People v. Flint

• Decision Date: 30 April 2018
• Docket Number: A144631
• Citation: 231 Cal.Rptr.3d 910,22 Cal.App.5th 983
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Scott D. FLINT, Defendant and Appellant.

22 Cal.App.5th 983

231 Cal.Rptr.3d 910

The PEOPLE, Plaintiff and Respondent,

v.Scott D. FLINT, Defendant and Appellant.

A144631

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

Filed April 30, 2018

Counsel for Defendant & Appellant: Rudolph G. Kraft, by appointment of the Court of Appeal under the First District Appellate Project.

Counsel for Plaintiff & Respondent: Kamala D. Harris and Xavier Becerra, Attorneys General; Gerald A. Engler, Chief Assistant Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Laurence K. Sullivan, Supervising Attorney General, Bridget Billeter and Moona Nandi, Deputy Attorneys General.

Schulman, J.^* Scott D. Flint was committed to the custody of the California Department of State Hospitals (DSH) for an indeterminate term, after a jury found he was a sexually violent predator (SVP) under the Sexually Violent Predators Act ( Welf. & Inst. Code,¹ § 6600 et seq. ) (SVPA or the Act). Flint appeals, contending: (1) he was deprived of his right to equal protection when he was compelled to testify in the People's case-in-chief, because a person found not guilty of crimes by reason of insanity (NGI) may not be compelled to testify at hearings to extend his or her commitment; (2) the trial court prejudicially erred by allowing the People's expert witness to testify about case-specific facts based on inadmissible hearsay prohibited by People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ); and (3) the cumulative error violated his due process rights and deprived him of a fair trial, requiring reversal. Although we reject Flint's second and third arguments for reversal, we shall remand the matter to the trial court to afford the People the opportunity to justify the differential treatment of SVP's and NGI's as to whether they may be called as witnesses for the People in their respective commitment hearings.

I. BACKGROUND

In 1992, Flint was sentenced to eight years in prison after pleading guilty to three counts of violating Penal Code section 288, subdivision (a), by committing lewd and lascivious acts on children under the age of 14 in 1987 and 1988. Flint was paroled in 1996, but pleaded guilty in 1997 to another count of violating section 288, subdivision (a), by committing lewd and lascivious acts on a child under the age of 14. He was sentenced to prison.²

Flint was scheduled to be released from custody in August 2011. In July of that year, the Mendocino County District Attorney filed a petition to involuntarily commit him as an SVP. A supporting declaration averred that DSH³ had concluded Flint was an SVP based upon the evaluations of two mental health professionals who determined Flint had a diagnosed mental disorder that predisposed him to commit sexual acts creating a danger to the health and safety of others. Before the trial on the petition, Flint moved in limine to prohibit the prosecution from calling him as a witness, arguing that it was an equal protection violation to compel an SVP to testify because the prosecution could not call as a witness an NGI or a juvenile in commitment extension hearings. The trial court, relying on then current authority,⁴ denied the motion.

A jury trial followed, and the People called Flint as a witness in their case in chief. The People also called as witnesses three victims of Flint's past offenses and, as an expert witness, DSH psychologist and SVP evaluator, G. Preston Sims. Flint in turn called as witnesses a behavior specialist at the state hospital where he was confined, two expert psychologists who had evaluated him, and a friend who had offered him a job and housing on his release. At the conclusion of the trial, the jury found Flint qualified as an SVP. On February 19, 2015, the court ordered Flint committed for an indefinite term to DSH for appropriate treatment and confinement in a state hospital. This timely appeal followed.

II. DISCUSSION

In his original opening appellate brief, Flint contends the trial court violated his equal protection rights by compelling him to testify as a witness in the People's case-in-chief during his commitment trial. After our Supreme Court issued its decision in Sanchez , supra , Flint requested and secured leave to file a supplemental opening brief asserting that reversal is required because the trial court allowed the People's expert, Sims, to provide testimony that included a large amount of case-specific hearsay. In his supplemental opening brief, Flint also included a cumulative error argument. The People subsequently filed a supplemental respondent's brief and Flint filed a supplemental reply. We address Flint's arguments in turn below.

A. Compelled Testimony

1. The SVPA

To frame Flint's equal protection argument, we provide a brief overview of the SVPA. The act "provides for indefinite involuntary civil commitment of certain offenders who are found to be SVP's following the completion of their prison terms. [Citation.]" ( People v. Field (2016) 1 Cal.App.5th 174, 181, 204 Cal.Rptr.3d 548 ( Field ).) " ‘ "Sexually violent predator" means 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.’ [¶] To establish that a person is an SVP, the prosecution is required to prove the following: (1) the offender has been convicted of a qualifying sexually violent offense against at least two victims; (2) the offender has a diagnosed mental disorder; (3) the disorder makes it likely the offender would engage in sexually violent conduct if released; and (4) this sexually violent conduct will be predatory in nature. [Citation.] The prosecutor must establish these elements beyond a reasonable doubt and the jury verdict must be unanimous. [Citation.]" ( Ibid . )⁵

2. Analysis

Flint makes the following equal protection argument: SVP's are similarly situated to NGI's; because NGI's cannot be required to testify at their commitment extension hearings ( Hudec v. Superior Court (2015) 60 Cal.4th 815, 826, 181 Cal.Rptr.3d 748, 339 P.3d 998 ), it is a violation of equal protection to require a committee to testify at an SVP commitment hearing; and if Flint had not been compelled to testify, there is a reasonable probability he would have achieved a more favorable result. The People argue in response that SVP's and NGI's are not similarly situated under the equal protection clause for purposes of compelled testimony, that there is an adequate basis for treating SVP's and NGI's differently in this context in any event, and that any error was harmless.

We decided these issues in our prior opinion in Curlee , supra , 237 Cal.App.4th 709, 188 Cal.Rptr.3d 421. Although the Attorney General now argues that decision was "incorrect and should not be followed," and Flint also takes minor issue with it, we decline both parties' invitations to revisit it.

a. SVP's and NGI's Are Similarly Situated for Purposes of Compelled Testimony

" ‘The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, " ‘[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ " [Citation.] "This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ " [Citation.]' [Citation, italics omitted.]" ( People v. Valencia (2017) 3 Cal.5th 347, 376, 220 Cal.Rptr.3d 230, 397 P.3d 936.) The second step is determining whether there is a sufficient justification for the unequal treatment. The level of justification needed is based on the right implicated. When the disparity implicates a suspect class or a fundamental right, strict scrutiny applies. ( People v. Wilkinson (2004) 33 Cal.4th 821, 836, 16 Cal.Rptr.3d 420, 94 P.3d 551.) When no suspect class or fundamental right is involved, the challenger must demonstrate that the law is not rationally related to any legitimate government purpose. ( Ibid . )⁶

"Under both the United States and California Constitutions, a person has the right to refuse to answer potentially incriminating questions put to him or her in any proceeding; in addition, the defendant in a criminal proceeding enjoys the right to refuse to testify at all." ( People v. Dunley (2016) 247 Cal.App.4th 1438, 1446, 203 Cal.Rptr.3d 335 ( Dunley ).) Commitment proceedings involving NGI's and SVP's are civil in nature. ( Ibid . ) In Hudec v. Superior Court , supra , 60 Cal.4th 815, 181 Cal.Rptr.3d 748, 339 P.3d 998, however, our Supreme Court concluded that NGI's could not be compelled to testify at commitment extension hearings because Penal Code section 1026.5, subdivision (b)(7), affords them all " ‘ "the rights guaranteed under the federal and State Constitutions for criminal proceedings." ’ " ( Id . at p. 826, 181 Cal.Rptr.3d 748, 339 P.3d 998, italics omitted.) In People v. McKee (2010) 47 Cal.4th 1172, 104 Cal.Rptr.3d 427, 223 P.3d 566 ( McKee I ), our Supreme Court concluded that SVP's and NGI's are similarly situated when analyzing the term of commitment and the burden of proof for release. ( Id . at pp. 1183–1184, 1196, 1202, 1207, 104 Cal.Rptr.3d 427, 223 P.3d 566.)

In Curlee , supra , 237 Cal.App.4th 709, 188 Cal.Rptr.3d 421, this division squarely addressed the issue that Flint raises here, namely, whether SVP's and NGI's are similarly situated when analyzing the permissibility of compelled testimony at the commitment hearing. ( Id . at pp. 716, 720, 188 Cal.Rptr.3d 421.) Relying on McKee I and its predecessor, In re Moye (1978) 22 Cal.3d 457, 149 Cal.Rptr. 491, 584 P.2d 1097, Curlee answered the question in...