People v. Otto

• Decision Date: 23 July 2001
• Docket Number: No. S088807.,S088807.
• Citation: 26 Cal.4th 200,26 P.3d 1061,109 Cal.Rptr.2d 327
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jimmie Dale OTTO, Defendant and Appellant.

109 Cal.Rptr.2d 327

26 Cal.4th 200

26 P.3d 1061

The PEOPLE, Plaintiff and Respondent, v. Jimmie Dale OTTO, Defendant and Appellant.

No. S088807.

Supreme Court of California.

July 23, 2001.

Rehearing Denied September 12, 2001.

Ozro William Childs, under appointment by the Supreme Court, Santa Rosa, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ronald S. Matthias and Linda M. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

In this case we decide whether Welfare and Institutions Code ¹ section 6600, subdivision (a)(3) (section 6600(a)(3)), which permits the details of predicate offenses to be proven by documentary evidence in a sexually violent predator (SVP) commitment proceeding, allows the admission of multiple hearsay that does not fall within any exception to the hearsay rule, and if so, whether reliance on this evidence violates a defendant's right to due process. The Court of Appeal concluded such hearsay was admissible and reliance on the evidence did not contravene defendant's due process rights. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 9, 1991, Jimmie Dale Otto pled no contest to four felony counts of lewd and lascivious conduct on a child less than 14 years of age (Pen.Code, § 288, subd. (a)). The factual basis for the plea was "contained in the police report." The four counts involved four different victims—K.W., M.S., A.S., and D.S. Dr. Charlene Steen, appointed to examine Otto, stated in her report, which was attached to the presentence report, that Otto admitted he touched K.W. under her pants on one occasion, tickling her buttocks and "private areas" without any sexual intent. Otto also told the probation officer he tickled K.W. on her bottom under her panties. He denied having molested any of the S. children, and stated he had pled no contest because his attorney told him this was the best possible deal. On December 13, 1991, Otto was sentenced to 12 years in state prison.

On February 27, 1998, the People filed a petition seeking Otto's commitment as an SVP. Otto moved in limine to exclude "police or other hearsay reports" and prevent psychological evaluators from relying on them. The trial court denied the motion. Otto waived his right to a jury trial. Both the People and Otto presented experts who reviewed and relied on the presentence report and other documents. As relevant here, the People's three experts² concluded two of Otto's prior offenses involved substantial sexual conduct.³ Indeed, although one defense expert, who did not testify, opined in his written report Otto was not likely to engage in sexually violent criminal behavior as a result of his diagnosed mental disorder, he also concluded Otto had been convicted of sexually violent predatory offenses against two or more victims. The other defense expert declined to offer an opinion regarding this latter issue, although he noted in his written report "the descriptions of the crimes strongly suggest that they included `sexual violence.'"⁴ The trial court found beyond a reasonable doubt that Otto was an SVP within the meaning of section 6600, and ordered him committed to Atascadero State Hospital or other secure facility for two years.

The Court of Appeal affirmed, and denied Otto's subsequent petition for rehearing. We granted Otto's petition for review, and limited the issues to whether section 6600(a)(3) allows the admission of multiple hearsay that does not fall within any exception to the hearsay rule, and if so, whether reliance on this evidence violates a defendant's right to due process.

II. Discussion

A. Overview of the SVPA

In enacting the SVPA, "the Legislature expressed concern over a select group of criminal offenders who are extremely dangerous as the result of mental impairment, and who are likely to continue committing acts of sexual violence even after they have been punished for such crimes. The Legislature indicated that to the extent such persons are currently incarcerated and readily identifiable, commitment under the SVPA is warranted immediately upon their release from prison. The Act provides treatment for mental disorders from which they currently suffer and reduces the threat of harm otherwise posed to the public. No punitive purpose was intended." (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1144, 81 Cal.Rptr.2d 492, 969 P.2d 584 (Hubbart).

)

The requirements for classification as an SVP are set forth in section 6600, subdivision (a) and related provisions. (Hubbart, supra, 19 Cal.4th at p. 1144,81 Cal. Rptr.2d 492,969 P.2d 584.) As relevant to the issues presented here, first an SVP must suffer from "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); Hubbart, supra, 19 Cal.4th at p. 1144,81 Cal.Rptr.2d 492,969 P.2d 584.) Second, an SVP must have been "convicted of a sexually violent offense against two or more victims." (§ 6600, subd. (a)(1); Hubbart, supra, 19 Cal.4th at p. 1145,81 Cal. Rptr.2d 492,969 P.2d 584.) A "`[s]exually violent offense'" refers to certain enumerated sex crimes, including violation of Penal Code section 288, subdivision (a), "committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Welf. & Inst.Code, § 6600, subd. (b); Hubbart, supra, 19 Cal.4th at p. 1145,81 Cal.Rptr.2d 492,969 P.2d 584.) In the alternative, and relevant here, "If the victim of an underlying offense that is specified in subdivision (b) of Section 6600 is a child under the age of 14 and the offending act or acts involved substantial sexual conduct, the offense shall constitute a `sexually violent offense' for purposes of Section 6600." (§ 6600.1, subd. (a); People v. Superior Court (Johannes) (1999) 70 Cal. App.4th 558, 562, 82 Cal.Rptr.2d 852 [6600.1 modifies § 6600, subd. (b), such that someone who commits two or more specified sex crimes involving substantial sexual conduct against children under 14 is subject to the SVPA even if his crimes were not committed with force, violence, menace, or fear].) "`Substantial sexual conduct' means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender." (§ 6600.1, subd.(b).)

"[P]rior crimes play a limited role in the SVP determination." (Hubbart, supra, 19 Cal.4th at p. 1145, 81 Cal.Rptr.2d 492, 969 P.2d 584.) The conviction "constitute] evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination." (§ 6600(a)(3).) Rather, the trier of fact "may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others...." (Ibid.).

"At trial, the alleged predator is entitled to `the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and have access to all relevant medical and psychological records and reports.'" (Hubbart, supra, 19 Cal.4th at p. 1147, 81 Cal.Rptr.2d 492, 969 P.2d 584, quoting § 6603, subd. (a).) "Either party may demand and receive trial by jury." (Hubbart, at p. 1147, 81 Cal.Rptr.2d 492, 969 P.2d 584, citing § 6603, subds. (a), (b); see § 6603, subd. (d).)

"The trier of fact is charged with determining whether the requirements for classification as an SVP have been established `beyond a reasonable doubt.'" (Hubbart, supra, 19 Cal.4th at p. 1147, 81 Cal. Rptr.2d 492, 969 P.2d 584, quoting § 6604.) Any jury verdict must be unanimous. (§ 6603, subd. (e).) "If the state fails to carry this burden, the person is released from prison when his term expires." (Hubbart, supra, 19 Cal.4th at p. 1147, 81 Cal.Rptr.2d 492, 969 P.2d 584, citing § 6604.) "However, where the requisite SVP findings are made, `the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health....'" (Ibid.) "Confinement generally cannot exceed two years unless a new petition is filed and an extended commitment is obtained from the court." (Ibid.)

B. Analysis

I. Admission of Multiple Hearsay

We first consider whether section 6600(a)(3), which permits the details of predicate offenses to be proven by documentary evidence in an SVP commitment proceeding, allows the admission of multiple hearsay that does not fall within any exception to the hearsay rule. Section 6600(a)(3) provides in relevant part: "The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health." (Italics added.)

By its terms section 6600(a)(3) authorizes the use of hearsay in presentence reports to show the details underlying the commission of a predicate offense. It is difficult to interpret the language "may be shown by documentary evidence, including ... probation and sentencing reports," in any other manner. (Ibid.) Indeed, the "details underlying the commission of (ibid.) the crime could only be shown by hearsay since presumably the court officer who prepared the report was not a percipient witness to the crime.

Otto contends, however, that while "the Legislature intended to create an...