People v. Smith
| Decision Date | 17 December 2019 |
| Docket Number | A153254 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FRAISURE SMITH, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FCR208822)
Appellant Fraisure Smith was declared a sexually violent predator (SVP) and was granted conditional release from custody under Welfare and Institutions Code section 6608. He appeals from an order revoking his release pursuant to petitions filed under Penal Code sections 1608 and 1609, and contends it must be reversed because (1) expert witnesses were allowed to testify to case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and to offer the opinions of nontestifying experts in violation of People v. Campos (1995) 32 Cal.App.4th 304 (Campos); (2) a condition of release was modified in violation of Welfare and Institutions Code section 6608.8; (3) the court admitted inadmissible evidence of polygraph results; and (4) there was no substantial evidence appellant would engage in sexually violent criminal behavior if allowed to remain in the community on conditional release. We affirm.
Appellant pled no contest to assault with intent to commit rape and admitted prior conviction and prison term allegations. (Pen. Code, §§ 220, 667.5, subd.(b), 1170.12.) He was sentenced to prison. Before his release on parole in 2010, he was declared an SVP under Welfare and Institutions Code section 6600 et seq. and was committed to Coalinga State Hospital.
On December 2, 2013, the superior court granted appellant's petition for conditional release under Welfare and Institutions Code section 6608. He was released from Coalinga State Hospital on November 15, 2015, and placed in the California Conditional Release Program (CONREP) operated by Liberty Healthcare, a for-profit company that contracts with the California Department of State Hospitals (DSH) to provide supervision and treatment services for SVPs who are conditionally released into the community. CONREP locates housing for its clients, monitors their participation in treatment, and drives them to where they need to go when necessary.
Benjamin Hoffman, a case manager and driver for CONREP, worked with appellant for about a year and a half and presented him with an extensive list of terms and conditions upon his release. Paragraph A.17 provided in part, "I agree to submit all monthly credit statements and account statements for review." Paragraph B.4(m) stated, Paragraph C.16 provided, Paragraph C.36 stated, Appellant appeared to understand the terms and conditions, initialing each and signing the last page of the document on February 16, 2015.
Appellant was a "transient release," meaning he was not going to have a permanent residence and had to move every five days to comply with the sex offender registration statutes. (Pen. Code, § 290.011.) Hoffman placed appellant in various motels and would typically give him an envelope containing cash to cover the motel fees, a system designed to allow sex offenders to familiarize themselves with handling money. Appellant regularly attended Alcoholics Anonymous (AA) meetings.
At the beginning of February 2017, appellant was driven to AA meetings by CONREP driver Steve Mervau. At one meeting, Mervau saw appellant walk out of the meeting with a female, holding her hand as they walked down the driveway, which was sloped. They dropped their hands at the end of the driveway. A week later, appellant walked out of the meeting with the same woman, walked her to her car, had a long conversation and then hugged her for eight to ten seconds. Appellant was also seen hugging a woman at a store he frequented on a weekly basis.
Appellant's community safety team (CST) was composed of his therapist Dr. Christina Bennett, his psychiatrist Dr. Douglas Tucker, polygraph examiner James Adams, CONREP regional coordinator Michael Lim, case manager Hoffman, CONREP's clinical director Dr. Cecelia Groman and a representative from the DSH. The CST met and discussed concerns it had about appellant hugging females at AA meetings and other places in the community.
Hoffman met with appellant on February 28, 2017 and told him that he was not allowed to initiate physical contact with anyone, should make every effort to avoid physical contact, and was required to report any physical conduct to CONREP staff. According to Hoffman,
Yordy Velasquez was hired by CONREP to surveil appellant at an AA meeting on March 3, 2017. He arrived at the meeting before appellant and a woman named "Kim" said he looked familiar and gave him a hug. When appellant arrived, Kim greeted him with open arms and they hugged. Appellant spoke with a female attendant during a break. At the end of the meeting, at which appellant was designated secretary, he shook hands with everyone and thanked them for coming. Appellant did not tell Mervau or Hoffman he had physical contact with anyone at the meeting, despite Hoffman asking him.
Hoffman gave appellant $111 in cash for a stay at the Fairfield Inn that began on April 9, 2017. The Fairfield Inn took Marriot Rewards points and appellant arranged to pay using points rather than using cash. He did not tell CONREP and kept the cash; it was not until Hoffman collected the motel receipts from appellant at the end of the month that he knew the motel had been paid for with points. Mervau asked appellant if he had used reward points to pay for the room, and although appellant initially said he had paid in cash, he texted Mervau a few minutes later to say he had been mistaken and forgot he had used reward points. When asked what he had done with the $111, appellant said he must have got the money mixed up with his own and that is why he had more money in his account than he should have.
On May 3, 2017, Mervau met appellant at his credit union to verify that he had put the money into his account. Mervau told appellant he needed receipts and appellant told him as they were waiting in line that Mervau could not accompany him to the window. Although Mervau had specifically asked for a statement covering April 1 through May 3, appellant returned with a statement covering April 21 to May 2. When Mervau clarified what he wanted, appellant said, "This is all they gave me" and seemed frustrated and "you could tell he wanted to leave." Mervau told appellant to go back and get him the requested statement and appellant came back and said that was all they could give him.He gave Mervau back the $111, but never provided documentation he had deposited that amount in his account.
Also on May 3, 2017, the executive director of CONREP spoke to appellant about the missing money. Appellant said, When asked how he would view the situation if he were a staff person, appellant said it looked like the client stole the money, but he denied that he did so.
After the Marriot points incident, it was decided that CONREP would pay the motels directly rather than giving the client cash. Mervau had already given appellant cash to pay for a room starting May 4, but he forgot and paid for the room directly. Appellant never reminded Mervau of that fact or returned the unpaid cash to CONREP.
On May 8, 2017, CONREP filed a petition requesting recommitment under Penal Code section 1608, which alleged that appellant had violated the terms and conditions of his release because he claimed to have deposited funds into his account that were meant to pay for a room and was unable to provide bank statements; he also didn't inform CONREP of the deposit until weeks later. On May 15, 2017, the district attorney filed a petition to revoke appellant's conditional release pursuant to Penal Code section 1609, based on an allegation he was a danger to the health and safety of others given his "continual rule violations." Exhibit A to the petition included a copy of the petition to revoke filed by CONREP based on the room payment, as well as a copy of a notice sent to appellant by...
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