In re Zamora

1

In re JUAN ZAMORA On Habeas Corpus

F084604

California Court of Appeals, Fifth District

March 29, 2023

NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; application for writ of habeas corpus. Fresno Super. Ct. No. 20CRSP685730 Arlan L. Harrell, Judge.

Antoinette Taillac, Public Defender, Douglas S. Feinberg and Vang Heu, Deputy Public Defenders, for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Julie A. Hokans, Deputy Attorneys General, for Respondent.

DETJEN, Acting P. J.

INTRODUCTION

The People of the State of California, through the Fresno County District Attorney, filed a petition for indeterminate civil commitment of petitioner Juan Zamora as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA or the Act) (Welf. & Inst. Code,^[1] § 6600 et seq.). Following a hearing, the superior court found the petition was supported by probable cause and held petitioner over for trial.

Petitioner filed a petition for writ of habeas corpus in the superior court, which was denied. He then brought the instant petition for writ of habeas corpus, challenging the court's finding of probable cause. In the petition itself, he argues his incarceration is unlawful because the reports of the People's two experts were erroneously admitted into evidence, and the court relied on hearsay contained in the experts' reports to find probable cause. However, in the memorandum included with the petition, he presents no argument on this point and instead raises a different, but related, issue: that the expert opinion testimony was improper because it was based on inadmissible hearsay. In arguing this point, he raises several issues: (1) his California Law Enforcement Telecommunications System (CLETS) rap sheet, which was admitted into evidence, contained inadmissible hearsay; (2) even if not hearsay, the CLETS rap sheet was admissible only for limited purposes not relevant to his probable cause hearing; (3) "case-specific hearsay statements in the probation and police reports were . . inadmissible"; and (4) the experts' reliance on inadmissible hearsay rendered their opinions irrelevant and lacking in foundation and evidentiary value. In light of the foregoing, he argues the admissible evidence is insufficient to support the court's finding of probable cause, and the petition for civil commitment must be dismissed or alternatively, the probable cause finding must be vacated and the matter remanded for a new probable cause hearing.

We have determined the experts' reports and the probation and police reports regarding nonpredicate offenses were not admitted into evidence, nor were hearsay statements contained in those reports relayed to the trier of fact. We therefore conclude petitioner's arguments with regard to these documents are without merit. We also conclude that the CLETS rap sheet was admissible pursuant to a hearsay exception.

With regard to the expert opinion testimony, we conclude the experts generally were permitted to rely on hearsay in forming their opinions and permissibly did so in this case. Furthermore, we conclude the expert opinions were supported by competent evidence, and therefore were not irrelevant or lacking foundation or evidentiary value. We therefore hold the admissible evidence is sufficient to support the court's finding of probable cause.

We previously issued an order to show cause. Because we now conclude petitioner's arguments are without merit, we discharge the order to show cause and deny the petition.

FACTUAL AND PROCEDURAL HISTORY

I. Initial Proceedings

On August 19, 2020, the People filed their petition for petitioner's civil commitment under the SVPA.

Prior to the probable cause hearing, petitioner moved to exclude the diagnoses and opinions of the People's expert witnesses, Dr. M. Vorwerk and Dr. L. Lunceford, as well as any hearsay that might support their diagnoses and opinions, on the ground they improperly relied on hearsay statements regarding nonpredicate offenses in forming their diagnoses or opinions.

II. Probable Cause Hearing

A. CLETS Rap Sheet

At the beginning of the probable cause hearing, the prosecutor moved to admit into evidence a certified copy of petitioner's CLETS rap sheet. Relevant here, the rap sheet reflected that petitioner was arrested in or about 1991 on a charge of lewd or lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)). He ultimately suffered a misdemeanor conviction for sexual battery (Pen. Code, § 243.4, subd. (d)) and was placed on probation for two years. Additionally, petitioner was arrested in or about 2008 on a charge of lewd or lascivious acts on a child 14 or 15 years of age (Pen. Code, § 288, subd. (c)(1)). He suffered a conviction for felony sexual battery (Pen. Code, § 243.4, subd. (a)) and this time was placed on probation for four years. His probation later was revoked and he was incarcerated. Finally, in or about 2015 or 2016, petitioner suffered a conviction for lewd or lascivious acts on a child under the age of 14 years (Pen. Code, § 288, subd. (a)) and was sentenced to state prison for a term of six years.

Petitioner asked that the rap sheet be redacted to exclude all arrests and convictions other than the 2015 offense, which petitioner acknowledged was admissible as a qualifying sexually violent predicate offense. Petitioner argued "any evidence" regarding the nonpredicate offenses constituted hearsay pursuant to People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and the convictions themselves were irrelevant because, standing alone, they did not suggest petitioner has a qualifying mental health disorder. Petitioner again argued the experts could not rely on hearsay information in rendering their diagnoses and opinions.

The court admitted the certified CLETS rap sheet into evidence over petitioner's objection.

B. Expert Witness Lunceford

Lunceford testified at the probable cause hearing that she is a licensed clinical psychologist and consultant to the State Department of State Hospitals (DSH). She performs evaluations to determine whether individuals meet the criteria for commitment as an SVP. In doing so, she reviews records provided by DSH, which generally include the individual's CLETS rap sheet, probation officers' reports, crime incident reports, the individual's prison central file, and prison mental health records. She also interviews the individual being evaluated. In the instant case, Lunceford reviewed documents and interviewed petitioner.

Lunceford explained that the first criterion for commitment as an SVP is that the person has been convicted of a qualifying, sexually violent crime. Lunceford determined petitioner satisfied this criterion. In this regard, Lunceford determined, based on a probation officer's report and the abstract of judgment, that petitioner was convicted in 2015 of lewd or lascivious acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (a). When the prosecutor asked Lunceford to relate the details of the 2015 offense, petitioner objected under Sanchez and People v. Superior Court (Couthren) (2019) 41 Cal.App.5th 1001 (Couthren).^[2] The prosecutor responded that the testimony fell within the hearsay exception set out in section 6603.^[3] The court overruled the objection. Lunceford testified that, according to the probation officer's report, petitioner had attended a family funeral where a seven-year-old girl reported that petitioner kissed her on the mouth while in a secluded area. The girl reported that she was hiding in a closet while playing hide-and-seek with other children when petitioner grabbed her by the arm, pulled her to him, and kissed her on the mouth. In Lunceford's interview with petitioner, petitioner denied the offense. He explained that he had kissed his niece on the forehead at her request, and the victim of the offense then stated, "I'm your niece too." Although the girl was not petitioner's niece, petitioner then also kissed her on the forehead.

Lunceford explained that the second criterion for commitment as an SVP is that the person has a diagnosable mental disorder which predisposes him or her to the commission of criminal sexual acts. The prosecutor asked Lunceford if she had determined whether petitioner met this criterion. Petitioner objected on hearsay grounds. The court overruled the objection on the ground "the doctor can express an opinion as to whether she has an opinion on whether [petitioner] has a mental disorder." Lunceford responded that she had reached such a determination. The prosecutor asked Lunceford to specify the disorder with which she had diagnosed petitioner. Petitioner again objected on hearsay grounds. The court overruled the objection and Lunceford stated she had diagnosed petitioner with pedophilic disorder, sexually attracted to females, nonexclusive type.

When asked what she looked at to make this diagnosis, Lunceford explained that she looked at incidents other than the predicate offense. The prosecutor asked Lunceford whether she knew what petitioner was charged with in the 1991 incident. Petitioner objected on foundation and hearsay grounds. The court overruled the objection, noting that the incident was reflected in petitioner's CLETS rap sheet and, "[t]o the extent that this 1991 incident resulted in a conviction, it is an established fact that something took place. So I will allow the doctor to discuss what she understands took place and she can provide a basis for where she got that information. The [c]ourt has to determine whether it is accurate or not."

Lunceford explained that her information concerning the 1991 offense came...