People v. McCloud

THE PEOPLE, Respondent, v. BYRON ISAIAH McCLOUD, Petitioner and Appellant.

A153615

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

July 19, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Solano County Super. Ct. No. C31353)

A "sexually violent predator" 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." (Welf. & Inst.,¹ § 6600, subd. (a)(1).)

"A person who has been committed as a sexually violent predator shall be permitted to petition the court for conditional release." (§ 6608, subd. (a).) "The court shall hold a hearing to determine whether the person committed would be 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 due to his or her diagnosed mental disorder if under supervision and treatment in the community. . . . If the court at the hearing determines that the committed person would not be a danger to others due to his or her diagnosed mental disorder while under supervision and treatment in the community, the court shall orderthe committed person placed with an appropriate forensic conditional release program . . . ." (Id., subd. (g).) "In a hearing authorized by this section, the committed person shall have the burden of proof by a preponderance of the evidence . . . ." (Id., subd. (k).)

Byron Isaiah McCloud was adjudicated a sexually violent predator (SVP) in 2011, a decision we affirmed. (People v. McCloud (2013) 213 Cal.App.4th 1076.)

Four years later, in the annual report required by section 6604.9, the Department of State Hospitals (Department) opposed releasing McCloud. In response, McCloud filed a "Petition for Conditional or Unconditional Release under Welfare and Institutions Code Section 6608 (a)." The prosecuting attorney responded that McCloud was "not authorized for unconditional discharge," and his "request for conditional release is totally and completely without merit." Indeed, the attorney argued, the request was so utterly without merit that it qualified as frivolous, meaning that McCloud's petition could be summarily denied without a hearing. (§ 6608 subds. (a), (b)(1).)

The trial court did not agree the petition was frivolous; ordered the Department to appoint an independent evaluator to examine McCloud; and scheduled an evidentiary hearing on the petition. McCloud subsequently amended his petition to seek only conditional release. The issue was tried to the court (§ 6603 subd. (e)), which found that McCloud "failed to prove that he's no longer a sexually violent predator or that he's suitable for conditional release," and denied the petition.

On this timely appeal, McCloud contends: (1) " The Trial Court's Ruling was Based Upon Inadmissible Case-Specific Hearsay," prohibited by People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), thus "Constituting a Miscarriage of Justice" , and (2) "Appellant Proved by a Preponderance of the Evidence That He was Not Likely to Engage in Sexually Violent Criminal Behavior if Conditionally Released; the Trial Court Erred in Denying the Petition." We reject both contentions. Doing so, we shall first address the second contention, after making some preliminary observations.

This is McCloud's third appeal. On his first, we affirmed the jury's determination that he was a sexually violent predator, but we reversed in part so that he could present a Constitutional claim against the Sexually Violent Predator Act (SVPA). (People v.McCloud, supra, 213 Cal.App.4th 1076.) On his second appeal, we affirmed the trial court's determination that McCloud's constitutional claim was without merit. (People v. McCloud (Jan. 19, 2018, A146973) [nonpub. opn.].) At all times, the responsible judicial officer was the Honorable E. Bradley Nelson, Judge of the Solano County Superior Court.

Moreover, despite its caption, this was not a criminal proceeding, nor even a commitment proceeding, where the prosecuting attorney would have to prove beyond a reasonable doubt that defendant was a sexually violent predator, a type of proceeding where the defendant enjoys many of the protections of a full-blown criminal trial. (§§ 6603, subds. (a), (f), 6604, subd. (a).) This was a civil proceeding. (E.g., People v. Allen (2008) 44 Cal.4th 843, 860; People v. Hurtado (2002) 28 Cal.4th 1179, 1192.)

Moreover, the civil proceeding was initiated not by the prosecuting attorney, but by McCloud. He was the petitioning party, and thus he had the burden of proof (Evid. Code, § 500), that being the preponderance burden (§ 6608, subd. (k)) of civil proceedings. That burden did not extend to whether he was or was not a sexually violent predator, for that issue was res judicata from the first appeal. Included within that issue—and likewise conclusively established for this proceeding—is that McCloud had a diagnosed mental disorder. For purposes of this appeal, McCloud does not dispute this.² McCloud's burden was to disprove the Department's latest conclusion that "At this time, neither conditional nor unconditional release is appropriate. The best interest of Mr. McCloud and the adequate protection [of] the community cannot be assured in a less restrictive treatment setting at this time."

Because Judge Nelson concluded that McCloud had failed to carry his burden, McCloud cannot simply reargue the evidence, believing that he produced sufficient evidence to satisfy it. The task he faces here is far more difficult. " 'In the case wherethe trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." ' " (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466.) Expressed more tersely, "when an appellant challenges a trial court's conclusion that the appellant failed to carry its burden of proof at trial, 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.' " (Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074.)

Two witnesses testified for McCloud, Alan Abrams, M.D., and psychologist Christopher Fisher. The prosecuting attorney called psychologists Jay Malhotra and Jeffrey Davis. The testimony of Abrams and Fisher was certainly not " ' "uncontradicted and unimpeached" ' " (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc., supra, 196 Cal.App.4th 456, 466), given that Malhotra and Davis drew exactly the opposite conclusion on whether McCloud had a mental disorder and whether he could be released without peril to public safety. When the testimony of Malhotra and Davis are considered, together with Abrams and Fisher, the most fleeting glance at the respondent's brief demonstrates that McCloud cannot maintain " 'the evidence compels a finding in [his] favor as a matter of law.' " (Vieira Enterprises, Inc. v. McCoy, supra, 8 Cal.App.5th 1057, 1074.) Indeed, McCloud makes no attempt to argue that the evidence was so completely one-sided that no rational trier of fact could have decided against him.

Our opinion could end here. If McCloud failed to satisfy his burden of proof, Judge Nelson was not required to consider or credit the testimony of the psychologists opposing his release.

This court recently summarized Sanchez and its impact, there in the interest of hearsay testimony:

"In Sanchez, . . . the Supreme Court . . . created a new paradigm for the presentation of gang expert testimony. (Sanchez, supra, 63 Cal.4th at p. 679.) Before Sanchez, an expert was given the latitude to testify both about general background information and about case-specific out-of-court statements in order to explain the basis for his or her expert opinion, and the court typically would instruct the jury to consider the information for that purpose only, and not for its truth. (Id. at pp. 679, 683, citing People v. Gardeley [(1996)] 14 Cal.4th 605.) In Sanchez, the court eliminated this latitude with respect to case-specific facts, which it defined as facts 'relating to the particular events and participants alleged to have been involved in the case being tried.' (Sanchez, supra, 63 Cal.4th . at p. 676.) It reasoned that when no other competent evidence of those facts is offered, 'there is no denying' that the hearsay statements relayed by the expert are being offered for their truth. (Id. at p. 684.) Indeed, the jury in Sanchez had been instructed that, in assessing the believability of the expert, it ' "must decide whether information on which the expert relied was true and accurate." ' (Ibid.; see CALCRIM No. 332....