Filed 3/7/18 P. v. Rodriguez CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
GUILLERMO RODRIGUEZ,
Defendant and Appellant.

A144764

(City & County of San Francisco
Super. Ct. No. 161951)


Largely on the strength of testimony offered by two experts, a jury found Guillermo Rodriguez to be a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) and the trial court committed him to the Department of State Hospitals (DSH) for an indeterminate term.
Shortly after the conclusion of briefing in this matter, the California Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which substantially limited the admissibility of case-specific expert testimony. We requested, and received, supplemental briefing addressing the impact of Sanchez on this appeal. We conclude that, under Sanchez, the expert witnesses in this case improperly testified to case-specific hearsay that was not independently proved by competent evidence or covered by a hearsay exception. Because this evidentiary error was prejudicial, we reverse.
I. BACKGROUND
A. Overview of the SVPA
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).) “[A] person is ‘likely [to] engage in sexually violent criminal behavior’ if at trial the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody.” (People v. Roberge (2003) 29 Cal.4th 979, 988 (Roberge).)
“The process of determining whether a convicted sex offender can be involuntarily committed under the SVPA as a sexually violent predator ‘ “takes place in several stages, both administrative and judicial.” ’ ” (Roberge, supra, 29 Cal.4th at p. 984.) After a screening by the Department of Corrections and Rehabilitation and the Board of Parole Hearings shows that an inmate is likely to be an SVP, the inmate is referred for a “full evaluation” by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist, as to whether the inmate meets the criteria in section 6600. (§ 6601, subds. (b), (d).) “ ‘ “If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director [of the State Department of State Hospitals] shall forward a request for a [commitment] petition . . . to the county . . . where the offender was convicted of the crime for which he is currently imprisoned.” ’ [Citation.] If the county’s legal counsel agrees with the request and files a petition for commitment in superior court, that filing ‘ “triggers a new round of proceedings under the Act.” ’ ” (Roberge, supra, 29 Cal.4th at p. 985.)
The superior court first holds a hearing to determine whether there is probable cause to believe the named person is likely to engage in sexually violent predatory criminal behavior upon release. (§ 6602.) “If the court decides such probable cause exists, the matter proceeds to trial, at which either party can demand that trial be by jury. (§ 6603, subds. (a) & (b).) Proof that the person qualifies as a sexually violent predator must be beyond a reasonable doubt (§ 6604), and a jury’s verdict must be unanimous (§ 6603, subd. (d)).” (Roberge, supra, 29 Cal.4th at p. 985.) The individual is also entitled to the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and to have access to all relevant medical and psychological records and reports. (§ 6603, subd. (a).) “In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person’s request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person’s behalf.” (Ibid.)
Conviction of a qualifying sexually violent offense may support an SVP determination, “but shall not be the sole basis for the determination.” (§ 6600, subd. (a)(3).) The existence of a prior conviction and the details underlying the commission of the offense that led to the prior conviction 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.” (Ibid.) Section 6600, subdivision (a)(3) “allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted.” (People v. Otto (2001) 26 Cal.4th 200, 208.)
“Expert testimony, specifically testimony regarding diagnosis of a current mental disorder, is an important element in an SVPA civil commitment proceeding.” (People v. Roa (2017) 11 Cal.App.5th 428, 443 (Roa).) “[E]xpert 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.)
B. Factual and Procedural History
On July 1, 1995, two men entered a restroom in a public park and heard “strange noises” coming from a toilet stall. Upon opening the door, the men found Rodriguez with a seven-year-old boy named Alfonso. Rodriguez’s pants and underwear were down and his penis was exposed. Alfonso ran from the stall crying and told his father that Rodriguez had offered him money to go into the restroom with him but he refused, and Rodriguez grabbed him by the arm and forced him into the stall, where he fondled Alfonso’s genital area, forcefully lowered Alfonso’s pants, and placed his mouth on Alfonso’s penis. Rodriguez lowered his own pants and forced Alfonso to touch his (Rodriguez’s) penis several times. The two men who discovered Rodriguez and Alfonso in the stall pursued Rodriguez as he fled on foot. When the police arrived, they found Rodriguez kneeling on the ground with bruises about his face, surrounded by a large group of people.
Rodriguez pleaded guilty and was convicted in May 2003 of lewd and lascivious acts upon a child by force (Pen. Code, § 288, subd. (b)) and oral copulation of a child (Pen. Code, § 288a, subd. (c)(1)). He was sentenced to 16 years in state prison. Prior to Rodriguez’s controlling release date, the San Francisco County District Attorney (the People) filed a petition to commit Rodriguez as an SVP. After initial and supplemental probable cause hearings, the trial court found probable cause to believe that Rodriguez was likely to engage in sexually violent predatory criminal behavior upon his release, and the matter was set for trial.
Before trial, the People filed a motion in limine to allow its expert witnesses to testify to prior offenses purportedly committed by Rodriguez. These offenses included a 1977 conviction in Chicago, Illinois for contributing to the sexual delinquency of a child, and the 1994 rape of a five-year-old girl named Elena O., an offense for which Rodriguez was never charged, but to which he was linked by DNA analysis years later after the statute of limitations had passed. The People argued that this testimony should be admitted “with a limiting instruction to the jury that it doesn’t come in for the truth, but to explain the basis for the expert’s opinion.” Defense counsel objected, arguing that the People’s expert witnesses would be improperly testifying about the opinions of a nontestifying DNA expert on an uncharged offense. Over Rodriguez’s objection, the trial court granted the motion and allowed the testimony.
The trial commenced in February 2015, at which time Rodriguez was 72 years old.
C. The People’s Expert Witnesses
The People called as expert witnesses two psychologists employed by the DSH: Dr. G. Preston Sims and Dr. Dana Putnam. Both opined that Rodriguez has a “pedophilic disorder” as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Dr. Sims set forth the diagnostic criteria as follows:
“[N]umber one, over a period of at least six months, recurrent intense sexually arousing fantasies, sexual urges or behaviors involving sexual activity with a prepubescent child or children, . . . generally 13 years or younger[.]
“Number, two, the person has acted on these sexual urges, or the sexual urges or fantasies caused marked distress or interpersonal difficulty.
“And number three, the person is at least age 16 and five years older than the child that they are—have engaged in sexual activity with.”
According to Dr. Sims and Dr. Putnam, a pedophilic disorder is a lifelong condition that does not go away on its own after time.
1. Static-99R and Static-2000R Assessments
Dr. Sims and Dr. Putnam both testified that Rodriguez was likely to engage in sexually violent predatory criminal acts as a result of his diagnosed mental disorder. They evaluated Rodriguez’s risk of reoffense using two actuarial risk assessment tools called the Static-99R and the Static-2002R, which have been shown to “moderately” predict recidivism risk. They also used a tool called the Structured Risk Assessment (SRA) to determine whether Rodriguez’s score should be compared to a “high-risk” group or a “routine” group. Dr. Sims believed that Rodriguez should be compared to the routine group, while Dr. Putnam believed that Rodriguez should be compared with the high-risk group.
Both doctors gave Rodriguez a score of 1 on the Static-99R, which correlated with a rate of reoffense of 3.9 percent over five years. On the Static-2000R, they gave Rodriguez a score of 5, which correlated with a rate of reoffense of 13.8 percent over five years when compared to the routine group, and a rate of reoffense of 19.1 percent when compared to the high risk group.
Dr. Sims and Putnam acknowledged that age is a significant factor in the context of risk for reoffense, and that older individuals tend to be at much lower risk for reoffense. However, Dr. Putnam opined that Rodriguez was unique because he had shown a continued level of aggression and sex drive that was not typical of his age group.
2. Reports of Prior Offenses
In addition to the actuarial tools, Dr. Sims and Dr. Putnam relied upon information obtained from a 1977 Chicago Police Department report showing that “Jose Rodriguez”—an alias that appeared on Rodriguez’s rap sheet—was convicted for contributing to the sexual delinquency of a child. While the arrest was made under a section of Illinois law that addressed sex with a child under the age of 14, the conviction was under a section that dealt with sexual activity with a person under the age of 18, and the report did not show the exact age of the victim or provide the facts of the case.
Dr. Sims and Dr. Putnam also relied upon a 1994 police report regarding the rape of Elena O. As recounted by Dr. Sims, Elena O. was a five-year-old girl who went missing from a party at a park in San Francisco and was later found holding her underwear and wandering the streets with her dress turned inside out. The victim said that a man had kissed her face and shoulders, took her dress and underpants off, touched her vagina, and put his penis in her vagina. Dr. Sims stated that “[t]he exam . . . showed that there was serious trauma to her vagina.” Dr. Sims testified that he asked Rodriguez about the rape of Elena O, but Rodriguez said, “ ‘There was no sexual offense with the five-year-old girl.’ ” The prosecutor asked Dr. Sims if the police report indicated whether DNA swabs were taken from the victim during the course of the sexual assault exam, and Dr. Sims answered yes. The prosecutor then asked Dr. Sims if DNA was taken from Rodriguez while he was in state prison, and Dr. Sims answered yes. Dr. Sims testified that, based on material in the police report, including the “final report from someone who purports to be an expert in DNA,” he felt confident enough to believe that Rodriguez committed the 1994 offense against Elena O. and relied on this offense in concluding that Rodriguez had a diagnosed mental disorder of pedophilic disorder.
Dr. Putnam testified that Rodriguez “has never acknowledged to me that he had anything to do with” the rape of Elena O. But Dr. Putnam attributed the 1994 offense to Rodriguez based on “police reports, DNA reports, physical examinations of Elena O.” Dr. Putnam further testified that his conclusion about Rodriguez’s pedophilic disorder was supported by the fact Rodriguez had engaged in sexual conduct with children who “were very young, and there’s no question about them sexually developed, we’re talking about a seven-year-old boy and a five-year-old girl. So that’s a significant factor in terms of the level of confidence you have regarding the diagnosis.” Dr. Putnam further testified that Rodriguez’s act of “attempting to penetrate the child” provided Dr. Putnam with a greater degree of confidence in his diagnosis. Dr. Putnam stated that despite Rodriguez’s “low score” on the Static-99R, an “extenuating circumstance” that caused him to think Rodriguez had a higher risk than indicated by the score was that “the nature of the offense was very severe.” “We’re talking about a five-year-old girl being abducted from a park and being found hours later having been severe [sic] sexually assaulted. So that is a contributing factor for me.” Dr. Putnam added, “I think it’s very important that the offending is so severe and that we’re talking about abducting a five-year-old girl from a park and then raping her and then letting her loose in the city by herself to be discovered.”
In addition to the 1977 and 1994 sex offenses, Dr. Sims considered unspecified records indicating that Rodriguez had been convicted of illegal entry and was deported in 1977, 1978, and 1994.
3. Hospital and Prison Records
In addition to the actuarial tools and records of prior offenses, Dr. Sims reviewed records from Coalinga State Hospital and statements that Rodriguez made to other doctors in which Rodriguez sometimes denied the offense against Alfonso, or called the child a homosexual and blamed him for the offense, or claimed not to remember the offense at all due to being intoxicated. Dr. Sims also reviewed a probation report indicating that Rodriguez told a probation officer, “If I had a good lawyer, I would be out already. There are worse cases than this and people are out. People do worst [sic] things and go free. I was too drunk. I was assaulted before. I was robbed, too.”
The experts also considered evidence of Rodriguez’s prison conduct, which included several rule violations for violent behavior. Dr. Putnam testified about reports indicating that Rodriguez had been found in violation of prison rules for “fighting with other people and having in possession of [sic] a weapon and stabbing somebody with an ink pen.” Dr. Sims testified about an incident in Coalinga State Hospital in 2014 when Rodriguez hit a staff member with a lamp.
D. The Defense’s Expert Witness
Dr. Robert Owen testified that he is a licensed psychologist who contracts with the state to provide SVPA evaluations. He concluded that Rodriguez was a pedophile based upon the 1994 offense against Elena O. and the 1995 offense against Alfonso. He acknowledged that the 1977 conviction “was with a child” and “may [have] load[ed] into this diagnosis.” Dr. Owen testified that Rodriguez told him the 1977 incident was a fight with family members and there was nothing sexual about it.
Dr. Owen concluded that Rodriguez did not pose a substantial and well-founded risk for sexually reoffending. Like Dr. Sims and Dr. Putnam, Dr. Owen assessed Rodriguez with a score of one on the Static-99R. Dr. Owen testified that it was best to “stay close to the science” and “[t]he science in this case would be the Static-99R that’s based upon hundreds of studies, that looks at who reoffense [sic] and who doesn’t.” He opined that relying on the actuarial instruments was superior to relying on clinical knowledge or “gut impression[s] of who is SVP and who is not.”
Dr. Owen emphasized that there is no meaningful research into reoffending beyond the age of 80, and that many studies regarding age and sex offender recidivism show that as one gets older, the risk of committing new offenses diminishes. He testified that the risk of reoffense is “very, very low at 70” and “close to zero.”
During cross-examination, Dr. Owen was asked about the incidents in which Rodriguez violently attacked hospital staff. Regarding the report that Rodriguez hit a psychiatric technician at Coalinga State Hospital over the head with a lamp, Dr. Owen acknowledged that Rodriguez said in an interview that he had acted in self-defense and that if he had had a gun, he “would have shot” the technician.
Dr. Owen was also asked during cross-examination what percentage of the population has deviant sexual thoughts regarding children, and Dr. Owen responded, “Less than 1 percent.” Dr. Owens further testified that of those who act out on deviant sexual thoughts regarding children, the majority do not act out more than once, based on reoffense records in California.
E. Documentary Evidence
The People marked several documents for identification, but later withdrew them. These documents were: Rodriguez’s rap sheet; an unredacted version of a 1996 probation report; an unredacted version of the 1995 San Francisco Police Department (SFPD) report regarding the qualifying offense against Alfonso; the evaluation reports of Dr. Korpi and Dr. Selby (first names not identified); a packet containing the 1994 SFPD report regarding Elena O., the DNA report, an examination document from CASARC (not further identified), and laboratory notes; and the 1977 Chicago Police Department report.
The exhibits that were admitted into evidence were: a short form redacted version of the 1996 probation report; Rodriguez’s Penal Code section 969b “prison packet” ; a redacted version of the 1995 SFPD report regarding the qualifying incident, and calendars for the years 1994 and 1995.
F. Closing Arguments, Jury Instructions, Verdict and Appeal
In its closing argument, the People emphasized that the testimony of Dr. Sims and Dr. Putnam on the 1977 and 1994 offenses was offered to explain the basis of their opinions, not for the truth of the matters asserted. Although the jury was not given a specific limiting instruction to this effect, they were instructed pursuant to CALCRIM No. 303 that “certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.” The jury was also given a standard instruction for expert witness testimony based on CALCRIM No. 332, stating “You must decide whether information on which the expert relied was true and accurate.”
On March 3, 2015, the jury found the petition to be proven, and the trial court committed Rodriguez to the custody of the DSH. Rodriguez timely appealed, raising a host of asserted errors. Because we conclude the admission of case-specific expert testimony against him in violation of Sanchez was prejudicially erroneous, we need not address any other issues.
II. DISCUSSION
A. Expert Basis Testimony Before Sanchez
At the time of Rodriguez’s trial, the rule was that “[a]n expert may generally base his opinion on any ‘matter’ known to him, including hearsay not otherwise admissible, which may ‘reasonably . . . be relied upon’ for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them.” (People v. Montiel (1993) 5 Cal.4th 887, 918 (Montiel), disapproved by Sanchez, supra, 63 Cal.4th at p. 687, fn. 13.) “So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony.” (People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley), disapproved by Sanchez, supra, 63 Cal.4th at p. 687, fn. 13.)
“However, prejudice may arise if, ‘ “under the guise of reasons,” ’ the expert’s detailed explanation ‘ “[brings] before the jury incompetent hearsay evidence.” ’ ” (Montiel, supra, 5 Cal.4th at p. 918.) “Courts created a two-pronged approach to balancing ‘an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion’ so as not to ‘conflict with an accused’s interest in avoiding substantive use of unreliable hearsay.’ ” (Sanchez, supra, 63 Cal.4th at p. 679.) “Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth.” (Montiel, supra, 5 Cal.4th at p. 919; see also People v. Dean (2009) 174 Cal.App.4th 186, 200–202 [expert’s hearsay testimony on details from hospital and institutional records was harmless due to limiting instruction].) Where a limiting instruction was insufficient, “Evidence Code section 352 authorize[d] the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweigh[ed] its proper probative value.” (Montiel, supra, 5 Cal.4th at p. 919; see People v. Coleman (1985) 38 Cal.3d 69, 93 [expert’s reliance on accusatory letters written by the defendant’s murdered victim/wife was unduly prejudicial], disapproved by Sanchez, supra, 63 Cal.4th at p. 687, fn. 13.)
B. Sanchez
In Sanchez, the Supreme Court held that “this paradigm is no longer tenable because an expert’s testimony regarding the basis for an opinion must be considered for its truth by the jury.” (Sanchez, supra, 63 Cal.4th at p. 679.) Adopting the reasoning of a majority of the justices of the U.S. Supreme Court in Williams v. Illinois (2012) 567 U.S. 50, the Sanchez court held, “[w]hen 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’ [citation] 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.” (Id. at pp. 682–683.)
The high court held that “[a]ny expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. . . . [¶] What 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.” (Id. at pp. 685–686.) The court disapproved of its prior decisions concluding that an expert’s basis testimony is not offered for its truth, or that a limiting instruction, coupled with the trial court’s discretion under Evidence Code section 352, sufficiently addressed hearsay and confrontation clause concerns. (Id. at p. 686, fn. 13; see People v. Stamps (2016) 3 Cal.App.5th 988, 993–996 [following “paradigm shift” brought about by Sanchez, “where ‘case-specific hearsay’ is concerned—[the rule] is now more cut-and-dried: If [the expert testifies to] . . . a case-specific fact and . . . has no personal knowledge of it, if no hearsay exception applies, and if the expert treats the fact as true, the expert simply may not testify about it.”].)
C. Applying Sanchez to SVP Proceedings
Two appellate courts have applied Sanchez to the context of SVPA commitment proceedings. (See People v. Burroughs (2016) 6 Cal.App.5th 378 (Burroughs) and Roa, supra, 11 Cal.App.5th 428.) In Burroughs, the prosecution’s experts related extensive case-specific facts gleaned from police reports, probation reports, hospital records, and a one-page document from the Department of Justice (DOJ) taken during the defendant’s arrest for rape by force. (Burroughs, supra, 6 Cal.App.5th at pp. 407–411) The documentary evidence was not limited to information related to the SVPA-qualifying offenses, but also contained “details of the uncharged sex offenses that appellant allegedly committed” and “ ‘information about appellant’s prior record, adult history, personal history, physical/mental/emotional health, education, employment, and terms and conditions of probation.’ ” (Id. at p. 410.) While the court found that some of the objections to the evidence were forfeited and the evidence regarding the qualifying offenses was independently admissible (id. at pp. 408–411), other case-specific facts in the probation reports and DOJ document were not pertinent to the details of the qualifying offenses and did not fall within a hearsay exception and therefore could not permissibly be relied upon by the experts. (Id. at pp. 410–411.) The court held that the error was prejudicial because the evidence “described, in lurid detail, numerous sex offenses that appellant was not charged with or convicted of committing,” “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.” (Id. at p. 412.)
In Roa, the prosecution’s experts testified as to statements taken from two reports prepared by a district attorney investigator. The reports pertained to a prior attempted rape by the defendant that resulted in a juvenile adjudication, a prior arrest (but no conviction) for the attempted rape of two teenage girls, and allegations by the defendant’s ex-wife about abusive conduct during their marriage. (Roa, supra, 11 Cal.App.5th at p. 450.) The trial court excluded the reports themselves as inadmissible hearsay, but allowed the experts to rely upon the reports and testify as to their contents. (Ibid.) The appellate court held that, while it was permissible for the experts to rely on the investigator reports, it was not permissible for them to relate case-specific facts from the reports because they were not independently proved by competent evidence or covered by a hearsay exception. (Id. at p. 452.) The court held that permitting the experts to testify to details of sex offenses the defendant was not charged with or convicted of committing was prejudicial error. (Id. at pp. 454–455.)
D. The Instant Matter
1. The People’s Experts Related Case-Specific Facts Contained in Hearsay Evidence
The People’s experts, Dr. Sims and Dr. Putnam, relied extensively on hearsay evidence, including the 1977 Chicago Police Department report, the 1994 SFPD report and attached DNA report regarding the rape of Elena O., state hospital evaluations of Rodriguez, and prison records. The documents themselves were not admitted into evidence. The People’s experts did not just state in general terms that they relied on this evidence, nor did they testify in the form of a hypothetical question. Rather, they related case-specific facts contained in these documents and treated them as true.
Regarding the 1994 rape of Elena O., both Dr. Sims and Dr. Putnam described in detail the circumstances of the offense, including the manner in which the victim was molested and raped, the physical trauma suffered by the victim, and the fact that the victim was left to wander the streets after the rape. In concluding that Rodriguez raped Elena O., Dr. Sims also testified that DNA swabs were taken from the victim and from Rodriguez. Regarding the 1977 conviction, Dr. Sims and Dr. Putnam testified that, although the victim’s age was not known, the victim was under the age of 18, and the offense was sexual in nature.
In addition to these case-specific facts regarding the 1977 and 1994 sex offenses, Dr. Sims testified that Rodriguez was convicted of illegal entry and deported on three occasions. Dr. Sims and Dr. Putnam both related facts about Rodriguez’s violent behavior in prison.
2. The Hearsay Was Not Independently Proved or Covered by an Exception
The case-specific facts set forth above were not independently proved by competent evidence. Although section 6600 subdivision (a)(3) allows the existence and details of prior convictions to be shown with documentary evidence, this section does not apply to the rape of Elena O. or Rodriguez’s violent prison conduct because neither of those offenses resulted in convictions. Furthermore, no documentary or other competent evidence was introduced to prove those offenses. As for Rodriguez’s illegal entries into the country and his 1977 Illinois offense, the People did not seek to introduce documentary evidence of these convictions either.
With perhaps the sole exception of Rodriguez’s 2014 attack on a hospital staff member (which Rodriguez admitted during an interview), the case-specific facts set forth above were not covered by any hearsay exception. Rodriguez denied raping Elena O., and, although he acknowledged he was arrested in Chicago in 1977, he disputed that the offense was sexual in nature. Thus, the People’s experts improperly related numerous case-specific facts asserted in hearsay documents that were not independently proved by competent evidence or covered by a hearsay exception. Under the circumstances presented here, we think the conclusion is ineluctable that the basis testimony of Drs. Sims and Putnam violated the rule announced in Sanchez. (See Sanchez, supra, 63 Cal.4th at pp. 684–686; Roa, supra, 11 Cal.App.5th at p. 452; Burroughs, supra, 6 Cal.App.5th at pp. 410–411.)
3. Prejudice
Unsurprisingly, the People concede in their supplemental brief that the admission of expert testimony relating case-specific facts regarding the 1994 crime was error. They argue, however, that the error was harmless because this erroneously admitted testimony was a relatively small amount of the prosecution’s case in general, was not the focus of the expert testimony placed before the jury, and the experts did not dwell on the details of it. The People further argue that the details of the 1994 offense were not any more inflammatory than the details of Rodriguez’s qualifying sexual offenses against Alfonso in a public bathroom. The bottom line, they say, is that even absent the erroneously admitted testimony the jury would still have heard Drs. Sims and Putnam testify that Rodriguez suffers from a pedophilic disorder and is likely to reoffend if released.
“We evaluate prejudice resulting from the allowance of expert testimony in violation of Sanchez under the standard of People v. Watson (1956) 46 Cal.2d 818, which requires reversal if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510.)
We have no quarrel with the thrust of the People’s prejudice analysis, but we disagree with their conclusion. Absent the case-specific hearsay erroneously admitted here, the jury might well have made the same determination. But there is also more than a slim possibility that it might have found for Rodriguez. The hearsay evidence of multiple offenses against different children—as opposed to the single offense against Alfonso—strengthened the prosecution’s case that Rodriguez was likely to reoffend. It depicted Rodriguez as someone who could not repress deviant sexual urges to molest children even in public, which added to the seriousness and well-founded nature of the risk that Rodriguez would commit future sexually violent offenses upon release. Without the evidence of a second or third offense, the jury would likely have given more weight to the evidence of Rodriguez’s low scores on the actuarial tools, his advanced age at the time of trial, his lack of current manifestations of pedophilia, and Dr. Owen’s testimony that the majority of pedophiles do not act out on their sexual thoughts regarding children more than once. Dr. Putnam in particular emphasized that it was the “severe” nature of the offense against Elena O. that gave him confidence in his opinion despite Rodriguez’s low Static-99R score.
Furthermore, the testimony regarding the rape of Elena O. was highly inflammatory. The details recounted to the jury included the fact that the victim was a very young child abducted from a public place, that she suffered vaginal penetration and trauma, and that she was abandoned on the street after the rape. Because Rodriguez was never convicted for this rape, the testimony strongly invited the jury to punish Rodriguez for the offense this time around. The unsupported evidence of Rodriguez’s illegal entries into the country was also inflammatory because it invited the jury to punish him for his alleged undocumented status.
On this record, the Watson test dictates reversal. We are constrained to conclude that had the challenged testimony been excluded, there is a reasonable probability the jury would have returned a verdict more favorable to Rodriguez. (People v. Watson, supra, 46 Cal.2d at p. 836.)
III. DISPOSITION
The judgment is reversed.







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Streeter, J.


We concur:


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Ruvolo, P.J.


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Reardon, J.
























A144764/People v. Rodriguez