arrogant, and has not “really come clean.” She continued:
“[Starr]: Another example would be just recently as recently as last Friday
he was found to be operating a website as a paralegal.
“[Defense counsel]: Objection. Calls for speculation. And lack of
foundation.
“[Trial court]: Overruled.
“[Starr]: I saw the website and I listened to his voice, which is very
distinctive. It was on both of the phone numbers. And the hospital does not allow
patients to have Internet access. They don’t allow them to have cell phones. And he’s
using an alias there. And in his past he’s used . . . scores of aliases. So this goes to me to
be a continuing pattern of his deceitfulness, his manipulation, his arrogance . . . .” She
added this was how Rhoden manipulated Coalinga staff.
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Starr explained that in 2011 a patient refused to assist Rhoden and he
became angry and his behavior matched how he treated his victims, wife, and girlfriend.
She stated he feels “better than other people, smarter, and he deserves preferential
treatment.” She added that in 2011 he persuaded other patients to cut his hair and fix his
computer in violation of prison rules, which illustrates his belief “he is entitled to
preferential treatment.” She continued:
“[Starr]: And it flies in the face of his supposedly working in therapy in
such a way that -- he has been passed through up each of the levels very quickly with no
real regard for some of this continued evidence of his diagnosed mental disorder.
“[Defense counsel]: Objection. That[’s] lacking in foundation. Calls for
speculation --
“[Court reporter]: I’m sorry. You need to slow down.
“[Defense counsel]: Calls for speculation as to her opinion as to how . . .
Rhoden progressed through the phases at Coalinga.
“[Trial court]: Overruled. She may give her opinions.”
Starr stated Rhoden’s deceitfulness was further illustrated by an incident in
2011 when staff searched his room and found numerous prohibited items. She said
although the items were “minor,” the fact he possessed them in violation of the rules
demonstrates he manipulates the system.
When presented with the prosecutor’s exhibit No. 36, Starr testified it was a
printout from the “Donald Allen . . . Rhoden . . . freelance litigation paralegal” website.
She stated the website listed two telephone numbers, a Sun City address but an Encino
Zip code, and recommendations from three attorneys. When the prosecutor asked Starr
whether she relied on the website in forming her opinion, the following colloquy
occurred:
“[Starr]: Correct. I’ve never seen anybody ever have a website of any
patient at the state hospitals.
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“[Defense counsel]: I’m going to object as that lacks foundation. Calls for
speculation. Move to strike.
“[Trial court]: Overruled.
“[Prosecutor]: What about this website tells you that he’s being deceitful or
manipulative?
“[Defense counsel]: I’m going to object again. Calls for speculation and
lack of foundation as to whether or not . . . Rhoden is the author or had anything to do
with this website.
“[Trial court]: Overruled.”
Starr testified she called both telephone numbers and concluded Rhoden
left the messages because he has a distinctive voice. She explained his deceit was
illustrated by the fact he was again using an alias and he did not inform people he lives at
Coalinga.
After the trial court overruled defense counsel’s objections (speculation &
lack of foundation) to Starr’s testimony why Rhoden used a different name, the following
colloquy occurred:
“[Starr]: I confirmed when I was there doing an update on Friday that
Internet and cell phone access are not allowed.
“[Defense counsel]: Objection. Hearsay.
“[Trial court]: Overruled.
“[Starr]: And so this kind of operation is clearly flying in the face of
supposedly being a rule compliant person, and he’s just, again, doing whatever he wants
behind the scenes.
“[Defense counsel]: Objection. Argumentative. Calls for speculation.
Lack of foundation.
“[Trial court]: Overruled.”
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Starr repeated the address on the website was for Sun City and the Zip code
for Encino but Rhoden was a full-time resident at Coalinga.
Starr testified concerning Gary Anderson, an attorney in Tennessee who
assisted Rhoden and hired him to perform paralegal work.
Starr stated she evaluated Rhoden on the PCL-R test, a psychopathy
checklist where a score of over 30 or 32 is considered severe psychopathy; Rhoden
scored a 33. She opined Rhoden was a psychopath someone who would engage in
violent criminal conduct to victimize others for personal gain. She said that although
Rhoden initially believed he engaged in consensual sex with the victims, more recently
he admitted he was addicted to sex and gambling.
Starr said Rhoden’s 2005 letters to his ex-wife demonstrate his controlling
and deceitful personality. Rhoden belittled her about her weight and instructed her to lie
to help secure his release, including lying about or delaying divorce because it would
benefit him if he had someone who could assist him when he was released. Rhoden also
asked her to buy lottery tickets with specific numbers.
Starr opined Rhoden’s two disorders, paraphilia NOS and personality
disorder with both antisocial and narcissistic features, individually caused him to suffer
from volitional impairment that predisposed him to commit sexually violent offenses.
She added that when they are combined, “it’s like putting gasoline on a fire.” Starr thus
opined Rhoden had a diagnosed mental disorder.
When the prosecutor began to inquire of Starr whether Rhoden was likely
to reoffend, Rhoden’s defense counsel objected. In a reported discussion outside the
jury’s presence, counsel stated that just three days earlier, Starr was of the opinion
Rhoden was not likely to reoffend but changed her mind mid-trial after seeing his
paralegal website even though discovery was closed. When the trial court reminded
counsel discovery was reopened, counsel noted that was over his objection. Counsel
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renewed his objection to the reopening of discovery, Starr considering the website, and
Starr changing her opinion mid-trial. The trial court overruled the objections.
When testimony resumed, Starr explained that during her first seven
evaluations and as recently as 2012 she concluded Rhoden was likely to reoffend; she
testified at the 2006 and 2011 probable cause hearings. She added that during her
January 2013 evaluation, she concluded he was not likely to reoffend. She opined
however she now considers Rhoden likely to reoffend because his website demonstrates
he has “gamed . . . the system.” She explained Rhoden has convinced his treatment team
he is ready to be released but he continues to manipulate and deceive. The following
colloquy occurred:
“[Starr]: Click on there, there’s a team who appears to have helped
establish the website. It has his contact information. His voice. And he’s blatantly
breaking the rules at the hospital by having Internet access and phone access.
“[Defense counsel]: I’m going to object. That’s calling for speculation as
to whether or not . . . Rhoden has access to the Internet.
“[Trial court]: Overruled.
“[Starr]: And so [it] just shows me he’s doing what he’s always done. On
the surface try to look like a good guy or justify why he’s okay, but underneath --
“[Defense counsel]: Objection. Calls for speculation and lack of
foundation. Move to strike.
“[Trial court]: Overruled.
“[Starr]: -- He’s still [exhibiting] the same old behaviors that were part and
parcel of a sexual offending.”
Starr continued that had she been aware of his website in January 2013, she
would have concluded he was likely to reoffend. Starr stated she also used actuarial tools
to determine whether he was likely to reoffend. She explained Rhoden scored a four on
the Static-99R, the most widely used and accepted actuarial tool in predicting sexual
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recidivism, which meant he had a reoffense rate of 20 percent after five years and 30
percent after 10 years, the “moderate high range.” She also said Rhoden scored a four on
the Static-2002R, another widely accepted actuarial tool, which meant he had a reoffense
rate of 16 percent after five years and 26 percent after 10 years, the “low moderate
range.” She stated Rhoden scored 3.75 on the Structured Risk Assessment Forensic
Version (SRA-FV), a well-established risk assessment tool that measures sexual interest
in children, which placed him in the “high range.” Starr also noted he did not qualify for
any “protective factors,” such as being over age 70, having health issues, or having
completed sex offender treatment but she did give him “the benefit of the doubt” on a
number of the categories. She did consider his age of 63 in determining his scores on the
actuarial tests. Starr explained the actuarial tools, while rigorous, tend to underestimate
the likelihood of reoffense because many sexual offenses go unreported.
Starr opined Rhoden was not amenable to voluntary treatment in the
community because he did not think he needed treatment and he had a good release plan.
She elaborated that Rhoden “manufactur[ed]” and “falsif[ied]” his release plan, including
the falsifying of documents. On one occasion, Rhoden had another patient who had the
same last name as the warden write a letter requesting the district attorney not prosecute
Rhoden because he was rehabilitated. Starr said Rhoden would not undergo voluntary
treatment because the court would not order him to do so “and he has no parole time.”
After a brief discussion with counsel out of the jury’s presence, the trial court ordered the
jury to not consider Starr’s testimony Rhoden would not be on parole and it struck that
portion of the answer. Starr opined Rhoden was likely to reoffend and he currently
qualified as an SVP.
On cross-examination, Starr testified the sex offender treatment program
consisted of five phases with the fifth phase being community placement. The trial court
sustained the prosecutor’s objection and struck the answer. She stated that according to
Coalinga staff Rhoden had completed the first four phases and records indicated he was
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suitable for release. When defense counsel attempted to question Starr about whether she
agreed with other evaluations, the trial court sustained the prosecutor’s relevancy
objection. Starr acknowledged that in January 2013 she concluded Rhoden was not an
SVP because the information indicated he was not having any continuing issues
involving manipulation, deceitfulness, or antisocial behavior and his release plans
suggested he could be safely released, although “[her] gut feeling was that there was still
something nefarious going on and that he met the criteria, but [she] had no evidence of
. . . that.” Starr admitted she had not met with Rhoden since that time and she changed
her opinion because of the website, his voice mail recordings, his alias, and the false
address. Starr conceded that up until three days before she testified, she still believed
Rhoden was not an SVP.
When defense counsel asked Starr whether she had spoken with other
mental health professionals, the following colloquy occurred:
“[Defense counsel]: So Dr. [Stephanie] Brazier is of the opinion that . . .
Rhoden can be safely released into the community; is that correct?
“[Prosecutor]: Objection, your honor. Calls for hearsay.
“[Trial court]: Sustained.
“[Defense counsel]: Do you agree with the opinions of [Timothy] Grace?
“[Prosecutor]: Objection, your honor. Relevance.
“[Trial court]: Sustained.”
Later, Starr testified Rhoden did have a background doing criminal
paralegal work. She could not say whether he made any misrepresentations concerning
the paralegal work he did but he did create the false appearance he operated a paralegal
business in the community. She added he violated prison rules by having access to the
Internet and a phone that could record a message.
When defense counsel asked Starr how she knew Rhoden created the
website, the following colloquy occurred:
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“[Defense counsel]: Well, how do you know . . . Rhoden created that
website?
“[Prosecutor]: Objection, your honor. Asked and answered.
“[Trial court]: Sustained.
“[Defense counsel]: Do you know when the website was created?
“[Starr]: The copyright says 2012.
“[Defense counsel]: Do you know who created it?
“[Prosecutor]: Objection, your honor. Asked and answered.
“[Trial court]: Sustained.
“[Defense counsel]: Do you know if . . . Rhoden was responsible for
creating it?
“[Prosecutor]: Objection, your honor. Asked and answered.
“[Trial court]: Sustained.”
After Starr testified that at the time patients at Coalinga could have a
computer and access to legal pornography, the following colloquy occurred:
“[Defense counsel]: But you have no evidence that . . . Rhoden did have
access to the Internet, do you?
“[Prosecutor]: Objection, your honor. Asked and answered.
“[Trial court]: Sustained.”
Starr concluded Rhoden had Internet access because of the website.
Defense counsel asked Starr about Rhoden’s experience as a paralegal and
Anderson’s praise of Rhoden’s legal skills. The following colloquy occurred:
“[Defense counsel]: Do you have any reason to disagree with those
representations by . . . Anderson?
“[Prosecutor]: Objection. Irrelevant.
“[Trial court]: Sustained.
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“[Defense counsel]: He indicates, ‘[Rhoden] is confident, dependable and
very effective with every legal project that he works on.’
“[Prosecutor]: Objection, your honor. Relevance.
“[Trial court]: Sustained.
“[Defense counsel]: I’d like to be heard.
“[Trial court]: Why don’t you move on. At our break you may be heard.”
At a break out of the jury’s presence, the trial court inquired of defense
counsel why he wished to be heard. Defense counsel explained he wanted to examine
Starr about other information on the website to establish the totality of its information
was truthful and accurate. The trial court indicated it was not inclined to allow counsel to
question Starr about every representation made on the website but he was free to make
that argument to the jury. The court indicated it would rule on a question by question
basis.
When testimony resumed, defense counsel asked Starr whether there was
anything deceptive about the “frequently asked question” portion of the website. The
trial court sustained the prosecutor’s asked and answered objection.
Defense counsel questioned Starr about the DSM-IV and paraphilia NOS,
including that the chairperson of the DSM-IV task force, Dr. Allen Frances, was critical
of the paraphilia NOS diagnosis. The following colloquy occurred:
“[Defense counsel]: Prior to the publication of the DSM-[V], critics such
as . . . Frances emphasized that state evaluators were overusing the paraphilia NOS
diagnosis?
“[Prosecutor]: Objection, your honor. Calls for hearsay. Lack of
foundation. Relevance.
“[Defense counsel]: She knows.
“[Trial court]: Hold on. I think it’s more of a Campos issue; is that
correct?
18
“[Prosecutor]: I didn’t hear you.
“[Trial court]: Campos?
“[Prosecutor]: Yes, your honor.
“[Trial court]: Sustained.”
Defense counsel questioned Starr about the recent publication of the
DSM-V and whether its definition of paraphilia NOS more restrictive than the DSM-IV;
Starr disagreed it was more restrictive. Counsel asked Starr whether she updated her
diagnosis of Rhoden in light of the DSM-V, and the following colloquy occurred:
“[Starr]: No. I’m not allowed to independently pull a file and start
working on a case unless I am asked to do so by the court or by the district attorney’s
office by statute. I can’t just willy nilly pull out a file and decide I’m going to change the
diagnosis or do a new kind of risk assessment or contact staff or something like that.
“[Defense counsel]: Isn’t that what you did right here with this website,
willy nilly pull something out to change your diagnosis?
“[Prosecutor]: Objection, your honor. Argumentative.
“[Trial court]: Sustained. [¶] Counsel, I’ll admonish you.” (Italics
added.)
Starr acknowledged paraphilia NOS was a rare diagnosis. She explained
the deceit and manipulation were relevant to the diagnosis in how he lured the victims
into his car under the pretense he was a professional photographer.
When defense counsel asked Starr whether there was any evidence the
paraphilia NOS impaired his occupation, Starr responded Rhoden did not want to work at
the hospital because of the pay. After Starr stated it was her opinion Rhoden was not a
model patient, the following colloquy occurred:
“[Defense counsel]: So the doctors that do have [daily interactions with
Rhoden] concluded that he’s a model patient; is that correct?
“[Prosecutor]: Objection, your honor. Calls for hearsay. Campos.
19
“[Trial court]: Sustained.”
When defense counsel asked Starr which of Rhoden’s statements she relied
on to arrive at the paraphilia NOS diagnosis, Starr asked whether he wanted her to go
through her “whole 200[-]page report. After Starr cited to one example, she said “there’s
240 pages to go.” Starr began to answer in narrative form when the trial court interrupted
and said defense counsel asked her to relate every statement and unless he withdrew the
question, she was still answering. Defense counsel was silent, and Starr continued.
When Starr stopped and defense counsel began to ask a question, the trial court
interjected and reminded counsel Starr was not done answering unless counsel wanted to
withdraw the question. Counsel replied, “Not at this time.” Starr continued with her
answer. When counsel interjected he did want Starr to continue, but he also wanted to
ask questions, the trial court said no because she could only answer one question at a
time. Defense counsel said, “Okay.” Starr continued. Later when counsel interjected
again, the trial court asked whether he was withdrawing the question, and counsel replied
he was. After Starr agreed she had reviewed Dr. Christine Cardin’s reports, including her
diagnosis Rhoden suffered from mild to moderate depression, the following colloquy
occurred:
“[Defense counsel]: But, doctor, you indicated in your report when you
were reviewing . . . Cardin that there was a diagnosis of adjustment disorder with mixed
anxiety; is that correct?
“[Trial court]: Counsel, the court is going to interpose its own objection
under Campos. [¶] Will you please approach.” After an unreported discussion, defense
counsel’s cross-examination continued.
After Starr confirmed she had reviewed Rhoden’s psychiatric reports, the
following colloquy occurred:
“[Defense counsel]: There was no indication in . . . Rhoden’s Coalinga file
that he had ever been diagnosed by anyone at Coalinga with paraphilia NOS; correct?
20
“[Prosecutor]: Your honor, I’m going to object at this time. Calls for
speculation. Campos. Relevancy.
“[Trial court]: Sustained.
“[Defense counsel]: Doctor, you reviewed records regarding the earlier
Tennessee arrest and conviction; is that correct?
“[Starr]: Yes.
“[Defense counsel]: And those records never reflected a diagnosis of
paraphilia NOS; correct?
“[Prosecutor]: Same objection, your honor. Relevancy. Calls for improper
hearsay and Campos.
“[Trial court]: Sustained.”
Later, when defense counsel asked Starr whether she was familiar with a
study conducted by Jack Vognsen and Amy Phenix, the following colloquy occurred:
“[Starr]: Yes, I’m familiar. I know both of them are on the SVP panel or
they were.
“[Defense counsel]: And did they indicate that an antisocial personality
disorder --
“[Prosecutor]: Your honor, I’m going to object at this point as calling for
hearsay and Campos.
“[Trial court]: At this point in time I’m going to sustain the objection.”
The parties stipulated Davis’s August 2012 report could be read into the
record. Davis found Rhoden had suffered a qualifying offense but that he did not suffer
from a mental disorder and he was not likely to engage in sexually violent criminal
behavior. After detailing Rhoden’s qualifying offenses, Davis detailed Rhoden’s non-
sexual misconduct, including sending harassing letters and cards to attorneys, victims,
and jurors involved in his prior cases and the attempted forgery of a letter from the
warden. Davis stated Rhoden completed a sex offender treatment program in a
21
Tennessee prison and beginning in 2004 he had been in a sex offender treatment program
while incarcerated in California. He arranged for outpatient treatment in Florida to
continue his treatment if released. Davis diagnosed Rhoden with antisocial personality
disorder with narcissistic features. However, she rejected a paraphilia NOS diagnosis
because she saw no evidence he was aroused by non-consensual sexual activity or his
victims’ suffering or distress. Davis therefore concluded Rhoden did not suffer from a
diagnosed mental disorder. With respect to whether Rhoden was likely to engage in
sexually violent criminal behavior, Davis explained Rhoden scored a three on the Static-
99R, which meant he was in the moderate low range for reoffending with a 16 percent
chance in five years and a 24 percent chance in 10 years. Davis opined that because
Rhoden had family support and he would continue with voluntary treatment, Rhoden’s
risk of reoffending was “in the low, moderate range.” Davis thus concluded Rhoden did
not suffer from a mental disorder and consequently could not be considered likely to
reoffend. Davis was of the opinion Rhoden was not an SVP.
G. Preston Sims, a Department of State Hospitals employee, evaluated
Rhoden in July 2012. Sims stated he was not aware of Rhoden’s paralegal website when
he evaluated him. Sims testified Rhoden committed the requisite qualifying offenses and
he suffered from an extreme version of antisocial personality disorder, and he was highly
psychopathic. Sims explained that although this diagnosis could qualify someone for
commitment as an SVP “in extremely rare cases,” Rhoden was not one of those cases
because he was predisposed to commit any number of crimes not just sexual crimes.
Sims testified concerning Rhoden’s scores, four, on the Static-99R and the Static-2002R
tests and acknowledged a dispute whether recidivism rates are overestimated or
underestimated without offering an opinion. He added a person who scores high for
psychopathy has a higher risk to sexually reoffend.
On cross-examination, Sims testified Rhoden committed the qualifying
sexual offenses but he did not have a mental disorder because he was not predisposed to
22
commit only sexual offenses. Sims added Rhoden had a comprehensive release plan.
After Sims opined Rhoden did not suffer from a mental disorder, the following colloquy
occurred:
“[Defense counsel]: Could I ask you what materials you considered in
reaching that conclusion?
“[Sims]: Sure. Well, the first and the easiest one is there’s an article in the
American Academy of Psychiatry.
“[Defense counsel]: Do you have the article with you, doctor?
“[Sims]: I hope I do. I think I just -- American Academy of Forensic
Psychiatry, I think it is, from 2008 by [Michael] First and [Robert] Halon, . . . which talks
about --
“[Prosecutor]: Your honor, I’m going to object. Calls for hearsay.
Campos.
“[Trial court]: Sustained.”
Later, Sims opined Rhoden was not likely to engage in sexually violent
criminal behavior. The following colloquy occurred:
“[Defense counsel]: And, doctor, in forming your opinions and drafting
your report did you interview a Mim Ribiero?
“[Sims]: I did.
“[Defense counsel]: And what was her position?
“[Prosecutor]: Objection, your honor. Calls for hearsay, Campos.
“[Trial court]: Sustained.”
Sims explained his conclusion Rhoden suffered from an extreme antisocial
personality disorder was based on Rhoden’s inability to conform his behavior to the law,
his deceitfulness, his reckless disregard for the safety of others, and his lack of remorse.
When defense counsel asked whether there was anything about the website that troubled
him, Sims replied, “It just shows kind of bad judgment.” When counsel asked whether
23
the website influenced his decision whether Rhoden was likely to reoffend, Sims
answered the following: “I find no possible way that that could be the case. I don’t think
this would affect either criterion -- my opinion on either criterion.” Sims explained
Rhoden’s score of a four on the Static-99R gave him a 12 to 18 percent chance of
reoffending after five years. Sims opined Rhoden could safely and effectively be treated
in the community.
Rhoden’s Testimony
Rhoden testified about his criminal history and admitted he raped Tina,
Christina, Kathryn, and Kimberly using modeling as a ruse to gain their trust. He
admitted raping the girls despite the fact he had an active sex life with his ex-wife and
girlfriend and he solicited prostitutes during that time. Rhoden said he was sentenced to
prison in Tennessee in 1985 and in California in 1988 and when he was released in 2003,
he first went to Orange County Jail and then Coalinga. Rhoden admitted previously lying
under oath about his treatment while incarcerated. Rhoden explained his high risk
behaviors were “sexual preoccupation, manipulation, sexually objectifying females, [and]
not thinking of the consequences of [his] actions around teenage girls.” He admitted
“they will always be” his high risk behaviors. When the prosecutor asked Rhoden
whether he believed he could be around underage girls, Rhoden answered, “No, I can be,
but it’s not something I want to do, though.” Rhoden stated he previously had a
gambling addiction, defrauded scores of people, and used many different aliases.
Rhoden admitted he “assisted in creating” the paralegal website in 2012
while he was at Coalinga. He admitted the name on the website, “Donald Allen Rhoden”
was not his legal name, the two telephone numbers were to cell phones, and he did not
live at the address. He explained lawyers, including Anderson, assisted him with drafting
the testimonials. He conceded there was nothing on the website that indicated he was at
Coalinga “because [he] deliberately designed it that way to try to keep from people
finding out that [he] was - - [his] criminal history and the fact [he] was currently
24
incarcerated.” When the prosecutor asked whether he purposefully designed the website
to avoid being identified, he replied, “Yes.”
On cross-examination, Rhoden testified he had been incarcerated for
30 years and in 2006 he asked to go to Coalinga for treatment. Rhoden stated that if he
was released from custody he would register as a sex offender and move to Florida where
his family lived. Rhoden said his former attorney, Anderson, had agreed to help him
move to Florida. Rhoden testified he accepted responsibility for his sex and theft
offenses and attributed them to his preoccupation with sex and gambling addiction. He
claimed he had not gambled in 25 years. He said he was ashamed of his conduct and did
not blame the victims at all. He explained 15 years of treatment had taught him what his
risks were and how to cope with them, including to avoid contact, think about the
consequences of his actions, be honest with people, and rely on his support team. He
added that he had already arranged for outpatient treatment in Florida and had prepared a
community safety plan to ensure he does not reoffend. Rhoden did not believe he would
reoffend because he does not want to create any more victims or hurt his family, and he
does not want to return to prison, which would be a life sentence. After detailing his
treatment history, which included his spiritual conversion, Rhoden stated his drive had
decreased with age and he did not have improper fantasies or thoughts.
Rhoden testified he “had a major role in” creating the website with
Anderson but he did not have Internet access on his laptop because it was against the
rules. He added Coalinga had a law library and computers with Westlaw access. He
stated the website accurately reflected his education, training, and experience and the
attorney testimonials accurately reflected his work. Rhoden explained he sent out 200
letters to attorneys seeking paralegal work and in the letters disclosed his criminal history
and the fact he was at Coalinga. Rhoden changed his name to obscure his past and obtain
work and not to defraud anyone. He explained the telephone numbers on the website
were to cell phones; Anderson had one and his sister the other. He could access the cell
25
phone messages using the prison telephone. He had earned money as a paralegal. He
stated that if he were released he would register as a sex offender under his legal name
and petition to have his name changed. On redirect examination, Rhoden testified, “I
have a desire to obscure my past as much as possible for business purposes.”
Rhoden’s Evidence
Mim Ribeiro, a licensed clinical social worker, worked at Coalinga with
Rhoden during multiple phases of his treatment until she left in December 2012. Ribeiro
stated that when she began working with Rhoden in 2007, she did not detect him being
deceptive or manipulative. She added that as of the time she left, he had thoroughly and
exceptionally completed all his assignments. She knew he had one rule violation for
possessing medication, but she was not aware he engaged in any inappropriate behavior.
She added that he did not appear to manipulate the staff to expedite his progress through
the treatment program. When defense counsel asked her whether she had observed other
patients to be manipulative or deceptive, the trial court sustained the prosecutor’s
relevance objection. Later, defense counsel asked her whether based on her work with
Rhoden she made any recommendations, the trial court sustained the prosecutor’s
objections based on improper opinion and lack of foundation. When asked, Ribeiro
stated she was aware of his release plans but she had not reviewed them in six months.
When defense counsel asked her whether Rhoden’s release plans were credible and not
speculative, the trial court sustained the prosecutor’s relevance objection.
Timothy Grace, a senior psychologist at Coalinga, was Rhoden’s primary
facilitator in Phase II from fall 2009 to spring 2011. Grace believed Rhoden had
identified his cognitive distortions and learned how to address them. He believed Rhoden
understood the damage he had done and empathized with his victims. He stated that
because Rhoden had completed Phase IV there was no further treatment that Coalinga
could provide for him. Grace opined Rhoden was suitable for and would benefit from
outpatient treatment. Grace knew Rhoden created a website that included false
26
information but that did not affect his opinion because the website did not violate any
rules and seeking employment was a positive step.
Sheree Riley-Violon, a psychologist at Coalinga since October 2010,
worked as Rhoden’s Phase III group facilitator from January 2011 through March 2012.
Riley-Violon recommended him for advancement into Phase IV because he had
demonstrated empathy, recognition of cognitive distortions, and a knowledge of high-risk
factors. She did not believe Rhoden was being deceptive. She stated Rhoden had
completed the sex offender treatment that was available to him at Coalinga but he could
continue in the program for maintenance purposes.
Stephanie Brazier, a clinical psychologist at Coalinga, began working with
Rhoden in 2008 when he was in Phase II. Brazier stated Rhoden completed Phase IV and
had received all the available treatment at Coalinga for his cognitive distortions. She
opined he was amenable to outpatient treatment in the community. She explained the
fact Rhoden recognized his cognitive distortions was a significant factor in reducing risk
and he will have to deal with them for the rest of his life. She added that through his
interactions with young female employees at Coalinga Rhoden demonstrated his ability
to deal with his issues. When defense counsel asked Brazier whether Rhoden appeared to
be legitimately trying to manage his cognitive distortions, the trial court sustained the
prosecutor’s objection the question was speculative. Later, defense counsel asked her
whether it was her opinion Rhoden’s risk of reoffending was low if released. The trial
court sustained the prosecutor’s objection on the grounds it was an improper opinion and
it lacked foundation. When defense counsel asked her about Rhoden’s ability to follow
Coalinga’s rules and regulations, the trial court sustained the prosecutor’s objection the
question was leading. On cross-examination, Brazier acknowledged Rhoden was not
perfect because he broke prison rules. On redirect examination, Brazier explained he
violated the rules by possessing over-the-counter medication.
27
Brian Abbott, a licensed clinical social worker and psychologist, testified
he interviewed Rhoden in 2006, 2012, and 2013, and reviewed all the relevant records
and reports. Abbott concluded Rhoden did not suffer from a mental disorder. He stated
Rhoden did not have antisocial personality disorder or personality disorder, NOS, with
narcissistic traits or features, because his behavior in the state hospital was inconsistent
with either antisocial or narcissistic traits. Assuming he did have those disorders
however, Abbott was not of the opinion they would qualify because they do not
predispose someone to commit sexually violent acts. The following colloquy occurred:
“[Defense counsel]: Anything further he can do at Coalinga?
“[Prosecutor]: Objection, your honor. Calls for speculation.
“[Trial court]: Sustained.
“[Defense counsel]: Doctor, does . . . Rhoden’s hospital file and medical
file support a current diagnosis of antisocial personality disorder?
“[Prosecutor]: Objection, your honor. Asked and answered.
“[Trial court]: It calls for hearsay. Sustained.
“[Defense counsel]: Doctor, did you review . . . Starr’s current evaluation
of . . . Rhoden?
“[Abbott]: I did.
“[Defense counsel]: Do you agree with her diagnosis of personality
disorder NOS?
“[Abbott]: I do not.
“[Prosecutor]: Objection. Irrelevant.
“[Trial court]: Sustained.
“[Prosecutor]: Move to strike the answer your honor.
“[Trial court]: The last answer is stricken.”
When defense counsel asked Abbott whether Rhoden’s behavior at
Coalinga supported a diagnosis of personality disorder NOS, the trial court sustained the
28
prosecutor’s asked and answered and hearsay objections. Abbott stated the paraphilia
NOS non-consent diagnosis had come under scrutiny because it had very little reliability
and validity. The following colloquy occurred:
“[Defense counsel]: And Dr. Abbott, in reviewing all the materials in this
case, did you review . . . Starr’s paraphilia NOS, nonconsent diagnosis?
“[Prosecutor]: Objection. Irrelevant.
“[Trial court]: Overruled.
“[Abbott]: I did review that diagnosis, yes.
“[Defense counsel]: And is there a disagreement with that diagnosis?
“[Prosecutor]: Objection, your honor. Relevance.
“[Trial court]: Sustained. [¶] . . . [¶]
“[Defense counsel]: And are you familiar with the literature that’s critical
of the use of victim counts in making . . . a [paraphilia nonconsent NOS] diagnosis?
“[Abbott]: Yes.
“[Defense counsel]: And what is your opinion with regard to that
literature?
“[Abbott]: Well, the literature takes a look at can victim counts be used to
establish a diagnosis of a paraphilia NOS, nonconsent and essentially the literature --
“[Prosecutor]: Objection. Calls for hearsay. Campos.
“[Trial court]: Sustained to the portion of the answer. That sounded as
though he was going to describe the literature. When he said, ‘and essentially the
literature,’ those words will be stricken. The rest of the answer will remain.”
When defense counsel asked Abbott to describe Rhoden’s behavior at
Coalinga, the trial court sustained the prosecutor’s hearsay objection. Defense counsel
asked whether Rhoden’s conduct and behavior was consistent or inconsistent with a lack
of volitional impairment, and the trial court sustained the prosecutor’s objection based on
a lack of foundation.
29
Defense counsel questioned Abbott about the relevant actuarial tools,
including the SRA-FV, which Abbott testified he did not use because of its poor
reliability. When defense counsel asked him how then a psychologist should present the
results from that test, the trial court sustained the prosecutor’s objection not because it
was speculative but because the answer would be irrelevant. Defense counsel asked
Abbott about standardized assessment protocols, and the following colloquy occurred:
“[Defense counsel]: Are state evaluators required to follow these
assessment procedures for their protocols.
“[Abbott]: Yes.
“[Defense counsel]: What is the type of assessment method described in
the standardized assessment protocol?
“[Prosecutor]: Objection, your honor. Relevance. Lack of foundation.
Calls for speculation. [¶] . . . [¶]
“[Trial court]: The objection is sustained.
“[Defense counsel]: Doctor, does the standardized assessment protocol
provide any information in the literature showing the problems of the clinically adjusted
actuarial approach?
“[Abbott]: No.
“[Defense counsel]: Would it be important for an evaluator to consider the
limitations of this approach when rendering opinions as to whether . . . Rhoden meets the
threshold of substantial danger?
“[Prosecutor]: Objection, your honor. Calls for speculation. Relevancy.
“[Trial court]: Sustained.”
Abbott scored Rhoden with a four on the STATIC-99R, which correlated
with a 6 percent chance of reoffending over five years. Abbott added that the reoffense
rate decreases as a person ages. Abbott opined that even if Rhoden had a mental
disorder, he was not likely to reoffend. Abbott explained he reviewed the website and it
30
did not change his opinion because there was no scientific evidence establishing
deception was an indicator of a risk of sexual reoffense. Defense counsel returned to the
topic of age and the following colloquy occurred:
“[Defense counsel]: Doctor, are you familiar with any studies in literature
regarding testosterone and erectile capacity when certain subjects reach a certain age?
“[Abbott]: Yes.
“[Defense counsel]: And when do individuals start having such problems?
At what age?
“[Prosecutor]: Objection, your honor. Calls for speculation. Lack of
foundation.
“[Trial court]: Sustained.
“[Defense counsel]: Okay. Well, based upon your review of the literature,
did you form an opinion as to when men would begin to have these types of problems?
“[Prosecutor]: Objection, your honor. Lack of foundation. Calls for
speculation.
“[Trial court]: Sustained. [¶] . . . [¶]
“[Defense counsel]: And based upon your review of the literature, have
you been able to form an opinion as to when a male starts having problems maintaining
an erection?
“[Prosecutor]: Objection, your honor. Lack of foundation.
“[Trial court]: Sustained.”
Abbott opined Rhoden did not meet the criteria for an SVP.
On cross-examination, Abbott admitted he had testified for the prosecution
only once before in an SVP case. On redirect examination, the following colloquy
occurred:
“[Defense counsel]: Dr. Abbott, you indicated that you’re not in a position
to determine whether or not . . . Rhoden is at risk of reoffending; is that correct?
31
“[Abbott]: Correct?
“[Defense counsel]: That’s not one of the criteria under the sexually
violent predatory act, is it?
“[Abbott]: No, it’s not.
“[Defense counsel]: It’s whether or not . . . Rhoden is of a substantial risk
of sexually reoffending if released to the community without the appropriate care and
treatment in a facility correct?
“[Abbott]: Yes, and specifically a serious and well-founded risk to engage
in sexually violent predatory acts.
“[Defense counsel]: And did you conclude that . . . Rhoden does not pose
such a serious and well-founded risk; is that correct?
“[Prosecutor]: Objection. Leading. Asked and answered.
“[Trial court]: Sustained.
“[Defense counsel]: What was your opinion?
“[Prosecutor]: Objection, your honor. Asked and answered.
“[Trial court]: Sustained.”
Gary Anderson, a lawyer and retired law professor, testified he met Rhoden
in 1988, took his case, and got his sentence reduced. Anderson explained that after
Rhoden became a certified paralegal, Rhoden began working for him as a paralegal in the
mid-1990s. When defense counsel asked Anderson to describe the quality of Rhoden’s
work, the following colloquy occurred:
“[Anderson]: It’s excellent work.
“[Prosecutor]: Objection.
“[Anderson]: Superb work.
“[Prosecutor]: Objection.
“[Trial court]: Hold on. There’s an objection.
“[Prosecutor]: Relevance, your honor.
32
“[Trial court]: Sustained.
“[Prosecutor]: Move to strike the answer.
“[Trial court]: The last answer will be stricken.”
Anderson stated he is a member of Rhoden’s support team and will help
him register as a sex offender in California, assist him in getting to Florida, and employ
him as a paralegal. Anderson said he helped Rhoden enroll in the outpatient treatment
program in Florida. Anderson testified he assisted Rhoden in creating the website and
recommended Rhoden use an alias because a Google search of Rhoden’s legal name
produced his criminal history. Anderson made the recommendation so Rhoden could
obtain business and not to defraud anyone. As to the cell phone numbers on the website,
Anderson confirmed he had one of the cell phones and Rhoden’s sister had the other.
Raul Amador, Coalinga’s Catholic chaplain, worked with Rhoden almost
every day. He stated Rhoden assisted sick and dying patients.
Verdict & Commitment
The jury found Rhoden was an SVP. The trial court ordered Rhoden
committed to the custody of the Department of State Hospitals.
DISCUSSION
I. Trial Court’s Sua Sponte Continuance
Rhoden argues Judge Luesebrink erred by sua sponte continuing the case.
We agree but conclude Rhoden was not prejudiced.
A trial court may continue trial sua sponte upon a finding of good cause.
(People v. Santamaria (1991) 229 Cal.App.3d 269, 277 (Santamaria).) The decision to
continue a case “‘must be based upon the facts and circumstances of the case as they exist
at the time of the determination.’” (Bussard v. Department of Motor Vehicles (2008)
164 Cal.App.4th 858, 864 (Bussard).) Trial judges are faced with competing interests
when deciding whether to continue a case. “‘On the one hand, they are mandated by the
Trial Court Delay Reduction Act [citation] to actively assume and maintain control over
33
the pace of litigation. On the other hand, they must abide by the guiding principle of
deciding cases on their merits rather than on procedural deficiencies. [Citation.] Such
decisions must be made in an atmosphere of substantial justice. When the two policies
collide head-on, the strong public policy favoring disposition on the merits outweighs the
competing policy favoring judicial efficiency. [Citation.]’ [Citation.]” (Oliveros v.
County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.)
California Rules of Court, rule 3.1332 (rule 3.1332) addresses continuances
and provides that “although continuances of trials are disfavored,” a court may grant a
continuance for good cause. Rule 3.1332(c) provides a list of factors demonstrating good
cause, including the unavailability of an expert witness (rule 3.1332(c)(1)), and
significant unanticipated changes in the case’s status (rule 3.1332(c)(7)). Rule 3.1332(d)
provides other factors a court may consider, including proximity of the trial date
(rule 3.1332(d)(1)), the availability of alternative means to address the problem
(rule 3.1332(d)(4)), prejudice (rule 3.1332(d)(5)), the court’s calendar and impact on
other cases (rule 3.1332(d)(7)), and the interests of justice (rule 3.1332(d)(10)).
“The decision to grant or deny a continuance is committed to the sound
discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will
be upheld if it is based on a reasoned judgment and complies with legal principles and
policies appropriate to the case before the court. [Citation.] A reviewing court may not
disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof
appearing in the record. [Citation.] The burden rests on the complaining party to
demonstrate from the record that such an abuse has occurred. [Citation.]” (Forthmann v.
Boyer (2002) 97 Cal.App.4th 977, 984-985.)
Here, we conclude Judge Luesebrink erred by continuing the case for
nearly six weeks to ostensibly allow counsel to research whether the matter could be
resolved pretrial by motion to dismiss or other manner. A brief recitation of the facts is
necessary.
34
On May 1, 2013, the day trial was set to begin in what was expected to be a
10-day trial, defense counsel stated the prosecution had no expert testimony Rhoden was
likely to reoffend and defense counsel orally moved to dismiss the petition. After
Judge Luesebrink analogized the situation to a motion for summary judgment and the
prosecutor stated case authority held summary judgment is not available in SVP cases,
Judge Luesebrink told counsel to return that afternoon prepared to litigate the issue.
When proceedings resumed in the afternoon, Judge Luesebrink explained summary
judgment was not available in SVP proceedings but the prosecution would have a
difficult time satisfying his burden. At one point Judge Luesebrink asked defense
counsel to discuss with Rhoden whether he would waive his speedy trial rights and
subsequently said Rhoden had no such right. After Judge Luesebrink told defense
counsel to research the issue of whether the case could be resolved pretrial and counsel
asked whether the case was proceeding, Judge Luesebrink said he would continue the
case. When defense counsel asserted he would rather proceed with trial, Judge
Luesebrink discussing judicial efficiency, court backlog, and his scheduled surgery on
June 2. Judge Luesebrink sent the case back to Judge Hanson, setting the matter on June
10, 2013, over defense counsel’s objections.
Rhoden and the Attorney General dispute the reason for the continuance.
Rhoden asserts Judge Luesebrink continued the case because he believed the prosecution
could not satisfy its burden. Rhoden thus asserts dismissal was necessary. The Attorney
General counters Judge Luesebrink continued the case because Rhoden made his motion
to dismiss orally without proper preparation. The Attorney General therefore contends
Judge Luesebrink properly continued the case “to make an informed ruling on” Rhoden’s
motion to continue. We conclude there is some truth in both their assertions but they
both fail to acknowledge weaknesses in their contentions.
We agree with Rhoden that Judge Luesebrink was concerned the
prosecution could not satisfy its burden of establishing Rhoden was likely to reoffend.
35
And we agree with the Attorney General that Rhoden made an oral motion to dismiss.
Thus, because the prosecution did not have an expert who would testify Rhoden was
likely to reoffend, Rhoden moved to dismiss the case. But we disagree with Rhoden
dismissal was proper, and we disagree with the Attorney General that Judge Luesebrink
in part continued the case to make an informed ruling.
Judge Luesebrink could not make an informed ruling on the motion to
dismiss because Rhoden did not present any written points and authorities and a short
continuance would have been appropriate. (Bussard, supra, 164 Cal.App.4th at p. 865
[unexpected development justifies continuance].) However, Judge Luesebrink did not
continue the case so he could make an informed ruling on Rhoden’s motion to dismiss in
a reasonable period of time. He continued the case for almost six weeks, sending it back
to Judge Hanson and setting a date of June 10, 2013. That was error. Santamaria, supra,
229 Cal.App.3d 269, is instructive.
In Santamaria, there was an 11-day suspension of jury deliberations due to
the judge’s scheduled vacation. The court found no good cause for the suspension,
stating the following: “The record in the present case discloses no administrative duties,
congested calendar, or any other exceptional circumstances to explain the continuance;
instead, the record indicates only that the judge was to be ‘away,’ and that at least two of
the days involved were holidays.” (Santamaria, supra, 229 Cal.App.3d at p. 277.) The
court was also concerned with the timing of the suspension because it occurred during
jury deliberations. (Id. at pp. 277-278.) Finally, the court noted there was an alternative
to suspending deliberations—substituting another judge. (Id. at p. 278.)
We agree a trial judge may sua sponte continue a case for good cause such
as when an expert witness is unavailable or to address a significant change in the case’s
status. We also agree a trial judge may consider a number of factors such as judicial
efficiency, the court’s backlog of cases, and the interests of justice. But here
36
Judge Luesebrink did not simply trail the case for a few days, or until the following week,
to allow counsel to submit written points and authorities on the motion to dismiss. Citing
to judicial efficiency, other concerns, and his own knee surgery in early June,
Judge Luesebrink sent the case back to Judge Hanson and set a date nearly six weeks out.
Although he cited to a congested calendar, like the judge in Santamaria, Judge
Luesebrink also seemed concerned with his personal schedule. Also like in Santamaria,
there was an alternative. Had Judge Luesebrink trailed the case until the following week,
the case would have certainly been completed by the end of the month based on the 10-
day trial estimate. Thus, we conclude Judge Luesebrink erred by sua sponte continuing
the case almost six weeks.
However, we conclude Rhoden was not prejudiced by the continuance.
Rhoden concedes we review the error under the harmless error standard articulated in
People v. Watson (1956) 46 Cal.2d 818 (Watson). “[U]nder Watson, a defendant must
show it is reasonably probable a more favorable result would have been obtained absent
the error. [Citation.] Prejudice under Watson ‘must necessarily be based upon
reasonable probabilities rather than upon mere possibilities.’ [Citation.]” (People v.
Mena (2012) 54 Cal.4th 146, 162.)
Rhoden argues the continuance prejudiced him for the following three
reasons: (1) instead of trial beginning on May 1, and Starr testifying, presumably on
May 16, that Rhoden was not likely to reoffend, trial was delayed over a month during
which time the prosecutor informed Starr of Rhoden’s website and Starr changed her
opinion to conclude Rhoden was likely to reoffend; (2) Judge Luesebrink, whose
comments indicated he was concerned with the prosecution satisfying its burden of proof,
would have ruled more favorably than Judge Hanson; and (3) the undue delay was in
itself prejudicial. Based on the entire record, we conclude Rhoden did not establish it
was reasonably probable he would have obtained a more favorable result had Judge
Luesebrink not sua sponte continued the case.
37
Rhoden points to nothing in the record, and we found nothing, that
demonstrates the prosecutor would not have learned of Rhoden’s paralegal website had
trial commenced on May 1, 2013, and Starr testified on May 16, 2013. When trial did
start on June 24, 2013, the prosecutor informed the trial court he found the website the
previous Thursday and informed Starr of the website. Based on the prosecutor’s
representations to the court, we can conclude that as part of its trial preparation the
prosecution was performing its due diligence on Rhoden in anticipation of examining
Starr. The prosecution would have performed the same due diligence had trial started in
May in anticipation of examining Starr on May 16, 2013, the date the prosecutor
indicated she would be available to testify. We disagree with Rhoden the continuance
until June was the reason the prosecution learned of Rhoden’s website.
Rhoden argues principles of judicial estoppel prohibit the Attorney General
from arguing on appeal the prosecution would have had an expert witness, Starr, who
would testify Rhoden was likely to reoffend because at trial, the prosecutor conceded
Starr would testify he was not likely to reoffend. Judicial estoppel is inapplicable here.
Judicial estoppel is applicable when “(1) the same party has taken two
positions; (2) the positions were taken in judicial or quasi-judicial administrative
proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal
adopted the position or accepted it as true); (4) the two positions are totally inconsistent;
and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’
[Citations.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.) The gravamen of
Rhoden’s claim is the prosecutor took a position, Starr would not testify Rhoden was
likely to reoffend, the prosecutor’s position was successful, and the trial court granted a
continuance. The problem is the prosecution did not seek the continuance.
Judge Luesebrink granted a continuance sua sponte. Thus, contrary to Rhoden’s claim,
the prosecution did not successfully assert a position to obtain a continuance.
38
Rhoden relies on two cases People v. Litmon (2008) 162 Cal.App.4th 383(Litmon), and People v. Jacobs (2007) 156 Cal.App.4th 728 (Jacobs), to argue he was
prejudiced. Both are inapposite.
In Jacobs, the trial judge would have been available in two court days for
defendant’s sentencing hearing, but the court denied defendant’s request for a short
continuance to have the hearing in front of the trial judge because of jail overcrowding.
(Jacobs, supra, 156 Cal.App.4th at pp. 731-733.) A different judge imposed the sentence
on defendant, and defendant contended the trial judge could have given him a more
lenient sentence. (Id. at p. 740.) When reversing, the court acknowledged defendant’s
argument it was reasonably probable the trial judge would have been more lenient
involved “an element of speculation[,]” because the court was “‘unable to say what the
position’” of the trial judge would have been. (Ibid.) Here, it is too speculative to
conclude Judge Luesebrink would have ruled more favorably than Judge Hanson on
Rhoden’s motion to dismiss. As we explain below, such a remedy is not available.
In Litmon, defendant filed a motion to dismiss the pending recommitment
petition after trial was continued to a date beyond the expiration of the two-year
commitment period, claiming violation of his rights to due process and a speedy trial.
(Litmon, supra, 162 Cal.App.4th at pp. 392-393.) The trial court denied the motion on
the ground there was no right to a speedy trial under the Sexually Violent Predators Act
(SVPA). (Ibid.) Trial was scheduled to begin in March 2007, after the effective date of
the new law permitting indeterminate terms of commitment. (Id. at p. 394.) On appeal,
the court engaged in an in-depth analysis of the SVPA and the meaning of due process,
concluding defendant had the right to due process in the context of proceedings under the
SVPA, and the two-month delay due to systemic government problems violated that
right. (Id. at pp. 399-406.) The court concluded the trial court erred by denying his
motion to dismiss. (Id. at p. 406.) Here, Rhoden did not argue his procedural due
process rights were violated. Additionally, Rhoden contributed to the delay by orally
39
moving to dismiss the case, which was the impetus for Judge Luesebrink continuing the
case. Thus, although we conclude Judge Luesebrink erred by continuing the case, we
conclude Rhoden was not prejudiced.
II. Motion to Dismiss
Rhoden asserts Judge Hanson erred by denying his nonstatutory motion to
dismiss. We disagree.
In Bagration, supra, 110 Cal.App.4th at page 1689, the court concluded
Code of Civil Procedure section 437c does not operate in SVPA proceedings. In that
case, the offender brought a motion for summary judgment asserting his criminal
convictions did not qualify as sexually violent offenses necessary to file a commitment
petition. (Bagration, supra, 110 Cal.App.4th at p. 1681.) After the trial court denied the
summary judgment motion, the offender sought a writ of a mandate. (Id. at p. 1682.) In
denying the writ petition, the court explained Code of Civil Procedure section 437c is
located in part 2 of the Code of Civil Procedure which, as the California Supreme Court
had held, did not generally extend to a special proceeding (such as an SVPA commitment
proceeding) unless expressly incorporated by the statutes establishing the special
proceeding. (Bagration, supra, 110 Cal.App.4th at p. 1685.) The SVPA did not
expressly incorporate part 2 of the Code of Civil Procedure, and thus, summary judgment
was not permitted in an SVPA commitment proceeding. (Bagration, supra,
110 Cal.App.4th at pp. 1685-1686.) To allow incorporation of summary judgment into
SVPA proceedings would “potentially supplant [the SVPA]’s probable cause hearing and
trial.” (Id. at p. 1688.)
The Bagration court concluded although Code of Civil Procedure section
437c, subdivision (a), provides summary judgment is available in “any . . . proceeding,”
section 437c “is inherently inconsistent with the [SVPA] because the mutual summary
procedures set forth in Code of Civil Procedure section 437c, if applied to [SVPA]
proceedings, would allow an individual to be adjudicated a sexually violent predator
40
without benefit of the required beyond a reasonable doubt burden of proof and, in the
case of a jury trial, a unanimous verdict-impairing the requirements that are at the heart of
the statute’s due process protections.” (Bagration, supra, 110 Cal.App.4th at
pp. 1688-1689.) Finally, in rejecting petitioner’s claim criminal law allows nonstatutory
procedural motions, the Bagration court distinguished People v. Superior Court (Ghilotti)
(2002) 27 Cal.4th 888 (Ghilotti), which authorized trial court’s to review expert
evaluations for facial material legal error before filing of the petition. (Bagration, supra,
110 Cal.App.4th at p. 1689.) Finally, the court concluded petitioner was not without a
remedy as habeas corpus was available. (Ibid.)
Contrary to Rhoden’s assertion Bagration “was badly flawed,” we agree
with Bagration’s well reasoned analysis and conclude Judge Hanson properly denied the
nonstatutory motion to dismiss, which was in essence a motion for summary judgment.
Rhoden claims Judge Hanson should have ruled on the merits because his nonstatutory
motion to dismiss was in the alternative a petition for writ of habeas corpus. His claim is
belied by the record. At the hearing, Judge Hanson noted Rhoden had alternatively titled
his written submission, nonstatutory motion to dismiss and petition for writ of habeas
corpus and questioned whether counsel had properly alleged a habeas corpus petition.
When Judge Hanson inquired whether the motion “[wa]s truly just a nonstatutory motion
to dismiss[,]” counsel answered, “Yes.”
Our conclusion neither summary judgment nor a nonstatutory motion to
dismiss is available in SVP proceedings is further supported by Gray v. Superior Court
(2002) 95 Cal.App.4th 322. In Gray, the court explained: “Once a petition under the Act
has been filed, and the trial court (as here) has found probable cause to exist, the matter
should proceed to trial. In other words, once a petition has been properly filed and the
court has obtained jurisdiction, the question of whether a person is a sexually violent
predator should be left to the trier of fact unless the prosecuting attorney is satisfied that
proceedings should be abandoned.” (Id. at p. 329; see People v. Superior Court (Salter)
41
(2011) 192 Cal.App.4th 1352, 1359 (Salter) [citing Gray in mentally disordered offender
case].) Both Bagration and Gray compel the conclusion Judge Hanson properly ruled on
Rhoden’s nonstatutory motion to dismiss, which alleged insufficient evidence. Rhoden
did not allege there was a material legal error, a point he concedes, and thus his reliance
on Reilly v. Superior Court (2013) 57 Cal.4th 641, and Ghilotti, supra, 27 Cal.4th 888,
are misplaced.
Rhoden again relies on Litmon, supra, 162 Cal.App.4th 383, to argue a
motion to dismiss is available in SVP proceedings. As we explain above, the Litmon
court reversed the trial court’s denial of petitioner’s motion to dismiss because a
two-month delay violated petitioner’s procedural due process rights. (Litmon, supra,
162 Cal.App.4th at pp. 392-393.) Again, Rhoden did not argue his procedural due
process rights were violated below. On appeal, Rhoden asserts such a claim could only
be made on appeal. We disagree, as defense counsel could have argued before
Judge Luesebrink and/or Judge Hanson that any delay violated his procedural due process
rights. He did not. More importantly, any delay could be attributed in part to Rhoden’s
oral motion to dismiss before Judge Luesebrink.
Finally, Rhoden relies on three cases concerning mentally disordered
offenders to argue dismissal was proper. Neither Salter, supra, 192 Cal.App.4th at
page 1359 [prosecutor entitled to jury trial when conflicting medical opinions in mentally
disordered offender (MDO) proceedings], People v. Sheek (2004) 122 Cal.App.4th 1606,
1611-1612 [trial court may grant dispositive pretrial motions pursuant to court’s inherent
power to conduct orderly proceedings in MDO case], nor People v. Cosgrove (2002)
100 Cal.App.4th 1266, 1275 [defendant statutory right to jury trial unless waived in
MDO proceedings], compels us to depart from the Bagration court’s reasoning. Thus,
we conclude Judge Hanson properly denied Rhoden’s nonstatutory motion to dismiss.
42
III. Sufficiency of the Evidence
Rhoden contends insufficient evidence supports the jury’s finding he was
an SVP because Starr’s testimony, specifically her newfound opinion he was likely to
reoffend, was unreasonable. Not so.
“In reviewing the sufficiency of the evidence to support a person’s civil
commitment as an SVP, we apply the substantial evidence standard of review. [Citation.]
‘Under this standard, the court “must review the whole record in the light most favorable
to the judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” [Citations.] The focus
of the substantial evidence test is on the whole record of evidence presented to the trier of
fact, rather than on “‘isolated bits of evidence.’”’ [Citation.] [¶] We ‘must presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’ [Citation.] ‘We must therefore view the evidence in the light most
favorable to the prevailing party, giving it the benefit of every reasonable inference and
resolving all conflicts in its favor . . . .’ [Citation.] Further, ‘[a]lthough we must ensure
the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict
is supported by substantial evidence, we must accord due deference to the trier of fact and
not substitute our evaluation of a witness’s credibility for that of the fact finder.’
[Citation.] This is true even in the context of expert witness testimony. ‘The credibility
of the experts and their conclusions [are] matters [to be] resolved . . . by the jury,’ and
‘[w]e are not free to reweigh or reinterpret [that] evidence.’ [Citation.]” (People v.
Poulsom (2013) 213 Cal.App.4th 501, 518 (Poulsom).)
The SVPA authorizes a person to be civilly committed as an SVP if (1) the
offender has been convicted of a qualifying sexually violent offense; (2) the offender has
43
a diagnosable mental disorder; and (3) the mental disorder makes it likely he will engage
in sexually violent criminal conduct if released. (In re Lemanuel C. (2007) 41 Cal.4th 33,
42, fn. omitted.) The testimony of a single expert witness constitutes sufficient evidence.
(People v. Bowers (2006) 145 Cal.App.4th 870, 879; People v. Scott (2002) 100
Cal.App.4th 1060, 1064.) However, opinion testimony that is speculative or conjectural
is not sufficient evidence. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634,
651.) “[A]n expert’s opinion rendered without a reasoned explanation of why the
underlying facts lead to the ultimate conclusion has no evidentiary value because an
expert opinion is worth no more than the reasons and facts on which it is based.
[Citations.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.)
Rhoden acknowledges Starr’s testimony generally “would be impossible to
attack . . . as not constituting substantial evidence.” However, he asserts her testimony is
subject to attack because the reasons and assumptions underlying her change of opinion
were unreasonable. His complaints all concern the creation of and the information on the
website, i.e., he did not improperly access the Internet, he did not improperly possess cell
phones, his use of an alias was on the advice of counsel to acquire business, and his use
of a fake address was a reasonable business decision. Although the short answer to
Rhoden’s contentions is these were matters for the jury to decide when assessing Starr’s
opinion (People v. Smithey (1999) 20 Cal.4th 936, 966 [jurors must weigh expert opinion
based on qualifications and believability, reasons for opinion, and matter upon which it is
based]), we will explain why Starr’s change of opinion, and the reasons underlying her
opinion, were reasonable, credible, and of solid value.
Contrary to Rhoden’s claim otherwise, Starr did not change her opinion
based entirely on her belief he illegally accessed the Internet and possessed cell phones.
Starr testified that beginning in 2003 she evaluated Rhoden seven times and each time
concluded he was likely to reoffend and thus was an SVP, the most recent time being in
2012. Starr added she evaluated Rhoden again in 2013 and concluded he was not likely
44
to reoffend. Despite the fact she concluded he was not likely to reoffend, both her
January 2013 report and her testimony indicate she still had concerns with Rhoden’s state
of mind. Although her report was not admitted into evidence and we do not consider it
for its evidentiary value, her report provides context for her testimony.
In her report, Starr stated Rhoden had “a history of being deceitful and
extremely manipulative.” Starr said that although Rhoden admitted gambling was a high
risk factor that led to commission of the sexual offenses, in 2005 he asked his wife to buy
him lottery tickets with specific numbers and told her that when he was released they
would go to the dog racing track. Starr commended Rhoden on his immediate
participation in sex offender treatment upon his arrival at Coalinga, although she was of
the opinion Rhoden manipulated staff to advance him through the phases without
satisfying the requirements and to advocate on his behalf. Starr concluded, “Given the
totality of the aforementioned considerations, in spite of continued concerns, there is no
documented evidence that would indicate he is likely to commit future sexually violent
predatory acts.” (Italics added.)
Starr expressed the same concerns during her testimony. Although Starr
believed Rhoden violated Coalinga rules by accessing the Internet and possessing cell
phones, she also noted he had used aliases in the past and he was using an alias again on
the website. She opined this demonstrated a “continuing pattern of his deceitfulness, his
manipulation, [and] his arrogance.” At various times, Starr repeated Rhoden’s use of an
alias, when he had previously used them, and his use of a false address, demonstrated his
deceit. She explained her belief Rhoden manipulated and deceived his treatment team at
Coalinga was validated by his creation of the website, and she opined, he has “gamed . . .
the system.” Starr opined the deceit and manipulation were relevant to the mental
disorder diagnosis in how he lured the victims into his car under the pretense he was a
professional photographer. Starr stated that although she concluded Rhoden was not an
45
SVP in January 2013, “[her] gut feeling was that there was still something nefarious
going on and that he met the criteria, but [she] had no evidence of . . . that.”
Based on this evidence, the jury could reasonably conclude Starr’s opinion
Rhoden was likely to reoffend, and the reasons and assumptions underlying her change of
opinion, were reasonable. The record is clear that even in January 2013 when Starr
changed her opinion to conclude Rhoden was not likely to reoffend, she had concerns he
was still engaging in deceitful and manipulative conduct. Although Rhoden contends it
was pure speculation he violated the Coalinga rules, the evidence demonstrated he
employed Anderson and his sister to create the appearance he was a paralegal who lived
in the community.
Starr opined Rhoden used deceit and manipulation to lure his victims, and
she suspected Rhoden used deceit and manipulation to influence Coalinga staff. Her
concerns were confirmed in June 2013 when she learned of the website with the alias and
false address. Starr testified deceit and manipulation were a component of Rhoden’s
mental disorder and his mental disorder led him to commit sexual offenses. Thus, Starr’s
change of opinion were not based on her “imagination,” as Rhoden asserts, but instead on
over 10 years of evaluating Rhoden and the newly discovered website. Because we
conclude Starr’s underlying assumptions and conclusions were reasonable, Starr’s
opinion Rhoden was likely to reoffend was reasonable, credible, and of solid value and
therefore there was sufficient evidence supporting the jury’s verdict Rhoden was an SVP.
Citing to Starr’s “gut feeling” of “nefarious activity,” Rhoden claims Starr
changed her opinion because she was biased against him. As we explain above, Starr’s
change of opinion was based on her long treatment history of Rhoden and newly
discovered evidence. Additionally, defense counsel cross-examined Starr extensively
about the reason she changed her opinion and whether it was based on solid reasons.
There was ample evidence, including Starr’s testimony, from which the jury could have
rejected Starr’s opinion. Finally, Rhoden cites to some of that evidence, including
46
Abbott’s testimony there was no scientific evidence establishing a correlation between
deception and risk of sexual reoffending, to argue Starr’s testimony was unreasonable.
That was for the jury to decide. (Poulsom, supra, 213 Cal.App.4th at p. 518 [experts’
credibility and conclusions issues for trier of fact].) Therefore, we conclude there was
sufficient evidence supporting the jury’s verdict Rhoden was an SVP.
IV. Evidentiary Rulings
Rhoden argues there were about 46 evidentiary errors he separates into
three categories. We address his claims below.
“We review the trial court’s evidentiary rulings for abuse of discretion.
[Citations.] . . . [¶] . . . Only relevant evidence is admissible. [Citation.] Relevant
evidence is broadly defined as that having a ‘tendency in reason to prove or disprove any
disputed fact that is of consequence’ to resolving the case. [Citation.] Inferences drawn
from the evidence must be logical and reasonable, not merely speculative. [Citations.]
All relevant evidence is admissible, unless a specific statutory or constitutional provision
bars its admission. [Citations.]” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th
335, 405, fn. omitted.)
A. Campos
Rhoden contends the trial court made nine evidentiary errors when, during
defense counsel’s cross-examination of Starr and Sims, the court sustained the
prosecutor’s Campos objections. He also asserts the court erred when on direct
examination of Abbott, the court sustained the prosecutor’s Campos objection. As we
explain below, we agree in part with his claims but conclude he was not prejudiced.
In Campos, defendant was certified by the Department of Corrections as an
MDO, and petitioned for a jury trial to challenge that certification. At trial, the
prosecution called a psychiatrist to testify concerning defendant’s mental health. Relying
in part on the reports of other medical personnel, the expert opined defendant met the
MDO criteria and testified other medical personnel agreed with her. (Campos, supra,
47
32 Cal.App.4th at p. 307.) A jury found defendant to be an MDO. (Id. at p. 306.) On
appeal, defendant argued the nontestifying experts’ conclusions were inadmissible
hearsay. (Id. at p. 307.) The Campos court held the expert was properly allowed to
testify she relied on reports in forming her opinions, but the trial court erred “when it
allowed her to reveal their content on direct examination by testifying that each prior
medical evaluation agreed with her own opinion.” (Id. at p. 308.)
The Campos court explained: “Psychiatrists, like other expert witnesses,
are entitled to rely upon reliable hearsay, including the statements of the patient and other
treating professionals, in forming their opinion concerning a patient’s mental state.
[Citations.] On direct examination, the expert witness may state the reasons for his or her
opinion, and testify that reports prepared by other experts were a basis for that opinion.
[Citation.] [¶] An expert witness may not, on direct examination, reveal the content of
reports prepared or opinions expressed by nontestifying experts. ‘“‘The reason for this is
obvious. The opportunity of cross-examining the other doctors as to the basis for their
opinion, etc., is denied the party as to whom the testimony is adverse.’”’ [Citations.]
This rule does not preclude the cross-examination of an expert witness on the content of
such reports. . . . ‘[P]rocedurally, if an expert does rely in part upon the opinions of
others, the expert may be cross-examined as to the content of those opinions. It is
improper, however, to solicit the information on direct examination if the statements are
inadmissible. [Citations.]’” (Campos, supra, 32 Cal.App.4th at pp. 307-308.)
In his opening brief, Rhoden provides a list of nine rulings he asserts the
trial court got wrong based on Campos. Rhoden does not address each piece of evidence
separately in his opening brief. Instead, he argues generally the court erred by sustaining
the prosecutor’s objections because Campos concerned eliciting hearsay statements
during the direct examination of an expert witness whereas here we are concerned with
cross-examination.
48
To raise a proper challenge to the trial court’s evidentiary rulings, Rhoden
was required to “demonstrate how each ruling was erroneous” and “support such
challenge with reasoned argument and citations to authority.” (Salas v. Department of
Transportation (2011) 198 Cal.App.4th 1058, 1074 (Salas).) He failed to do that in his
opening brief and on that ground we may dismiss his claims as forfeited. In his reply
brief however, Rhoden separately, and exhaustively, addresses each of the nine rulings.
We do not consider arguments made for the first time in a reply brief. (People v.
Zamudio (2008) 43 Cal.4th 327, 353 (Zamudio).) However, we will address the merits
of his claims to prevent the inevitable ineffective assistance of counsel claim.
As to the merits of these claims, we dispose of two claims at the outset. We
need not address Starr’s testimony concerning Grace (relevance), and Sims’ testimony
regarding Ribeiro (speculative), because the prosecutor did not make a Campos objection
to defense counsel’s questions. (People v. Fuiava (2012) 53 Cal.4th 622, 689 [defendant
must have objected on specific grounds asserted as error on appeal].)
With respect to his other seven assertions of error during cross-examination
of the prosecution’s witnesses, we agree with Rhoden. As we explain above, Campos
prohibits an expert witness from testifying on direct examination concerning the opinions
of nontestifying experts or contents of reports. The Campos court excluded from its
prohibition the cross-examination of an expert witness concerning such matters.
(Campos, supra, 32 Cal.App.4th at pp. 307-308.) Here, the court’s rulings all occurred
during defense counsel’s cross-examination of Starr and Sims, and thus, we conclude
Campos was inapplicable. The evidence in question may have been inadmissible for
other reasons, but it was not inadmissible pursuant to Campos.
As to Rhoden’s contention the trial court erred by sustaining the
prosecutor’s Campos objection to Abbott’s attempt to testify concerning contents of
literature critical of the paraphilia NOS diagnosis, we disagree. Expert testimony on
direct examination concerning the contents of reports was the type of evidence the
49
Campos court held was inadmissible. (Campos, supra, 32 Cal.App.4th at pp. 307-308.)
Thus, Rhoden’s claim is meritless. We will discuss the prejudicial effect, if any, of the
trial court’s rulings below.
B. General Evidentiary Arguments
Rhoden contends the trial court made numerous evidentiary errors
throughout the trial when the court overruled his objections during Starr’s testimony and
sustained the prosecutor’s objections during his witnesses’ testimony (Ribeiro, Brazier,
Abbott, & Anderson). The essence of his contention is the trial court applied a different
standard of admissibility to the prosecution’s evidence than it did to his evidence. In
other words, Rhoden complains the trial court was biased in favor of the prosecution and
the court’s rulings restricted his ability to present a defense.
Rhoden provides a list of 36 claims of alleged error. But once again,
Rhoden fails to separately analyze each of the claims. Indeed, he admits in his opening
brief, “Rather than analyze each of the objections listed above individually, this argument
will focus on general categories of the trial court’s rulings and show how the trial court
erred or made inconsistent rulings in each of the various areas.” He then proceeds to
categorizes the trial court’s rulings under three categories, “Speculation and Foundation,”
“Biased Rulings,” and “Relevance.” Because he proceeds in this manner, it is difficult to
discern the basis for the alleged errors. (Cal. Rules of Court, rule 8.204(a)(1)(B) [“[s]tate
each point under a separate heading or subheading summarizing the point, and support
each point by argument and, if possible, by citation of authority”].) We can reject his
contentions on this ground alone. (Salas, supra, 198 Cal.App.4th at p. 1074.) Rhoden’s
failure to provide any legal reasoning or analysis on each individual evidentiary objection
results in a waiver of his claims. (People v. Stanley (1995) 10 Cal.4th 764, 793 [it is not
the role of reviewing court to independently seek out support for appellant’s conclusory
assertions, and such contentions may be rejected without consideration]; Mansell v.
Board of Administration (1994) 30 Cal.App.4th 539, 546 [appellate court need not
50
speculate on what legal argument could be asserted and treat matter as waived].) That
Rhoden supplies some reasoning on a handful of objections is inadequate. In his reply
brief, he takes a more detailed approach and addresses some of the rulings separately.
Again, we need not address claims made for the first time in a reply brief. (Zamudio,
supra, 43 Cal.4th at p. 353.)
To forestall a claim of ineffective assistance of counsel, we will briefly
discuss why we are not persuaded the 36 claims of evidentiary error, even if they were
well-founded, are not a basis for reversing the judgment. In the first sentence of his
analysis section, Rhoden concedes “some of the variance in the admissibility [of rulings]
was probably due to the tendency of [the prosecutor] to make more technical
objections—especially on asked and answered grounds—than did [defense counsel].”
We agree.
The record demonstrates defense counsel had a practice of citing a litany of
objections, rather than articulating a clear and specific objection. Illustrative of defense
counsel’s lack of precision is the following that occurred when Starr was discussing the
website and cell phone use:
“[Starr]: And so just shows me he’s doing what he’s always done. On the
surface try to look like a good guy or justify why he’s okay, but underneath --
“[Defense counsel]: Objection. Calls for speculation and lack of
foundation. Move to strike.”
Significant to Starr’s opinion was the fact Rhoden engaged in a continued
pattern of deceitfulness and failure to comply with rules. There was no element of
speculation as to whether Rhoden, admittedly through an intermediary, had a website or
had used cell phones. Starr had seen the website and had listened to the message on the
cell phones to determine Rhoden’s activities. She was not speculating when she
explained how the website and cell phone activity supported her opinion. Nor can we
discern what element of the “foundation” was lacking with respect to this testimony.
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Rhoden next asserts the “vast majority of various evidentiary rulings were
in response to speculation and foundation objections.” We do not disagree. As we
discuss above, defense counsel seemed to favor these objections and used them liberally.
But we are not persuaded the trial court erroneously denied many of Rhoden’s
speculation and lack of foundation objections. He cites the court’s failure to sustain his
objection when Starr testified she had never seen a patient at any state hospital have a
website. Starr was not speculating when she stated what her observations had been
regarding patient websites. Nor can we conclude there was a lack of foundation for her
to testify what she had or had not observed. In reviewing many of the other allegations of
error with respect to speculation and foundation objections, we reach similar conclusions.
This does not mean we conclude the trial court never erred in its evidentiary
rulings. Clearly a close examination of the countless evidentiary rulings the court made
did reveal some instances of error. This leads us to Rhoden’s next broad claim of bias.
As an example, Rhoden cites the trial court’s insistence Starr be allowed to
answer an open-ended question indefinitely unless defense counsel agreed to withdraw
his question. We agree Starr’s answer had become a narrative with no question pending.
When Starr provided a brief answer the court interrupted and advised Starr that counsel
had asked her to relate every statement Rhoden had made. The court indicated it would
allow Starr to continue unless defense counsel withdrew his question. We agree it was
improper for the court to interject itself in this manner, but rather than state an objection,
defense counsel was silent and simply indicated he did not want to withdraw his question.
This exchange does not establish the trial court was biased.
Rhoden also argues the trial court repeatedly erred in ruling on relevance
objections. Again, we agree the record reflects erroneous rulings in response to some
relevance objections, but we do not agree these errors were a result of any scheme by the
court to deprive Rhoden of the opportunity to present favorable evidence.
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Rhoden cites the trial court’s exclusion of evidence about the favorable
testimonials on the website as to Rhoden’s performance as a paralegal. Rhoden asserts
he should have been allowed to question Starr as to whether she had any actual evidence
the favorable statements on the website were false. Rhoden misses the point in two
respects. First, the testimonials about Rhoden’s competence as a paralegal were not
relevant to whether he was an SVP. Second, the deception Starr was focused on was
Rhoden’s. That an individual other than Rhoden opined falsely as to Rhoden’s ability as
a paralegal would not be relevant to whether Rhoden was deceitful. Even if this line of
questioning was remotely relevant, we fail to see how opinions of Rhoden’s prowess as a
paralegal—truthful or not—were sufficiently relevant that their exclusion would be error.
We have reviewed the evidentiary errors individually and cumulatively to
determine whether there is evidence of bias. We conclude there is no pattern of error that
would support a finding of bias, and the trial court did not restrict Rhoden’s right to
present a defense. We will discuss the prejudicial effect, if any, of the trial court’s
rulings anon.
C. Sex Offender Treatment Program
Rhoden asserts the trial court erred by excluding evidence of his “progress
in the sex offender treatment program.” (Emphasis omitted.) Acknowledging evidence
of the consequences of the jury’s verdict is inadmissible, Rhoden argues evidence he was
“ready” for CONREP was relevant and admissible to the issue of whether he was likely
to be a danger to the community. We disagree.
In People v. Rains (1999) 75 Cal.App.4th 1165, 1169-1170 (Rains), the
court concluded the consequences of a “‘true’” finding on whether a defendant is an SVP
has no relevance to any issue to be decided by the jury. Again, to determine whether a
person is an SVP, the jury must decide whether the person has a qualifying offense, has a
diagnosed mental disorder, and is likely to reoffend. The jury is not tasked with deciding
whether the person is eligible for CONREP. Welfare and Institutions Code section 6608
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authorizes a person who has already been committed as an SVP to petition the court for
CONREP after one year of commitment. (Welf. & Inst. Code, § 6608, subds. (a), (f) &
(g).) Needless to say, this is not the procedural posture of this case as Rhoden had not yet
been committed as an SVP. Rhoden complains such a conclusion “is hyper-technical
nonsense.” No, it is the application of the ordinary rules of evidence. For this reason,
Rhoden’s reliance on People v. Smith (2013) 216 Cal.App.4th 947, which involved a
petition for conditional release pursuant to Welfare and Institutions Code section 6608,
subdivisions (a) and (c), is misplaced.
Rhoden draws the distinction between being “ready” for CONREP and
being “eligible” for CONREP, and contends the fact he is technically ineligible does not
compel the conclusion evidence he was ready for CONREP was inadmissible. He
contends evidence he was ready for CONREP tended to establish he was ready for
treatment in the community. In exercising its discretion, the trial court concluded
otherwise but permitted Rhoden to offer evidence of his treatment progress, which he did
at length through Ribeiro’s, Grace’s, Riley-Violin’s, and Brazier’s testimony he had
completed treatment at Coalinga. We disagree with Rhoden it was simply a matter of
offering evidence he was ready for CONREP and evidence of the “technical legal
requirements” of CONREP was unnecessary. Evidence of Rhoden’s readiness for
CONREP without further explanation as to its role in the SVP system would serve only
to confuse the jury and consume additional time.
Rhoden’s final complaint is that CONREP is not an immediate
consequence of the jury’s verdict because the person has to wait one year before
petitioning the court and it is voluntary. Although CONREP is not the only consequence
of the jury’s verdict because a person may decide not to petition for CONREP, it is a
possible consequence. And although a person may not petition for CONREP and thus
not “volunteer,” CONREP is a “state-operated forensic conditional release program[.]”
(Welf. & Inst. Code, § 6608, subd. (h).) Therefore, CONREP is akin to the
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conservatorship treatment in People v. Calderon (2004) 124 Cal.App.4th 80, 89-91
[following Rains and drawing distinction between voluntary and involuntary treatment in
interpreting Ghilotti]. Thus, we conclude the trial court properly excluded any evidence
of CONREP. We now discuss whether Rhoden was prejudiced by any evidentiary errors.
D. Prejudice
Above, we find the trial court made several evidentiary errors, but we
conclude they were not prejudicial because it was not reasonably probable Rhoden would
have obtained a more favorable result absent the evidentiary errors. (People v. Samuels
(2005) 36 Cal.4th 96, 113-114 (Samuels) [state law evidentiary errors tested by Watson
standard of prejudice].)
Rhoden concedes none of the alleged evidentiary errors individually were
prejudicial but instead argues they were cumulatively prejudicial. He also concedes “the
only real issue at [his] trial was the reliability of Starr’s claim that [he] was dangerous.”
Based on our review of the record, and Rhoden’s concessions, including that had Starr
not changed her mind any attack on the sufficiency of the evidence would be
“impossible,” we conclude this case turned on the issue of how the jury perceived Starr’s
change of opinion on the eve of trial.
With respect to Rhoden’s claim the trial court crippled his
cross-examination of the prosecution’s witnesses, particularly Starr, and prevented him
from undermining her credibility, we disagree. Most of the evidence Rhoden complains
was improperly excluded pursuant to Campos concerned whether Rhoden had a mental
disorder and not whether he was likely to reoffend. As to the other evidence excluded
pursuant to Campos, the jury heard Brazier’s opinion Rhoden could be safely released
and testimony from other Coalinga staff that Rhoden completed sex offender treatment
and was a model prisoner. Thus, the evidence excluded pursuant to Campos was at best
tangentially relevant to the primary issue—whether Rhoden was likely to reoffend.
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On that issue, Starr agreed with the defense’s witnesses, Grace,
Riley-Violon, and Brazier, that Rhoden was not likely to reoffend until the eve of trial.
However, she changed her opinion after viewing Rhoden’s paralegal website. Defense
counsel cross-examined Starr thoroughly on the fact she changed her opinion, why she
changed her opinion, and that her newfound opinion was entirely speculative. Starr
testified the primary reason she changed her opinion was because Rhoden used an alias
and a false business address. Defense counsel cross-examined Starr exhaustively about
the significance of that evidence when compared with the fact Rhoden was a certified
paralegal with over 20 years of experience. Thus, we conclude defense counsel did an
admirable job of cross-examining Starr on her then recent change of opinion. Had the
jury been concerned with Starr’s change of opinion, it had ample evidence upon which to
reject her opinion as not credible.
As to Rhoden’s assertions the trial court’s rulings bolstered Starr’s
credibility and undermined his witnesses’ credibility with the jury, again we disagree.
Rhoden points to nothing in the record, and we found nothing, to support his claim the
trial court was biased against him. (Samuels, supra, 36 Cal.4th at pp. 120-121.)
Rhoden’s witnesses testified at length about his successful progress in sex offender
treatment while at Coalinga and their opinion he was suitable for treatment in the
community. Additionally, the trial court instructed the jury it was not to speculate as to
why it ruled on evidentiary objections as it did. Therefore, Rhoden has not demonstrated
the trial court was biased against him.
One final thought. Starr examined Rhoden eight times over the course of
10 years. Each of those times she concluded Rhoden was likely to reoffend and was an
SVP, except in January 2013. Perhaps it would be different if for 10 years Starr opined
Rhoden was not likely to reoffend and then on the eve of trial changed her opinion based
solely on the website. Her change of opinion in July 2013 back to her original opinion
was not the sea change Rhoden makes it out to be. We also conclude the trial court’s
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evidentiary rulings did not violate Rhoden’s due process right to a fair trial. (People v.
Benavides (2005) 35 Cal.4th 69, 91 [violations of state evidentiary rules generally do not
rise to level of due process violations].)
V. Cumulative Error
Rhoden claims there was cumulative prejudicial error. We have concluded
Judge Luesebrink erred by continuing the case and Judge Hanson erred in several of her
evidentiary rulings. We have concluded the errors individually were not prejudicial. We
now conclude they were not cumulatively prejudicial for the reasons stated above. Thus,
Rhoden’s claim is meritless.
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
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