The opinion
Filed 7/23/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B279863
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM017426)
v.
DAVID YATES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Suzette Clover, Judge. Reversed and
remanded.
Rudy G. Kraft, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez, Steven E. Mercer, and Corey J.
Robins, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
This case presents the following issue: May an expert
relate as true the case-specific content of documents which were
neither admitted into evidence nor shown to be covered by a
hearsay exception? We conclude under People v. Sanchez (2016)
63 Cal.4th 665, 684–686 (Sanchez), that such testimony is
inadmissible.
A jury found David Yates (Yates) to be a sexually violent
predator (SVP) under the Sexually Violent Predators Act (the
SVP Act or the Act). (Welf. & Inst. Code, § 6600 et seq.) 1 Yates
contends the jury’s finding must be overturned because the trial
court committed numerous prejudicial errors under Sanchez,
including erroneously permitting the experts to testify to a
massive amount of inadmissible case-specific hearsay. We agree
that the trial court misapplied Sanchez and erroneously allowed
the People’s experts to relate as true case-specific facts contained
in hearsay statements, which were not covered by a hearsay
exception or independently proven by competent evidence.
(Sanchez, supra, 63 Cal.4th at p. 686.) Because that testimony
was prejudicial, we reverse.
PROCEDURAL HISTORY
On April 21, 2011, the Los Angeles County District
Attorney filed a petition to commit Yates as a sexually violent
predator under the SVP Act. The trial court found probable
cause to hold Yates over for trial, and a jury trial commenced on
November 8, 2016. The jury returned a verdict finding Yates to
be a sexually violent predator as alleged in the petition. The trial
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
court ordered him committed to the California Department of
Mental Health for an indeterminate term.
DISCUSSION
I. The SVP Act
The SVP Act allows for the involuntary civil commitment of
certain offenders following the completion of their prison terms
who are found to be sexually violent predators. (People v.
Roberge (2003) 29 Cal.4th 979, 984 (Roberge).) An alleged SVP is
entitled to a jury trial, at which 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, 6603, 6604; People v. Shazier (2014) 60
Cal.4th 109, 126; People v. McKee (2010) 47 Cal.4th 1172, 1185.)
Under section 6600, subdivision (a)(3), the People may
prove the first element—the existence and details underlying the
commission of the predicate offense(s)—“by introducing
‘documentary evidence, including, but not limited to, preliminary
hearing transcripts, trial transcripts, probation and sentencing
reports, and evaluations by the State Department of State
Hospitals.’ ” 2 (People v. Burroughs (2016) 6 Cal.App.5th 378, 403
2Penal Code section 969b also “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,” including a
3
(Burroughs); Roa, supra, 11 Cal.App.5th at p. 443.) The Act thus
contains a broad hearsay exception for the documentary evidence
described in the statute as well as for the multiple-level hearsay
statements contained in such documents in order “to relieve
victims of the burden and trauma of testifying about the details
of the crimes underlying the prior convictions,” which may have
occurred many years in the past. (People v. Otto (2001) 26
Cal.4th 200, 208 (Otto); Roa, supra, at pp. 443–444.)
The Act defines the diagnosed mental disorder required for
the second element as “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); Roa, supra, 11 Cal.App.5th at p. 444.)
To establish this element, the People will have one or more
experts evaluate the person, review documentary evidence (such
as state hospital records, police and probation reports, and prison
records), and render a diagnosis. (§ 6603, subd. (c)(1); Roa,
supra, at pp. 444–445.) This process may be repeated multiple
times over several years in order to satisfy the requirement that,
at the time of trial, the person has “a currently diagnosed mental
disorder.” (§ 6600, subd. (a)(3); see People v. Landau (2013) 214
Cal.App.4th 1, 26 [an SVP case “requires a current mental
condition”].)
For the third element, the People must show that, if
released, the alleged SVP will likely engage in sexually violent
sexually violent offense. (People v. Roa (2017) 11 Cal.App.5th
428, 444 (Roa).)
4
criminal behavior due to the diagnosed mental disorder. (§ 6600,
subd. (a)(3); People v. Shazier, supra, 60 Cal.4th at p. 126.) The
Act requires proof of a clear link between the second and third
elements; that is, the finding of future dangerousness must be
shown to derive from “a currently diagnosed mental disorder
characterized by the inability to control dangerous sexual
behavior.” (Hubbart v. Superior Court (1999) 19 Cal.4th 1138,
1158; People v. White (2016) 3 Cal.App.5th 433, 448.) Again, in
the SVP trial the People will present expert testimony—usually
based on diagnostic tools that predict future violent sexual
behavior—to establish the alleged SVP’s dangerousness and
likelihood to reoffend. (Roa, supra, 11 Cal.App.5th at p. 445.)
II. The Relevant Background
A. Pretrial proceedings
Prior to trial, Yates’s counsel filed a motion in limine under
Sanchez to preclude the People’s experts from relating to the jury
as the basis for their opinions the contents of state hospital
records, the opinions and conclusions of non-testifying experts
including hospital staff, hearsay statements regarding other
allegations of criminal conduct by Yates, and hearsay information
relating to a parole violation. At the hearing on Yates’s motion,
the trial court inquired about the People’s anticipated expert
testimony in this case. The district attorney responded that she
intended to elicit testimony from her experts limited to material
that would be presented under section 6600, subdivision (a), the
business or official records exception to the hearsay rule, and
matters that arose from the experts’ own conversations with
Yates.
The prosecutor argued that the hospital records that had
been subpoenaed were business records and their content was
5
admissible. Defense counsel responded that the hospital records
were extremely voluminous and may not all qualify for admission
under the business or official records exception. The court
indicated it was uncertain about the extent to which multiple
layers of hearsay could be admitted simply because it “happened
to be in a business record,” but noted, “We’re talking in a vacuum
generally. But if it comes up, counsel, I’m sure you’ll object.” The
trial court and parties then moved on to discuss other evidentiary
issues, and the court never clearly ruled on the admissibility of
the documents or the permissible scope of the expert testimony
under Sanchez. During trial, the People did not establish that
any of appellant’s records from which the experts had obtained
their information were covered by a specific hearsay exception.
B. Expert testimony at trial
The People called two licensed psychologists to testify as
expert witnesses in Yates’s SVP trial: Dr. Wesley Maram and
Dr. Douglas Korpi. Both experts opined that Yates qualifies as a
sexually violent predator based on interviews with him, his
scores on sex offender risk assessments, and the experts’ review
of his extensive state hospital file and criminal and juvenile
records going back over 40 years.
Dr. Maram
Dr. Maram testified that appellant was convicted of four
qualifying offenses when he was 18 years old in 1982, including
two counts of oral copulation by force and two counts of sodomy
by force against a 16-year-old boy. The expert described the
details of the incident and opined that the crimes qualified under
California law as sexually violent offenses. Appellant was
convicted, served part of an eight-year prison sentence, and was
paroled. According to appellant’s criminal records, he violated
6
parole by hitting a woman over the head with a bat. Dr. Maram
also described the details of a 1988 qualifying offense in which
appellant forced oral copulation and sodomized a 13-year-old boy
when appellant was 24. Appellant was sentenced to prison for 21
years for that offense. Dr. Maram reported that appellant
threatened his victims on both occasions with a knife. The expert
then summarized details of appellant’s social history and other
criminal offenses, including the facts underlying a sustained
juvenile petition which alleged appellant had forced oral
copulation and sodomized two nine-year-old boys. Dr. Maram
also informed the jury that Yates’s other criminal history
includes “burglary and one or two thefts.”
Dr. Maram diagnosed appellant with “pedophilic disorder,”
defined as “intense and persistent[ly] occurring sexually arousing
fantasies and behaviors towards [prepubescent] children
generally under age 14.” He founded this diagnosis on
appellant’s “young history of molesting children” and appellant’s
statements during his interview.
In his review of appellant’s hospital records, Dr. Maram
learned that while in the California State Hospital at Coalinga,
appellant has subscribed to Barely Legal, a publication
containing photographs of people over 18 who dress and appear
much younger. Dr. Maram identified two sample pages from the
magazine but admitted that appellant had never mentioned the
publication, and he had no idea when appellant had the
subscription or how long he had it. Nevertheless, Dr. Maram
opined that appellant’s subscription to a magazine that depicts
very young potential sexual partners was a significant factor in
diagnosing pedophilic disorder because it suggests an ongoing
sexual attraction to young or very young children. Dr. Maram
7
characterized appellant’s interest in the magazine as “high risk
behavior,” and agreed with the hospital’s recommendation that
appellant not subscribe to the magazine, because a sex offender
like appellant “doesn’t need to be stimulated by sexualized
[images] of children to remind him of his urges and his desire to
have sex with young children.”
Dr. Maram further diagnosed Yates with antisocial
personality disorder, which is marked by the commission of
offenses as symptoms of a conduct disorder before the age of 15.
He explained that appellant “has a full background of criminal
offenses” and antisocial behaviors, starting with running away at
age 11, progressing to his arrest at age 14 for the sexual offenses
against the two nine-year-olds, and culminating in the
commission of more sexually violent crimes as an adult.
Dr. Maram used the Static-99R and Static-2002R risk
assessment tools to evaluate appellant’s recidivism risk. The
results of both tests placed appellant in a high risk category for
reoffending. Dr. Maram noted that appellant has not been free in
the community for any significant period of time without
reoffending. And according to appellant’s hospital records, he has
adamantly refused to participate in any form of sex offender
treatment or other therapy, despite it being offered and
encouraged by hospital staff.
Dr. Korpi
Dr. Korpi testified that appellant is a sexually violent
predator. He based his conclusion on his 2014 interview with
appellant and evaluation of appellant’s criminal and
psychosexual history and the history and severity of his deviance
as reflected in appellant’s voluminous hospital file, criminal
records, and prior SVP reports.
8
Like Dr. Maram, Dr. Korpi described the details of the
qualifying sexually violent offenses for which appellant had been
convicted in 1982 and 1988. Based on the circumstances of those
offenses together with appellant’s entire personal, criminal and
medical history, Dr. Korpi concluded that appellant suffers from
antisocial personality disorder and a paraphilia 3 with features of
both pedophilia and sadism. The expert substantiated his
diagnosis by citing details of appellant’s sexually violent conduct:
He described the juvenile offense in which appellant sodomized
and forced two nine-year-olds to orally copulate him at knifepoint
when appellant was 13; he related details about appellant’s 1982
and 1988 offenses from the probation reports that revealed
particularly sadistic behavior; and he related the facts reported
in the parole charge sheet from appellant’s 1987 parole violation
in which appellant assaulted his cousin with a bat. Dr. Korpi
deemed Yates’s subscription to Barely Legal to be somewhat
significant in showing appellant continues to have an “interest in
younger looking people.”
In support of his diagnosis of antisocial personality
disorder, Dr. Korpi recited details of appellant’s troubled
background, including his mother’s mental illness, appellant’s
criminal conduct before the age of 15, and his adult history
3 “ ‘ “The term paraphilia denotes any intense and
persistent sexual interest other than sexual interest in genital
stimulation or preparatory fondling with phenotypically normal,
physically mature, consenting human partners.” (DSM-V,
p. 685.)’ (Couzens & Bigelow, Cal. Law and Procedure: Sex
Crimes (The Rutter Group 2016) ¶ 14:2, p. 14-10.)” (Burroughs,
supra, 6 Cal.App.5th at p. 392, fn. 3.)
9
involving arrests for burglary, theft, sex offenses, assault, and
two parole violations. Dr. Korpi stated that according to
appellant’s records, Yates is “proud of what a good con man he
is,” he failed sexual offender treatment twice, and he has received
11 write-ups while in custody. Indeed, “[Yates] is so by his own
rules that he decided he wouldn’t brush his teeth and all his
teeth fell out.”
Based on appellant’s extensive history and his scores on the
Static-99R and the Static-2002R, Dr. Korpi opined that appellant
represents a serious and well-founded risk of reoffending in the
future. In particular, appellant’s history of parole and probation
violations and the fact that appellant has failed treatment are
strong indicators of his likelihood to reoffend.
III. The Pertinent Law
A. General legal principles
Hearsay, defined as an out-of-court statement by someone
other than the testifying witness offered to prove the truth of the
matter stated, is generally inadmissible unless it falls under an
exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez, supra, 63
Cal.4th at p. 674; People v. Zamudio (2008) 43 Cal.4th 327, 350.)
Documents like reports, criminal records, hospital records, and
memoranda—prepared outside the courtroom and offered for the
truth of the information they contain—are usually themselves
hearsay and may contain multiple levels of hearsay, each of
which is inadmissible unless covered by an exception. (Sanchez,
at p. 675.)
Although expert witnesses frequently acquire knowledge in
their field of expertise from hearsay sources, “[t]he hearsay rule
has traditionally not barred an expert’s testimony regarding his
general knowledge in his field of expertise.” (Sanchez, supra, 63
10
Cal.4th at p. 676.) Thus, an expert witness may offer opinions
based on any matter, including special knowledge, skill,
experience, training, and education, “whether or not admissible,
that is of a type that reasonably may be relied upon” by experts
in the field. (Evid. Code, § 801, subd. (b).) And prior to Sanchez,
an expert witness was also permitted to relate case-specific
hearsay to the jury, as long as the jury was instructed that it
could only consider the expert’s recitation of such information for
its effect on the expert’s opinion, and not for its truth. (People v.
Bell (2007) 40 Cal.4th 582, 608, overruled by Sanchez, supra, 63
Cal.4th at p. 686, fn. 13; People v. Montiel (1993) 5 Cal.4th 877,
918–919, overruled by Sanchez, supra, at p. 686, fn. 13; People v.
Coleman (1985) 38 Cal.3d 69, 92, overruled by Sanchez, supra, at
p. 686, fn. 13; People v. Dean (2009) 174 Cal.App.4th 186, 197
[applying these rules in SVP proceedings].)
B. Sanchez
In Sanchez, our Supreme Court ended this practice and
abandoned the “not-admitted-for-its-truth rationale” with respect
to case-specific hearsay. (People v. Stamps (2016) 3 Cal.App.5th
988, 994.) Sanchez preserved an expert’s ability to rely on and
cite “background information accepted in [his or her] field of
expertise,” as well as an expert’s ability to rely on and “tell the
jury in general terms” that he or she relied upon hearsay
evidence. (Sanchez, supra, 63 Cal.4th at p. 685.) But an expert’s
recitation of case-specific facts, which Sanchez defined as “those
relating to the particular events and participants alleged to have
been involved in the case being tried,” is a different matter. (Id.
at p. 676.) Sanchez held that an expert is prohibited from
testifying to such facts if they are outside the expert’s personal
knowledge and do not fall under an exception to the hearsay rule
11
or have not been independently established by competent
evidence. (Id. at pp. 676–677, 686.)
Thus, like any other hearsay evidence, case-specific
hearsay an expert relates to the jury as true is not admissible
unless a proper foundation has been laid for its admission under
an applicable hearsay exception. “Alternatively, the evidence can
be admitted through an appropriate witness and the expert may
assume its truth in a properly worded hypothetical question in
the traditional manner.” (Sanchez, supra, 63 Cal.4th at p. 684,
fn. omitted; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510.)
However, an underlying fact that has not been proven by
independent admissible evidence may not be included in a
hypothetical question posed to the expert. (Sanchez, at pp. 677,
686; Stamps, supra, 3 Cal.App.5th at p. 996.)
C. The application of Sanchez to SVP proceedings
Sanchez is not confined to criminal cases. In particular,
courts have held Sanchez applicable to SVP proceedings in
several published opinions, including our own decision in Roa,
supra, 11 Cal.App.5th 428. (See People v. Flint (2018) 22
Cal.App.5th 983, 998–999, 1005; People v. Bocklett (2018) 22
Cal.App.5th 879, 890; Burroughs, supra, 6 Cal.App.5th 378.)
In Burroughs, the People proved the existence and facts of
Burroughs’s qualifying sexually violent offenses by presenting
documentary evidence made admissible by Welfare and
Institutions Code section 6600, subdivision (a)(3), including a
Penal Code “section 969b prison packet” and probation reports
that recited the facts underlying the qualifying convictions.
(Burroughs, supra, 6 Cal.App.5th at p. 403.) Because the
existence and details of the predicate offenses had been
independently established by admissible documentary evidence,
12
Burroughs concluded that “the experts were permitted to relate
the facts to the jury as the basis of their opinions,” consistent
with Sanchez. (Ibid.)
But the court found that not all of the information
contained in the documentary evidence was relevant or
admissible to prove the qualifying offenses. (Burroughs, supra,
6 Cal.App.5th at pp. 410–411.) Such information included
references to uncharged offenses and other conduct, as well as
information about appellant’s prior record, his personal history,
his health, education, and employment, and the terms and
conditions of probation. (Id. at p. 410.) This information, the
court concluded, constituted inadmissible hearsay, and the trial
court had “erred by allowing the experts to testify to the contents
of this evidence as the basis for their opinions.” (Id. at p. 411.)
With respect to the hospital records, Burroughs noted that none
had been introduced or admitted at trial, and therefore “any
statements the experts made about the contents of those records
as ‘the basis for their opinions’ necessarily were improper under
Sanchez. The experts were permitted to rely on those records,
and to rely on any reports other experts such as appellant’s
treating personnel prepared. [Citations.] They could not testify
to the contents of those reports, however.” (Id. at p. 407, fn. 7.)
Burroughs found the evidentiary errors to be prejudicial
and reversed the judgment. (Burroughs, supra, 6 Cal.App.5th at
pp. 412–413.) The court found that through the admission of
numerous hearsay documents and the experts’ testimony relating
“a significant amount of hearsay to the jury,” the People had
presented “in lurid detail, numerous sex offenses that appellant
was not charged with or convicted of committing,” which served
to depict “appellant as someone with an irrepressible propensity
13
to commit sexual offenses, and invited the jury to punish him for
past offenses.” (Id. at p. 412.) In short, the court concluded, “the
improperly admitted hearsay permeated the entirety of
appellant’s trial and strengthened crucial aspects of the People’s
case,” requiring reversal. (Ibid.)
Similarly, in Roa, we found the trial court had erred in
admitting expert testimony which related case-specific facts
about uncharged offenses and other conduct drawn from
investigator reports that were not subject to any hearsay
exception. (Roa, supra, 11 Cal.App.5th at p. 452.) In addition,
the Attorney General conceded error in the trial court’s admission
of expert testimony relating information contained in Roa’s state
hospital records, which had not been shown to be admissible
under a hearsay objection. (Ibid.) Finding the erroneous
admission of the hearsay testimony to be prejudicial, we reversed
the judgment. (Id. at pp. 454–455; People v. Watson (1956) 46
Cal.2d 818, 836.)
IV. Improper Admission of Hearsay Through
Expert Testimony in the Instant Proceedings
Yates contends the trial court erred in admitting
inadmissible hearsay through expert testimony which related to
the jury the content of documents that were never admitted into
evidence and never shown to meet the prerequisites for
admission under an applicable hearsay exception. We review the
court’s evidentiary rulings—including those that turn on the
hearsay nature of the evidence—for abuse of discretion (People v.
Waidla (2000) 22 Cal.4th 690, 725), keeping in mind that an
abuse of discretion occurs when the trial court makes an error of
law (People v. Patterson (2017) 2 Cal.5th 885, 894).
14
A. Expert testimony relating case-specific facts from Yates’s
state hospital, criminal, and juvenile records
Here, except for Yates’s own statements to the experts,
which were admissible as party admissions (Evid. Code, § 1220),
all of the case-specific facts related by the experts were drawn
from documentsYates’s criminal, juvenile, and state hospital
recordsthat were neither introduced or admitted into evidence,
nor shown to fall within a hearsay exception. Applying Sanchez
to the instant case, we therefore conclude that the trial court
erred in admitting inadmissible hearsay in the form of expert
testimony which related case-specific facts to the jury that were
neither subject to a hearsay exception nor independently
established by competent evidence. 4 (Sanchez, supra, 63 Cal.4th
at pp. 676–677, 686.)
Contradicting the concessions the People made in Roa (11
Cal.App.5th at p. 452), respondent maintains that it was not
necessary to admit the documents from which the experts in this
case testified because Sanchez still permits an expert to rely on
hearsay in forming an opinion, and only bars the expert from
4 Yates identifies at least 31 examples of expert testimony
that related case-specific hearsay to the jury which was not
independently established by competent evidence or covered by
an applicable hearsay exception in accordance with Sanchez.
However, because no foundation was laid for admission of any of
the records from which the experts gleaned their information, we
need not address each instance individually to find error in the
trial court’s admission of the expert testimony. (See Roa, supra,
11 Cal.App.5th at p. 452; Burroughs, supra, 6 Cal.App.5th at
p. 407, fn. 7.)
15
relating as true case-specific facts asserted in hearsay statements
if those statements are not covered by any hearsay exception.
(See Sanchez, supra, 63 Cal.4th at pp. 685–686.) Here, the
People argue, admission of the expert testimony was consistent
with Sanchez because the records from which the experts
testified were themselves admissible under section 6600,
subdivision (a)(3) and under the business and official records
exceptions to the hearsay rule.
Respondent is correct in the general assertion that many of
Yates’s criminal records would have been admissible under the
hearsay exception created by section 6600, subdivision (a)(3), had
they been introduced. As our Supreme Court has observed, the
statute specifically authorizes the use of hearsay to show the
details underlying the commission of a predicate offense. (Otto,
supra, 26 Cal.4th at pp. 206–207.) More recently, however, the
high court has observed this hearsay exception applies only to
“admission of documentary evidence, not expert testimony.”
(People v. Stevens (2015) 62 Cal.4th 325, 338.) Because the
hearsay exception under section 6600, subdivision (a)(3) is
limited to documentary evidence to show the existence and
details of a qualifying offense, and no such documentary evidence
was presented or admitted in this case, the experts simply could
not testify to the contents of Yates’s criminal records. (See Roa,
supra, 11 Cal.App.5th at p. 452; Stamps, supra, 3 Cal.App.5th at
p. 996.)
The People are similarly mistaken in their contention that
the expert testimony about the contents of Yates’s hospital and
other records was admissible because the underlying records
were admissible under the business or official records exception
to the hearsay rule.
16
Hospital records and similar documents are often
admissible as business records, assuming a custodian of records
or other duly qualified witness provides proper authentication to
meet the foundational requirements of the hearsay exception.
(Evid. Code, § 1271; In re R.R. (2010) 187 Cal.App.4th 1264,
1280; People v. Landau (2016) 246 Cal.App.4th 850, 872, fn. 7.)
Compliance with a subpoena duces tecum may dispense with the
need for a live witness to establish the business records exception
if the records are produced by the custodian or other qualified
witness, together with the affidavit described in Evidence Code
section 1561. (Evid. Code, § 1560, subd. (b); In re R.R., at p. 1280;
In re Troy D. (1989) 215 Cal.App.3d 889, 903.) In this case,
however, no such foundation was laid for any of the documents
contained in the “three-to-five [foot] high stack of records” from
which the experts testified. Moreover, contrary to the People’s
assertion, the mere fact that state hospital files had been
subpoenaed did not make their entire contents reliable or
otherwise admissible as business records. (See People v. Blagg
(1968) 267 Cal.App.2d 598, 609–610 [in the absence of live
testimony of a qualified witness, affidavit of an authenticating
witness is required in order to lay a proper foundation for
admissibility].)
In sum, there was no blanket hearsay exception for the
experts’ testimony to the case-specific hearsay contained in
documents which were neither presented to the court for an
evidentiary ruling nor admitted into evidence. Admission of
expert testimony relating case-specific hearsay to the jury that
was neither subject to a hearsay exception nor independently
established by competent evidence was error.
17
B. Prejudice
Admission of the experts’ hearsay testimony in this case
was unquestionably prejudicial. Except for a few admissions
Yates made to the experts during interviews, none of the experts’
testimony relating case-specific facts to the jury was admissible.
Without the inadmissible hearsay, the foundation for the experts’
opinions goes up in smoke, and with it most of the evidence in
support of the jury’s SVP finding.
“California has long recognized that an expert’s opinion
cannot rest on his or her qualifications alone: ‘even when the
witness qualifies as an expert, he or she does not possess a carte
blanche to express any opinion within the area of expertise.
[Citation.] For example, an expert's opinion based on
assumptions of fact without evidentiary support [citation], or on
speculative or conjectural factors [citation], has no evidentiary
value [citation] and may be excluded from evidence.’ [Citation.]
California courts have been particularly chary of expert
testimony based on assumptions that are not supported by the
evidentiary record: ‘an expert’s opinion that something could be
true if certain assumed facts are true, without any foundation for
concluding those assumed facts exist in the case before the jury,
does not provide assistance to the jury because the jury is
charged with determining what occurred in the case before it, not
hypothetical possibilities.’ ” (People v. Wright (2016) 4
Cal.App.5th 537, 545.)
Had the experts’ inadmissible testimony been excluded, we
find it reasonably probable—indeed likely—the jury would have
reached a result more favorable to Yates. (People v. Watson,
supra, 46 Cal.2d at p. 836.)
18
V. Forfeiture and Ineffective Assistance of
Counsel
During trial, the People neither presented nor did the trial
court admit into evidence any hospital records or other
documents which were the sources of the case-specific hearsay
the experts related to the jury. And when the prosecution experts
repeatedly recited case-specific facts gleaned from Yates’s three-
to-four-foot high stack of hospital and criminal records, defense
counsel did not once object under Sanchez or, except on two
occasions, on any hearsay ground at all. Respondent asserts that
by failing to raise the issue below, Yates forfeited any claim that
the People were required to lay a foundation for the admissibility
of the records upon which the experts relied before the experts
could testify to the contents of the documents. We are inclined to
agree.
However, Yates contends that counsel’s failure to object
violated his federal and state constitutional rights to effective
assistance of counsel. (See People v. Ledesma (1987) 43 Cal.3d
171, 215; Strickland v. Washington (1984) 466 U.S. 668, 684.) To
prevail on this claim, appellant “bears the burden of showing by a
preponderance of the evidence that (1) counsel’s performance was
deficient because it fell below an objective standard of
reasonableness under prevailing professional norms, and
(2) counsel’s deficiencies resulted in prejudice.” (People v.
Centeno (2014) 60 Cal.4th 659, 674.) “When the record on direct
appeal sheds no light on why counsel failed to act in the manner
challenged, [appellant] must show that there was ‘ “ ‘no
conceivable tactical purpose’ ” for counsel’s act or omission.’ ” (Id.
at p. 675.) Reversal is then required if it is reasonably probable
“ ‘that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.’ ” (People v. Banks (2014)
59 Cal.4th 1113, 1170, overruled in part on other grounds in
People v. Scott (2015) 61 Cal.4th 363, 391; Strickland, supra, 466
U.S. at p. 694.) “[A] ‘ “ ‘reasonable probability is defined as one
that undermines confidence in the verdict.’ ” ’ ” (People v.
Carrasco (2014) 59 Cal.4th 924, 982.)
By filing a motion in limine to exclude certain expert
testimony under Sanchez, Yates’s counsel clearly demonstrated
familiarity with Sanchez’s prohibition on an expert’s recitation of
case-specific hearsay. Because none of the criminal, juvenile, or
state hospital records was admitted into evidence or shown to fall
under an applicable hearsay exception, and none of the case-
specific facts related by the experts was proven by other
competent evidence, Sanchez barred the experts from relating the
contents of those documents to the jury. Defense counsel
therefore should have objected to every instance in which the
People’s experts related as true case-specific facts contained in
hearsay statements which were not shown to fall within a
hearsay exception or were not independently proven by
competent evidence. (Sanchez, supra, 63 Cal.4th at p. 686.)
We can conceive of no satisfactory explanation for defense
counsel’s failure to object to the experts’ testimony in this case.
And given the clear prejudice caused by the admission of volumes
of incompetent expert testimony, it is reasonably probable that
had the trial court sustained appropriate objections under
Sanchez, the result in Yates’s SVP trial would have been
different. (People v. Banks, supra, 59 Cal.4th at p. 1170.)
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DISPOSITION
The judgment is reversed, and the matter remanded to the
trial court.
Pursuant to Business and Professions Code section 6086.7,
subdivision (a)(2), the Clerk of this court is directed to send a
certified copy of this opinion to the State Bar upon issuance of the
remittitur in this matter. The Clerk shall also notify defense
counsel, Deputy Public Defender Todd Montrose, that he has
been referred to the State Bar. (Id., § 6086.7, subd. (b).)
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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