Filed 3/5/20 Matthews v. Superior Court CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

SEMAJ MATTHEWS,

Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

B296109

(Los Angeles County

Super. Ct. No. ZM040945)

ORIGINAL PROCEEDINGS in mandate. Mark S. Arnold, Judge. Petition denied.

Ricardo D. Garcia, Public Defender, Albert J. Menaster, Christina Behle and Lara Kislinger, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Jackie Lacey, District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys, for Real Party in Interest.

______________________________

The Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.; hereafter SVPA) “allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms.” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235 (Cooley).) For the individual to be committed, a judge or unanimous jury must find beyond a reasonable doubt that the person is a sexually violent predator. (Id. at p. 243.) The SVPA defines a sexually violent predator as “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).)

“The SVPA provides for both a preliminary probable cause hearing and a later trial” to determine whether a convicted sex offender is a sexually violent predator. (People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado).) Before there can be a trial, the People must petition the superior court for a finding of “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); see Hurtado, at p. 1186 [emphasizing that the People must prove that the likely future criminal behavior be not only sexually violent but also predatory].)

If the court determines such probable cause exists, a trial must be conducted “to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections and Rehabilitation or other secure facility.” (§ 6602, subd (a).)

Semaj Matthews petitions for a writ to overturn the superior court’s finding of probable cause to hold him for trial under the SVPA (§ 6600 et seq.), contending the court prejudicially erred by admitting inadmissible hearsay at the probable cause hearing. We conclude no prejudicial hearsay was admitted, and thus deny the petition.

BACKGROUND

In 2015, Matthews fondled an 11-year-old girl in a children’s playground. He was convicted of lewd and lascivious acts with a minor and sentenced to three years in prison. (Pen. Code, § 288, subd. (a).) This is deemed a “qualifying offense” for purposes of an SVPA proceeding.

On March 12, 2018, toward the end of his prison term, the People filed a petition to commit Matthews to a mental health facility as a sexually violent predator. Matthews was evaluated by two psychologists, both of whom concluded he met the criteria to be considered a sexually violent predator.

At the probable cause hearing the People offered the report of, and called to testify, Dr. Charles Flinton, a forensic psychologist specializing in sexual offender cases. Matthews repeatedly objected to all hearsay offered in Dr. Flinton’s report and testimony.

Dr. Flinton’s report indicated that according to police records, Matthews had committed five nonqualifying sexual offenses. A Salina, Kansas police report (that Dr. Flinton did not identify) indicated that in 2001 Matthews victimized five different girls by pestering them to have sex with him, actually having sex with a 15-year-old victim, kissing an 11-year-old on the lips, and propositioning and kissing two 13-year-olds. He was charged with several sex- and battery-related counts, convicted of two counts of sexual battery, and sentenced to 12 months of probation and six months in county jail. The report further stated that police records indicated that in 2010 Matthews was convicted of indecent exposure in Kansas, was charged with indecent exposure in California in 2014, and was arrested in California in 2016 on charges of indecent exposure committed in prison.

According to another unidentified police record referenced in the Flinton report, in 2013 Matthews was arrested for sexual battery on a 25-year-old woman to whom he had offered a ride. As recited in the report, “The victim was apparently walking home when a black male approached her and offered to give her a ride in his vehicle. The victim got into his vehicle. At one point, Mr. Matthews took her to a liquor store and went inside leaving the victim in the vehicle. The victim stated that her ‘intuition’ alerted her that something wasn’t right, so she exited the vehicle and started walking. She only made it a couple blocks before she realized that Mr. Matthews was following her. The victim got back into Mr. Matthews’s car and told him ‘not to fight with her.’ At one point, Mr. Matthews reportedly told her that they were going to ‘the park on the hill.’ The victim then reported that Mr. Matthews touched her ‘where she pees.’ The victim then jumped out of the moving vehicle, causing injuries to her hands, foot, arm, and back. The case was eventually dropped due to ‘insufficient probable cause.’ ”

Dr. Flinton testified that he based his opinion on the police reports, medical records, and a 2017 interview he conducted with Matthews. He testified that Matthews suffered from schizophrenia, and the sexual assaults recounted by the police reports established “a pattern of sexually inappropriate and sexually criminal behavior.” When Dr. Flinton questioned Matthews about these incidents he denied having engaged in any inappropriate sexual behavior with any victim. But his qualifying offense and “other behaviors” established a “pattern of sexually inappropriate behavior” that could manifest in impulsivity and sexual and nonsexual violence, which led Flinton to conclude Matthews was predisposed to commit sexually violent criminal acts.

When asked whether any future offenses would be predatory, Flinton testified, “Well, his qualifying offense involved an 11-year-old female who[] was a stranger to him. There’s also another offense that occurred in 2012 in which he approached a female in the early morning . . . hours, who was delivering newspapers, he approached her and sexually assaulted her by grabbing her crotch area outside her clothing.”

At the conclusion of the hearing the court stated it found Dr. Flinton credible, and found probable cause existed to believe Matthews was a sexually violent predator. The court said, “I believe that there is sufficient evidence to show that Mr. Matthews is a sexually violent–excuse me—is a person who is likely to engage in sexually violent predatory criminal behavior upon release. And I find it predatory because it appears that all of his victims he had no relationship with at all previously. So there is—the probable cause determination is made.”

Matthews filed the instant petition on March 8, 2019, contending he should receive a new hearing because the trial court’s finding of probable cause was based on inadmissible hearsay. Matthews argued Dr. Flinton improperly relied on unqualifying incidents in forming his opinion, which he knew of only through hearsay police records. Matthews argued the trial court improperly allowed Dr. Flinton to relate facts from those records, and improperly considered the unqualifying incidents related therein to make its probable cause determination.

We issued an order to show cause why Matthews’s petition should not be granted. The People filed a return, to which Matthews replied.

DISCUSSION

A. General Principles

“When an offender is determined to be a potential SVP, he or she is referred to the State Department of State Hospitals for a ‘full evaluation.’ [Citation.] The offender is then evaluated by two mental health professionals. [Citation.] If both professionals concur ‘that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody,’ the Director of State Hospitals forwards a request for a petition for civil commitment.” (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 874 (Bennett).)

Upon receiving the request, the People may petition the superior court for a finding of “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).) “Once the petition is filed a superior court judge reviews it to determine whether, on its face, the petition contains sufficient facts that, if true, would constitute 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.’ [Citation.] [¶] If the judge makes such a finding, a probable cause hearing is set. [Citations.] At the probable cause hearing, the judge ‘shall review the petition and shall 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. . . . If the judge determines there is not probable cause, he or she shall dismiss the petition and any person subject to parole shall report to parole. If the judge determines that there is probable cause, the judge shall order that the person remain in custody in a secure facility until a trial is completed . . . .’ [Citation.] The probable cause hearing is ‘analogous to a preliminary hearing in a criminal case; both serve to “ ‘ “weed out groundless or unsupported charges . . . and to relieve the accused of the degradation and expense of a . . . trial.” ’ ” [Citation.] Like a criminal preliminary hearing, the only purpose of the probable cause hearing is to test the sufficiency of the evidence supporting the SVPA petition.’ ” (Bennett, supra, 39 Cal.App.5th at p. 874.)

To determine whether an individual is a sexually violent predator the court must examine three elements. First, the offender must have been “convicted of a sexually violent offense against one or more victims.” (§ 6600, subd. (a)(1).) This may be established by documentary evidence, including “preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals.” (Id. at subd. (a)(3).) Although this evidence is hearsay, the Legislature created an expansive hearsay exception allowing for its admission “after prosecutors complained that ‘they must bring victims back to court to re-litigate proof of prior convictions.’ ” (People v. Otto (2001) 26 Cal.4th 200, 208 (Otto).) Penal Code section 969b also permits the existence of a prior conviction for a sexually violent offense to be established by documentary evidence. (People v. Roa (2017) 11 Cal.App.5th 428, 444 (Roa).) That section “allows the admission into evidence of records or certified copies of records ‘of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which’ the defendant has been imprisoned to prove that a person has been convicted of a crime.” (Roa, at p. 444.)

If the individual has been convicted of a qualifying offense, the People must prove he or she suffers from a “ ‘[d]iagnosed mental disorder,’ ” which may include “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (§ 6600, subd. (c).) “To prove at trial that a defendant suffers from a mental disorder, the People have one or more experts evaluate the defendant to make a diagnosis. A trial court may order an alleged [sexually violent predator] to submit to a mental examination by an expert retained by the People [citation][, but] defendants often refuse to meet with the expert. The diagnosis is therefore frequently based on documentary evidence such as state hospital records, police reports, probation reports, and prison records.” (Roa, supra, 11 Cal.App.5th at pp. 444-445, fn. omitted; see People v. Yates (2018) 25 Cal.App.5th 474, 478 (Yates).)

For the third element, the People must show the alleged sexually violent predator will likely engage in sexually violent criminal behavior “because of a diagnosed mental disorder affecting the person’s volitional or emotional control.” (People v. Shazier (2014) 60 Cal.4th 109, 126.) “A person is likely to engage in sexually violent criminal behavior if the jury finds that the person presents ‘a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.’ [Citation.] Expert testimony is admissible regarding the dangerousness of the defendant and the likeliness of the defendant to reoffend. [Citation.] Such testimony is typically based on diagnostic tools that are used to predict future violent sexual behavior. A common diagnostic tool for predicting violent sexual behavior is the STATIC-99, ‘an actuarial instrument that allows an evaluator to place sexual offenders in different risk categories based on historical (static) factors such as age, marital status, the number of prior offenses, the relationship of the offender to the victims and the gender of the victims.’ [Citation.] The STATIC-99 assigns the offender a numeric score that reflects a percentage chance of the offender being convicted of a future sexual offense. [Citation.] A score of 0 to 1 indicates a low risk of committing a new violent sexual offense, 2 to 5 indicates a moderate risk, and 6 indicates a high risk of reoffending.” (Roa, supra, 11 Cal.App.5th at p. 445, fn. omitted.)

B. Certain Hearsay is Inadmissible in SVPA Proceedings

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless an exception applies. (Id. at subd. (b).)

As noted above, in subdivision (a)(3) of section 6600, the Legislature created a hearsay exception for SVP proceedings to permit the introduction of certain documentary evidence to prove the details of a prior qualifying conviction. However, this exception does not permit the introduction of hearsay to prove details of nonqualifying offenses or alleged offenses that did not result in conviction. (Otto, supra, 26 Cal.4th at pp. 207-208.)

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), our Supreme Court articulated another exception to the hearsay rule, holding that an expert’s testimony involving his or her general knowledge in the expert’s field of expertise is not barred. (Id. at p. 676.) An expert may thus render an opinion “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801, subd. (b).) An expert “may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion.” (Evid. Code, § 802.) But the court “may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.” (Evid. Code, § 803.)

“When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth. In such a case, ‘the validity of [the expert’s] opinion ultimately turn[s] on the truth’ [citation] of the hearsay statement. If the hearsay that the expert relies on and treats as true is not true, an important basis for the opinion is lacking.” (Sanchez, supra, 63 Cal.4th at pp. 682-683.) An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.) “Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.” (Id. at p. 685.) But “[t]here is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.” (Id. at p. 686.)

The rule explained in Sanchez applies in SVPA trials. (See, e.g., Roa, supra, 11 Cal.App.5th at p. 452; Yates, supra, 25 Cal.App.5th at p. 483; Burroughs (2016) 6 Cal.App.5th 378, 410-411; People v. Flint (2018) 22 Cal.App.5th 983, 995-998.)

It also applies in an SVPA probable cause hearing held to determine whether there should be a commitment trial. (Bennett, supra, 39 Cal.App.5th at p. 879; People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1019 (Couthren).)

In Bennett, our colleagues in Division Two of this District reversed a finding of probable cause that was based on inadmissible case-specific hearsay, and dismissed the People’s civil commitment petition. (Bennett, supra, 39 Cal.App.5th at p. 885.) After the People filed their return, the First District similarly held in Couthren that Sanchez applies to probable cause hearings under the SVPA. In that case, the prosecution relied solely on documentary evidence to establish probable cause that Couthren qualified as an SVP. The trial court dismissed the People’s civil commitment petition, finding the prosecution had failed to present admissible evidence to establish probable cause. On appeal, the court held that “neither statute nor decisional law authorizes the wholesale admission of the reports of expert evaluators for their truth at SVP probable cause hearings.” (Couthren, supra, 41 Cal.App.5th at p. 1019.)

We review a trial court’s evidentiary rulings for abuse of discretion. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.) A ruling that rests on an error of law is an abuse of discretion. (People v. Patterson (2017) 2 Cal.5th 885, 894.) We will reverse, however, only if an error was prejudicial, i.e., only if a reasonable probability exists that a different result would have been reached had inadmissible evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818; Roa, supra, 11 Cal.App.5th at p. 433.)

C. Application

Matthews contends the trial court prejudicially erred by allowing expert testimony of case-specific facts relating to nonqualifying offenses, and improperly relied on those incidents in finding probable cause. We disagree.

Dr. Flinton opined that Matthews’s diagnosable mental disorder—schizophrenia—made him likely to engage in sexually violent predatory conduct. He based the opinion on his review of reports detailing (1) Matthews’s qualifying conviction from 2015, and (2) five non-qualifying sexual offenses involving different victims. The underlying facts for all offenses came solely from police reports, i.e., Flinton had no independent knowledge of them.

The admissible evidence was thus twofold. First, police reports describing Matthews’s qualifying conviction from 2015, when he fondled an 11-year-old over her clothing at a park, were admissible pursuant to the hearsay exception set forth in subdivision (a)(3) of section 6600. Second, Flinton’s opinion itself was admissible even though it relied in part on inadmissible hearsay reports. The trial court thus had ample evidence from which to find probable cause existed that Matthews was a sexually violent predator.

Matthews argues that Flinton improperly testified about out-of-court statements to explain the basis of his opinion, and this testimony was material to the court’s finding of probable cause, which the court said was based on offenses Matthews committed against “all of his victims.” The argument is without merit.

We agree that no admissible evidence substantiated Matthews’s nonqualifying offenses, and Dr. Flinton thus had no basis to testify regarding them. (See Sanchez, supra, 63 Cal.4th at p. 686 [an expert may not “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception”].) But no reasonable probability exists that the result would have been more favorable to Matthews absent Flinton’s testimony about nonqualifying offenses.

The standard at a probable cause hearing to determine whether an offender may be a sexually violent predator is lower than that ultimately used at any trial to decide the matter. At a probable cause hearing the trial court need only determine whether “a reasonable person could entertain a strong suspicion that the offender is” a sexually violent predator. To reject the People’s evidence at the probable cause stage, “either the evidence presented must be inherently implausible, the witnesses must be conclusively impeached, or the demeanor of the witnesses must be so poor that no reasonable person would find them credible.” (Cooley, supra, 29 Cal.4th at p. 258.) Given this standard, even if specific information about nonqualifying offenses was erroneously admitted under Sanchez, sufficient other evidence—a police report and Dr. Flinton’s testimony—supported a strong suspicion that Matthews was a sexually violent predator. Nothing about this evidence was inherently implausible or was in any way impeached or incredible. And nothing suggested there would have been no finding of probable cause had details of the nonqualifying offenses been excluded from the proceedings.

Matthews notes that the trial court stated it found his conduct to be predatory because it appeared he had no prior relationship with any “of his victims.” (Italics added.) From this he argues the court would not have found his conduct to be predatory absent the inadmissible evidence of there being more than one victim. We disagree.

“The class of persons who commit predatory acts as defined in section 6600, subdivision (e), is a much smaller group than the class of persons who commit sexually violent criminal acts as defined in the same section. It includes, however, the most dangerous offenders. Because predatory offenders could strike at any time and victimize anyone, they pose a much greater threat to the public at large. In contrast, a defendant likely to commit crimes only against family members or close acquaintances is less likely to reoffend because potential victims will be aware of the defendant’s status as a sex offender. The public at large, however, is inevitably more defenseless against acts committed by strangers.” (Hurtado, supra, 28 Cal.4th at pp. 1187-1188.)

Here, Dr. Flinton testified he believed that any future offense would be predatory because Matthews’s “qualifying offense involved an 11-year-old female who[] was a stranger to him.” (Italics added.) Although Dr. Flinton later testified about other victims to whom Matthews was also a stranger, it remained his opinion that Matthews’s predatory nature was established by one offense against one victim. Nothing suggests the court required that Matthews commit more than one offense involving a stranger before concluding he was probably a predator.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED

CHANEY, Acting P. J.

I concur:

WEINGART, J.*

BENDIX, J.

I concur in the result but not in the application of People v. Sanchez (2016) 63 Cal.4th 665 to statements Dr. Flinton made about nonqualifying offenses when testifying about the bases for his opinions.

BENDIX, J.