Filed 12/5/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH BURROUGHS,

Defendant and Appellant.

 B267353

 (Los Angeles County

 Super. Ct. No. ZM014605)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Drew E. Edwards, Judge. Reversed.

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.
2

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.),1and 

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 (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. 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 

 

1 All further statutory references are to the Welfare and 

Institutions Code unless otherwise specified. 
3

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 (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; People v. Allen (2008) 

44 Cal.4th 843, 861, 870.) 

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.
4

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 a sexually violent predator 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 

 

2 Those criteria are: “(1) conviction of a „sexually violent 

offense‟; (2) a diagnosed mental disorder that makes a person a 

danger to the health and safety of others; and (3) the mental 
5

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 strangle hold. 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.

 

disorder makes it likely the defendant will engage in „sexually 

violent criminal behavior.‟ [Citation.]” (People v. White (2016) 3 

Cal.App.5th 433, 448; see also § 6600, subd. (a)(1).) The second 

and third elements require a link between a currently diagnosed 

mental disorder characterized by the inability to control 

dangerous sexual behavior and a finding of future dangerousness. 

(People v. White, supra, 3 Cal.App.5th at p. 448.) 
6

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 
7

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 

that appellant met the second SVP criterion: he had a mental 

disorder, anti-social personality disorder (ASPD), that 

predisposed him to commit sexually violent offenses. Webber 

explained that the hallmark of ASPD is “a pervasive disregard for 

societal rules and some other behaviors.” To be diagnosed with 

ASPD, a person must exhibit at least three of seven diagnostic 

criteria and demonstrate symptoms of a conduct disorder before 

the age of 15. Webber opined that appellant met all seven 

diagnostic criteria for ASPD. Webber also testified that 

appellant‟s history of arrests dating back to age 14 showed that 

his symptoms began prior to age 15. 
8

Webber testified about the details underlying appellant‟s 

juvenile history, which she gleaned from the probation report 

prepared after appellant‟s 1994 offense against Liza. She told the 

jury that, at age 14, appellant participated in a group fight 

outside a movie theater. Police arrived and began handcuffing 

fight participants. Appellant used a knife to cut one of the 

handcuffed participants, which led police to arrest him. Webber 

testified that appellant was arrested for additional offenses in his 

youth, including “driving without a license, joyriding type arrests, 

being in a stolen vehicle.” She further testified that “it was 

reported he was a gang member, the Rollin‟ 60s Crips affiliated 

gang in his juvenile years as well.” The information about 

appellant‟s gang affiliation “was stamped on one of the police 

reports,” and “has been reported while he was in prison.” 

Webber took all of these incidents into consideration when 

forming her ASPD diagnosis. She also took into account two 

alleged sex offenses for which appellant was arrested as a 

teenager. Webber testified that the first of those occurred when 

appellant was 15 or 16. He allegedly molested a six-year-old boy 

four or five times. According to Webber, appellant sodomized the 

boy on a school playground and gave him quarters after each 

encounter. Webber noted that “[w]e don‟t know whether that 

occurred or not,” as appellant was never convicted of the offense. 

Webber noted that “[t]here is some concerns there [sic] he 

associated with it,” and that the 1994 probation report included a 

statement by appellant that he knew the boy‟s mother, who sold 

marijuana and cocaine. Additionally, while appellant was 

incarcerated in 2003, he complained to prison officials that he 

was concerned about other inmates getting access to his 

paperwork “because his offenses involve the rape of police 
9

families, families and rape of kids.” 

Webber testified that the second alleged sex offense 

appellant committed as a juvenile occurred in 1986. During that 

incident, Webber testified, a 21-year-old woman reported to police 

that appellant hit her over the head with a beer bottle after she 

refused his request for sexual favors. According to Webber, 

appellant admitted to hitting the woman on the head but claimed 

he did so because he was angry about getting his penis caught in 

his pants zipper while resisting her sexual advances against him. 

Webber testified that appellant was also alleged to have 

committed several sex offenses as an adult. In 1988, another 21-

year-old woman filed a police report against “Leo Boykins,” which 

Webber testified was listed as an alias on appellant‟s rap sheet 

and appeared on a police report from 1991 “when he was arrested 

under Joseph Burroughs.” According to Webber, the woman was 

walking down the street when appellant and his girlfriend at the 

time, Maria, drove by. The woman got in their car, and appellant 

and Maria drove her to appellant‟s apartment. Once inside the 

apartment, appellant hit the woman with the handle of a knife 

and told her to undress. When she refused to undress and 

further refused to orally copulate Maria, he kicked her to the 

ground and stomped her with his feet. After the woman 

undressed, appellant inserted the handle of the knife into her 

vagina and forced her to orally copulate him. He also had sexual 

intercourse with her three times over the next 12 hours. Before 

he let the woman go, appellant threatened to kill her baby if she 

went to the police. She went to the police anyway. The police 

later obtained Maria‟s statement, which was partially consistent 

with the woman‟s. According to Webber, Maria told the police 

that appellant hit the woman so hard Maria “could almost feel it 
10

herself” and had sex with the woman as “payback for cocaine.” 

Webber also testified about an incident that occurred in 

1991. On that occasion, appellant drove by a 36-year-old woman 

who was walking to the liquor store. The woman was acquainted 

with appellant and accepted his offer of a ride. Instead of taking 

the woman to the liquor store, however, he drove her to a camper. 

There, appellant offered the woman cocaine and drank alcohol 

with her. He then removed her clothes, forced her into bed, and 

attempted to sodomize her. When his efforts proved 

unsuccessful, he gave her the “option” to orally copulate him. He 

then had sex with her three times and punched her in the head 

before allowing her to leave the camper. The woman flagged 

down police and reported the incident. She refused treatment, 

however, and also refused to prosecute. Appellant denied the 

incident. 

Webber also testified that appellant was arrested for a nonsexual assault in 1995. According to Webber, a woman who was 

either dating or engaged to appellant reported to police that 

appellant accosted her when she tried to break up with him and 

refused to give him back jewelry he had purchased for her. 

Appellant struggled with her and pulled a ring and bracelets off 

her. He also hit her in the head with a glass candle holder.

Webber testified that appellant was not convicted of any 

crimes in connection with most of these incidents; “[t]here were 

police reports but no convictions.” Webber testified that SVP 

evaluators ordinarily take such incidents into account and 

confirmed that she did so when evaluating appellant. She 

explained, “[t]hey weren‟t verified via conviction, but I do look at 

the content in case there is some patterns [sic] that might be 

suggested that this truly occurred, as well as in this particular 
11

case is unique. There is some admission of an aspect of it. Like, 

yes, I hit the 21-year-old girl with a beer bottle because I was 

mad at her. He admitted that.” Appellant‟s counsel objected “as 

hearsay not offered for the truth of the matter,” but the trial 

court overruled the objection on the ground that the evidence was 

being offered as “the basis of the doctor‟s opinion.” 

Webber opined that all of these incidents supported her 

diagnosis of ASPD. The arrests and convictions demonstrated 

appellant‟s inability to conform to social norms, as well as his 

impulsivity, aggressiveness, and disregard for the safety of 

others. Webber further opined that appellant‟s deceit in using an 

alias (“Leo Boykins”) and lack of remorse for his victims 

supported the diagnosis. Webber concluded that appellant‟s 

ASPD impaired his emotional and volitional capacity because he 

was not deterred by “the suffering of his victims,” the presence of 

others during the commission of the offense, or the punishments 

he received for some of the offenses. 

Webber testified that her diagnosis and conclusions also 

were supported by appellant‟s conduct in prison and the state 

hospital. While incarcerated from 1998-2009, appellant incurred 

18 serious rule violations. Webber testified that “about four of 

them was [sic] for lethal combat,” several were related to 

appellant‟s refusal to have a cell mate, and “[o]thers were for 

delaying police officers.” Webber also noted that appellant 

refused to sign his conditions for parole. While confined at 

Coalinga State Hospital from 2009-2015, she testified, appellant 

engaged in “episodes where he flares up, gets verbally aggressive 

with the staff.” Webber stated that the frequency of such 

incidents increased over the years. She attributed them to her 

secondary diagnosis of appellant, “[u]nspecified schizophrenic 
12

spectrum and other psychiatric disorders.” 

Webber provided more detail about appellant‟s behavior at 

the state hospital. She testified that he refused to participate in 

group therapy, acted aggressively with staff when he was denied 

yard time, called a staff member a “stupid bitch,” and threatened 

to “lay hands on somebody if that is what it takes” after he was 

found to have tampered with an electrical outlet. In 2015, 

hospital staff observed him “grimacing, making jerky motions, 

making unusual motions . . . . [t]aking his hand and rubbing over 

a clenched fist of the other” while listening to music or watching 

a movie on his personal device. Appellant became angry when 

staff asked if he was okay. On other occasions, appellant referred 

to himself as “Jesus Christ,” “a holy child,” and “the booby,” 

which he told staff meant that he was the devil or Satan. Webber 

testified that appellant refused contact with anyone outside the 

hospital, including her and his attorney, and “would stay holed 

[up in] his cell for long periods of time without going out in the 

yard, showering or things like that.” Webber opined these 

behaviors supported a secondary diagnosis of delusions or 

paranoia. Webber further testified that appellant displayed 

“pictures of adult females in his room,” and noted that a “relief 

shift lead who works nights says she had seen him watching a lot 

of pornography on his DVD player at nighttime,” which to 

Webber demonstrated that “there is some sexual interests 

occurring still and possible sexual preoccupation.” Webber noted, 

however, that other hospital staff members she spoke to “have 

not observed any sexual behaviors.” 

Webber explained that she rested her conclusion that 

appellant was an SVP on her diagnosis of ASPD, not upon her 

secondary diagnoses of unspecified psychiatric and/or 
13

schizophrenic spectrum disorders. Thus, her opinion was “that 

his anti-social personality disorder predisposes him to commit 

sexually violent offenses.” The secondary diagnosis was relevant 

“because it exacerbates and worsens his A.S.P.D.” Webber 

testified that if appellant had problems accurately perceiving 

reality, “it raises questions of is he misperceiving interactions 

with people in the community that could facilitate sexual 

offending.” Webber noted that it was unusual for her to find 

someone who qualified as an SVP based on a diagnosis of ASPD; 

she estimated she had seen only four or five other cases while 

conducting over 500 SVP evaluations. Webber believed this 

unusual conclusion was appropriate in appellant‟s case because 

there was a “sexual component” to his deviant behavior. She 

explained, “[t]he majority of his arrests have involved a sexrelated component.” Webber further opined that appellant‟s 

condition was worsening, because there had been “more incidents 

of his unusual behaviors, or being easily irritable or flaring up 

over something.” She also was concerned about appellant‟s 

refusal to participate in any sort of therapeutic activities or 

treatment, and his apparent lack of insight into his sexual 

problems. 

3. Likelihood of future sexual offenses

Webber opined that appellant also met the third criterion 

to be diagnosed as an SVP: he was “likely to engage in sexually 

violent predatory criminal behavior as a result of the diagnosed 

mental disorder.” To reach this conclusion, Webber used two 

actuarial instruments, the Static-99R and the Static-2002R, to 

evaluate appellant. Both instruments assign a score, then use 

rates and percentiles associated with that score to provide 

information about the risk that the subject will commit a sex 
14

offense in the future. Webber testified that appellant had a score 

of seven on the Static-99R; that score reflected the offenses of 

which he was not convicted as well as a point for the male child 

he allegedly sodomized. Appellant‟s score placed him in the highrisk category for reoffending. Appellant scored eight points on 

the Static-2002R, which Webber testified also reflected 

uncharged conduct and “was in the ballpark” of his Static-99R 

score. Under the Static-2002R, however, a score of eight reflected 

a moderate-high risk of reoffending. None of the “protective 

factors” Webber considered lowered appellant‟s risk of reoffense. 

Webber opined that appellant‟s future sex crimes were likely to 

be predatory, or to involve a stranger or casual acquaintance, 

because he had a history of committing such offenses and did not 

have a treatment plan. 

B. Dr. Christopher North

Dr. Christopher North, Ph.D. is a licensed psychologist who 

performs SVP evaluations for the states of California and 

Washington and the U.S. Department of Justice. He was asked 

to evaluate appellant in 2009. Appellant refused to participate in 

an interview, however, so North, like Webber, relied primarily on 

documentary evidence to assess him. North assessed appellant 

in 2009, 2013, 2014, and 2015. North reviewed police reports, 

probation reports, prison records, violation reports, and various 

other documents “to get as complete a picture of the inmate as 

possible.” From his review, North concluded that appellant met 

all three criteria to be classified as an SVP. 

1. Convictions for sexually violent offenses

North testified that he based his conclusion about the first 

criterion, conviction of a sexually violent offense, on appellant‟s 

criminal history transcript and an abstract of judgment. When 
15

North began testifying as to the details of appellant‟s conviction 

involving Liza, appellant‟s counsel objected under Evidence Code 

section 352. The trial court overruled her objection and advised 

the jury that “the doctor‟s testimony about what happened is 

simply offered [as] the basis for his opinion.” North continued 

testifying about the details of the offense. His narrative was 

shorter and less richly detailed than Webber‟s, but related the 

same factual underpinnings to which she testified. North opined 

that the offenses against Liza and Tanya were sexually violent; 

appellant choked, hit, and threatened to kill Liza, and hit and 

violently struggled with Tanya. 

2. Mental disorder

North opined that appellant met the second SVP criterion, 

having a diagnosed mental disorder that predisposes him to 

commit criminal sexual acts. Like Webber, he diagnosed 

appellant with ASPD. Based on his interviews with Coalinga 

State Hospital staff and his review of appellant‟s hospital records, 

North also concluded that there was “some evidence of 

psychiatric disorder.” North testified that “there were numerous 

incidents of him behaving bizarrely,” such as “grimacing,” 

“dancing,” “talking to himself,” and generally acting as though he 

was “off in his own little world.” North also testified that some 

entries in appellant‟s hospital chart indicated that he was 

“responding to internal stimuli,” such as voices in his head. 

North explained that appellant‟s ASPD had “paranoid 

features.” North testified that appellant “is fearful of other 

people,” “doesn‟t interact well with people,” “doesn‟t like any kind 

of supervision at all,” and generally “can‟t stand to be around 

people.” North also opined that appellant‟s ASPD impaired his 

emotional and volitional control. North based that conclusion on 
16

appellant‟s criminal history, including the juvenile and 

uncharged offenses about which he, like Webber, provided 

details. North explained that he got the details relating to the 

juvenile and uncharged offenses from probation reports and 

police reports, which he “generally assume[s] . . . are reliable 

unless I have other information to the contrary.” Taken as a 

whole, North opined, appellant‟s criminal history demonstrated 

evidence of all seven ASPD diagnostic criteria. North also noted 

that “approximately half of his crimes and most serious crimes 

have been sex crimes.” North “assume[d]” from this information 

that appellant “is a guy who has a fairly high sex drive and takes 

what he wants sexually from others.” North opined that 

appellant “acts on impulse and he takes what he wants,” 

demonstrating lack of volitional control, and has a deficit in 

emotional capacity because he demonstrated “an inability to 

empathize or feel the harm or understand the harm he is doing to 

his victims by assaulting them and raping them.” 

North clarified that he did not “have the evidence” to 

diagnose appellant as hypersexual. However, he opined that 

appellant‟s ASPD predisposed him to commit sexual crimes 

because “[m]any or most of his crimes have been sexual in 

nature.” North acknowledged that many criminals have ASPD, 

but opined that appellant was set apart because “there is no 

robbery or other motive involved in any of the sex crimes. It is 

simply sexual. He is assaulting these people because he wanted 

to take sex from them.” North further testified that his own 

views on ASPD had evolved since he began doing SVP 

evaluations. Initially, he felt ASPD alone was not sufficient to 

qualify someone as an SVP. Over time, however, as he evaluated 

more people with ASPD, he came to believe that an ASPD 
17

diagnosis could support a conclusion of SVP if the person lacked a 

paraphilia3 but nonetheless had a high sex drive and took what 

he or she wanted sexually. North stated that there had been a 

“trend of change in opinion” toward this view, but it was not yet 

“universally accepted.” 

North testified that there was some evidence that 

appellant‟s ASPD had manifested itself while he was in prison 

and the state hospital, even though he had not acted out sexually 

at either place. According to North, appellant behaved in bizarre 

ways and “became very irritable” when staff asked him if he was 

okay. “If that is his response to someone who is showing some 

kind of concern about him, I can only imagine how he would 

respond if the person were more directly threatening to him.” 

3. Likelihood of future sexual offenses

North opined that appellant was likely to commit sex 

offenses in the future. He noted that appellant “has attempted to 

rape or raped within literally within [sic] a couple months of his 

getting out,” and opining that appellant was more likely to 

succumb to the impulsivity of his ASPD and commit sex crimes 

when outside a closely controlled hospital setting. North testified 

that this opinion was supported by the results of the Static-99R 

and the Static-2002R. North initially assigned appellant a score 

of eight to nine on the Static-99R, but later revised it to a seven 

or eight. The uncertainty in the numbers came from North‟s 

inability to ascertain from appellant‟s records whether he had 

 

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 2015) § 14:2, p. 14-10.) 
18

lived with a romantic partner for two years or more. If he had, 

his score would be a seven. If not, North would give him an 

eight. North testified that either score would place appellant in 

the high-risk category. North opined that appellant would be 

toward the higher end of the risk range, because “[h]is sex 

offenses were pretty brutal. There is a lot of violence involved in 

them. The fact that he reoffended so quickly after being released 

from custody, just the sheer number of offences [sic].” North gave 

appellant a score of eight on the Static-2002R, which placed him 

in the moderate-high risk category. Like Webber, he opined that 

appellant‟s scores on the Static tests were consistent with one 

another and with a likelihood of reoffending. 

North‟s conclusions about appellant‟s likelihood of 

reoffending did not change when he considered potential

“protective factors” that could lessen the risk appellant posed, 

such as appellant‟s age, health, and completion (or not) of 

treatment. North further opined that appellant‟s future sex 

crimes were likely to be predatory, because his last victim, 

Tanya, was a stranger. North also opined that appellant was not 

amenable to treatment for his ASPD, which was likely to become 

more active once he encountered the stresses of living outside the 

hospital. Based on the repeated mentions of cocaine in 

appellant‟s criminal records, North thought appellant might have 

a cocaine problem that would further increase “volatility” if 

appellant were released. 

C. Documentary Evidence 

Prior to trial, appellant moved in limine to exclude all 

evidence of uncharged offenses. The details of his uncharged 

offenses were included in probation reports pertaining to the 
19

offenses of which he was convicted. Appellant conceded that the 

probation reports were admissible to prove the details underlying 

the convictions used to support the petition under section 6600, 

subdivision (a)(3) (qualifying offenses),4 but argued that “[t]he 

statute does not create a vehicle for hearsay reference to all bad 

acts [appellant] has committed. There is no bases [sic] to include 

acts such as dismissed, uncharged or non-qualifying offenses.” 

Appellant reiterated this argument when the motion was heard, 

arguing that “[i]t is one thing to say it is not hearsay for the 

qualifying charges,” but “[e]verything else is hearsay,” such that 

“[t]hey can testify to the basis but not the facts. Certainly not on 

direct.” He also argued that evidence of his uncharged crimes 

was unduly prejudicial under Evidence Code section 352. 

The trial court denied the motion in limine on the ground 

that the documents were admissible for the non-hearsay purpose 

 

4 Section 6600, subdivision (a)(3) states: “Conviction of one 

or more of the crimes enumerated in this section shall 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. 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 State Hospitals. Jurors shall be admonished that 

they 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 in that it is likely that he or she will engage 

in sexually violent criminal behavior.”
20

of explaining the basis of the experts‟ opinions. The court also 

denied appellant‟s request that the experts be prevented from 

testifying to the details of his uncharged offenses for the same 

reason. The trial court further ruled that the probative value of 

such evidence outweighed the potential prejudice to appellant. 

At the close of its case, the prosecution moved to admit all 

but one of its exhibits into evidence. Appellant raised no 

objections to Exhibit 1, Webber‟s curriculum vitae, or Exhibit 2, 

which the court described as a “969.B packet.”5 Appellant 

objected to the admission of Exhibit 3, the charging document for 

the Tanya case, on foundation grounds. He also objected to “any 

and all police reports and probation reports”—Exhibits 4, 4A, 5, 

5A, 8, 8A, 9, and 9A, the “As” being the redacted versions of the 

documents—“as being historically the worst kind of hearsay that 

is not ever introduced into evidence.” He argued that “[n]o one 

was brought in who has personal knowledge about the making of 

this police report, and there is [sic] hundreds of pieces of 

information on this report that were not testified to.” The 

prosecution argued that the documents were admissible under 

Welfare and Institutions Code, section 6600, subdivision (a)(3) 

 

5 Penal Code section 969b authorizes the People to prove 

the existence of prior convictions in a criminal case by 

introducing certified copies of prison records. (See Pen. Code, § 

969b.) The People may use such records for the same purpose in 

SVP cases. (See People v. Dean (2009) 174 Cal.App.4th 186, 196 

(Dean); People v. McGee (2006) 38 Cal.4th 682, 702, fn. 8.) The 

packet in this case contained the abstracts of judgment for 

appellant‟s convictions involving Liza, Tanya, and his girlfriend 

or fiancée. It also contained appellant‟s fingerprints, mug shot, 

and “chronological history” of his custodial placements.
21

and case law interpreting that section. The trial court ultimately 

agreed with the prosecution and admitted all of the challenged 

exhibits in their entirety. The court also admitted Exhibit 11, a 

Department of Justice document linking appellant to the alias 

“Leo Boykins,” and Exhibit 12, North‟s curriculum vitae. 

II. Defense Evidence 

A. Dr. Hy Malinek

Defendant called as his witness Dr. Hy Malinek, Psy.D., a 

clinical and forensic psychologist. He saw appellant four times—

once during a video conference in 2009, twice in person that same 

year, and once in person a week before trial. Malinek also 

reviewed appellant‟s mental health records and police reports 

and other records documenting his past crimes. Malinek testified 

that although he considered the police and probation reports, he 

did not give any weight to charges or allegations that were 

dismissed or did not result in convictions. In Malinek‟s view, it 

“would be improper and unethical” to consider unproven charges 

as fact. He testified that he assumed the district attorney 

investigated the allegations and had a reason to dismiss or reject 

them, which in turn caused him to wonder about the reliability of 

such charges. Malinek considered appellant‟s convictions for the 

crimes against Liza and Tanya. He concluded from those that 

appellant satisfied the first SVP criterion, conviction of a sexually 

violent offense. 

Malinek opined that appellant did not satisfy the second 

SVP criterion, having a diagnosed mental disorder that 

predisposes him to commit criminal sexual acts. Malinek agreed 

with the other experts that appellant had a diagnosable mental 

disorder. Malinek testified that appellant had a “prominent 

personality disorder with paranoid elements,” and “clearly” met 
22

the diagnostic criteria for ASPD. Malinek further testified that 

appellant was “an unusual man to diagnose,” because “he has 

intermittently shown many indications of psychiatric symptoms,” 

such as delusional statements, suicide attempts, and isolative 

behaviors. He also had a history of suffering trauma, including 

being diagnosed with and treated for leukemia at age eight, being 

beaten in the head by his grandmother, and injuring his head in 

an accident. 

Malinek opined that none of these issues predisposed 

appellant to commit sexual offenses, however. He stated that 

there was “nothing in the literature of antisocial personality 

disorder or in the diagnostic manual that discusses a 

predisposition to sexual offenses,” and further testified that there 

was no link between appellant‟s “delusional preoccupation” and 

sexual offenses, “[h]im being a child of God on the one hand and 

sexual offenses on the other.” Likewise, Malinek testified that 

appellant‟s potential abuses of drugs or alcohol “do not predispose 

someone to commit sexual offenses, but a wide variety of acting 

out.” Malinek found it very important that appellant never acted 

out sexually during the 19 years he had been confined. Thus, 

even though Malinek conceded that appellant was “a violent and 

a dangerous man,” he did not believe appellant‟s mental illnesses 

predisposed him to commit sex offenses in particular. 

According to Malinek, Webber‟s diagnosis of an unspecified 

psychiatric disorder would not predispose appellant to commit 

sexual offenses. Neither would Webber‟s diagnosis of unspecified 

schizophrenia spectrum disorder; in Malinek‟s opinion, nothing in 

atypical schizophrenia would predispose a patient to commit sex 

offenses unless his or her delusions were sexual in nature. 

Malinek opined that appellant‟s past crimes were not motivated 
23

by such delusions but rather were crimes “of opportunity, 

violence, alcohol facilitated.” Malinek did not see any pattern in 

appellant‟s crimes that suggested he suffered from paraphilia. 

Despite concluding that appellant did not meet the second 

SVP criterion, Malinek considered the Static-99R and Static2002R tests. Malinek assigned appellant a score of six on the 

Static-99R, placing him in the high-risk category, and a score of 

seven on the Static-2002R, placing him in the moderate-high risk 

category. Although Malinek‟s assessments placed appellant in 

the same risk categories as Webber‟s and North‟s assessments, 

the scores he gave appellant were lower because he did not factor 

in the alleged abuse against the six-year-old boy or other alleged 

sex offenses that did not result in convictions. Malinek also 

testified that the Static tests inflated the risks posed by 

appellant. 

B. Documentary Evidence 

The trial court admitted four defense exhibits into 

evidence. The first, Exhibit A, was Malinek‟s curriculum vitae. 

The remaining three exhibits were abstracts of judgment for 

appellant‟s convictions for lewd acts upon Liza (Exhibit D), 

assault against his girlfriend or fiancée (Exhibit E), and 

attempted rape against Tanya (Exhibit F). 

DISCUSSION 

I. Motion to Stay

A. Background

Prior to appellant‟s trial, his attorney filed a motion to stay 

the proceedings due to appellant‟s alleged incompetency. In the 

motion, counsel alleged that “the competency at issue . . . is one of 

communication with counsel and his doctors.” She explained, 

“Mr. Burroughs has chosen to refuse to talk with counsel. 
24

Retraining and specific counseling could bring him back to the 

table.” Counsel contended that the proceedings needed to be 

stayed to protect appellant‟s due process rights and his statutory 

right to counsel.

The People opposed the motion. They primarily relied on 

Moore, supra, 50 Cal.4th at p. 829, in which the Supreme Court 

held that “due process does not require mental competence on the 

part of someone undergoing a commitment or recommitment trial 

under the SVPA.” The People also pointed out “that in many 

SVP cases, the inmate refuses to speak to the evaluators for a 

variety of reasons, and yet the hearing proceeds.” 

At the hearing on the motion, appellant‟s counsel argued 

that Moore was distinguishable. Unlike the defendant in Moore, 

appellant had not previously been adjudicated an SVP, which 

counsel argued rendered “his ability to consult with the experts 

and counsel . . . even more important.” Additionally, appellant 

did not blame his incompetence on a paraphilia diagnosis; he had 

been diagnosed only with ASPD and not paraphilia, and “has 

either chosen or for unmedicated reasons decided not to consult 

with counsel.” Counsel asked the court to stay the proceedings 

and order Coalinga State Hospital to enroll appellant in 

“competency training” sessions. The People simply reiterated 

their contention that Moore was controlling. 

The trial court ruled that Moore was binding and denied 

appellant‟s request for stay on that basis. The court 

acknowledged that appellant “probably should get competency 

training,” but did not order Coalinga State Hospital to provide 

such training because it concluded it lacked statutory or other 

authority to do so. 

B. Analysis
25

Appellant contends the trial court should have stayed the 

proceedings. He argues that Moore is distinguishable because 

the mental disorder that supported his SVP diagnosis is not the 

same mental illness that is the basis of his competency claim. He 

also argues that Moore was wrongly decided. We agree with the 

trial court that Moore is controlling and forecloses appellant‟s 

request.

In Moore, the Supreme Court considered the broad question 

whether individuals facing SVP proceedings have a due process 

right not to be tried or civilly committed while mentally 

incompetent. (Moore, supra, 50 Cal.4th at p. 807.) The 

defendant in Moore had been adjudicated an SVP; the 

prosecution had petitioned to extend his commitment. ( Id. at p. 

811.) He argued that the proceedings could not go forward 

because “the diagnosed mental disorders that make him a 

sexually dangerous predator also impair his mental competence 

to stand trial, and that the state therefore cannot try or commit 

him as an SVP unless or until his competence is restored.” (Id. at 

p. 808.) Those disorders included “paraphilia, involving intense 

and recurrent sexual fantasies, urges, or acts against 

nonconsenting persons”; schizoaffective disorder with bipolar and 

psychotic components; and ASPD, “manifested by his persistent 

disregard of societal norms and the rights of others.” (Id. at p. 

810.) The defendant conceded that the SVPA did not provide a 

statutory basis for staying his proceedings, but contended that 

the fundamental liberty issues at stake in the proceedings 

weighed in favor of according him a due process right to mental 

competence analogous to that possessed by criminal defendants. 

(Id. at p. 812.)

The Supreme Court disagreed. In determining the process 
26

due to SVP defendants, the Court employed a four-factor 

balancing test in which it considered “(1) the private interest that 

will be affected by the official action; (2) the risk of an erroneous 

deprivation of such interest through the procedures used, and the 

probable value, if any, of additional or substitute procedural 

safeguards; (3) the government‟s interest, including the function 

involved and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would entail; 

and (4) the dignitary interest in informing individuals of the 

nature, grounds, and consequences of the action and in enabling 

them to present their side of the story before a responsible 

government official.” (Moore, supra, at 50 Cal.4th at p. 819.) The 

Court acknowledged that the liberty and dignitary interests of 

SVP defendants are significant. (Id. at p. 824.) It also recognized 

that “a mentally incompetent defendant may be in the position of 

„filtering‟ his contribution in an SVP proceeding through counsel, 

experts, and other witnesses.” (Ibid.) Nevertheless, the Court 

concluded that “the nature of the issues, evidence, and findings in 

an SVP proceeding prevents any defendant from playing much 

more than a supporting role,” such that “any chance that an 

SVP‟s mental incompetence would significantly impair his 

contribution to his defense seems relatively attenuated.” (Ibid.)

Additionally, the Court found that the “numerous procedural 

safeguards” in SVP proceedings both “help mitigate the risk that 

an incompetent person would be erroneously adjudicated as an 

SVP in the first place” and afford committed SVPs regular 

placement reviews to further mitigate the effects of any error 

attributable to the reduced participation of a mentally 

incompetent defendant. (Id. at pp. 824-825.) 

The Court also concluded that the strong governmental 
27

interest in protecting the public by enforcing the SVPA 

“weigh[ed] against allowing SVPs to avoid being tried or 

committed while mentally incompetent.” (Moore, supra, 50 

Cal.4th at p. 825.) The Court observed that this interest “would 

be substantially impaired if an alleged SVP could claim, based on 

his diagnosed mental disorders, that he was too incompetent to 

undergo a trial leading to such targeted confinement and 

treatment.” (Ibid.) 

Though the Court acknowledged that there probably was 

“significant potential overlap . . . between those mental disorders 

that qualify someone for commitment as an SVP on the one hand, 

and those that produce an inability to comprehend the 

proceedings or assist in one‟s defense on the other,” it did not 

limit its holding to those situations. (Moore, supra, 50 Cal.4th at 

p. 825.) Appellant‟s contention that his case is distinguishable 

because he alleges incompetency stemming from a different 

mental disorder accordingly is not persuasive. Under Moore, 

which we are bound to follow (Auto Equity Sales, Inc. v. Superior 

Court (1962) 57 Cal.2d 450, 455), “due process does not require 

mental competence on the part of someone undergoing a 

commitment or recommitment trial under the SVPA,” regardless 

of the precise nature or source of the mental incompetence the 

defendant alleges. (Moore, supra, 50 Cal.4th at p. 829.) 

Appellant also contends that Moore was wrongly decided, 

and that the dissenting opinion authored by Justice Moreno “was 

the better reasoned.” He recognizes, however, that we cannot 

overrule the Supreme Court, and asserts that he raises the 

argument solely to preserve it for consideration by that body. 

Unless and until the Supreme Court overrules Moore, appellant‟s 

due process claim cannot succeed here. 
28

II. Expert Testimony 

A. Background

Prior to trial, appellant moved in limine to restrict the 

scope of expert testimony in two ways. First, he argued that 

psychologists are not qualified to opine on what constitutes 

“qualifying prior convictions,” “sexually violent offenses,” or 

whether offenses are “predatory” in nature. He argued that such 

opinions “would not assist the jury” and instead would “usurp the 

job of the trier of fact.” 

Second, appellant contended that the experts should not be 

permitted to testify about the details of his uncharged offenses. 

As noted above, he argued that the details of those offenses were 

contained only in probation reports that constituted inadmissible 

hearsay as to uncharged offenses. He further argued that the 

hearsay was unreliable and could not serve as the basis of the 

experts‟ opinions. To the extent the experts could consider the 

information, he further contended, it would be improper for the 

experts to relate the contents of those or any other hearsay 

reports to the jury. 

The trial court denied appellant‟s motions. It ruled that 

“the information on which the expert witnesses rely, specifically 

of a sexual nature, is relevant to determine whether in fact Mr. 

Burroughs is in fact a sexually violent predator.” The trial court 

explained that “[t]he testimony is coming in for the basis of the 

expert‟s opinion. In my view it is coming in for a non-hearsay 

purpose.” The court further ruled that “pursuant to Evidence 

Code section 352, that evidence is more probative than the issues 

in this case are damaging to Mr. Burroughs.” 

Later, appellant conducted a voir dire of Webber before 

she testified. At that hearing, Webber confirmed that she 
29

considered the facts stated in police reports and probation 

reports during her evaluation of appellant. Webber 

explained that she believed a 1994 probation report setting 

forth the details of appellant‟s uncharged offenses was reliable 

because she had “no indications that it isn‟t reliable,” and 

“typically the probation officer reports I see are consistent with 

underlying documents when I have the opportunity to review 

them.” Webber also testified that she would have made the same 

diagnosis absent the information regarding appellant‟s juvenile 

criminal history and the 1988 crimes perpetrated by “Leo 

Boykins.” 

At the close of the voir dire hearing, appellant argued that 

the SVPA “does not say the actual details of the information 

comes before the jury. All it ever says is the witness may 

consider that information in formulating their opinion, and they 

can testify they consider information from juvenile records or 

police reports. The details are so biased or unnecessary to their 

opinion, that is not supposed to come before the jury.” Appellant 

pointed the court to People v. Otto (2001) 26 Cal.4th 200 (Otto), 

which he also had cited in his motion in limine. The trial court 

ruled that “[t]he People may go into both the probation reports 

and police reports. I believe that is fair game how the doctors 

formed their opinion [sic].” 

B. Testimony about nature of qualifying offenses

Appellant now contends that the People‟s experts 

improperly opined about the nature of his qualifying offenses. He 

argues that the “question of whether or not a specific offense 

qualified under the statute is a purely legal question which 

requires absolutely no mental health expertise to answer.” 

Appellant exclusively relies on People v. Stevens (2015) 62 Cal.4th 
30

325 (Stevens), a case addressing expert testimony in mentally 

disordered offender (MDO) proceedings. We agree with appellant 

that Stevens is analogous and that the expert opinions regarding 

the nature of appellant‟s qualifying offenses was improper. 

However, we further conclude that appellant was not prejudiced 

by this error, as probation reports containing the details of the 

offenses were properly admitted under Otto and plainly 

demonstrated that the offenses were sexually violent. 

Additionally, appellant‟s own expert testified that “[a]ll people 

referred for SVP meet this criteria,” including appellant. 

In Stevens, the Supreme Court considered the admissibility 

of expert testimony in MDO proceedings. Like SVP proceedings, 

MDO proceedings allow the civil commitment of a defendant if 

the People prove certain facts about the defendant and his crimes 

beyond a reasonable doubt. (See Stevens, supra, 62 Cal.4th at p. 

328; People v. Baker (2012) 204 Cal.App.4th 1234, 1243.) In 

Stevens, the defendant had been convicted of petty theft with a 

prior. Before his scheduled release on parole, the Department of 

Corrections and Rehabilitation certified the defendant as an 

MDO under Penal Code section 2962, subdivision (d). Stevens 

challenged the determination at a bench trial. (Stevens, supra, 

62 Cal.4th at p. 329.) 

At that trial, the prosecution called as its only witness Dr. 

Kevin Perry, a clinical psychologist. Perry reviewed Stevens‟s 

medical and criminal records and concluded from them that he 

suffered from schizophrenia that “„was at least an aggravating 

factor‟ in the commission of his criminal act,” the petty theft with 

prior. (Id. at p. 330.) According to Perry, Stevens stole about $27 

worth of merchandise from a drug store, pushed a shopping cart 

at loss prevention agents who tried to stop him, and threatened 
31

to assault and kill the agents. (Ibid.) Perry opined that threats 

to the agents‟ lives over such minor items demonstrated Stevens‟s 

irrational thought processes. When the prosecutor asked Perry 

why, in his opinion, the crime of petty theft with a prior satisfied 

the MDO requirement that the crime involve violence or threats 

of violence likely to produce substantial physical harm, the court 

sustained Stevens‟s hearsay and foundation objections. (Ibid.) 

The court noted, however, that it already had Perry‟s testimony 

before it. (Ibid.) The court subsequently relied on that testimony 

to conclude that Stevens‟s offense involved the requisite violence 

or threats of violence; the prosecutor did not introduce into 

evidence the probation report from which Perry obtained the 

information about the offense. (Id. at p. 331.)

The Supreme Court concluded that the expert‟s testimony 

could not support the trial court‟s finding. It held that “in a 

commitment hearing under the MDO Act, the People may not 

prove the facts underlying the commitment offense (that are 

necessary to establish the qualifying offense) through a mental 

health expert‟s opinion testimony.” (Stevens, supra, 62 Cal.4th at 

p. 339.) That was a problem in Stevens because the prosecution 

introduced only a rap sheet showing that Stevens suffered a 

conviction for petty theft with a prior; the record contained no 

evidence aside from Perry‟s testimony that the offense involved 

the violence or the threat of violence necessary to render it a 

qualifying offense under the MDO Act. The Court emphasized 

that “although expert opinion testimony is required to determine 

some of the criteria in the MDO proceeding, it is not necessary, or 

even admissible, with respect to proving the underlying facts or 

elements of the offense to show that a defendant‟s crime qualified 

as an MDO Act commitment offense.” (Stevens, supra, 62 Cal.4th 
32

at p. 336.) The Court explained that an expert in an MDO case 

may rely upon reliable hearsay documents to form his or her 

opinion as to factors within his or her expertise, such as whether 

a defendant‟s severe mental disorder caused or aggravated the 

commission of the underlying crime. However, because “proof of 

a qualifying conviction under the MDO Act is based on facts 

rather than on defendant‟s psychological condition,” namely 

whether an offense involved violence, it “does not call for a 

mental health expert‟s opinion testimony.” (Ibid.) 

The Court rejected the prosecutor‟s contention that the 

legislative history of the MDO Act evinced the Legislature‟s 

intent to enlarge the role of mental health professionals in MDO 

proceedings by incorporating a mental health component into the 

violence requirement. (See Stevens, supra, at p. 337.) As 

pertinent here, the Court looked to a provision of the SVPA, 

Welfare and Institutions Code section 6600, subdivision (a)(3), to 

support its conclusion. (See id. at p. 338.) The Court noted that 

statute “created an exception to the rules of evidence to allow 

admission of multiple-level hearsay contained in . . . specified 

documents” and accordingly demonstrated that the Legislature 

knows how to craft such an exception when one is intended. 

(Ibid.) The Court continued, “Additionally, in SVP proceedings, 

the Legislature authorized proof of the details of a commitment 

offense through admission of documentary evidence, not expert 

testimony.” (Ibid., emphasis in original.)

Although we disagree with appellant‟s assertion that the 

Stevens Court “explicitly said that the evidence to which 

appellant objected was inadmissible, not just in an MDO case, 

but in an SVP case,” we are persuaded that the reasoning in 
33

Stevens is applicable to this case. Just as expert testimony is 

necessary to prove some elements of the prosecution‟s case in an 

MDO proceeding, “expert testimony is critical in an SVP 

commitment proceeding, in which the primary issue is not, as in 

a criminal trial, whether the individual committed certain acts, 

but rather involves a prediction about the individual‟s future 

behavior.” (People v. McKee (2010) 47 Cal.4th 1172, 1192.) 

Mental health experts are necessary to establish that an SVP 

defendant suffers from a mental disorder that predisposes him or 

her to perpetrate sexually violent offenses, and that the 

defendant is likely to commit such offenses if released from 

custody. Experts are not necessary, however, to establish that 

the defendant suffered a conviction for a sexually violent offense. 

The fact that a defendant suffered a prior conviction for an 

offense enumerated in the SVPA may be proven—and was proven 

in this case—by the introduction of a “section 969b prison 

packet.” (See Dean, supra, 174 Cal.App.4th at p. 196 ; People v. 

McGee, supra, 38 Cal.4th at p. 702, fn. 8.) However, as appellant

points out, a conviction for an offense listed in the SVPA is not 

necessarily a conviction for a “sexually violent offense.” For a 

conviction to be “sexually violent,” the acts underlying the 

conviction must have been committed “by force, violence, duress, 

menace, fear of immediate and unlawful bodily injury on the 

victim, or threatening to retaliate in the future against the victim 

or any other person.” (Welf. & Inst. Code, § 6600, subd. (b).) The 

People may prove this element in an SVP case 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.” (Welf. & Inst. Code, § 6600, subd. (a)(3); see Otto, 
34

supra, 26 Cal.4th at pp. 207-208.) They may not, however, prove 

this element by relying solely upon the testimony of a mental 

health expert, whose expertise does not lie in such an area. 

Whether an offense is “sexually violent” is an issue a jury is

competent to determine in any event. (See Stevens, supra, 62 

Cal.4th at pp. 336, 339.)

Here, the trial court admitted probation reports that 

recited the facts underlying appellant‟s qualifying offenses 

against Liza and Tanya. As appellant concedes and as we discuss 

more fully below, these documents were admissible to prove these 

facts. And, because the facts were proven independently, the 

experts were permitted to relate the facts to the jury as the basis 

of their opinions. (See Sanchez, supra, 63 Cal.4th at p. 684.) 

We agree with appellant, however, that it was improper for 

the experts to opine that the facts of the qualifying offenses 

rendered them “sexually violent” for purposes of the SVPA. 

Whether the convictions were “sexually violent” was a factual 

question that the experts were in no better position to resolve 

than the jury. An expert‟s opinion is admissible only with respect 

to a subject “that is sufficiently beyond common experience that 

an opinion of an expert would assist the trier of fact,” and 

whether an offense was violent or involved fear, duress, or 

menace was not a question the experts in this case were 

competent to answer. 

Any error in admitting this testimony was harmless under 

any standard, however. One of the probation reports admitted 

into evidence indicates that victim Liza was under the age of 14. 

This automatically rendered the enumerated offense against her 

a “sexually violent” one for purposes of the SVPA. (Welf. & Inst. 

§ 6600.1.) The probation reports further indicate that appellant 
35

used threats and violent force while perpetrating sexual offenses 

against both Liza and Tanya. No reasonable jury could conclude 

from this evidence that the offenses were not “sexually violent.” 

Even if it could, appellant‟s expert Malinek testified that “[a]ll 

people referred for SVP meet this criteria,” i.e., they have 

sustained a prior conviction for a sexually violent offense. 

Indeed, appellant now acknowledges that he “cannot dispute that 

there is other evidence in the record besides the testimony of the 

government‟s experts to support the determination that he 

suffered at least one qualifying offense.” His unsupported 

speculations that “the relatively dry version of events found in 

the written exhibits was less significant than the versions of 

events provided by the testifying experts,” and that “the jury 

probably did not look at the Exhibits” are insufficient to 

demonstrate prejudice. 

C. Testimony about other offenses and conduct

Appellant contends the trial court erred by allowing the 

People‟s experts to testify to “a massive amount of inadmissible 

hearsay.” The 34 alleged hearsay statements appellant 

challenges fall into two general categories: (1) details about 

uncharged offenses appellant allegedly committed in addition to 

his two qualifying offenses involving Liza and Tanya, and (2) 

details about appellant‟s behavior while in state custody. 

Appellant argues that both groups of statements are inadmissible 

hearsay under Sanchez, supra, 63 Cal.4th 665, a recent Supreme 

Court case we invited the parties to address in supplemental 

briefing. We agree.

1. Expert basis testimony after Sanchez

In SVP cases, the People must prove beyond a reasonable 

doubt that the defendant previously committed a sexually violent 
36

offense and currently suffers from a mental disorder that renders 

him or her likely to commit sexually violent offenses in the 

future. To establish that a defendant suffers from a mental 

disorder, the People typically enlist an expert to evaluate the 

defendant and his or her history to make a diagnosis. As in many 

SVP cases (e.g., People v. Angulo (2005) 129 Cal.App.4th 1349, 

1354, 1356), appellant refused to meet with the People‟s experts, 

leaving them largely dependent upon documentary evidence to 

ascertain and opine about his mental health status. Webber 

testified that it was customary for experts to rely on documents 

such as police reports, probation reports, and hospital records 

when evaluating potential SVPs, and all three experts in this 

case testified that they did so. 

After denying appellant‟s motion in limine and other 

objections, the trial court allowed the People‟s experts to testify 

at length to the contents of these documents, including details of 

several offenses with which appellant was never charged and his 

behavior while in custody, on the ground that the documents 

formed the basis of the experts‟ opinions. The court denied 

appellant‟s request that the jury be admonished before each 

expert testified, as well as during the regular jury instructions, 

that the experts‟ testimony “relying on prior cases is not for the 

truth of the matter, but it goes directly to their opinion.” The 

court did instruct the jury that “certain evidence was admitted 

for a limited purpose. You may consider that evidence only for 

that purpose and for no other.” 

At the time of appellant‟s trial, the general rule was that 

“out-of-court statements offered to support an expert‟s opinion 

are not hearsay because they are not offered for the truth of the 

matter asserted. Instead, they are offered for the purpose of 
37

assessing the value of the expert‟s opinion.” (Dean, supra, 174 

Cal.App.4th at p. 193.) That general rule was circumscribed to 

some extent; the Supreme Court recognized that prejudice could 

arise if an expert‟s detailed explanation placed incompetent 

hearsay evidence before the jury, and vested trial courts with 

discretion to exclude from the expert‟s testimony such hearsay 

that was more prejudicial than probative. (People v. Catlin

(2001) 26 Cal.4th 81, 137; People v. Gardeley (1996) 14 Cal.4th 

605, 618-619; People v. Montiel (1993) 5 Cal.4th 877, 918-919; 

People v. Coleman (1985) 38 Cal.3d 69, 92.) Appellant 

unsuccessfully argued below that the testimony offered by the 

People‟s experts as the basis of their opinions lay beyond the 

confines of the general rule.

The Supreme Court recently updated the general rule in 

Sanchez, supra, 63 Cal.4th 665. In that case, which involved 

testimony by a gang expert, the Court reevaluated “whether facts 

an expert relates as the basis for his opinion are properly 

considered to be admitted for their truth.” (Sanchez, supra, 63 

Cal.4th at p. 674.)6 It concluded that the long-standing 

 

6 Although Sanchez was a criminal case, the Court stated 

its intention to “clarify the proper application of Evidence Code 

sections 801 and 802, relating to the scope of expert testimony,” 

generally. (Id. at p. 670.) Those code sections govern the 

admission of expert testimony in civil cases as well, and nothing 

in Sanchez indicates that the Court intended to restrict its 

holdings regarding hearsay evidence to criminal cases. The 

Attorney General did not attempt to argue otherwise. We note 

that Sanchez also addresses issues relating to the constitutional 

right to confrontation. Those portions of Sanchez are not 

relevant here, as the state and federal confrontation clauses are 

not applicable in SVP proceedings. (People v. Allen, supra, 44 

Cal.4th at pp.860-861.)
38

“paradigm” that testimony as to the basis for an expert‟s opinion 

is not hearsay “is no longer tenable because an expert‟s testimony 

regarding the basis for an opinion must be considered for its truth 

by the jury.” (Id. at p. 679, emphasis in original.) 

The Court began its analysis by recognizing that “[t]he 

hearsay rule has traditionally not barred an expert‟s testimony 

regarding his general knowledge in his field of expertise.” (Id. at 

p. 676.) “This latitude is a matter of practicality. A physician is 

not required to personally replicate all medical experiments 

dating back to the time of Galen in order to relate generally 

accepted medical knowledge that will assist the jury in deciding 

the case at hand. An expert‟s testimony as to information 

generally accepted in the expert‟s area, or supported by his own 

experience, may usually be admitted to provide specialized 

context the jury will need to resolve an issue.” (Id. at p. 675.) 

The Court contrasted this sort of testimony about general 

matters with expert testimony pertaining to “case-specific facts,” 

which it noted “has traditionally been precluded” under hearsay 

rules. (Id. at p. 676.) “Case-specific facts are those relating to 

the particular events and participants alleged to have been 

involved in the case being tried.” (Ibid.) Experts generally are 

not permitted to offer case-specific facts about which they have no 

personal knowledge. (Ibid.) The Court gave several examples 

illustrating the distinction. We repeat one here: “That an adult 

party to a lawsuit suffered a serious head injury at age four 

would be a case-specific fact. The fact could be established, inter 

alia, by a witness who saw the injury sustained, by a doctor who 

treated it, or by diagnostic medical records. How such an injury 

might be caused, or its potential long-term effects, would be 

background information an expert might provide. That the party 
39

was still suffering from the effects of the injury and its 

manifestations would be the proper subject of the expert‟s 

opinion.” (Id. at p. 677.)

When an expert relies on hearsay statements regarding 

case-specific facts, the Court explained, there is a “flaw in the 

not-for-the-truth limitation.” (Sanchez, supra, 63 Cal.4th at p. 

682.) That flaw was outlined by the U.S. Supreme Court in 

Williams v. Illinois (2012) 567 U.S. —, 132 S.Ct. 2221 (Williams), 

and described by the California Supreme Court as follows. 

“When an expert relies on hearsay to provide case-specific facts, 

considers the statements as true, and relates them to the jury as 

a reliable basis for the expert‟s opinion, it cannot logically be 

asserted that the hearsay content is not offered for its truth. In 

such a case, „the validity of [the expert‟s] opinion ultimately 

turn[s] on the truth‟ (Williams, supra, 567 U.S. at p. —, 132 S.Ct. 

at p. 2258 [conc. opn. of Thomas, J.].) of the hearsay statement. 

If the hearsay that the expert relies on and treats as true is not 

true, an important basis for the opinion is lacking.” (Sanchez, 

supra, 63 Cal.4th at pp. 682-683.) Thus, “[w]hen an expert is not 

testifying in the form of a proper hypothetical question and no 

other evidence of the case-specific facts presented has or will be 

admitted, there is no denying that such facts are being 

considered by the expert, and offered to the jury, as true.” (Id. at 

p. 684.) 

The Court further concluded that the hearsay problem 

cannot be cured by instructing the jury not to consider expert 

basis testimony for its truth. “Once we recognize that the jury 

must consider expert basis testimony for its truth in order to 

evaluate the expert‟s opinion, hearsay and confrontation 
40

problems cannot be avoided by giving a limiting instruction that 

such testimony should not be considered for its truth. If an 

expert testifies to case-specific out-of-court statements to explain 

the bases for his opinion, those statements are necessarily 

considered by the jury for their truth, thus rendering them 

hearsay. Like any other hearsay evidence, it must be properly 

admitted through 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.) The Court disapproved 

its prior decisions holding that an expert‟s basis testimony is not 

admitted for its truth, or that a limiting instruction is sufficient 

to cure the hearsay problem. (Id. at p. 686, fn. 13.)

The Court emphasized that an expert “may still rely on 

hearsay in forming an opinion, and may tell the jury in general

terms that he did so.” (Sanchez, supra, at p. 685, emphases in 

original.) “There is a distinction to be made between allowing an 

expert to describe the type or source of the matter relied upon as 

opposed to presenting, as fact, case-specific hearsay that does not 

otherwise fall under a statutory exception.” (Id. at p. 686.) That 

distinction means that “[w]hat an expert cannot do is 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.” (Ibid.)

2. Analysis

In this case, the People‟s experts related extensive a casespecific facts they gleaned from documents such as police reports, 

probation reports, and hospital records.7 The sole reason the trial 

 

7 No hospital records were introduced or admitted at trial. 
41

court gave for admitting this testimony was that it served as the 

basis of their opinions. Under Sanchez, admission of expert 

testimony about case-specific facts was error—unless the 

documentary evidence the experts relied upon was independently

admissible.

a. Admissibility of documentary 

evidence

Appellant argues that much of the evidence was not 

admissible on any valid basis post-Sanchez. In an exhibit-byexhibit analysis, he contends that most of the People‟s exhibits—

Exhibits 2, 3, 4A, 5A, 6, 8A, 9A, and 11—were inadmissible either 

in full or in part. The Attorney General responds that appellant 

has forfeited many of these evidentiary challenges. It contends

that appellant forfeited all of his arguments about Exhibit 2 by 

failing to object to the exhibit below, and about Exhibit 3 by 

objecting only on foundation grounds. The Attorney General 

further argues that appellant forfeited his challenges to the 

admissibility of portions of Exhibits 2, 3, 4A, 5A, 6, 8A, and 9A, 

because he “did not identify which portions of the exhibits were 

admissible and which were not,” and “did not offer to redact the 

portions he now asserts were inadmissible on appeal.” The 

Attorney General does not make any forfeiture argument about 

 

Accordingly, 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. (People v. Campos

(1995) 32 Cal.App.4th 304, 308; People v. Landau (2016) 246 

Cal.App.4th 850, 870.) They could not testify to the contents of 

those reports, however. (People v. Campos, supra, 32 Cal.App.4th 

at p. 308; People v. Landau, supra, 246 Cal.App.4th at p. 870.) 
42

Exhibit 11 but argues only that the exhibit was admissible.

We agree with the Attorney General that appellant has 

forfeited his objections to Exhibit 2, the section 969b prison 

packet, and Exhibit 3, the information charging him with 

offenses against Tanya. During trial, appellant‟s counsel 

expressly told the court that he had no objection to Exhibit 2, and 

objected to Exhibit 3 exclusively on foundational grounds.8 In 

contrast, counsel expressly reiterated the hearsay objections she 

had been making throughout trial as to the remaining exhibits. 

The Attorney General‟s assertion that those objections were 

inadequately specific to preserve appellant‟s claims on appeal is 

not well taken. 

In a motion in limine filed before trial, appellant argued 

that all references to uncharged offenses and conduct other than 

his qualifying offenses were inadmissible hearsay. While 

acknowledging that section 6600, subdivision (a)(3) renders 

admissible evidence pertaining to his qualifying offenses, he 

argued that there was no basis to admit evidence regarding 

offenses that were dismissed, uncharged, or otherwise nonqualifying. In other words, appellant conceded that parts of the 

 

8 Appellant contends his counsel was ineffective for failing 

to preserve his current objections to these exhibits. We disagree. 

Appellant concedes that substantial portions of both exhibits 

were admissible. To the extent that he claims his counsel was 

ineffective for failing to object to the inadmissible portions, he 

has not demonstrated that counsel‟s inherently tactical decision 

as to which exhibits to object to constituted deficient performance 

or prejudiced him in any way. (See People v. Bolin (1998) 18 

Cal.4th 297, 333; People v. Maury (2003) 30 Cal.4th 342, 419; 

Strickland v. Washington (1984) 466 U.S. 668, 686-688.) 
43

exhibits referring to his qualifying convictions were admissible, 

while arguing that other parts were not. “[I]t is settled law that 

where evidence is in part admissible, and in part inadmissible, 

„the objectionable portion cannot be reached by a general 

objection to the entire [evidence], but the inadmissible portion 

must be specified.‟ [Citations.]” (People v. Harris (1978) 85 

Cal.App.3d 954, 957.) Appellant adequately “specified” the 

inadmissible portion by drawing a qualitative distinction between 

concededly admissible evidence on the one hand and evidence he 

believed was inadmissible on the other. Appellant was not 

required, as the Attorney General suggests, to identify the 

specific lines and pages of each exhibit he believed were 

inadmissible to preserve his objections to portions of the exhibits 

on appeal. We accordingly consider appellant‟s arguments 

regarding exhibits 4A, 5A, 6, 8A, 9A, and 11.

Exhibits 5A and 9A are redacted pre-plea reports prepared 

by the probation office in connection with appellant‟s qualifying 

offenses against Tanya (5A) and Liza (9A). Appellant contends 

that these exhibits were inadmissible in toto because they are not 

presentence reports prepared following appellant‟s convictions. 

Appellant relies on Otto, supra, 26 Cal.4th 200 to support this 

contention. We conclude that his view of Otto is too restrictive. 

In Otto, the Supreme Court considered the reach of section 

6600, subdivision (a)(3). That statute provides in pertinent part 

that “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, 
44

and evaluations by the State Department of State Hospitals.” 

The Supreme Court confirmed that this statute, by its terms, 

“authorizes the use of hearsay in presentence reports to show the 

details underlying the commission of a predicate offense.” (Otto,

supra, 26 Cal.4th at p. 206.) The Court further held that section 

6600, subdivision (a)(3) “implicitly authorizes the admission of 

hearsay statements in those reports.” (Id. at p. 207.) The Court 

explained that because the probation and presentence reports 

expressly deemed admissible by the statute necessarily include 

hearsay statements from victims and police reports, “the 

Legislature necessarily endorsed the use of multiple-levelhearsay statements that do not otherwise fall within a hearsay 

exception.” (Id. at p. 208.) The Court further explained that such 

an interpretation was consistent with the legislative history of 

the statute, which demonstrated that the Legislature “apparently 

intended to relieve victims of the burden and trauma of testifying 

about the details of the crimes underlying the prior convictions.” 

(Otto, supra, 26 Cal.4th at p.208.) Thus, under Otto, “the only 

reasonable construction of section 6600(a)(3) is that it allows the 

use of multiple-level hearsay to prove the details of the sex 

offenses for which the defendant was convicted.” (Ibid., emphasis 

added.) 

Appellant is correct that the documents at issue in Otto

were presentence reports, while Exhibits 5A and 9A are not. But 

the Court‟s holding in Otto reached the entirety of section 6600, 

subdivision (a)(3), not merely the presentence reports at issue in 

that case. Probation reports—the term appellant uses to identify 

these exhibits, which bear the heading “Probation Officer‟s 

Report”—are expressly included in the statute‟s non-exclusive list 

of documents the Legislature deemed sufficiently reliable to 
45

prove qualifying convictions and the details thereof. Under Otto, 

then, those documents and the hearsay statements they contain 

are admissible to prove qualifying offenses and the details 

thereof. 

As appellant argues and the Attorney General concedes, 

however, those reports “also contained information about 

appellant‟s prior record, adult history, personal history, 

physical/mental/emotional health, education, employment, and 

terms and conditions of probation,” and “[t]hese sections were not 

admissible under section 6600, subdivision (a)(3).” Notably, these 

probation reports appear to be the only sources in the record that 

include the details of the uncharged sex offenses that appellant 

allegedly committed.9

Exhibits 4A and 8A are redacted police reports for 

appellant‟s qualifying offenses against Tanya (4A) and Liza (8A). 

Appellant contends these exhibits lack sufficient reliability to 

come within the section 6600, subdivision (a)(3) hearsay 

exception. We disagree. Section 6600, subdivision (a)(3) and Otto

authorize the People to prove the details of appellant‟s qualifying 

offenses with probation reports. Otto explained that the sources

of the details contained in those reports almost invariably are 

hearsay statements, either directly from victims or as related in 

police reports. The police reports underlying the qualifying 

offenses accordingly are the source of the admissible information 

in the probation reports, and therefore should be admissible 

 

9 During oral argument, appellant‟s counsel suggested that 

the People could have called the alleged victims of appellant‟s 

uncharged sex offenses to testify. We note that concern about the 

necessity of calling qualifying offense victims as witnesses in SVP 

proceedings was a factor in the Legislature‟s enactment of section 

6600, subdivision (a)(3). (See Otto, supra, 26 Cal.4th at p. 208.) 
46

themselves to prove the same information. To the extent that the 

police reports contained information duplicated in and properly 

admitted through the probation reports, any erroneous admission 

of the police reports could not have been prejudicial. (Appellant 

did not argue below that the police reports should have been 

excluded under Evidence Code section 352 as unduly 

cumulative.) To the extent the police reports contained 

information not also included in the admissible portions of the 

probation reports, appellant has not persuaded us that 

information was not pertinent to the details of the qualifying 

offenses and therefore inadmissible under section 6600, 

subdivision (a)(3).

Exhibit 6 is a minute order documenting appellant‟s guilty 

plea to sexually assaulting Tanya. We agree with the parties 

that the portion of the exhibit showing his guilty plea was 

admissible under section 6600, subdivision (a)(3) to show that 

appellant suffered a conviction for an offense listed in the SVPA. 

We further agree with the parties that the “remainder of the 

minute order, which listed appellant‟s sentence, restitution fine, 

and requirement to register as a sex offender, however, was not 

admissible under section 6600, subdivision (a)(3), because it did 

not pertain to the existence of the conviction or the details of

same.” Appellant also argues that the admissible portions of 

Exhibit 6 should have been excluded as cumulative under 

Evidence Code section 352, because an abstract of judgment 

documenting the same conviction was included in the section 

969b prison packet. Appellant did not make this argument below 

and accordingly has forfeited it here. 

Exhibit 11 is a one-page document from the Department of 

Justice. It contains fingerprints taken during the 1988 arrest of 
47

one Leo Boykins for rape by force (Pen. Code, § 261, subd. (a)(2)), 

and lists Joseph Burroughs as Boykins‟s alias. Appellant argues 

that Exhibit 11 should have been excluded because it does not 

relate to one of the qualifying offenses alleged by the People. 

This argument is persuasive. Section 6600, subdivision (a)(3) 

allows the People to prove the existence and details of predicate 

offenses by documentary evidence. (Otto, supra, 26 Cal.4th at p. 

206.) The 1988 rape by force charge mentioned in Exhibit 11 was 

not one of the predicate offenses the People alleged. Moreover, it 

is unclear from the record whether appellant was convicted of the 

1988 forcible rape. Thus, even under the broadest possible 

interpretation of the phrase “any prior conviction” in section 

6600, subdivision (a)(3), Exhibit 11 was not admissible under 

that provision. The Attorney General contends Exhibit 11 was 

admissible as an official record under Evidence Code section 

1280. For a writing to fall within this exception, it must be 

shown that: “(a) The writing was made by and within the scope 

of duty of a public employee. [¶] (b) The writing was made at or 

near the time of the act, condition, or event. [¶] (c) The sources 

of information and method and time of preparation were such as 

to indicate its trustworthiness.” (Evid. Code, § 1280.) No such 

showing was made here. 

In sum, much of the documentary evidence upon which the 

experts relied was hearsay that was not shown to fall within a 

hearsay exception. The trial court accordingly erred by allowing 

the experts to testify to the contents of this evidence as the basis 

for their opinions. 

b. Prejudice 

Appellant contends the evidentiary errors were prejudicial. 

“Ordinarily, an improper admission of hearsay would constitute 
48

statutory error under the Evidence Code.” (Sanchez, supra, 63 

Cal.4th at p. 685.) To determine whether statutory error exists, 

we ask whether it is reasonably probable the verdict would have 

been more favorable to appellant absent the error. (People v. 

Watson, supra, 46 Cal.2d at p. 836.) Appellant contends we 

should apply the higher standard set forth in Chapman v. 

California (1967) 386 U.S. 18, 24, because his due process right to 

confrontation was violated. (See People v. Landau, supra, 246 

Cal.App.4th at p. 878.) We need not decide whether it is 

appropriate to apply the Chapman standard here, as the 

evidentiary errors were prejudicial even under the lower Watson

standard.

The People introduced numerous hearsay documents into 

evidence, and their experts related a significant amount of 

hearsay to the jury. The documents and expert testimony 

described, in lurid detail, numerous sex offenses that appellant 

was not charged with or convicted of committing, including the 

repeated sodomy of a young boy and the use of a knife to 

penetrate a woman. The experts also testified that appellant was 

a gang member and described bizarre and even “lethal” behavior 

appellant allegedly engaged in while in custody. All of this 

evidence was exceedingly inflammatory. It depicted appellant as 

someone with an irrepressible propensity to commit sexual 

offenses, and invited the jury to punish him for past offenses. It 

also substantially enhanced the credibility of the experts‟ 

conclusions about appellant‟s mental state and likelihood of 

reoffending. In short, the improperly admitted hearsay 

permeated the entirety of appellant‟s trial and strengthened 

crucial aspects of the People‟s case.

The Attorney General nonetheless contends that the errors 
49

were harmless. The Attorney General argues that the People

would have carried their burden of proof even absent the 

inadmissible evidence, and asserts that appellant‟s evidence was 

aimed at impugning other aspects of Webber‟s and North‟s 

testimony. According to the Attorney General, “the defense 

theory was that even if all of those things [the uncharged offenses 

and other misconduct] occurred, the diagnoses the prosecution‟s 

experts reached did not qualify appellant as a SVP, and their 

conclusions that he was likely to reoffend were incorrect because 

they relied on faulty data.” Although this is a fair summary of

appellant‟s arguments at trial, it does not take into account that 

these were perhaps the best arguments available to appellant in 

light of the court‟s evidentiary rulings. More importantly, it does 

not negate the significance of the inadmissible evidence to the 

strength of the People‟s case at trial. Had the inadmissible 

documentary evidence and hearsay testimony been excluded from 

trial, there is a reasonable probability that the jury would have 

returned a verdict more favorable to appellant. 

DISPOSITION

The judgment of the trial court is reversed. The matter is 

remanded to the trial court for further proceedings consistent 

with this opinion. 

CERTIFIED FOR PUBLICATION

COLLINS, J.
50

We concur:

WILLHITE, Acting P. J. MANELLA, J.