People v. Gordon

THE PEOPLE, Plaintiff and Respondent, v. DONALD LEE GORDON, Defendant and Appellant.

G053392

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

January 22, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. M-9642)

OPINION

Appeal from an order of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Appellant's Request for Judicial Notice. Denied.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury found Donald Lee Gordon to be a sexually violent predator under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA).¹ The trial court ordered him committed to the Department of State Hospitals (DSH) for an indeterminate term. Gordon appeals from the order of commitment. We affirm.

In briefs and supplemental briefs, Gordon makes the following 13 arguments:

1. The trial court erred by admitting exhibits that were inadmissible or partially inadmissible as hearsay and did not come within the hearsay exception of section 6600, subdivision (a)(3).

2. The trial court erred by permitting expert witnesses to testify to case-specific hearsay made inadmissible by People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).

3. The trial court's evidentiary errors, if individually harmless, were cumulatively prejudicial.

4. Under the SVPA, the district attorney was not allowed to hire his own mental health experts and have them testify at trial.

5. Section 5328 did not permit the disclosure of Gordon's treatment records to the district attorney's retained mental health experts.

6. The district attorney violated Gordon's rights by disclosing Gordon's confidential treatment information to the district attorney's retained experts by means of a hypothetical.

7. Section 5328 did not permit disclosure of Gordon's treatment records to the district attorney to the extent the information in the records was not included in an updated or replacement mental health evaluation.

8. Section 6603, subdivision (j)(1) (section 6603(j)(1)), which permits limited access to a sexually violent predator's treatment records, violates Gordon's equal protection rights.

9. Section 6603(j)(1) cannot be applied either retrospectively or prospectively to Gordon's case.

10. Under section 6603(j)(1), the district attorney's access to Gordon's treatment records is limited to those records used and relied upon by the evaluators in conducting updated evaluations under section 6603, subdivision (c)(1).

11. Section 6603(j)(1) does not permit the disclosure of Gordon's confidential information to an expert retained by the district attorney.

12. The trial court erred by compelling Gordon to submit to mental examinations by the district attorney's retained experts.

13. Recent amendments to the SVPA regarding conditional release mean the indeterminate term of confinement required under the SVPA violates Gordon's due process rights.

We address each of those arguments in the Discussion section. We conclude most of the challenged exhibits were admissible, and error in admitting the others or portions of them was harmless. Any Sanchez error was harmless, and there was no cumulative error. The district attorney was entitled to retain his own mental health experts and have them testify at trial. Argument nos. 5, 7, 8, 9, 10, and 11 have been decided adversely to Gordon by the California Supreme Court in People v. Superior Court (Smith) (2018) 6 Cal.5th 457 (Smith). The trial court did not compel Gordon to submit to mental examinations by the district attorney's experts. Finally, the recentlyamended conditional release provisions of the SVPA do not violate Gordon's due process rights.

SVPA STATUTORY FRAMEWORK

The SVPA authorizes the state to civilly commit persons found to be sexually violent predators after they conclude their prison terms. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 646-647 (Reilly).) Section 6600, subdivision (a)(1) 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."

The Welfare and Institutions Code provides an outline of the procedure for determining whether a person is a sexually violent predator. (§ 6600 et seq.) When the Secretary of the Department of Corrections and Rehabilitation determines that a person in custody may be a sexually violent predator, the secretary refers that person for an initial screening. (§ 6601, subds. (a)(1) & (b).) "If as a result of this screening it is determined that the person is likely to be a sexually violent predator, the Department of Corrections and Rehabilitation shall refer that person to the [DSH] for a full evaluation." (§ 6601, subd. (b).)

The full evaluation is conducted by two mental health experts, either psychologists or psychiatrists, designated by the Director of the DSH (the Director). (§ 6601, subd. (d).) Each mental health expert must evaluate the person in accordance with a standardized assessment protocol "to determine whether the person is a sexually violent predator as defined in [section 6600]." (§ 6601, subds. (c) & (d).) "'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 . . . ,' including 'criminal and psychosexual history, type, degree,and duration of sexual deviance, and severity of mental disorder.' (§ 6601, subd. (c).)" (Reilly, supra, 57 Cal.4th at p. 647.)

"If both evaluators 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] shall forward a request for a petition for commitment under Section 6602." (§ 6601, subd. (d).) If the evaluators disagree on whether the person is a sexually violent predator, then the Director "shall arrange for further examination of the person by two independent professionals." (§ 6601, subd. (e).) At this stage, the petition "shall only be filed if both independent professionals who evaluate the person pursuant to subdivision (e) concur that the person meets the criteria for commitment specified in subdivision (d)." (§ 6601, subd. (f).)

The attorney petitioning for commitment may request updated evaluations if it is determined they "are necessary in order to properly present the case for commitment" and may request replacement evaluations "[i]f one or more of the original evaluators is no longer available to testify." (§ 6603, subd. (c)(1).) "If an updated or replacement evaluation results in a split of opinion as to whether the individual meets the criteria for commitment, the []DSH must obtain two additional evaluations in accordance with subdivision (f) of section 6601. (§ 6603, subd. (c).)" (Reilly, supra, 57 Cal.4th at pp. 647-648.)

"After a petition for commitment has been filed in the superior court, and once replacement evaluations have been completed, a new round of proceedings ensues. 'The superior court first holds a hearing to determine whether there is "probable cause" to believe that the person named in the petition is likely to engage in sexually violent predatory criminal behavior upon release. [Citation.] . . . [I]f the court finds probable cause within the meaning of this section, the court orders a trial to determine whether the person is an SVP under section 6600.' [Citation.] Though civil in nature, this trial contains a number of procedural safeguards commonly associated with criminal trials,including the alleged SVP's right to a jury trial (§ 6603, subd. (a)), to assistance of counsel (ibid.), and to a unanimous jury finding that he or she is an SVP beyond a reasonable doubt before he or she may be committed (§ 6604)." (Reilly, supra, 57 Cal.4th at p. 648.)

At trial, the People must prove three elements beyond a reasonable doubt: (1) the person has suffered a conviction of at least one qualifying "sexually violent offense," (2) the person has "a diagnosed mental disorder that makes the person a danger to the health and safety of others," and (3) the mental disorder makes it likely the person will engage in future predatory acts of sexually violent criminal behavior if released from custody. (§ 6600; see §§ 6603, 6604; People v. Shazier (2014) 60 Cal.4th 109, 126; People v. Yates (2018) 25 Cal.App.5th 474, 477 (Yates).)

If the court or jury finds the person is a sexually violent predator, then he or she is committed for an indeterminate term to the custody of the DSH. (§ 6604.) Following commitment, the sexually violent predator is subject to annual mental examinations to determine whether he or she continues to meet the definition of a sexually violent predator. (§ 6604.9, subds. (a) & (b).)

PROCEDURAL HISTORY

In 2002, the Orange County District Attorney filed a petition under the SVPA to commit Gordon as a sexually violent predator. The petition was supported by an evaluation conducted by Charles Jackson, Ph.D., and an evaluation conducted by Mark Schwartz, Ph.D. In 2004, the trial court found probable cause and ordered a trial.

In May 2015, the trial court granted the district attorney's motion for updated evaluations of Gordon under section...