Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FBA05994, John B. Gibson, Judge.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent
OPINION
MILLER J.
A jury found Thomas Joseph Gabba to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), after which the court committed him to Atascadero State Hospital (ASH) for a two-year term. On appeal, Gabba wisely does not challenge the sufficiency of the evidence to support the commitment order; indeed, the evidence is overwhelming. Rather, he contends that the trial court committed prejudicial error in permitting the prosecution’s expert witnesses to testify as to (1) inadmissible hearsay utilized in forming their opinions, and (2) details of the SVP treatment program at ASH. He also maintains that his trial counsel rendered ineffective assistance in failing to pursue his (Gabba’s) claim that the initial commitment petition was unlawfully filed. We affirm.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
A SVP is “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).)
FACTUAL AND PROCEDURAL BACKGROUND
Gabba was convicted in 1986 and 1992 of committing three sexually violent predatory offenses against three different victims, each in violation of Penal Code section 288, subdivision (a). In 1986, holding himself out as a photographer for a teen magazine, Gabba performed breast, vaginal, and anal examinations on 14-year-old Rebecca, and her 13-year-old friend, Amber. In 1992, while babysitting nine-year-old Paige and her 10-year-old sister, S.I., Gabba placed a thermometer in Paige’s anus and massaged the chests, buttocks, and vaginal areas of both girls. Gabba, known to Paige as an acquaintance of her mothers, later told Paige that what happened was “our little secret” and urged her not to tell anyone. Additionally, in 1985, claiming to be a photographer, Gabba told 11-year-old Jennifer and her friend that they were pretty and convinced them to pose for him. After unbuttoning Jennifer’s shirt, he touched her breasts and her bottom.
At trial, the People presented the testimony of Amber, Paige, and Jennifer.
In 1997, prior to Gabba’s release from prison, the San Bernardino County District Attorney filed a petition for commitment, alleging that Gabba was a SVP and a danger to the health and safety of others within the meaning of section 6600. Trial was held early in 2006. At the outset, the parties stipulated that the first element of the statute had been satisfied.
Testifying on behalf of the prosecution were two clinical psychologists, Robert Owen, Ph.D., and Dawn Starr, Ph.D.
In evaluating Gabba, Dr. Owen had reviewed police and probation reports, prison records, and records of past convictions. Dr. Owen determined that Gabba had pedophilia, or deviant sexual attraction to young females. He testified as to evidence obtained at the time of Gabba’s arrests, including camera equipment, stethoscopes, papers for testing urine, gloves used during his quasi-medical exams, books on female genitalia and menstruation, and receipts from toy stores. In his opinion, Gabba “is preoccupied with preadolescent girls. He has the books, the cravings. He’s around the children. He can’t control himself. Even with prior arrests and prior convictions, he continues to offend. This is a man who is definitely obsessed with children, girls.”
Dr. Owen diagnosed Gabba as having a personality disorder, explaining that his personality is “a little bit different.” He viewed Gabba as tending to be “detached and somewhat unusual.” He believed that Gabba was predisposed to engage in future sexually violent offenses. In particular, he was concerned that Gabba had a history of poor performance on parole and probation, that he declined to participate in any programs while at ASH, and that he would not likely seek treatment if released without supervision. In his opinion, Gabba had a mental disorder which caused him to be a risk in the community.
As for Gabba’s relationship with women his own age, Dr. Owen indicated that Gabba had had five sexual partners and had fathered two children. He opined that this is not inconsistent with pedophilia; “[m]ost pedophiles have had a relationship with a woman as he has had.”
Dr. Owen indicated that Gabba had not availed himself of treatment or medication of any kind to deal with the issue of pedophilia. He cautioned that although Gabba had not done anything of this nature while in prison, this does not mean that he would not do so if he had the opportunity. In his opinion, Gabba is likely to reoffend, as his disorder predisposed him to engage in future sexually violent offenses. Dr. Owen had also considered Gabba’s decision not to participate in treatment at ASH in placing him at higher risk for reoffending. He was concerned that if Gabba were released on parole, there would be no formal supervision other than requiring him to register as a sex offender; he believed this would be dangerous in light of Gabba’s history of assuming false identities, such as pretending to be a photographer. He believed that Gabba would not likely seek treatment on his own accord if released without supervision.
Dr. Starr had reviewed the same reports and documents as had Dr. Owen. Her primary diagnosis was “pedophilia, sexually attracted to females, not exclusive type.” She also believed that Gabba had an antisocial personality disorder. In response to an inquiry as to how both diagnoses relate to each other, she explained, “the research indicates that when you have a severe personality disorder, like he does, and some type of paraphilia like a pedophilia that he has, they interact synergistically. It’s like putting gas on a fire.” In her opinion, Gabba was likely to engage in sexually violent predatory behavior if released, and that this risk-assessment evaluation placed him in the highest risk group to reoffend. She believed, as did Dr. Owen, that Gabba would not be amenable to treatment if released into the community.
Testifying on behalf of Gabba was Raymond D. Anderson, Ph.D., a licensed clinical psychologist; Oliver Glover, Ph.D., a licensed psychologist; and Randy Morrison, a registered nurse at ASH.
Dr. Anderson described Gabba as a “situational offender” who would make a decision to commit an offense and then carry out that decision. His opinion that Gabba was not a pedophile was based in part on the fact that Gabba denied that he had sexual urges toward children. His opinion was also based on his belief that Gabba had none of the personality functioning traits common to a pedophile, and the fact that he had offended with both a 13-year-old and an 18-year-old, which he said is not typical of pedophiles interested in people who do not yet have sex characteristics. In his view, Gabba’s behavior in perpetrating a hoax on his victims was consistent with his other offenses involving financial scams. He said that this kind of behavior is atypical of pedophiles, who usually make friends with the child’s family as a means of gaining access to the child. Dr. Anderson concluded that based upon tests he had administered, Gabba did not have a diagnosed mental disorder which predisposed him to commit sexual offenses in the future. He explained that if Gabba was to commit a future offense, he would do so because it was his choice, not because he suffered from pedophilia.
Dr. Glover had reviewed police reports, evaluations prepared by the prosecution’s expert witnesses, and reports of evaluations performed while Gabba was in prison. He characterized Gabba as a “non-exclusive pedophile,” but one who did not lack volitional control; if he were a true pedophile, he could not control his urges and he would have started much earlier in life. He was confident that if Gabba were a pedophile, evidence of it would have been seen in statements and conversations while he was being monitored and evaluated at ASH; it would have been a focus of his attention and activity, but it was not.
Morrison had been employed at ASH for 17 years. For six or seven of those years, Gabba had been in his unit, and they interacted on a daily basis. During this time, he had not seen or heard Gabba do or say anything sexually inappropriate, nor was anything of a sexually explicit nature ever found in his room during random shakedowns. He was confident that had there been anything inappropriate, it would have been noted in Gabba’s file. He acknowledged, however, that only a very small percentage of the SVP patients at ASH either act out in a sexual fashion or say anything to other patients about their sexual urges.
Testifying on his own behalf, Gabba denied ever having cravings for teenage girls. Nor had he ever had an interest in or fantasized about prepubescent teenage girls. He admitted the incident involving Rebecca and Amber, explaining that he knew it was not the right thing to do, but continued to do it anyway. He also admitted touching Paige and S.I., but denied that he was sexually aroused while doing so. He admitted feeling power over his victims, and said that although he could have stopped, he chose not to. When he was on parole between 1986 and 1992, he was ordered into outpatient treatment for sex offenders, but stopped going because he could not afford the payment.
DISCUSSION
A. Overview of the SVPA.
In enacting the SVPA, “the Legislature expressed concern over a select group of criminal offenders who are extremely dangerous as the result of mental impairment, and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes. The Legislature indicated that to the extent such persons are currently incarcerated and readily identifiable, commitment under the SVPA is warranted immediately upon their release from prison.” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1144 (Hubbart).)
The SVPA requires a determination that a defendant is likely to commit “‘sexually violent predatory criminal behavior.’” (People v. Hurtado (2002) 28 Cal.4th 1179, 1187.) A defendant is “likely [to] engage in sexually violent [predatory] criminal behavior” if he or she “is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.” (People v. Roberge (2003) 29 Cal.4th 979, 982, 988, fn. omitted.) “Evidence of the person’s amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody.” (Id. at p. 988, fn. 2.)
“[W]here the requisite SVP findings are made, ‘the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health. . . .’ [Citation.]” (Hubbart, supra, 19 Cal.4th at p. 1147.) “Confinement generally cannot exceed two years unless a new petition is filed and an extended commitment is obtained from the court. [Citation.]” (Ibid.)
At trial, the plaintiff bears the burden of proving beyond a reasonable doubt that the defendant is a SVP. (§ 6604; Hubbart, supra, 19 Cal.4th at p. 1148.) In this regard, it is customary for expert testimony to be presented as a means of establishing whether the individual meets SVPA commitment criteria. (People v. Ward (1999) 71 Cal.App.4th 368, 373-374.) Pursuant to section 6601, subdivision (c), in order to determine if an individual is a SVP, he or she must be evaluated “in accordance with a standardized assessment protocol, developed and updated by the State Department of Mental Health, to determine whether [he or she] is a sexually violent predator as defined in [the SVPA]. The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder.” (§ 6601, subd. (c).) Moreover, “the evaluators may consider any factor which, in their professional judgment, is relevant to the ultimate issue whether the person is a substantial danger to reoffend if free in the community without any conditions, supervision, monitoring, or mandatory treatment in the Director’s custody.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 927 (Ghilotti).)
Thus, to prove that Gabba was a SVP within the meaning of section 6600, subdivision (a), it was the prosecution’s burden to establish that (1) he had been convicted of two separate sexually violent offenses; (2) he has a diagnosable mental disorder which makes him a danger to the health or safety of others; (3) his disorder makes it likely that he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. omitted; People v. Roberge, supra, 29 Cal.4th at p. 985.) Because there was no issue as to the first prong of the statute, the trial centered on whether Gabba had a currently diagnosed mental disorder and whether that disorder made him a danger to the health and safety of others because of his likelihood of reoffending.
Adhering to the SVPA’s requirements, two mental health professionals testifying on behalf of the prosecution agreed that Gabba was a pedophile who posed a substantial risk of reoffending if he were released into the community. In reaching their conclusions, these experts considered, among other things, such factors as Gabba’s unwillingness to participate in a treatment program, his pedophilic behavior while on parole, and the effect his antisocial personality had upon his sexual deviancy.
B. Any error in permitting Dr. Owen to read into the record portions of reports reflecting statements attributable to Gabba was harmless
Prior to trial, Gabba’s counsel sought to exclude from the jury details of any hearsay evidence upon which the experts relied in forming their opinions. Counsel acknowledged that an expert may rely on hearsay in forming his or her opinion, but insisted that the “law is also clear that the details of the hearsay that is relied upon is not communicated to the jury unless in and of itself that hearsay is admissible.” In response to the court’s inquiry as to what, then, an expert is allowed to say, counsel explained, “he can’t say the witnesses said this or the victims said that. He can say Mr. Gabba said this or that because that comes in as an admission, but just because the expert reads it and relies upon it, he can’t get that in front of the jury.” In reply, the deputy district attorney asserted, “that’s making an opinion without any substance behind it. They have to be able to explain their opinion. . . . The only thing they are precluded from talking about is they can’t express the opinions of other experts that won’t be able to be cross-examined.”
In ruling on the motion, the court stated: “To an extent, I really can’t rule on the motion—though, I can give you some [parameters]—because I really don’t . . . know what areas we’re talking about. [¶] Let’s assume there’s a statement that the defendant made that says that all jurors are idiots. Now, that would be clearly prejudicial. Even if the doctor did rely on that in forming his opinion, I would probably not allow that in. On the other hand, I do think that statements made by people regarding the crimes that were committed and [pled] to, whether by plea of guilty or no contest, it does not matter, it’s still an admission of culpability. [¶] And I think that those statements, A, the doctor clearly can rely on, and B, can relate to the jury the factual basis that is going to be given. That applies to both sides. But it is going to have to be done on a statement-by-statement basis. In other words, were there statements in there that clearly have nothing to do with the proceedings before this Court, but nevertheless could prejudice a jury, like the statement, all jurors are idiots? I am going to have to wait and see.” (Italics added.)
Later, during the course of Dr. Owen’s testimony with respect to his review of a particular police report, the court overruled Gabba’s attorney’s hearsay objection and admonished the jury as follows: “What the doctor is about to testify to is not being offered for the truth of whether these events occurred. It’s not offered for that purpose at all. First of all, you’re not going to be asked to decide that issue, but these events are being gone into for the purpose of showing how the doctor went about arriving at his opinion about the case; that these are facts that he relied upon. [¶] Now, whether they’re true or not, it’s not going to be offered for that purpose. It is offered only for you to decide whether or not you think the doctor’s opinion is well-founded and worthy of your belief or not. So the only thing you can consider this testimony for is how it affects the doctor’s opinion.” Thereafter, prior to jury deliberations, the court repeated the limiting instruction and also instructed the jury regarding its evaluation of expert testimony.
The jury was instructed as follows:
Now, citing 47 separate reporter’s transcript references by page and line number, several of which encompass as many as two pages in length, Gabba contends he was denied a fair trial in that the trial court failed to exclude some or all of the hearsay testimony presented by the prosecution’s experts. He argues the prosecution introduced, over the objections of his counsel, assorted inadmissible hearsay evidence, some of which related directly to facts of his predicate priors, some of which related to facts of non-predicate priors, and some of which was gleaned from various records and reports. In only one instance, however, does Gabba challenge specified testimony offered as a basis for Dr. Owen’s opinion. As for the remaining 46 citations to the reporter’s transcript, he does not specify why the referenced testimony should have been excluded or how he was prejudiced by its admission. Accordingly, to the extent Gabba makes only a general assertion that portions of the experts’ testimonies were inadmissible hearsay, we deem his arguments waived. Indeed, it is not our role to pore over the portions cited to determine which aspects of the testimony Gabba deems objectionable and why. Instead, we address only that portion of the testimony which is specifically addressed in his brief. (See Duncan v. Ramish (1904) 142 Cal. 686, cited in 9 Witkin, Cal. Proc., Appeal, § 594, p. 628; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)
During direct examination, in responding to an inquiry as to the facts upon which he relied to support his diagnosis of pedophilia, Dr. Owen stated: “The other fact is this: The fact that he talked about his cravings when he was arrested here in 1992. The police officer quoted him. [¶] And I’ll read it, if I may?” Without objection, Dr. Owen then proceeded to read the following from a police report prepared by Detective Franey: “‘At this time, Gabba told me that he realized that he had a problem regarding his craving for young girls. Gabba told me that he believes that he was heading for trouble and would have eventually done something to the children; that he believed by my taking him into custody this evening, I had stopped him from going any further.’” Dr. Owen then went on to explain that “craving has to do with this issue of urges, sexual urges. We have the urges and behavior. [Gabba has] denied having fantasies, but we have urges and behaviors of a pedophilic nature that are of concern to me.”
Gabba’s counsel voiced no objection to Dr. Owen reading from the report despite the fact that Dr. Owen, a moment earlier, essentially opened the door for an objection when he said, “And I’ll read it, if I may.”
During cross-examination, Dr. Owen acknowledged that he had never talked to Detective Franey, and that he had accepted the statement at face value. Dr. Owen and defense counsel then engaged in the following colloquy:
Dr. Owen also quoted, again without any objection, another statement attributable to Gabba, appearing in a report by SVP evaluator Michele Reed, who had interviewed Gabba prior to his release from prison in 1986: “‘In a couple points in the interview [Gabba] acknowledged having strange urges about wanting to touch young girls in the range of 16 to 17. When reminded of these statements, he denied ever making them.’”
At that point in time, after Dr. Owen finished reading from the report, Gabba’s counsel objected to this testimony “in terms of hearsay,” and asked the court to again admonish the jury. The court promptly reminded the jurors that these statements were being offered not for their truth, but for the sole purpose of enabling the jurors to determine whether Owen’s opinion is valid. The court added: “It’s the basis for his opinion. It’s being offered for nothing else. You can’t use it for any other purpose.”
Gabba acknowledges that he did not object below to Dr. Owen relying upon hearsay in forming his opinion, but rather, in “presenting that hearsay to the jury.” He asserts: “Owen quoted directly from a hearsay document which was not admitted into evidence in which the hearsay declarant, a police detective, purported to claim that [Gabba] had told him that ‘he had a problem regarding his craving for young girls.’ . . . [Citation.] The detective [said that Gabba] also ‘told me that he believes that he was heading for trouble and would have eventually done something to the children; that he believed by my taking him into custody this evening, I had stopped him from going any further.’ . . . However, there was no admissible evidence of this statement offered into evidence. [Gabba] testified that he did not remember making any such statement.”
As we now explain, in forming his opinion Dr. Owen properly considered and relied upon the contents of the police report containing Gabba’s admission to Detective Franey. Moreover, and notwithstanding the fact that Gabba’s counsel proffered no objection when Dr. Owen plainly indicated his intent to read from the report, any error in allowing Dr. Owen to do so was harmless.
“‘Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b); [citations].) . . . [¶] . . . And because Evidence Code section 802 allows an expert witness to “state on direct examination the reasons for his opinion and the matter . . . upon which it is based,” an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.] [¶] A trial court, however, “has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.” [Citation.] A trial court also has discretion “to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.” [Citation.]’ [Citation.] [¶] ‘Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]’ [Citation.]” (People v. Bell (2007) 40 Cal.4th 582, 608-609.)
“Because an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment. [Citations.] Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.]” (People v. Montiel (1993) 5 Cal.4th 877, 919.)
Evidence Code sections 801 and 802, however, have never been held to authorize the admission of the underlying hearsay evidence on which the expert has relied, as opposed to the expert’s description of it during his or her testimony. Indeed, even the expert’s own description of the hearsay materials must be regulated by the court under Evidence Code section 352 to prevent undue prejudice. In People v. Coleman (1985) 38 Cal.3d 69, our high court recognized that an expert is entitled to rely upon and describe hearsay documents in forming his or her opinion, so long as those materials are “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates” (Evid. Code, § 801, subd. (b)), but the court cautioned that the expert “may not under the guise of reasons bring before the jury incompetent hearsay evidence.” (People v. Coleman, at p. 92.) Ordinarily, the court noted, any prejudice from the description of hearsay evidence is cured by the use of a limiting instruction, although it recognized that a limiting instruction is not always sufficient. (Ibid.)
Here, the challenged testimony was utilized for a nonhearsay purpose. i.e., not for its truth, but rather, to demonstrate the basis of an expert opinion. As an expert, Dr. Owen properly relied on the statement in the police report when he formed his opinion that Gabba suffered from a mental disorder. Furthermore, in expressing his opinion, he was entitled to describe the contents of the report, not as proof of the facts stated in the report, but rather, to enable the jury to appraise the basis of his opinion. (People v. Ainsworth (1988) 45 Cal.3d 984, 1012.) An expert’s opinion is not formed in a vacuum; he or she must be able to discuss the facts upon which his or her opinion is based. Indeed, because an expert often does not have personal knowledge concerning these facts, he or she must rely on data provided by other sources and must be given an opportunity to explain the data to the jury to enable the jury to evaluate his or her opinion. In short, the data relied upon does not provide independent proof of any fact, but rather, it serves to substantiate the expert’s opinion. (People v. Gardeley (1996) 14 Cal.4th 605, 618-619.)
Notwithstanding the foregoing, we are confronted in this case with the question of whether it was appropriate for Dr. Owen to read from the report, which itself was not admitted into evidence. Even if limited testimony is permissible on the subject under Evidence Code section 802, this does not open the door to wholesale receipt into evidence of any documents reviewed by the expert, unless those documents are otherwise admissible. (People v. Campos (1995) 32 Cal.App.4th 304, 309.) Although a police report, insofar as it reflects the fact of the report, the time and date it was prepared, the nature of the crime investigated, the names of witnesses, and the first hand observations of the officer preparing the report, is generally admissible under the hearsay exception for official records in Evidence Code section 1280, this exception does not apply to statements by third parties contained within a police report, which statements must be separately admissible. (See, e.g., Lake v. Reed (1997) 16 Cal.4th 448, 461 [party’s admission contained in a police report admissible under Evid. Code, § 1220].) Here, the statement referred to in the police report was a party admission; however, it would have been admissible as such only if Detective Franey himself had been called to testify.
In any event, we need not determine if the court erred in permitting Dr. Owen to read from the police report, because even if error occurred, it was not prejudicial. Erroneous admission of evidence requires reversal only when it results in a “miscarriage of justice.” (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) To determine whether an error is prejudicial under this standard, the court must assess whether there is a reasonable probability that the outcome would have been more favorable to defendant had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 835-836.)
The jury was instructed that the testimony could be considered for the limited purpose of showing the information on which the experts based their opinions; it was not to be considered for the truth of the matter asserted. Thus, while Dr. Owen expressly said he believed that Gabba made the statement, the jury was specifically instructed that it was not being introduced to establish its truth. Gabba maintains, however, that the limiting instruction did not fix the problem. He contends, “it is difficult to understand exactly what it would mean for the jury to limit the use of this evidence to . . . explaining the basis of the experts’ opinions. [¶] . . . To the extent that the jury was required to evaluate the experts’ opinions and decide whether or not to believe it, it is difficult to see how they could have conducted such an evaluation,” without forming some kind of opinion as to the reliability or truth of the hearsay information. Furthermore, he argues the People have failed to explain “exactly how otherwise inadmissible hearsay offered to establish the basis of the expert’s opinion could be used for that purpose without the jury assuming that it was factually correct. That is the fundamental flaw in this entire ‘basis of the expert’s opinion’ justification for the admission of hearsay. . . . After all, if [he] did not make the statement, then it would be of no use in forming an opinion about [his] mental state. If [he] did make the statement, then it would be used for its truth and, therefore, would qualify as inadmissible hearsay.” In taking this position, Gabba demonstrates his confusion as to the role of an expert witness in SVPA cases.
Additionally, pointing to the court’s instructions to the jury that it could use his statements for impeachment purposes and as evidence of the truth of the statement, and that it could use his admissions against him, and also decide whether he actually made those statements, Gabba argues the court failed to differentiate between the two types of evidence; thus, the jury could well have thought that it could consider as true such hearsay statements as his purported admission that he had a craving for young girls. He also contends that the prosecutor, during closing argument, referenced his “statements that he has cravings for little girls,” thereby “asking the jury not just to use the hearsay to evaluate the experts’ opinions but for their truth. In effect, the prosecutor actively encouraged the jury to misuse this evidence in a way that the jury, based upon the impeachment instruction, could only believe was authorized by the trial court.”
Such a witness is called upon to give his or her opinion as to the likelihood that defendant will reoffend if he is released into the community. In formulating an opinion, the expert often has no alternative but to consider and rely on hearsay information. When the expert then states, for the benefit of the jury, the information upon which he or she relied to form an opinion, that information is not disclosed for the purpose of establishing its truth. Thus, the jury is generally instructed as to how to treat such information.
Here, Dr. Owen relied on Gabba’s admission, as told to Detective Franey, that he had cravings for young girls. The jury was instructed not to consider the statement for its truth. Whether or not the statement is true, Dr. Owen believed that it made sense, that it was consistent with Gabba’s behavior over the years, and thus considered it in forming his opinion.
Furthermore, it is undisputed that Gabba committed the offenses of which he was convicted. Not only did Gabba himself admit that he had done so, but also, several of the victims testified and described the underlying circumstances. Moreover, Gabba was given an opportunity to refute the statement attributed to him as read by Dr. Owen. He testified that he recalled being interviewed by Detective Franey in 1992, but did not remember telling him that he was glad he was caught to avoid doing more harm to young girls. Nor did he remember telling Dr. Reed, before his release from prison in 1986, that he was having strange thoughts about wanting to touch young girls. He remembered being interviewed by Dr. Reed and acknowledged that the statement is in her report, but did not recall saying it to her. He explained that he was not saying that Dr. Reed’s report is wrong or that it is right; he just does not remember saying it. Also, Dr. Owen, on cross-examination, explained why a person such as Gabba would take the position that, although he had a craving, nothing serious happened.
Finally, as we have previously stated, the jury was expressly instructed on the manner in which to evaluate the expert testimony and was given appropriate limiting instructions. For these reasons, we are confident that even if Dr. Owen had not read into the record Detective Franey’s account of Gabba’s statement to him, but instead, had simply described the content of the statement, as he was permitted to do as a basis for his opinion, the outcome would have been the same.
C. Any error in permitting the prosecution to present testimony pertaining to the SVP treatment program at ASH was harmless.
Over the objection of Gabba’s trial counsel, Dr. Owen was permitted to testify regarding the SVP treatment program at ASH. After briefly describing the program’s five phases, Dr. Owen concluded that Gabba, without treatment, was likely to reoffend. Gabba contends this testimony was highly prejudicial to him because it suggested that whether or not he qualified as a SVP, it would be safer not to release him until he participated in the program. Thus, he argues reversal is required because he did not receive a fair trial.
Dr. Owen testified that during the first phase, the participant attends classes and learns about sex offenders in general. The second phase, which is the most extensive part of the treatment, involves group meetings, where the participant confronts his own history of sexual deviance and then writes about it. The third phase “is where [the participant] learn[s] to put into place what has been taught . . . in the prior treatment groups.” During the fourth phase, the participant is prepared to leave the hospital by means of extensive group counseling and individual counseling. The final phase, which occurs after the participant has left the hospital, consists of supervision and extensive counseling in the community.
Gabba is careful to point out that he does not contend his refusal to participate in a treatment program was not relevant. Although he maintains that his refusal to participate does not qualify as a failure to complete a program, he acknowledges that it may be relevant “in assessing the likelihood he would voluntarily engage in out-patient treatment upon his release.” However, he insists that details of the program in which he did not participate were not relevant to any of the issues in the case, i.e., whether he had two qualifying prior convictions, whether he had a diagnosed mental disorder, whether he was likely to reoffend, and whether he could be safely and effectively treated in the community. As to the latter only, he concedes that his failure to participate may be relevant to future treatment in the community, but maintains that the details of the program are not. Citing Ghilotti, Gabba contends the trial court abused its discretion in overruling his objection to this testimony.
Gabba offers the following hypothetical: “Consider two identical sexually violent predators. One is offered but refuses to participate in the Atascadero treatment program. Another is offered, but refuses to participate in, a completely different treatment program. The likelihood that these two individuals would reoffend in the future remains unchanged and identical even though they refused to participate in different treatment programs.”
In Ghilotti, the prosecution argued that evidence concerning postrelease treatment was irrelevant to whether the individual meets the criteria for commitment as a SVP. (Ghilotti, supra,27 Cal.4th at p. 925.) The Supreme Court concluded that a defendant could present evidence that although his mental disorder would be dangerous if not treated, it could be effectively treated in the community. (Id. at p. 927.) Thus, whether or not a defendant would seek out such treatment at his own volition was relevant. The high court further held that an individual’s refusal to participate in treatment is relevant, as is his or her performance while in treatment. However, Gabba contends that, while a refusal to participate in a program is relevant, a detailed account of the precise program is not.
Gabba cites People v. Rains (1999) 75 Cal.App.4th 1165 (Rains) for the proposition that details of the treatment program constitute inadmissible evidence of the consequences of the jury’s verdict as to whether a defendant is a SVP. In Rains, the prosecution’s experts were permitted to testify that, if the jury found the defendant to be a SVP, he would be committed to a hospital for a two-year period, where he would undergo treatment. On appeal, the court found that the consequences of a true finding on the issue of whether a defendant in an SVPA case is a sexually violent predator had no relevance to the issues in dispute, but that the error was harmless. The People contend Rains is inapposite in that here, the program’s details are relevant to the issue of Gabba’s amenability to treatment and whether he posed a risk to reoffend if he were released: “In other words, because Gabba decided to forego voluntary but necessary treatment for his disorder for over eight years, he would not likely seek comparable treatment if released into the community without supervision.”
We find the People’s position persuasive. Indeed, as stated in Ghilotti, “the evaluators must weigh the possibility of voluntary treatment with requisite care and caution. Common sense suggests that the pertinent factors should include (1) the availability, effectiveness, safety, and practicality of community treatment for the particular disorder the person harbors; (2) whether the person’s mental disorder leaves him or her with volitional power to pursue such treatment voluntarily; (3) the intended and collateral effects of such treatment, and the influence of such effects on a reasonable expectation that one would voluntarily pursue it; (4) the person’s progress, if any, in any mandatory SVPA treatment program he or she has already undergone; (5) the person’s expressed intent, if any, to seek out and submit to any necessary treatment, whatever its effects; and (6) any other indicia bearing on the credibility and sincerity of such an expression of intent. (Ghilotti, supra, 27 Cal.4th at p. 929.) In forming his opinion as to whether Gabba would likely reoffend if not committed as a SVP, it was incumbent upon Dr. Owen to consider whether Gabba had any intention of voluntarily pursuing treatment. Thus, a description of the program was relevant to Dr. Owen’s opinion as to whether such treatment would reduce Gabba’s risk of reoffending.
In any event, even if the evidence should have been excluded, the failure to do so was harmless. (People v. Watson, supra, 46 Cal.2d at pp. 835-836.) We reject Gabba’s position the evidence is prejudicial in that it called upon the jury to analyze the wrong issue. That is, instead of focusing on whether Gabba was likely to reoffend, the evidence pertaining to the program placed the jury in the position of deciding whether Gabba would be less dangerous and less likely to reoffend if he participated in the program. Further, he contends that in the absence of an instruction that the jury not consider the consequences of its verdict, the jury very likely believed it could use the evidence in forming an opinion as to whether or not it would be a “good idea” for Gabba to be committed as a SVP.
In Rains, the court found the error not to be prejudicial in that the evidence that the appellant was a sexually violent predator was undisputed, the challenged testimony was relatively brief, and the jury was instructed not to discuss or consider the subject of penalty or punishment. (Rains, supra, 75 Cal.App.4th at pp. 1170-1171.) While Gabba is correct that his case is factually distinguishable, i.e., expert testimony was offered on his behalf to refute that offered by the prosecution, and the jury was not given a limiting instruction, the fact remains that the challenged evidence was only a small fragment of Dr. Owen’s comprehensive testimony. Thus, we disagree with Gabba’s position that the jury could reasonably have concluded, based on this evidence, that no matter how dangerous he might or might not have been, he would be less dangerous after completing the program. In essence, we are satisfied that the jury would have reached the same result in the absence of this testimony.
D. Gabba has not established that trial counsel’s failure to pursue a motion to dismiss for lack of jurisdiction constitutes ineffective assistance requiring reversal.
Prior to trial, Gabba argued the court lacked jurisdiction over the proceedings because he was not legally in custody at the time the petition was filed. He took the position that the good faith exception set forth in section 6601, subdivision (a)(2), did not apply. The trial court deferred ruling on this issue until the conclusion of trial. By that time, however, at Gabba’s request, trial counsel opted not to pursue the matter. It is clear from the record that trial counsel disagreed with Gabba’s decision to withdraw the motion, but was acting in accordance with Gabba’s express instruction. The court then allowed Gabba additional time to discuss the matter with counsel, after which Gabba maintained his original decision to withdraw the motion. Gabba also informed the court that, in light of the conditions at the local jail, he wished to return to ASH.
The court stated: “Now, I don’t know if you’ve thought about this for months or years, and well-reasoned opinion, or it’s something that was just presented to you, but I would like you to think about it, and realize that discarding [defense counsel’s] advice is at best a dangerous thing to do.” The court then stated, “I’m going to . . . give you a chance to think this over, and if you want the motion withdrawn, that request will be honored.”
On appeal, Gabba contends the ultimate decision as to whether to pursue the matter was a tactical one to be made by trial counsel, who should not have withdrawn the motion simply because he was directed to do so. Thus, he maintains that trial counsel rendered ineffective assistance. We disagree.
It is well established that in order to prevail on a claim of ineffective assistance, a defendant must show (1) counsel’s performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) prejudice flowing from counsel’s performance or lack thereof. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) In examining a claim of ineffective assistance of counsel, reviewing courts defer to counsel’s reasonable tactical decisions, and there is a “‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’” (Id. at p. 437) We may reverse on direct appeal on this ground only if “the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
Relying on In re Horton (1991) 54 Cal.3d 82 (Horton), the People maintain that a decision to contest jurisdiction is analogous to a decision as to whether or not to admit guilt or to forego a defense; thus, it is personal to the individual. In Horton, our high court concluded that an attorney has the right to stipulate that trial be conducted by a court commissioner or temporary judge rather than a judge, rejecting the defendant’s claim that he had a fundamental right to make such a decision. Said the court: “In the civil context, the attorney has authority to enter into stipulations binding on the client in all matters of procedure, though he or she may not stipulate in a manner to ‘“impair the client’s substantial rights or the cause of action itself.”’ [Citation.] Thus the attorney cannot without authorization settle the suit, stipulate to a matter that would eliminate an essential defense, agree to entry of a default judgment, or stipulate to nominal damages.” (Id. at p. 94.) The same is true of a decision to forego a motion to dismiss on jurisdictional grounds. Such a motion, to be sure, is tantamount to an essential defense and cannot be withdrawn without the express authorization of the client.
Accordingly, because the decision to pursue the jurisdictional claim was Gabba’s alone, and because Gabba, after being apprised of the consequences, expressly directed his attorney to withdraw the claim, we reject his contention that counsel’s representation fell short of prevailing professional standards of reasonableness. For this reason, we do not reach Gabba’s contention he was prejudiced by his attorney’s action in that it cost him a chance to have the petition dismissed.
Nor do we address the People’s contention that Gabba’s claim fails in any event because (1) he cannot obtain reversal of a civil commitment order based upon counsel’s purported ineffectiveness, and (2) any claim of ineffective assistance must be brought by means of habeas corpus petition and not by direct appeal.
DISPOSITION
The commitment order is affirmed.
We concur: RICHLI Acting P. J., GAUT J.
“‘During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] . . . [¶] Four doctors testified that in reaching his or her conclusions as an expert witness, he or she considered statements made by [Gabba], those contained in the records reviewed. You were told at the time you may consider those statements only to evaluate the expert’s opinions. Do not consider those statements as proof the information contained in the statement is true.’”
“[Defense Counsel:] Let’s assume he made that statement.
“[Dr. Owen:] Okay.
“[Defense Counsel:] He’s been arrested. He’s already committed or been involved in the behavior that got him arrested. It doesn’t make a lot of sense for him to say, ‘I’m glad you stopped me because otherwise I would have performed the behavior I already performed.’
“[Dr. Owen:] It does make sense because at that point he was denying committing the behavior. He was denying the offense by saying, ‘Boy, I’m glad you stopped me before I committed that offense.’
“[Defense Counsel:] He admitted that there was touching involved, and he said, ‘I’m glad you stopped me.’ I guess the point I’m getting to is, hypothetically, isn’t it possible he’s telling the officer this because he thinks that’s what the officer wants to hear so he goes easy on him?
“[Prosecutor:] Object as speculation.
“[The Court:] Overruled.
“[Dr. Owen:] It doesn’t make sense when we look at his pattern of fabricating. His stories, they’re always to enhance his self-esteem. It only makes him look like a more serious pedophile.
“[Defense Counsel:] Do you selectively select certain statements to believe?
“[Dr. Owen:] I think we have to look at the statements and context of where he is at in life, like getting accepted to Yale or Columbia. That doesn’t make sense for a guy who left high school. With the cravings, well, this is a guy who has been arrested. At the time, he was trying to minimize his actual contact with these girls. It does make sense to me. He’s saying, ‘I had the cravings, but I’m sure glad you stopped and nothing serious happened.’
“[Defense Counsel:] In light of his history about being untruthful, you believe that statement?
“[Dr. Owen:] That statement tends to fit with his situation at that moment. I tend to believe it. It fits with his pedophilia and his behavior over the years.”