People v. Stokes CA1/2 ( 2023 )

Filed 3/9/23 P. v. Stokes CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A160194
v.
ERNEST STOKES, (Contra Costa County
Super. Ct. No. 5-080568-9)
Defendant and Appellant.
A jury found defendant Ernest Stokes to be a sexually violent predator
(SVP) within the meaning of the Sexually Violent Predators Act (SVPA)
(Welf. & Inst. Code, § 6600 et seq.),1 which provides for the involuntary civil
commitment of certain sexually violent offenders—those with a diagnosed
mental disorder who are likely to commit sexually violent crimes—before the
end of their prison term. The trial court ordered Stokes committed to the
custody of the Director of Mental Health for the State of California for an
indeterminate term.
On appeal, Stokes seeks reversal and remand for further proceedings
by arguing that (1) the trial court failed to conduct a sufficient inquiry and
appoint new counsel after Stokes challenged his public defender’s decision
All further statutory references are to the Welfare and Institutions
1
Code unless otherwise indicated.
1
not to bring a Vasquez motion2 and claimed there was a conflict of interest;
(2) the trial court erred in admitting evidence under the hearsay exception of
section 6600, subdivision (a)(3) (section 6600(a)(3)); and (3) the trial court
erred in sustaining an objection to a question during cross-examination of an
expert witness regarding his annual compensation. We affirm.
BACKGROUND3
A. Stokes’s Qualifying Offenses
In 1972, Stokes was found guilty of rape (Pen. Code, § 261) of victim
D.D. and sentenced to an indeterminate term of three years to life. According
to the police report, D.D. stated that Stokes had come into her apartment
with a friend of hers. After the friend left and D.D. told Stokes to leave,
Stokes accused her of stealing an ounce of heroin from someone else, grabbed
her by the neck, and threatened to kill her if she did not do what he said.
Stokes removed her clothing and raped her. Stokes was released on parole in
October 1975.
In November 1975, one month after his release, Stokes forcibly
kidnapped victim K.C. According to the police report, Stokes had disabled
K.C.’s car while she was at work and then offered to fix it when it wouldn’t
start. Stokes got into the car and asked for a ride. When K.C. attempted to
drop Stokes off near his home, Stokes grabbed her by the neck, pushed a
knife against her rib, and told her he was going to kill her. Stokes put his
hand on her breast and forced her to kiss him on the lips. K.C. was able to
2 People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36.
3 The following is a brief summary of some of the factual and
procedural background in this case, which we set out to provide context to the
issues raised on appeal. We include additional facts in our legal discussion as
relevant.
2
pull into a gas station, at which point Stokes jumped out of the vehicle and
fled. K.C. believed Stokes was going to rape her.
Later that same day, Stokes also forcibly kidnapped 14-year-old victim
E.B. According to the police report, Stokes approached E.B. as she was
walking on the street and asked for directions to a house. When E.B. pointed
to the house, Stokes grabbed her and forced her behind a nearby church.
Stokes pushed her up against the building and told her he would kill her if
she didn’t stop screaming. Stokes held a knife to her throat and told her to
take off her coat and unbutton her pants. After E.B. told Stokes she was on
her period, Stokes made her prove it by showing her pad and then told her to
“ ‘get out of here.’ ”
Stokes pled guilty to both counts of kidnapping (Pen. Code, § 207). The
trial court adjudged Stokes to be a mentally disordered sex offender under
the former mentally disordered sex offender (MDSO) law (former §§ 6300–
6330), and ordered him to be placed at Atascadero State Hospital.4
Dr. Gloria Bentinck had interviewed Stokes and filed a report as part of the
MDSO evaluation. Stokes was returned to court from Atascadero State
Hospital in 1977 and sentenced to one to 25 years for each of the
kidnappings. Stokes was released on parole in January 1982.
In December 1983, Stokes committed two counts of forcible rape and
forcible kidnapping of victim L.T., as well as possession of a dirk or dagger.
(Pen. Code, §§ 207, 261, subd. (a)(2), 12020, subd. (a).) According to the police
report, Stokes was at L.T.’s apartment when he grabbed her, forced her to the
bed, and threatened to kill her. He forced L.T. to disrobe at knifepoint and
4Under this former law, sentencing of an MDSO was suspended after
conviction and the offender was committed to a state mental hospital for
treatment. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143 & fn. 3.)
3
raped her twice. Stokes then made L.T. drive him around, under threat of
death and with a dagger on his lap. When they finally stopped at a gas
station, L.T. got another customer to call the police. Stokes was convicted on
all counts and sentenced to 39 years in state prison.
B. Petition for Commitment5
Stokes was referred by the CDCR to the DSH for evaluation before his
expected release in 2008. Stokes was found to have met the SVP statutory
criteria. In May 2008, the Contra Costa County District Attorney’s Office
filed a petition to commit Stokes as an SVP. In July 2008, the trial court
found probable cause to believe Stokes was an SVP, and ordered him confined
at Coalinga State Hospital pending trial.
C. Motion in Limine
Prior to trial, Stokes moved in limine to exclude evidence regarding his
statements to Dr. Bentinck as included in her 1976 MDSO evaluation report.
5 The petition process for involuntary commitment of an SVP is
outlined in section 6601. The California Department of Corrections and
Rehabilitation (CDCR) must conduct an initial screening to determine
whether an inmate may be an SVP and if so, it must then refer the inmate to
the Department of State Hospitals (DSH) for a full evaluation by two
psychiatrists or psychologists. (§ 6601, subds. (a)–(c).) If both evaluators
concur that the inmate is an SVP, DSH forwards a request to county
prosecutors to file a commitment petition. (Id., subds. (d), (h).) If one of the
evaluators does not concur, DSH must arrange for further examination by
two independent professionals. (Id., subd. (e).) If the county prosecutors
agree with the recommendation, a petition for commitment “shall” be filed.
(Id., subd. (i).) Upon the filing of the petition, the trial court must review it
and “determine whether there is probable cause to believe that the individual
named in the petition is likely to engage in sexually violent predatory
criminal behavior upon his or her release.” (§ 6602, subd. (a).) If there is
probable cause, the trial court must order that the person remain in custody
until a trial is completed to determine he or she is an SVP within the
meaning of the SVPA.
4
Because Dr. Bentinck was now deceased and could not be called to testify,
Stokes’s statements to her could come in only through her report. The
defense argued that the evidence contained hearsay. The People argued that
the evidence was admissible under the hearsay exception of section
6600(a)(3), which allows for “details underlying the commission of an offense”
to be shown by documentary evidence. The trial court denied Stokes’s
motion, concluding that the statement related to the underlying
circumstances of the offense and thus qualified under the hearsay exception.
The parties then stipulated to a description of the statements, which
included admissions from Stokes that “ ‘he has a sexual problem and has had
for some time’ ” and attempted to rape K.C., but “ ‘denies that it was he who
accosted the fourteen year old.’ ” The stipulation also included Stokes’s
admission that “ ‘he has episodic, uncontrollable episodes of intense pressure,
anger, and sexual urges with the goal of rape of a woman that he happens to
notice and appears attractive to him at the time he has these feelings. It is
not just sexual excitement but a combination of this and hostility, depression,
and tension that can only be satisfied by rape[;] if the woman is cooperative it
does not satisfy his need. He wishes only normal sexual relations with these
women; is not interested in oral or anal activity. Frequent sexual
experiences, which he enjoys, with cooperative females do not abolish this
pathological drive, and it is not necessarily related to drinking or drug use.
He describes these urges in a rather unusual way, saying it’s as though half
of him says to do it and half of him says not to, but the bad half always
wins.’ ”
D. The People’s Case
The jury trial commenced in February 2020. The stipulation—
containing not only Stokes’s statements to Dr. Bentinck, but also the history
5
of Stokes’s offenses—was admitted into evidence. The People presented
testimony from three expert witnesses: Dr. G. Preston Sims, Dr. Robert
Owen, and Dr. Mark Patterson. Dr. Sims was a psychologist employed by
DSH who had evaluated Stokes on five different occasions between 2013 and
2019. For each evaluation, Dr. Sims concluded that Stokes met the statutory
criteria for an SVP. Dr. Sims diagnosed Stokes with a non-consent paraphilic
disorder (involving deviant sexual arousal by non-consent or resistance from
another) and anti-social personality disorder. Stokes had not admitted to any
of his offenses, demonstrated remorse, or shown empathy towards his
victims. Even considering Stokes was now 71 years old and used a
wheelchair, Dr. Sims determined there was a serious and well-founded risk of
a future offense because Stokes (1) “continues to have a deviant sexual
interest in nonconsenting sexual activity,” (2) has “a general lack of concern
for others,” and (3) given Stokes used a weapon in three of his four prior
offenses, he still had the ability to make sexual activity “nonconsensual.”
Dr. Owen was a psychologist contracted by DSH who had evaluated
Stokes twice, first in 2008, and then again in 2019. Dr. Owen also diagnosed
Stokes with paraphilic disorder and anti-social personality disorder. In his
2008 evaluation, Dr. Owen concluded that Stokes did not qualify as an SVP
after finding Stokes’s age (59 years old at that time) was a “strong protective
factor.” In his 2019 evaluation, however, Dr. Owen concluded that Stokes did
qualify as an SVP because he did not see “any kind of progress in
treatment”—any change in thinking or in interactions with others—while
Stokes was at Coalinga State Hospital. Stokes had refused to enroll in sex
offender treatment, even though it was available to him. Stokes was
“unwilling to address his problems” and “still adheres to his whole antisocial
and psychopathic thinking.” Dr. Owen identified other statistically
6
significant risk factors for re-offense, including “criminal qualities,” “sexual
deviance,” and “poor performance on parole.” Dr. Owen also noted that
Stokes did not have “well-defined and viable release plans,” as he thought he
might go to Louisiana and “look somebody up there” or “live down in the
riverbed in Contra Costa County.”
Dr. Patterson was a psychologist contracted by DSH who had evaluated
Stokes in 2019. Dr. Patterson diagnosed Stokes with paraphilic disorder and
anti-social personality disorder. Dr. Patterson considered not only the
underlying offenses and his interview with Stokes, but also Stokes’s records
from Coalinga State Hospital. Those records identified instances of
“aggressive” and “hostile” behavior towards staff that were consistent with
anti-social personality disorder, including instances that had occurred only a
month before trial. The records also showed that Stokes may use a
wheelchair but doesn’t necessarily need one, as “he can actually walk and he
can even walk at a relatively fast rate.” Dr. Patterson concluded that Stokes
met the criteria for an SVP.
E. Stokes’s Case
The defense presented testimony from three expert witnesses:
Dr. Christopher Fisher, Dr. Michael Musacco, and Dr. Craig King. Dr. Fisher
was a psychologist hired by the defense who evaluated Stokes in 2013, 2016,
and 2020. Dr. Fisher diagnosed Stokes with anti-social personality disorder,
but not paraphilic disorder because his offenses did not fit a pattern of
“specific language,” “specific ritualized patterns of behavior,” or “specific
requirements of the victim.” Dr. Fisher concluded that Stokes was unlikely
to re-offend, given his advanced age and that there had been no indication of
a sexual problem in his hospital setting.
7
Dr. Musacco was a psychologist employed by DSH who had evaluated
Stokes on six different occasions between 2008 and 2019 on behalf of DSH
(not as hired by the defense). Dr. Musacco diagnosed Stokes with paraphilic
disorder and anti-social personality disorder. In his first five evaluations,
Dr. Musacco concluded that Stokes was an SVP. Dr. Musacco changed his
opinion in the sixth evaluation, still finding there was a qualifying mental
disorder but that he “can no longer confidently conclude that [Stokes]
represents a serious and well-founded risk.” Dr. Musacco stated that Stokes
was 71 years old and “hasn’t committed any sexual crimes, granted in a
custodial setting, but in most of his life now.” Dr. Musacco noted that, based
on his review of medical records, Stokes had been diagnosed with cancer that
was now in remission and had had fluid in his lungs, cataract surgery, and
an occluded carotid artery. But Dr. Musacco also noted that Stokes’s “pattern
of offending wasn’t solely carried out by physical force. He also used a
weapon, and he is still capable of using a weapon.”
Dr. King was a psychologist hired by the defense to evaluate Stokes.
Dr. King diagnosed Stokes with paraphilic disorder and an anti-social
disorder. Dr. King concluded that Stokes was not an SVP because he “falls
below the threshold for . . . likely to commit another sexually violent offense”
given his age, health problems, and that he had “controlled whatever sexual
acting out for 35 years.”
The defense also presented testimony from two psychiatric technicians
at Coalinga State Hospital. The first technician had worked on Stokes’s unit
for the past year and testified that Stokes had not presented any unusual
behavioral problems. The second technician had worked on Stokes’s unit for
approximately two years and had not known Stokes to have any physical
altercations with either other patients or staff.
8
F. Jury Verdict and Commitment Order
The jury found Stokes to be an SVP within the meaning of the SVPA.
The trial court issued an order committing Stokes to the custody of the
Director of Mental Health for the State of California “for appropriate
treatment and confinement” and “for an indeterminate period.” This appeal
followed.
DISCUSSION
I. Inquiry into Stokes’s Claims
The SVPA provides that a person subject to petition for involuntary
commitment as an SVP is entitled to the assistance of counsel, and that if the
person is indigent, “the court shall appoint counsel to assist that person.”
(§ 6603, subd. (a).) “Although the Sixth Amendment right to counsel does not
apply to such civil commitment proceedings, a defendant has a due process
right to the effective assistance of counsel.” (People v. Orey (2021) 63
Cal.App.5th 529, 567 (Orey).) Stokes was represented by counsel from the
Contra Costa County Public Defender’s Office in the SVP proceedings here.
On June 7, 2019, defense counsel advised the trial court that Stokes
wanted to be heard regarding a motion and was requesting a hearing under
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court excused the
prosecutor and conducted an in camera hearing. Defense counsel indicated
that Stokes “wanted to provide a document to the court.” The transcript
reflects that the trial court then reviewed two documents. The record
contains two documents from Stokes file-stamped on June 7, 2019. One is
titled “Notice of Actual Conflict,” and requests that the court “address an
actual conflict of interest” with his counsel. The other is a letter from Stokes
asserting that “all parties in this process have acted together to deny me due
process of law. The court has permitted continuances without any good cause
9
showing by either side. The [P]eople have failed, without good cause to bring
my case to trial in a timely manner; and my own counsel has failed to offer
any showing of good cause for the continuances to have gone on for over 11
years.” The letter stated that Stokes’s current counsel “is so burdened by his
own self-interests that he cannot and will not say all that is to be said on my
behalf with respect to a motion to dismiss which relies, in part, on his own
legal malpractice.” The letter requested that the court appoint “independent
counsel” for Stokes, to confer with him and “file equitable pleadings for
dismissal as will address the due process violations which have thus far
taken place in this case[.]”
The trial court asked Stokes why it should grant a Marsden motion
“because this is not what these documents say.” Stokes responded that his
defense counsel would not file a Vasquez motion to dismiss the petition based
on the length of time in bringing his case to trial. Stokes then stated he
sought to delay his trial because he had contacted the Innocence Project and
wanted them to “look into” his underlying convictions. The court concluded:
“I don’t find that your motion is actually a Marsden and I think that I will
just deny the Marsden.”
Defense counsel then clarified that Stokes’s “main” complaint was that
he had been denied an opportunity for trial and wanted counsel to file a
Vasquez motion. Stokes subsequently stated that he was still being treated
for cancer and wanted a continuance of the trial. The court told Stokes he
could request a continuance in three days, when he appeared before the trial
judge. Defense counsel then responded to the concerns Stokes had raised
about the public defender’s office. According to defense counsel, the case had
previously been set for trial, but on numerous occasions Stokes had indicated
he did not want to proceed for health reasons and that the continuances had
10
been voluntary on Stokes’s part. Stokes responded: “Most of them, yes.” The
court reiterated that the Marsden motion was denied.
The record reflects that, on February 4, 2020, Stokes “present[ed] a
Marsden motion” and the trial court conducted a Marsden hearing. When the
court asked Stokes about his issues and concerns, Stokes stated that his
counsel would not file a motion to dismiss under Vasquez because, in
counsel’s opinion, Stokes did not qualify. Defense counsel then detailed his
experience on the record, as well as his understanding that the delay of trial
was based on Stokes’s desire to “forgo trial because of health conditions.”
Stokes responded that he had only said “one time” that he did not want to go
to trial, and that while his health had “got in my way a lot,” there were times
that he had said “let’s just do it and get it over with.” The court advised the
parties that it needed to review the record before making a ruling.
The hearing was continued to February 21, 2020. The trial court had
ordered “as many transcripts as I could find” because it “wanted to look up
whether or not there was some systemic, procedural, administrative problem
from how the public defender’s office has handled your case to see if, in fact,
that office could be in any way deemed incompetent, and that would warrant
[defense counsel] and/or the public defender’s office being relieved because of
that and new counsel appointed.”
The trial court recited the chronology of the case as follows: from
August 2008 (after the probable cause determination) to May 2013, discovery
was ongoing and defense counsel filed several motions, including a motion
pursuant to In re Ronje (2009) 179 Cal.App.4th 509 for new evaluations and a
motion to dismiss. From August 2013 to February 2014, there were
“numerous discovery proceedings” as well as “continual case management
conferences” with the court. Trial was set for November 2014. Based on new
11
discovery from the People provided to defense counsel the week before trial,
the trial was continued with Stokes’s permission to March 2015. Trial was
reset to June 2015 due to conflicts for both attorneys. Based on new reports
from the People’s expert witnesses provided to defense counsel just before
trial (and the Court of Appeal’s grant of a writ after the trial court initially
denied defense counsel’s request for continuance), the trial was continued to
November 2015. In November 2015, the trial was continued with Stokes’s
permission to January 2016. After Stokes’s then-defense counsel was
appointed to the bench and a new attorney was appointed to represent him,
the trial was continued to October 2016. At the readiness hearing for that
trial, defense counsel represented that Stokes did not desire to proceed with
trial as he had “serious medical problems and may not survive [his] illness,
which was terminal cancer.” The matter was continued.
In March 2017, defense counsel represented that Stokes had requested
a six-month postponement until after his chemotherapy. In January, May,
and June 2018, the trial was continued due to Stokes’s health issues. In
August 2018, the People asked for a one-week continuance of the trial due to
the unavailability of experts. The trial court found good cause over objection
from the defense. The defense then asked for another continuance due to
Stokes’s health issues. The trial was continued to June 2019. In June 2019,
Stokes requested a continuance due to his health conditions and “specialty
treatment” he was receiving in or near Coalinga. The continuance was
granted.
In September 2019, the People moved to continue the trial because one
of the DSH evaluators (Dr. Musacco) had changed his opinion and DSH
needed to appoint additional evaluators to comply with section 6601. The
12
trial court found good cause over objection from the defense. The trial was
continued to February 2020, and proceeded at that time.
From this record, the trial court concluded that the case had been
delayed by Stokes and his health issues, not because of any fault by the
defense counsel or the public defender’s office. The trial court denied the
Marsden motion.
Stokes now argues that the trial court violated his due process rights
by failing to conduct a sufficient inquiry into these matters, and should have
appointed new counsel after Stokes provided notice of a potential conflict of
interest. We analyze Stokes’s underlying claims regarding his defense
counsel in two parts.
First, Stokes challenged his counsel’s decision not to file a Vasquez
motion. At the June 2019 hearing attended by Stokes, defense counsel
described Stokes’s complaint that counsel had refused to file such a motion.
Stokes himself described this same concern at the February 2020 hearing.
Marsden is an appropriate vehicle for a defendant to challenge such decisions
by counsel and seek their discharge. (Orey, supra, 63 Cal.App.5th at pp. 568–
569 [Marsden motion based on decision not to file Vasquez motion].)
“ ‘ “A defendant is entitled to have appointed counsel discharged upon a
showing that counsel is not providing adequate representation or that
counsel and defendant have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result.” ’ ” (Orey, supra,
63 Cal.App.5th at p. 568.) “ ‘ “[A] Marsden hearing is not a full-blown
adversarial proceeding, but an informal hearing in which the court ascertains
the nature of the defendant’s allegations regarding the defects in counsel’s
representation and decides whether the allegations have sufficient substance
to warrant counsel’s replacement.” ’ ” (Ibid.) The hearing “provides the
13
defendant a confidential forum in which to present complaints about
counsel’s performance,” and “provides appointed counsel the opportunity to
address the defendant’s concerns and to explain counsel’s performance.”
(Ibid.)
Here, the parties were afforded with the process required by Marsden.
At the June 2019 hearing, defense counsel stated that the continuances of
trial were necessitated by Stokes’s health issues and voluntary on his part.
Stokes confirmed that was true for “most” of the continuances, as his health
had “got in [his] way a lot.” These explanations showed that defense counsel
had made a tactical decision not to file a Vasquez motion because Stokes’s
own health issues caused delay in getting to trial. As explained in Orey,
“ ‘[t]actical disagreements between the defendant and his attorney do not by
themselves constitute an “irreconcilable conflict” ’ ” and it is sufficient that an
attorney’s explanation for the tactical decision demonstrated defendant was
receiving adequate representation and no irreconcilable conflict had arisen.
(Orey, supra, 63 Cal.App.5th at pp. 568–569.)
The nature of Stokes’s claims here, however, adds a second part to this
analysis. According to Stokes, his counsel was unable or unwilling to file a
Vasquez motion because it would cast negative light on the work of the public
defender’s office. “When the trial court knows, or reasonably should know, of
the possibility of a conflict of interest on the part of defense counsel, it is
required to make inquiry into the matter.” (People v. Bonin (1989) 47 Cal.3d
808, 836 (Bonin).) In short, when a trial court is apprised of a potential
conflict, it must also satisfy its duty of inquiry under Bonin.
While the trial court did not frame its inquiry as a Bonin inquiry, we
nonetheless conclude that it satisfied this duty. At the February 2020
hearing, the trial court conducted an extensive inquiry into the circumstances
14
of the prior continuances. The early years of the case involved discovery and
related proceedings. From 2016 to 2020, however, the trial continuances
were almost entirely requested because of Stokes’s health issues.6 There was
no indication that defense counsel had permitted continuances in the case
without good cause. The trial court’s inquiry here established that the
continuances did not arise from any systemic breakdown in the public
defender’s office or its ability to defend SVP cases, or any dilatory conduct by
defense counsel in bringing the matter to trial. We conclude that the inquiry
was sufficient under Bonin because it dispelled the prospect of a conflict as
claimed by Stokes.
Stokes’s additional arguments to the contrary do not alter our
conclusion. Stokes contends that we should ignore the trial court’s inquiry at
the second February 2020 hearing because the error occurred at the first
June 2019 hearing. A trial court commits error when it violates its duty of
inquiry into the possibility of a conflict of interest. (Bonin, supra, 47 Cal.3d
at p. 836.) To obtain reversal for such error, however, a defendant must show
that (1) an actual conflict of interest existed and (2) this conflict adversely
affected counsel’s performance. (Ibid.) We are not persuaded that the delay
between these two hearings was a failure of the court’s inquiry obligation
that constitutes reversible error here. As described above, the record
supports the trial court’s determination that no conflict of interest existed.
As for the specific period between the two hearings, the trial was continued
during that time at Stokes’s request due to health reasons. The People then
6 Stokes contends, in a footnote without citation to any evidence or
authority, that if his health problems were “aggravated or extended” by
failure of the government to provide appropriate healthcare, delays in his
trial “might still constitute a due process violation.” We cannot rely on a
hypothetical to conclude Stokes satisfied his burden to show reversible error.
15
requested a further continuance of the trial due to a necessary appointment
of additional expert witnesses. The continuance was granted upon a finding
of good cause and over objection from the defense. Stokes has not shown that
there was an actual conflict during this time period, let alone a conflict that
adversely affected counsel’s performance.
Stokes also argues that the trial court’s own inquiry was insufficient, as
new counsel should have been appointed “to investigate and argue the issue
on his behalf.” We disagree. In fulfilling its obligation to inquire into a
potential conflict, the trial court “may, of course, make arrangements for
representation by conflict-free counsel.” (Bonin, supra, 47 Cal.3d at pp. 836–
837.) “Conversely, it may decline to take any action at all if it determines
that the risk of a conflict is too remote.” (Id. at p. 837.) Here, the trial court
conducted its own extensive examination of the record and concluded there
was no actual conflict necessitating the appointment of new counsel.7
7 We also note that this case is distinguishable from People v. Carter
(2022) 86 Cal.App.5th 739 (review granted Mar. 1, 2023, No. S278262). In
Carter, a defendant sought a Vasquez dismissal because of delays in his SVP
trial and separately sought replacement of counsel via a Marsden motion.
(Carter, at p. 745.) The trial court first denied the Marsden motion because,
after a hearing on the motion, it found that defendant’s current counsel had
acted diligently in moving the case to trial. (Carter, at p. 748.) With regard
to the Vasquez motion, defendant’s counsel explained that she could not
ethically file the motion because, to do so, she “would have to say that she
was not fulfilling her ethical duty to pursue trial in a timely manner.”
(Carter, at pp. 748–749.) The trial court permitted the defendant to file a
Vasquez motion in propria persona, but he rejected the opportunity to do so
because he felt unable to capably represent himself. (Carter, at p. 749.) A
divided panel of the Third District affirmed, holding that the trial court did
not abuse its discretion in denying the Marsden motion because the record
demonstrated that the defendant made a tactical decision to delay his trial in
order to receive sex offender treatment in the state hospital. (Carter, at
pp. 752–754.) The concurring and dissenting justice believed that the
defendant’s counsel did not sufficiently investigate the merits of a potential
16
In sum, we conclude that the trial court did not fail its obligation to
inquire into Stokes’s claims regarding his public defender’s refusal to file a
Vasquez motion and potential conflict of interest, and that any delay between
initial notice of his claims and the trial court’s full inquiry did not constitute
reversible error here.
II. Admission of Statements to Dr. Bentinck
Stokes argues that the trial court erred when it admitted evidence of
his statements to Dr. Bentinck under the hearsay exception of section
6600(a)(3). He contends that, given the language of the statute and the
California Supreme Court’s decision in People v. Otto (2001) 26 Cal.4th 200(Otto), this evidence was not admissible under the exception. As the ruling
raises a question of statutory construction, we review it de novo. (People v.
Grimes (2016) 1 Cal.5th 698, 712.)
Section 6600(a)(3) provides, in relevant part, that “[t]he details
underlying the commission of an offense that led to a prior conviction,
including a predatory relationship with the victim, may be shown by
Vasquez motion, and would have reversed and remanded for that inquiry to
occur, with the prospect that substitute counsel could be appointed if
defendant’s counsel believed the motion had merit but declined to pursue it
because of a conflict of interest. (Carter, at p. 761.)
The case before us is distinguishable because defense counsel did not
refuse to even consider a Vasquez motion, but instead explained that his
decision not to file such a motion was based on his understanding that the
delays were caused by Stokes’s health conditions. Furthermore, unlike in
Carter, the trial court here did not confine its inquiry to whether Stokes’s
current counsel was diligently moving the case forward to trial. Instead, as
we discuss above, it conducted a broader inquiry into the circumstances of the
continuances in these proceedings. Based on an extensive review of the
entire record of trial delays, it concluded that the case had been delayed by
Stokes and his health issues, and thus dispelled the prospect of a conflict
between Stokes and his lawyer.
17
documentary evidence, including, but not limited to, preliminary hearing
transcripts, trial transcripts, probation and sentencing reports, and
evaluations by the State Department of State Hospitals.”
We conclude that the plain language of the statute supports its
application here. (See MacIsaac v. Waste Management Collection &
Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082–1083 [interpretative
process begins with the words of the statute itself as “[t]he Legislature’s
chosen language is the most reliable indicator of its intent” and “[i]f the
statutory language is clear and unambiguous, our task is at an end, for there
is no need for judicial construction”].) Section 6600(a)(3) explicitly authorizes
the use of documentary evidence to show “details underlying the commission
of an offense.” This phrase captures the evidence admitted here: Stokes’s
own statements regarding his underlying feelings and the “ ‘sexual problem’ ”
that motivated his offense. Moreover, section 6600(a)(3) explicitly includes
state hospital evaluations in its examples of documentary evidence covered
by the exception, like the report performed by Dr. Bentinck to determine if
Stokes was an MDSO.
Despite Stokes’s suggestion to the contrary, our conclusion is entirely
consistent with Otto and its discussion of the legislative intent behind section
6600(a)(3). The defendant in Otto challenged admission of a presentence
report containing victim statements. (Otto, supra, 26 Cal.4th at pp. 206–
207.) This evidence involved multi-level hearsay: the victim statements in
the report were hearsay, and the report was also hearsay “since presumably
the court officer who prepared the report was not a percipient witness to the
crime.” (Id. at p. 207.) The defendant argued that the report was admissible
under section 6600(a)(3), but that the victim statements contained in the
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report were not admissible unless they fell within another exception to the
hearsay rule. (Ibid.)
Otto disagreed, holding that section 6600(a)(3) “implicitly authorizes”
the admission of hearsay statements contained in those reports. (Otto, supra,
26 Cal.4th at p. 207.) It explained that the Legislature was “undoubtedly
familiar with the typical contents of such reports,” which include the victim’s
statement of the facts and circumstances of the crime, if available. (Ibid.) It
also reasoned that, in permitting the use of documentary evidence, “the
Legislature apparently intended to relieve victims of the burden and trauma
of testifying about the details of the crimes underlying the prior convictions”
and “may have also been responding to a concern that victims and other
percipient witnesses would no longer be available.” (Id. at p. 208.) Otto thus
concluded: “By permitting the use of presentence reports at the SVP
proceeding to show the details of the crime, the Legislature necessarily
endorsed the use of multiple-level-hearsay statements that do not otherwise
fall within a hearsay exception.” (Ibid.)
Our multi-level hearsay analysis is simpler than in Otto: here, Stokes
made his own statements to Dr. Bentinck, which were admissible as party
admissions (Evid. Code, § 1220), and Dr. Bentinck’s report of those
statements was admissible under section 6600(a)(3). Like the court officer in
Otto, Dr. Bentinck need not have been a victim or percipient witness for
section 6600(a)(3) to apply. (Otto, supra, 26 Cal.4th at p. 207.) The
underlying statements contained in the report were made by Stokes himself.
Moreover, the admission of Stokes’s statements is entirely consistent with
the reasoning in Otto: like presentence reports, the Legislature was
“undoubtedly familiar” with the typical contents of state hospital evaluations,
including any explanation or interpretation offered by defendant regarding
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his own behavior. (Ibid.) We thus conclude that the trial court did not err in
admitting the evidence of Stokes’s statements to Dr. Bentinck under section
6600(a)(3).
III. Cross-Examination on Annual Compensation
During the cross-examination of Dr. Owen, defense counsel asked:
“And can you tell us how much you earn on an annual basis conducting these
evaluations for the Department of State Hospitals?” The prosecutor objected
on relevance grounds. After discussion with the parties in chambers, the
trial court sustained the objection. Defense counsel asked no other questions
on the topic. When the examination had concluded and the jury was excused,
the court and parties put their discussion on the record. Defense counsel
stated that he had “information suggesting that Dr. Owen earned
approximately $400,000 a year doing contract work for D.S.H.” and it was
“relevant because what juries often think about when they’re dealing with
experts is whether or not they’re hired guns and they are trying to determine
credibility based on financial incentive.” Defense counsel clarified that the
alleged incentive would be “to write as many reports as possible” and avoid a
high percentage of reports concluding that an individual was not an SVP, but
counsel acknowledged he had no evidence of higher percentages leading to
removal of evaluators by DSH. The trial court stated that defense counsel
could have asked about evaluation statistics and DSH review without asking
about Dr. Owen’s annual compensation.
Stokes argues that the trial court erred when it sustained this
objection, as Dr. Owen’s annual compensation was relevant under Evidence
Code section 722. Evidence Code section 722, subdivision (b) states: “The
compensation and expenses paid or to be paid to an expert witness by the
party calling him is a proper subject of inquiry by any adverse party as
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relevant to the credibility of the witness and the weight of his testimony.”
The People respond that Evidence Code section 722 is inapplicable to the
particular question posed here (because it pertained to Dr. Owen’s annual
compensation as a contractor with DSH, not his compensation as an expert
witness), but even assuming some relevance, the court acted within its
discretion under Evidence Code section 352 to sustain the objection.
Evidence Code section 352 vests the trial court with broad discretion to
exclude otherwise relevant evidence if “its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (People v. Clark (2011)
52 Cal.4th 856, 931–932.) We review such an exclusion of evidence for abuse
of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 134.) We agree with
the People that the trial court’s ruling here fell within its discretion under
Evidence Code section 352. Defense counsel argued at trial that the question
regarding Dr. Owen’s annual compensation was relevant to his credibility
based on an assumption that DSH penalized evaluators who had a high
percentage of reports concluding that an individual was not an SVP. But the
defense offered nothing to support this assumption. As the trial court
explained, the defense had no evidence that such higher percentages lead to
removal of evaluators by DSH or that evaluators had some other incentive to
make a “positive” SVP finding. “[E]xclusion of evidence that produces only
speculative inferences is not an abuse of discretion.” (People v. Babbitt (1988)
45 Cal.3d 660, 684.)
Finally, even assuming the trial court erred on this evidentiary ruling,
we conclude that any such error was harmless. (People v. Robinson (2020)
47 Cal.App.5th 1027, 1032–1033 [errors under the Evidence Code are
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reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818 to
determine “whether it was reasonably probable the error affected the
outcome of the case”].) Dr. Owen testified that he had worked as an
independent contractor for DSH for 24 years and had conducted 3,000 to
4,000 evaluations. The jury thus had information to determine whether or
not Dr. Owen had a financial incentive that impacted his credibility. The
jury was also presented with evidence contradicting Stokes’s speculation that
Dr. Owen was biased towards making positive SVP findings in order to
maintain his contractor status with DSH. As a preliminary matter,
Dr. Owen had initially concluded that Stokes was not an SVP. Moreover, all
six of the expert witnesses testified about the percentage of evaluations in
which they found an individual to meet the SVP criteria: 7–8 percent for
Dr. Musacco, 10 percent for Dr. Sims and Dr. King, 10–15 percent for
Dr. Owen, 15–20 percent for Dr. Fisher, and 20 percent for Dr. Patterson.
Dr. Owen was squarely in the middle of that range. On this record, it is not
reasonably probable that the verdict would have been more favorable to
Stokes if testimony about Dr. Owen’s annual compensation had been
adduced.
In sum, we conclude that the trial court acted within its discretion in
sustaining the objection to the question on Dr. Owen’s annual compensation
and that even assuming error, any such error was harmless.8
DISPOSITION
The judgment is affirmed.
8 Having rejected each of Stokes’s claims regarding individual error, we
need not address his further argument that the cumulative effect of these
errors deprived him of due process and a fair trial.
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_________________________
Van Aken, J.*
We concur:
_________________________
Stewart, P.J.
_________________________
Miller, J.
People v. Stokes (A160194)
* Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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