People v. Burroughs

• Decision Date: 05 December 2016
• Docket Number: B267353
• Citation: 211 Cal.Rptr.3d 656,6 Cal.App.5th 378
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph BURROUGHS, Defendant and Appellant.

6 Cal.App.5th 378

211 Cal.Rptr.3d 656

The PEOPLE, Plaintiff and Respondent,

v.Joseph BURROUGHS, Defendant and Appellant.

B267353

Court of Appeal, Second District, Division 4, California.

Filed December 5, 2016

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

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

COLLINS, J.

Joseph Burroughs appeals from a jury verdict adjudicating him a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA) ( Welf. & Inst. Code, § 6600 et seq. ),¹ and ordering his indeterminate commitment to Coalinga State Hospital. He argues the trial court should have assessed his mental competency before allowing him to proceed to trial. He also contends the trial court committed prejudicial evidentiary errors by allowing expert witnesses to testify to matters beyond their expertise, by allowing those same witnesses to testify about otherwise inadmissible hearsay, and by admitting into evidence inadmissible documents and portions of documents.

Although we reject appellant's competency claim, we agree with many of his evidentiary arguments. In People v. Sanchez (2016) 63 Cal.4th 665, 686, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ), the California Supreme Court held that an expert witness cannot in conformity with the Evidence Code "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." The People's experts did just that, relying on inadmissible hearsay to support extensive testimony about appellant's unrelated convictions and unproven allegations that he committed other acts of sexual violence. This inflammatory documentary and testimonial hearsay was prejudicial even under People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. We accordingly reverse the judgment and remand for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

On May 12, 2009, the Los Angeles County District Attorney ("the People") filed a petition pursuant to section 6601 to commit appellant as an SVP. An SVP 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." ( § 6600, subd. (a)(1).) Under the SVPA, the People may seek to confine and treat SVPs "until their dangerous disorders recede and they no longer pose a societal threat." ( Moore v. Superior Court (2010) 50 Cal.4th 802, 815, 114 Cal.Rptr.3d 199, 237 P.3d 530 ( Moore ).) The special proceedings that ensue after the People file such a petition are civil in nature, but an SVP defendant is afforded many of the same procedural protections afforded criminal defendants, such as the right to court-appointed counsel and experts, the right to a unanimous jury verdict, the right to testify in one's defense, and the right to have the People prove his or her SVP status beyond a reasonable doubt. (See id . at pp. 816–817, 114 Cal.Rptr.3d 199, 237 P.3d 530 ; People v. Allen (2008) 44 Cal.4th 843, 861, 870, 80 Cal.Rptr.3d 183, 187 P.3d 1018.)

The trial court reviewed the People's petition in accordance with section 6601.5 and ordered a probable cause hearing pursuant to section 6602. After appellant waived his rights to appear and cross-examine witnesses at a probable cause hearing, the trial court held him to answer to the petition. A series of stipulated continuances ensued.

On January 10, 2014, appellant's counsel filed a motion to stay the proceedings and order "competency training" for appellant, noting that appellant "has chosen to refuse to talk to counsel." The People opposed the motion. The trial court denied the motion on March 27, 2014. The trial court also granted the People's later motion in limine to exclude testimony regarding appellant's alleged incompetency from the trial.

After several more continuances, appellant proceeded to jury trial on August 21, 2015. As discussed more extensively below, appellant filed—and the trial court denied—motions in limine to exclude references to uncharged and unrelated crimes, expert testimony regarding the contents of documents considered in formulating their opinions, and expert testimony based on unreliable information or outside the experts' expertise. The jury returned its verdict on September 3, 2015, finding true the allegation that appellant was an SVP within the meaning of the SVPA. The trial court ordered him committed to Coalinga State Hospital for an indeterminate term. Appellant timely filed a notice of appeal.

FACTUAL BACKGROUND

I. The People's Evidence

A. Dr. Nancy Webber

Dr. Nancy Webber, Ph.D. is a clinical forensic psychologist who contracts with the state to provide SVP evaluations. She was contracted to evaluate appellant in 2009 and later prepared updated evaluations. Because appellant refused to meet with her, she had to rely upon documentary evidence to assess whether he satisfied the statutory criteria to be deemed an SVP. That evidence included probation reports, police reports, appellant's mental health history, and behavior reports from the institutions in which appellant has been housed.

1. Convictions for sexually violent offenses

Webber opined that appellant met all three statutory elements to be classified as an SVP.² First, he was convicted of committing a sexually violent offense against one or more persons. Webber testified that appellant actually had two such convictions or "qualifying offenses": a conviction for lewd and lascivious acts with a child under the age of 14, 13-year-old Liza B., and a conviction for the attempted rape of 19-year-old Tanya G. Webber reviewed the police reports and probation reports associated with these offenses. Certified copies of those documents were admitted into evidence.

Webber testified to the following details of the qualifying offenses. The first happened in 1994, while appellant was on parole. Appellant was dating 13-year-old Liza's mother. Liza's mother fell asleep while she, Liza, and appellant were watching television. Appellant started kissing Liza's neck and fondling her breasts over her clothing. Liza told him to stop and went into the bathroom. Appellant forced his way into the bathroom and began kissing Liza again. He also removed her blouse and undershirt. Liza sobbed as appellant kissed and licked her bare breasts. He told her to shut up. He then choked her with both of his hands and put her in a stranglehold. He threatened to tie her up with a bath towel if she did not stop crying. He also threatened to kill her mother if she did not give him what he wanted. Appellant then pulled down Liza's pants, pulled down his own pants, and rubbed his erect penis over her legs and genital area.

Around this time, Liza's mother knocked on the door and asked what was going on. Appellant pulled up his pants, opened the door, said he was using the bathroom, and closed the door. While appellant was distracted, Liza had pulled up her pants. Appellant pulled them down again, pulled his own pants down, and resumed the assault. Liza's mother knocked on the door again. When appellant did not respond, she opened the door. She saw Liza, grabbed her clothes, and fled the house with her. Liza's mother called police from a pay phone. When appellant was apprehended, he denied the incident. He claimed that Liza fabricated the incident because she did not like him and because her mother put her up to it. He further explained, "If I wanted to fuck someone, I'll fuck the mother." Appellant nonetheless was convicted of the crime, which Webber opined was "sexually violent" due to Liza's age and appellant's use of force against her. To Webber's knowledge, appellant did not show empathy toward Liza or otherwise accept responsibility for his actions.

The second qualifying offense occurred in 1996. Appellant was on the front porch of Tanya's house with her neighbor, Bob, who was his friend. Tanya went into the house after speaking with appellant and Bob. Appellant knocked on the door and asked if he could use the bathroom. Tanya let him into the house. He then grabbed Tanya from behind and said, "What do I need to do to get you?" Tanya initially thought appellant was joking. After he reiterated his desire for her, however, Tanya told him he could not have her because she had a boyfriend. Appellant responded by throwing Tanya onto a bed, getting on top of her, and telling her that he wanted her. He held Tanya down and tore off her blouse, covering her mouth to muffle her screams. Tanya fought appellant's advances, swinging her arms and kicking him in the groin several times as he unzipped his pants. After appellant hit her in the mouth with a closed fist, Tanya managed to strike him in the head, push him off her, and run down the hallway. Appellant grabbed her and pulled her back into the bedroom, hitting her in the face with his fist. Tanya told appellant she would do whatever he wanted, prompting him to unzip his pants again. Tanya screamed and kicked and struck appellant. She escaped from the bedroom a second time and ran across the street to a neighbor's house to call the police.

Appellant fled the scene but was apprehended a short time later. He denied attempting to rape Tanya. He told police that he was drunk and went into the wrong house. Later, appellant admitted that he slapped Tanya; he claimed he was angry with her because she blew smoke in his face while they were using drugs together. Webber testified that appellant was convicted of attempted rape. She opined that the crime involved sexual violence, force, duress, and fear.

2. Mental disorder

Based on her review of the documents, Webber concluded...