People v. Harness CA3 ( 2021 )

Filed 4/15/21 P. v. Harness CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C087281
Plaintiff and Respondent, (Super. Ct. No. STK-MH-
SVPR-2015-0000086)
v.
RICHARD HARNESS,
Defendant and Appellant.
Defendant Richard Harness challenges his commitment as a sexually violent
predator (SVP). He argues the trial court erred when it admitted case-specific hearsay in
two exhibits (exhibits 4 & 5) and expert testimony based on those documents, in violation
of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We will affirm the judgment.
1
FACTUAL AND PROCEDURAL BACKGROUND
The People filed a petition seeking defendant’s commitment as an SVP. (Welf. &
Inst. Code, § 6600 et seq.) The petition was based on defendant’s conviction in 2005 for
three counts of lewd or lascivious acts with a child under the age of 14 years. (Pen.
Code, § 288, subd. (a).)1
A. Documentary Evidence
During the jury trial, the People admitted five exhibits. Exhibit 1 was a certified
copy of the abstract of judgment for defendant’s 2005 conviction in San Joaquin County
case No. LF008254A for three counts of lewd and lascivious acts upon a child under the
age of 14 years (§ 288, subd. (a)). Exhibit 2 was a certified copy of defendant’s
California Law Enforcement Telecommunications System (CLETS) report showing his
criminal history dating back to 1998.
Exhibit 3 was a probation report for defendant’s 2005 conviction, which detailed
the factual basis for that conviction. It explained defendant, then 24 years old, had shown
the eight-year-old victim pornography and touched her breasts and genitals multiple
times over the course of a year. The victim was taken to urgent care to be treated for
vaginal bleeding and stated defendant had sexually assaulted her. In a later interview, she
stated defendant had digitally penetrated her. The report also stated defendant “has a
pattern of criminal activity in regards to committing sex related offenses with minors,”
and noted defendant had previously admitted misdemeanor violations of sexual battery
(§ 243.4, subd. (a)) and molesting a child (§ 647.6) in 1997.
Exhibit 4 was a probation report for defendant’s 2004 conviction in Tuolumne
County case No. CRF15128 for two counts of molesting a child (§ 647.6, subd. (a)). The
report explained defendant had been at a campground when he approached two 10-year-
1 Undesignated statutory references are to the Penal Code.
2
old girls and pulled open their shirts by the collar to look at their chests. He later told the
girls “ ‘[t]hey looked good’ ” and gave them a thumbs up sign. He acted “mentally
challenged” and told the mother of one of the girls that he was 17 years old; the mother
reported the incident when she discovered defendant was older. The report also noted
defendant “admitted he is attracted to adolescent girls,” and “knows that being attracted
to ‘kids’ is not normal.”
Exhibit 5 was a probation report for a juvenile proceeding under Welfare and
Institutions Code section 602. The report detailed true findings in three separate juvenile
petitions in 1997 and 1998. The petitions involved allegations of assault on a school
employee (§ 241.6), battery on a school employee (§ 243.6), sexual battery (§ 243.4,
subd. (a)), and molesting a child (§ 647.6). The assault and battery allegations involved
two incidents in which defendant struck a teacher and a counselor. The sexual battery
and molesting a child allegations involved several incidents over the course of a year
where defendant had touched the genitals of two 8-year-old children over their clothes
with his hand and a stick.
Before trial, defendant filed a motion in limine to limit the admission of hearsay
statements, other than about the SVP-qualifying offense. He also asked the court to
instruct the jury that any expert testimony including hearsay statements about defendant’s
past conduct should be considered only to explain the bases of the expert testimony, and
not for the truth of the matter asserted. The prosecution also filed a motion in limine
laying out relevant case law related to hearsay statements in expert testimony, including
Sanchez, supra, 63 Cal.4th 665.
At the hearing on the motions in limine, the trial court stated it was “going to let
the doctors testify about hearsay” because most of the statements would “come from the
records and [defendant’s] statements.” The prosecution argued any hearsay evidence of
the SVP-qualifying offense would be admissible under Welfare and Institutions Code
section 6603, subdivision (a)(3), and any other hearsay statements “are basically
3
admissions of a party opponent.” The court then decided to reserve the issue until the
parties “sort[ed] out what records they seek to admit.”
Shortly before seating the jury, the trial court addressed the issue again, noting it
had reviewed the expert reports, which detailed defendant’s statements to the experts
about his criminal history. The court acknowledged defendant’s objection, but explained
it did not see any prejudice to defendant because he would be testifying and had spoken
to all the experts, including the defense expert, about his prior convictions. The court
concluded the experts could testify about defendant’s criminal history, but reserved on
the admissibility of any documents other than documents related to the SVP-qualifying
offense.
After each party rested, the court admitted exhibits 1 through 5 into evidence, but
determined exhibits 4 and 5 should not go to the jury.
B. Dr. John Hupka
Dr. John Hupka, a licensed clinical psychologist who had performed SVP
evaluations for over twenty years, testified he evaluated defendant once in 2015 and
again in 2017. To perform his evaluation, Dr. Hupka reviewed defendant’s prison central
file, which included probation officer reports, police reports, and rap sheet. Dr. Hupka
also reviewed defendant’s prison medical file, including records of treatment. Dr. Hupka
interviewed defendant for approximately two hours.
Dr. Hupka described the facts of the 2005 predicate offense. In his interview with
defendant, Dr. Hupka explained defendant acknowledged he had “pressured” and
“coerced” the victim in the underlying offense and the conduct in the offense had gone
“on for a long period of time.”
With respect to defendant’s juvenile offenses, defendant told Dr. Hupka that he
had sex offenses from 1997. Defendant told Dr. Hupka the victim in this incident was a
neighborhood boy between 11 and 13 years old. Defendant had “poked the boy with a
stick” because the boy was bothering him, and the boy and his sister had claimed
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defendant molested them. Dr. Hupka noted that the juvenile petition alleging defendant
committed a sexual battery and molested the boy had been found true. He also noted that
he did not think defendant’s self-reported statements could be taken at “face value” and
that he did not know “what actually happened objectively.” Dr. Hupka noted that there
was “not much in the way of data about” defendant’s juvenile offenses in the record, but
that defendant was charged with sexual battery and molesting a child when he was 17
years old. Defendant told Dr. Hupka that he began using child pornography when he was
younger and had sexual fantasies about children. Finally, he noted that there appeared to
be incidents involving assault on a school employee from the same year.
On cross-examination, Dr. Hupka acknowledged he did not “know the details of
what happened” in 1997, but he did know that defendant “has three times come to the
attention of courts, [on] three different occasions for sexual activity with children.” He
explained the precise details of the offenses were not important to his conclusions
because the chief question was simply whether defendant was “acting out sexual
attraction to children,” and the “sustained petition tells me that there was something that
happened there, something went on that was sexual between he and the boy.” Even if
nothing at all had happened in the incident, Dr. Hupka asserted his ultimate conclusion
would not have been affected, given defendant’s statements about “having such a long-
term sexual attraction to children.”
With respect to the 2004 offense, Dr. Hupka stated defendant was 24 years old
when he approached two young girls, attempted to look down their shirts, and made
comments about their breasts.2 Defendant told Dr. Hupka he had befriended one of the
girls, that he “gave a young girl a rock” as a present, and that nothing sexual occurred.
Dr. Hupka acknowledged that he did not have much information about the incident, and
2 Dr. Hupka was given a copy of the 2004 probation report the morning before he
testified and had not seen the report before then.
5
that he had not had time to thoroughly review the probation report before testifying. He
also noted defendant’s behavior in this incident was consistent with statements defendant
had made in his interview explaining he preferred to think about female children while
masturbating.
The next day, on cross-examination, Dr. Hupka had reviewed the probation report
and summarized the incident by saying defendant “was staying in a campground. There
was a family camping apparently next to him or near him, that there were two children
that were playing, and he played with the two young girls.” Defense counsel pressed Dr.
Hupka on whether he could make a conclusion about defendant without knowing the full
details of the incident, and Dr. Hupka responded, “[t]here’s very little information about
what happened with these two girls, but it sounds like there wasn’t a terribly lot that
happened. There was no sexual intercourse. There was no sodomy. He didn’t force the
girls to orally copulate him. [¶] He was involved in some, what sounds like, sexualized
child play. . . . I think there’s enough information to know that that was a pedophilic
incident.” When further pressed by defense counsel, Dr. Hupka recited the factual basis
in the probation officer’s report, saying defendant pretended to be a developmentally
disabled 17-year-old to play with two 10-year-old girls at a campground.
Based on his interviews with defendant and his review of defendant’s records, Dr.
Hupka opined that defendant suffered from pedophilia, or sexual attraction to children.
Dr. Hupka described defendant’s developmental history as “a complete disaster,” in that
he came from “a dysfunctional family with substance abuse and mental illness in the
family” and suffered sexual abuse as a child. He had also been placed in several group
homes and psychiatric hospitals, and had received treatment for suicidal ideation. He had
poor judgment and often perceived children as attempting to seduce him. Dr. Hupka
noted that defendant’s condition appeared to have worsened between 2015 and 2017, in
that defendant was “much more closed off” and “less available to change.” Ultimately,
Dr. Hupka based his diagnosis on defendant’s history, including his past convictions, his
6
upbringing, his lack of history in any treatment programs, and his lack of “resources for
dealing with life.”
Dr. Hupka opined defendant was likely to reoffend in a sexually violent way.
Defendant scored in the “highest risk level” on the Static-99 test, an analysis that is
commonly used to determine a defendant’s risk of committing another sexual offense.
Under the Static-99 analysis, defendant had a greater risk for reoffending because he had
no history of intimate relationship, had a history of prior nonsexual violence (his juvenile
assault finding), had six prior sex offense charges (two for sexual battery and child
molesting in 1997, two for lewd and lascivious acts with a child, and two for annoying
and molesting a child in 2004), had prior sexual victims who were unrelated, and had a
prior male victim. Defendant also scored in the highest risk category in the Static-2002R,
a different analytical tool used to assess a defendant’s risk of committing another sexual
offense. Defendant had poor self-regulation skills, had been on supervised release when
he committed the qualifying offense, and had poor problem-solving skills. He was not
motivated to seek treatment. In sum, Dr. Hupka opined defendant met the criteria for
being an SVP.
C. Dr. Christopher Matosich
Dr. Christopher Matosich, a clinical psychologist, testified he had performed
approximately 1,500 SVP evaluations since 1996. To evaluate defendant, Dr. Matosich
reviewed defendant’s central file and medical file, including any in-house SVP
screenings, probation reports, and abstracts of judgment. He also interviewed defendant
in 2015. Dr. Matosich stated his interviews take approximately two and a half hours.
When Dr. Matosich first interviewed defendant, he believed that defendant was at
a lower risk of reoffending. He based this opinion on defendant’s insight into his own
deviancy and desire to seek treatment.
After the first interview, Dr. Matosich received additional documents from the
State Department of State Hospitals. In particular, Dr. Matosich received defendant’s rap
7
sheet, a probation report and police reports related to the 2004 sex offense, and additional
mental health treatment records. Before receiving these documents, Dr. Matosich had
only had information on defendant’s juvenile offenses and the SVP-qualifying offense,
but no information on the intervening period. After reviewing the new documents, Dr.
Matosich changed his opinion.
Dr. Matosich explained the new documents showed defendant was on probation
for his 2004 sex offense when he committed the SVP-qualifying offense in 2005. To Dr.
Matosich, this highlighted the “persistency and intensity of his sexual deviancy.” It also
undermined Dr. Matosich’s prior belief that defendant was genuinely interested in
seeking treatment.
The 2004 probation report was “quite significant” in Dr. Matosich’s analysis. On
direct examination, the prosecution asked Dr. Matosich to explain the details in the
probation report. Defense counsel objected, citing Sanchez, supra, 63 Cal.4th 665, and
the court overruled the objection. Dr. Matosich explained defendant was at a
campground and befriended two 10-year-old girls. The two girls reported that while they
were playing, defendant pulled at their shirts and looked down their shirts. Defendant
presented himself as a developmentally delayed 17-year-old to the girls’ family. When
he was confronted by a sheriff’s deputy, defendant stated he had been previously
convicted for similar behavior and was sexually attracted to girls. Dr. Matosich stated
that these details did not change his diagnosis. The fact of the conviction and the ensuing
probation, however, suggested an increased risk of reoffending because they meant
defendant was on probation at the time of the 2005 SVP-qualifying offense. Thus, Dr.
Matosich explained, it showed probation did not deter defendant from engaging in
sexually deviant behavior.
8
Dr. Matosich also briefly described the details of a police report from 2000
involving defendant. In the incident, defendant attempted to use a telescope to peer into a
woman’s windows.3
With respect to defendant’s juvenile offenses, Dr. Matosich stated that he did not
have much information, but that defendant had told him the offense “was sexual because
he was poking a boy with a stick back in 1997.” According to defendant, “the victim
stated he was being poked in the genital or anal area.” All of the information Dr.
Matosich testified to about the juvenile case was relayed to Dr. Matosich by defendant or
contained on defendant’s rap sheet.
After defense counsel cross-examined Dr. Matosich, the prosecution gave Dr.
Matosich a copy of the probation report related to defendant’s juvenile offenses. On
redirect examination, the prosecution asked Dr. Matosich to explain the facts in the
report, and Dr. Matosich explained that the incident involved two 8-year-old siblings, a
boy and a girl. He explained that “[t]hey were molested by [defendant] . . . the male
reported that . . . [defendant] put his hands over his clothing and molested him, and the
female reported that [defendant] put his hands over her clothing, her vaginal area, as well
as used the stick to poke her in her vagina.” Dr. Matosich testified the additional details
in the probation report did not change his opinion about defendant’s likelihood to
reoffend, although it did “reinforce” his opinion about defendant’s diagnosis.
Dr. Matosich opined that defendant suffered from pedophilia, exclusive type. Dr.
Matosich based his opinion on the facts that defendant’s qualifying offense occurred over
an extended period of time, defendant had previous convictions for sexual offenses on his
3 During a break, the court admonished Dr. Matosich to avoid discussing the 2000
incident, based on defense counsel’s Sanchez objection. The court offered to give a
limiting instruction to the jury on the incident, but noted that the instruction might draw
undue attention. Defense counsel responded “[i]t’s not that I’m not asking for a limiting
instruction, but I certainly don’t want it right now.”
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rap sheet, and defendant’s self-admissions about his sexual attraction to children.
Defendant had a “difficult” and “chaotic” childhood that was characterized by sexual,
emotional, and physical abuse. As a result, defendant could “have difficulty conforming
and being nonaggressive and being appropriate in social situations.”
Dr. Matosich believed defendant was likely to reoffend. Based on the Static-99R
test, Dr. Matosich determined defendant had a “well above average risk of sexual
recidivism.”4 Under the Static-99 analysis, defendant had a greater risk for reoffense
because he had no history of intimate relationships, had a history of prior nonsexual
violence, had six prior sex offense charges, had prior sexual victims who were unrelated,
and had a prior male victim.
Dr. Matosich conducted a structural risk assessment of defendant, which assessed
defendant’s “psychological vulnerabilities, risk, and treatment need.” This test
determined defendant was at a high risk of reoffending because defendant admitted he
had a longstanding sexual interest in children, lacked any emotionally intimate
relationships with adults, and had “emotional congruence” with children, in that he
mirrored child interaction to fulfill his sexual interests.
Dr. Matosich also determined defendant scored in the moderate range of the Hare
Psychopath Checklist, a measure of the amount of psychopathy an individual possesses.
This enhanced defendant’s risk of recidivism because it indicated he would proceed to
pursue his own sexual desires without regard for rules or regulations and suggested
impairment in making decisions.
Dr. Matosich concluded that defendant was likely to reoffend in a predatory
manner because his profile included callousness towards his victims, consistent
4 Dr. Matosich initially scored defendant in a lower range, but later adjusted the score
after receiving the new documents.
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victimization of young children, and a lack of treatment. Dr. Matosich opined defendant
met the criteria for being an SVP.
D. Dr. Kathleen Longwell
Dr. Kathleen Longwell, a psychologist who had performed over 3,000 SVP
evaluations, evaluated defendant in 2015 and again in 2017. Dr. Longwell reviewed,
among other things, defendant’s mental health evaluations and treatment records,
probation reports, police reports, and rap sheet. Her interviews generally take
approximately one and a half hours.
In his first interview with Dr. Longwell, defendant admitted all the facts of the
underlying SVP offense, consistent with the information in the probation report. In the
second interview, he denied the offense and told Dr. Longwell she “got it wrong” in her
previous report.
Dr. Longwell diagnosed defendant with pedophilic disorder, exclusive type, and
bipolar one disorder. She based her diagnosis on defendant’s admission that he had
viewed child pornography for many years and had sexually molested children over a long
period of time. It was also based on defendant’s criminal record, including his
convictions, the underlying police reports, and the probation reports, as well as
statements he had made to her and to other evaluators. Specifically, Dr. Longwell
singled out a juvenile case involving a male and female victim and a 2004 conviction
involving two girls, although she did not describe any underlying facts.
Dr. Longwell based the bipolar diagnosis on defendant’s treatment records from
psychiatric hospitals, inpatient facilities, and prison. As a result of the bipolar disorder,
defendant had delusions that led him to believe his treating physician and other patients
were trying to sexually molest him or were sexually attracted to him. He viewed himself
as an “upstanding individual” and thought it was abusive for others to question his
beliefs. These symptoms made it difficult for him to be self-aware about his pedophilia
or engage in treatment in a meaningful way, and, consequently, raised his risk of
11
recidivism. Bipolar symptoms also made it more likely that defendant would act on
sexual urges impulsively and display poor judgment.
Dr. Longwell opined defendant had an “exceptionally high risk” to reoffend. She
based that conclusion on defendant’s “attitude towards his condition, his denial of his
condition,” and “his attitude towards treatment.” In particular, defendant had repeated
sex offenses after saying that he would not do it again, did not engage in treatment when
it was offered because he viewed it as “abusive and harmful,” and had no realistic plan to
avoid offending again.
Defendant scored a six on the Static-99R test, or “well above average” initially,
but Dr. Longwell realized while testifying she had made a mistake and he should have
scored a seven. On the Static-2002R, defendant also scored a seven, which meant he had
a “well above average risk to reoffend.”
Dr. Longwell also scored defendant on the Violence Risk Appraisal Guide, a tool
that “measures the risk of someone committing another violent offense, whether it’s
sexual or nonsexual.” Defendant scored in the 75th percentile on this test. Finally, Dr.
Longwell performed a Structural Risk Assessment - Forensic Version examination,
which incorporates protective factors that might prevent an individual from committing a
sex offense. This assessment determined defendant was “at a high risk to commit another
violent sex offense.” Dr. Longwell concluded “[e]very which way you look at it,
everything points in the same direction, that [defendant’s] a high risk of committing
another sexually violent and predatory offense in the future if he were to be released at
this point.” She opined that defendant fell within the purview of the SVP Act.
E. Dr. Alan Abrams
Dr. Alan Abrams, a psychiatrist, testified as an expert for the defense. He had
performed approximately 60 SVP evaluations in the past. To evaluate defendant, he
reviewed the expert reports produced by the psychologists hired by the State Department
of State Hospitals. He also reviewed defendant’s central file, which contained the
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probation report for the qualifying offense, and an evaluation report by a doctor who
examined defendant when he was 17 years old. Dr. Abrams did not review the probation
report for defendant’s juvenile offenses, although he was aware of defendant’s juvenile
convictions. Nor did he review the probation report for the 2004 offense. He
interviewed defendant for three hours in 2018.
Dr. Abrams criticized the prosecution experts for conducting brief and superficial
interviews and relying too much on probation reports for the underlying facts of
defendant’s offenses. Dr. Abrams asserted that probation reports frequently fail to
capture the “nuance” of the facts.
Dr. Abrams testified that defendant’s developmental behavior was consistent with
an autism spectrum disorder. In his view, autistic individuals often “misjudg[e] . . . the
rules of social engagement” and may not set appropriate boundaries for sexual conduct.
Dr. Abrams disagreed that defendant suffered from pedophilic disorder or bipolar
disorder. In Dr. Abrams’s assessment, defendant’s actions were the result of his
“curiosity and wanting to explore something different than what we think of as love or
attraction,” rather than a disorder.
With respect to defendant’s sex offenses, Dr. Abrams noted that there was never
any “oral copulation or any attempt to climax.” To Dr. Abrams, this meant that the
offenses were not provoked by “an interest in sexuality, but something a little bit
different.” Regarding the 2004 offense, Dr. Abrams noted defendant only indicated
attraction to “adolescent girls, not to children,” and that this was inconsistent with
pedophilia.5
Dr. Abrams criticized the use of the Static-99 test as a predictor of future sexually
violent behavior, saying that its intended use was to assess which offenders would benefit
5 Dr. Abrams did not initially review the probation report for the 2004 offense, but
defense counsel provided him a copy during a break in his testimony.
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from more services, rather than predicting sexually violent behaviors. While it could be
used by nonclinicians to triage cases, it should not be used as any kind of predictive tool.
Dr. Abrams estimated defendant’s chances of reoffending at approximately 5 percent, but
could not say whether any future offenses would be violent and predatory.
F. Defendant
Defendant denied he had any “issues” with pedophilia. With respect to his
juvenile offenses, defendant recalled the case occurred when he was 17 years old. He
testified that there were two separate offenses for assaults on school employees. In the
first, he had a panic attack, blacked out, and woke up to find school people holding him
down, and in the second, a teacher blocked his path to the school counselor and tried to
grab him. He admitted there was a true finding regarding the sexual battery allegation.
When defense counsel asked defendant about the “poking with the stick incident,”
defendant stated, “I was just upset with him and I was trying to actually get him out of
there, and I don’t think I handled that right at all. . . . I mean, I was just foolish,
completely foolish.” On cross-examination, he admitted knowing the sexual battery
victims, but claimed he did not remember any of the facts of the incident.
With respect to the 2004 offense, defense counsel asked why defendant would
“look under the girls’ shirt,” and defendant explained: “I wasn’t even really -- I don’t
think I was thinking very good at all. [¶] . . . [¶] . . . I was -- geez, immature, stupid. I
was just a stupid kid.” On cross-examination, defendant claimed he did not remember
looking down the girls’ shirts. He acknowledged being mad at himself because he “had
upset the girls,” but was “uncertain” as to whether looking down their shirts caused any
distress. He concluded that “nothing [was] meant by it if it even occurred, [and] it was a
pure accident if it even happened.”
Regarding the qualifying offense, defendant stated he was “trying to be kind and
things went stupid.”
14
Defendant denied he was attracted to prepubescent children. He said he did not
remember telling any doctors that he used child pornography to masturbate. He did not
want to participate in the sex offender treatment program. He stated he would not engage
in any sexually violent predatory behavior if he were released from custody.
The jury ultimately found the petition true and the trial court ordered defendant
committed to the custody of the State Department of State Hospitals.
DISCUSSION
Defendant contends the admission of exhibits 4 and 5, and the expert testimony
about the contents of those exhibits, constituted inadmissible case-specific hearsay under
Sanchez, supra, 63 Cal.4th 665.6 Exhibit 4 was a probation report for defendant’s 2004
conviction in Tuolumne County case No. CRF15128 for two counts of molesting a child
(§ 647.6, subd. (a)). Exhibit 5 was a probation report for three separate juvenile petitions
in 1997 and 1998. The petitions involved allegations of assault on a school employee
(§ 241.6), battery on a school employee (§ 243.6), sexual battery (§ 243.4, subd. (a)), and
molesting a child (§ 647.6).
Citing People v. Burroughs (2016) 6 Cal.App.5th 378 (Burroughs), defendant
argues the case-specific hearsay evidence about his juvenile offenses and the 2004
offense painted him “as a man who began sexually violent predatory behavior since [sic]
his teen years,” and unfairly “strengthened the credibility of the experts’ conclusions.”
Defendant also briefly argues these errors were violations of the confrontation clauses of
the state and federal constitutions.
6 Defendant treats the admission of the exhibits themselves and the testimony of the
expert witnesses as separate issues. Because defendant’s argument as to the exhibits is
that their admission allowed the experts to provide hearsay testimony, the issues are
intertwined and we will address them as one.
15
The People respond that defendant forfeited any claim to constitutional error
because he did not raise any such objection at trial. The failure to raise an objection
based on the confrontation clause generally forfeits the argument on appeal. (People v.
Redd (2010) 48 Cal.4th 691, 730.) Each time the parties discussed the admission of
testimony based on exhibits 4 or 5, the issue was discussed as a hearsay objection, rather
than constitutional error. Although defendant preserved for appellate review the state law
hearsay objections he made during trial under Sanchez, we agree with the People he has
forfeited any claim of constitutional error under the confrontation clause. (See People v.
Yates (2018) 25 Cal.App.5th 474, 487.)
The People further argue any state law error in admitting case-specific hearsay
was harmless. We agree.
Under Sanchez, an expert may rely on and cite “background information accepted
in [his or her] field of expertise,” and hearsay. (Sanchez, supra, 63 Cal.4th. at p. 685.)
However, experts are prohibited from testifying to case-specific facts, if such facts are
outside the expert’s personal knowledge and do not fall under an exception to the hearsay
rule, or if they have not been independently established by competent evidence. (Id. at
pp. 676-677.)
The Court of Appeal applied Sanchez to an SVP proceeding in Burroughs, supra,
6 Cal.App.5th 378. In Burroughs, the defendant refused to meet with the expert clinical
forensic psychologist, so she had to rely upon documentary evidence to assess whether he
satisfied the statutory criteria to be deemed an SVP. (Id. at p. 384.) The appellate court
concluded the trial court erred in admitting into evidence portions of probation reports
containing information about the defendant’s prior record, personal history, hospital
records, and terms and conditions of probation. (Id. at p. 410.) In addition, the experts
were erroneously allowed to testify regarding details about uncharged offenses and the
defendant’s behavior while in state custody. (Id. at p. 404.) Significantly, the evidence
included details about conduct for which the defendant was not charged or convicted,
16
including the defendant’s repeated sodomy of a young boy, his use of a knife handle to
penetrate a woman, and his gang affiliation while incarcerated. (Id. at pp. 404, 412.) The
appellate court concluded the evidence was “exceedingly inflammatory,” invited the jury
to punish him for past offenses, and “substantially enhanced the credibility of the experts’
conclusions about [the defendant’s] mental state and likelihood of reoffending.” (Id. at
p. 412.) Because the trial court’s error was prejudicial even under the lower Watson
standard, the court reversed the judgment. (Burroughs, at p. 412; see People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson) [the erroneous admission of hearsay does not require
reversal unless “it is reasonably probable that a result more favorable to [the defendant]
would have been reached in the absence of the error”].)
While Burroughs did not directly address the appropriate standard, we agree that
Watson provides the most appropriate standard for assessing harmless error in this
instance. (People v. Duarte (2000) 24 Cal.4th 603, 618-619; People v. Flint (2018)
22 Cal.App.5th 983, 1003-1004.) Under that standard, reversal is not warranted unless
“it is reasonably probable that a result more favorable to [defendant] would have been
reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) “[T]he
Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what
such a jury is likely to have done in the absence of the error under consideration.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 956.)
Unlike Burroughs, however, the error here was harmless. Neither of the offenses
described in exhibits 4 or 5 were “exceedingly inflammatory” and thus did not “invite[]
the jury to punish him for past offenses.” (Burroughs, supra, 6 Cal.App.5th at p. 412; see
People v. Roa (2017) 11 Cal.App.5th 428, 454-455.) Defendant introduced evidence,
both on cross-examination and using his own expert witness, that minimized the offenses.
Dr. Hupka admitted on cross-examination that the 2004 offense “sound[ed] like there
wasn’t a terribly lot that happened” and Dr. Abrams asserted the offense indicated only
an interest in “adolescent girls, not to children,” which was inconsistent with pedophilia.
17
Dr. Matosich also testified that the fact of the conviction and defendant’s ensuing
probation, independent of the details of the crime, were what mattered in the SVP
analysis. With respect to the juvenile offenses, Dr. Hupka similarly testified he did not
have much information, but the precise details of the offense were not important and the
existence of a sustained juvenile petition were all that mattered in his analysis. And,
unlike Burroughs, defendant was convicted or had a sustained petition for the offenses
described in exhibits 4 and 5, and was punished for the offenses, reducing the danger the
jury would attempt to punish him for the prior conduct. (See People v. Falsetta (1999)
21 Cal.4th 903, 917.)
Moreover, unlike Burroughs, defendant spoke with the expert witnesses about his
past offenses, duplicating much of the salient information contained in the probation
reports. (See People v. Yates, supra, 25 Cal.App.5th pp. 486-487 [prejudice found and
judgment reversed where experts in an SVP hearing testified regarding the defendant’s
criminal and hospital records and the defendant made only “a few admissions” during
interviews with the experts].) With respect to the juvenile offenses, defendant told Dr.
Hupka he had poked a young neighborhood boy with a stick and the boy and his sister
had accused defendant of molesting them. He told Dr. Matosich he had poked a boy with
a stick in 1997 and the boy claimed he had been poked in the “genital or anal area.”
Defendant also explained the basis for the assault on a school employee offenses in his
own testimony.
On the 2004 conviction, defendant told Dr. Hupka the conviction involved
befriending a girl at a campground and giving her a present. He told Dr. Hupka the girl
accused him of molesting her and that he pleaded to the charges of annoying or molesting
a child. When defendant testified, he admitted to the same facts and responded to a
question asking why he looked down the girls’ shirts by saying he was just “immature”
and “stupid.” Where defendant admitted these facts to the expert witnesses, his out-of-
court statements are admissible party admissions and do not violate Sanchez. (Evid.
18
Code, § 1220; Sanchez, supra, 63 Cal.4th at p. 686 [an expert may relate as true case-
specific facts asserted in hearsay statements if they are “proven by competent evidence or
are covered by a hearsay exception”].) And where defendant testified to the same facts,
his statements independently established the facts by competent evidence. (Sanchez, at
p. 686.) We conclude defendant’s claims of prejudice are without merit.
DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
MURRAY, J.
19