P. v. Thammavong

Filed 8/25/08 P. v. Thammavong CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed.

I.

INTRODUCTION

In October 2006, the People filed an amended petition pursuant to the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code,^[1] 6600 et seq.) to commit Somsak Thammavong to the Department of Mental Health (the Department) for an indeterminate term of involuntary treatment. In April 2007, after a trial, a jury found Thammavong to be a sexually violent predator (SVP). Thereafter, the trial court committed Thammavong to the Department for an indeterminate term.
On appeal, Thammavong claims that the trial court erred in allowing the People to present three expert witnesses at trial while at the same time denying his request for appointment of an additional mental health expert. In addition, Thammavong claims that the trial court erred in failing to limit the testimony of the People's expert witnesses at trial. Thammavong also claims that the SVPA, as amended by Proposition 83,^[2]violates the constitutional prohibition against ex post facto laws, and that his commitment was not authorized pursuant to the amended SVPA. Finally, Thammavong claims that to the extent this court determines that he has forfeited any of his appellate claims for failure to raise an adequate objection in the trial court, this court should find that his trial counsel provided ineffective assistance. We affirm the judgment.

II.

FACTUAL BACKGROUND

A. The People's evidence

At the beginning of the trial, the parties stipulated that Thammavong had been convicted of a sexually violent offense against one or more victims, and that he had received determinate sentences for the following crimes as defined in the SVPA: committing a lewd act with a child under 14, against victim Stephanie (Pen. Code,  288, subd. (a)), and committing a lewd act with a child under 14, against victim Sherry (Pen. Code,  288, subd. (a)).

Dr. Douglas Korpi, a forensic psychologist, conducted SVPA evaluations of Thammavong in December 2005 and December 2006. As part of his evaluations, Dr. Korpi reviewed numerous documents pertaining to Thammavong, including police reports, probation reports, and transcripts of statements made by several of Thammavong's victims.

Dr. Korpi testified that he considered whether Thammavong suffered from pedophilia, which Korpi defined as the state of being sexually attracted to children, generally under the age of 13, for a period of at least six months. In considering whether Thammavong suffered from pedophilia, Dr. Korpi reviewed the facts of Thammavong's prior sexual misconduct.

Dr. Korpi stated that Thammavong had committed sexual offenses against seven different victims between 1982 and 1993. Dr. Korpi described the circumstances of each of the offenses, beginning with the first offense in 1982. At that time, Thammavong was 17 or 18 years old, had just emigrated from Laos, and was living with the family of a girl who was "12 to 13 years old." Thammavong admitted that he had sex with the girl five times. He was convicted of having unlawful sex with a minor.

Approximately six years later, in 1987, when Thammavong was 24 years old and married with two children, he pulled down the shorts of a 15-year-old developmentally disabled girl named MaryJane. Thammavong put his middle finger inside MaryJane's vagina and squeezed her breast. In 1994, Thammavong suffered a conviction for "digital penetration" for this conduct.

Around 1989, Thammavong grabbed the breast of his children's 13 or 14-year-old babysitter, Natalie. Thammavong also made a number of lewd comments to Natalie. Thammavong was charged with a sexual offense and was convicted of assault.

Dr. Korpi testified that Thammavong's next victim was eight-year-old Missy. Thammavong was charged with two counts of forced lewd and lascivious conduct. Dr. Korpi stated that Missy "froze" while she was testifying at Thammavong's trial. At some subsequent time,^[3]Missy stated that Thammavong had touched her genitals and that, on two other separate occasions, Thammavong had sexual intercourse with her and threatened her.^[4]

Thammavong's fifth victim was Sherry, a 12-year-old developmentally disabled girl. In 1992, while giving Sherry a "horsey ride" on his lap, Thammavong rubbed her breasts through her shirt and "squeeze[d] her vagina." Thammavong was convicted of committing a lewd act upon a child (Pen. Code,  288, subd. (a)).

Thammavong also molested eight-year-old Stephanie in 1992. Stephanie was at Thammavong's house playing with his children. Thammavong pulled Stephanie under some covers, put his hand down her panties, and rubbed her vagina. Stephanie pulled Thammavong's hand away and ran out of the room. Thammavong was convicted of committing a lewd act upon a child (Pen. Code,  288, subd. (a)).

Thammavong's final victim was 16-year-old Carol. Thammavong touched Carol on her vagina and rubbed his penis against her buttocks. On another occasion, Thammavong touched Carol's breasts and vagina and rubbed his penis against her buttocks. In 1994, Thammavong was convicted of having unlawful sex with a minor.

After considering the facts of all of these offenses, particularly those involving eight-year-olds Stephanie and Missy, Dr. Korpi diagnosed Thammavong as suffering from pedophilia.

Dr. Korpi measured Thammavong's risk of reoffending through the use of four actuarial tools. Thammavong scored consistently between the medium and medium-high range on all of the scales. Dr. Korpi explained that these scales suggest that a person with Thammavong's risk factors has an approximately 35 percent chance of reoffending after five years, and a 48 percent chance of reoffending after 10 years. Korpi also noted that Thammavong had not participated in sex offender treatment since he was first institutionalized in a state hospital, in 1998. Dr. Korpi concluded that Thammavong suffered from pedophilia and that there was a serious and well founded likelihood that Thammavong would commit a sexually violent predatory offense if he did not receive continued involuntary treatment.

Dr. Robert Owen, a psychologist, testified that he conducted evaluations pertaining to Thammavong in February 2004, March 2005, November 2005, and January 2007. Dr. Owen reviewed documentation from 1981 through 1993, and state hospital records from 1993 to the present, concerning Thammavong. Dr. Owen diagnosed Thammavong as suffering from pedophilia and concluded that this disorder "predisposed him to sexually reoffend."

In explaining the basis for his conclusion, Dr. Owen discussed the circumstances of Thammavong's sexual molestation of Stephanie, who was eight or nine years old at the time of the molestation. Dr. Owen testified that Thammavong "fondled her making skin-to-skin contact with her vagina." Dr. Owen took into consideration Thammavong's conduct with Missy, who was nine years old. Dr. Owen stated that Thammavong "took her, had sexual intercourse with her, ejaculated, [and] threatened her with a gun. . . ." Dr. Owen also considered Thammavong's conduct with Sherry, who was 13 years old.^[5] Dr. Owen stated that Thammavong had felt Sherry's buttocks, chest area, and vaginal area while holding her on his lap. Dr. Owen testified that Thammavong had molested other girls, but said that those acts did not "necessarily speak to the pedophilia because the girls were slightly older."

Dr. Owen testified that he used the Static 99, an actuarial tool used to evaluate the risk of sexual reoffense. Dr. Owen noted that Thammavong had a moderate to high risk of reoffending based upon an application of the Static 99 instrument. Dr. Owen explained that he considered other factors in addition to the Static 99 instrument in reaching the conclusion that Thammavong was likely to reoffend. For example, Dr. Owen noted that Thammavong had a deviant sexual preference and that Thammavong had an available sexual partner during the time period that he was committing the sexual offenses.

Dr. Dawn Starr, a psychologist, testified that she conducted evaluations of Thammavong in February 2004, March 2005, November 2005, and December 2006. Dr. Starr stated that in the course of the evaluations, she reviewed documents pertaining to Thammavong including probation reports, charging documents, court findings, transcribed victim interviews, and state hospital records. Dr. Starr diagnosed Thammavong with pedophilia, sexually attracted to females, not exclusive type, and with paraphilia, not otherwise specified.^[6] Dr. Starr explained that the latter diagnosis was based on Thammavong's "repetitive recurrent sexual interest in pubescent children as well as the prepubescent."

Dr. Starr explained that she based her diagnosis on Thammavong's past sexual misconduct. With respect to the pedophilia diagnosis, Dr. Starr noted Thammavong's

molestations of Sherry, Stephanie, and Missy. Dr. Starr acknowledged that Thammavong had not suffered a conviction based on the misconduct involving Missy, and described her review of the records that were provided to her regarding Missy's allegations. Dr Starr commented that Missy had been "quite consistent" in her allegations over time. For example, Dr. Starr noted that during a court hearing in 2005, Missy revealed "essentially [the] same details as she had about the incident she had previously described back in 1993." Dr. Starr concluded that "there is nothing in the records that I have which would cause me to believe that there was a lack of credibility with regard to what Mr. Thammavong did to her sexually."

Dr. Starr also used the Static 99 tool, and found that Thammavong was in the medium to high range of risk for future sexual offending. Dr. Starr concluded that Thammavong was likely to reoffend.

B. The defense

Dr. Mohan Nair, a psychiatrist, testified that he had reviewed numerous documents pertaining to Thammavong, including police and probation reports, investigative reports, deposition transcripts, other evaluators' reports, and the reports of psychiatrists and psychologists who had treated Thammavong while he was at a state hospital. Dr. Nair reviewed the testimony of all of Thammavong's victims, including Missy. Dr. Nair concluded that Thammavong did not suffer from pedophilia. Dr. Nair explained that Thammavong had suffered only two convictions involving sexual conduct with prepubescent children, and that both of those offenses had occurred within a three-month period.^[7]

Dr. Nair acknowledged that a diagnosis of pedophilia would be proper if Missy's allegations of sexual misconduct were true. However, Dr. Nair explained that he did not consider Missy's allegations in arriving at his diagnosis because Thammavong had not suffered a conviction for the alleged misconduct, and there were reasons to question Missy's credibility. Specifically, Dr. Nair stated that the claimed sexual misconduct was alleged to have occurred at a "tumultuous time in [Missy's] life," and noted that there were inconsistencies in Missy's allegations over time. Dr. Nair concluded that Thammavong did not qualify as a sexual violent predator.

III.

DISCUSSION

A. The trial court did not err in allowing the People to present three expert

witnesses at trial while denying Thammavong's request for the appointment

of an additional mental health expert

Thammavong claims that the trial court erred in failing to limit the number of expert witnesses the People presented at trial. We review this claim under the abuse of discretion standard of review. (See Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371 ["the trial court is vested with discretion to limit the number of expert witnesses"].)

Thammavong also claims that the trial court failed to fulfill its statutory duty pursuant to section 6603, subdivision (a), to appoint a mental health expert on his behalf. As a result of the trial court's rulings, the prosecution presented three expert witnesses at trial, while Thammavong presented only one expert witness at trial. We need not decide the appropriate standard of review to apply to this claim, because Thammavong's claim fails under any standard.^[8]

1. Factual and procedural background

At the outset of the trial, outside the presence of the jury, defense counsel made an oral motion in limine to restrict the number of expert witnesses that the parties would be permitted to present at trial. Defense counsel argued:

"Based on Rule 2.1.11 of [the San Diego Superior Court Local Rules (Local Rule 2.1.11)], and Evidence Code section 723, the defense is requesting that that the prosecution be limited to, and the defense be limited to one expert witness to testify about any given subject.

"In addition to that, I would note that Evidence Code section 352 also argues in favor of granting such a motion. Specific jury instruction to that tells jurors that the importance of judging the case is not based on the number of witnesses that each side calls, but rather on the weight of the evidence. The danger that we have in calling three expert witnesses on one side versus one expert witness on the other is you leave a false impression with the jurors that because one side has more experts their expertise is stronger. And I think that that's a concern that 352 addresses. That's, I believe, why Local Rule 2.1.11 was written in the first place. So it's the defense's request that the court limit the number of experts."

The prosecutor argued that the case was not an ordinary civil case, but rather a "special proceeding of a civil nature," in which the prosecution had the burden of proving beyond a reasonable doubt that Thammavong was an SVP. The prosecutor further argued that it was appropriate to allow the People to present multiple experts, given the "multitude of issues" and the "difficulty of [the] case." In addition, the prosecutor indicated that it would not be overly time-consuming to present the testimony of the People's three experts.

The trial court denied Thammavong's motion. The court noted that although the proceeding was a civil matter, the People had the burden of proving beyond a reasonable doubt that Thammavong was an SVP. The court also stated, "[T]here are various historical bas[e]s for presenting different witnesses because his commitment covers many years." The court further noted that there was a disagreement between at least two of the experts. The court stated that the jury should "have the fullest assistance from qualified psychologists and psychiatrists [possible]." The court concluded that Local Rule 2.1.11 did not apply, and stated that even assuming Local Rule 2.1.11 did apply to an SVPA proceeding, there existed good cause not to apply the expert witness limitation contained in that rule in this case.

Shortly thereafter, also outside the presence of the jury, defense counsel indicated that Thammavong wished to personally address the court, against his counsel's advice. The trial court asked defense counsel to describe the nature of the issue that Thammavong wanted to address. Defense counsel indicated that Thammavong wanted to discuss retaining an additional expert for the purpose of performing an evaluation pursuant to section 6603, subdivision (a). After further discussion with the court regarding Thammavong's proposed request, defense counsel clarified that the defense had an expert who would be testifying on Thammavong's behalf at trial. Thammavong then made the following request:

"I request that because the People have more than one, because the People have three evaluations, I have only one, to me, that the People most strong-sided than for one [sic]. That's why I want to ask the court to order that I need one evaluation on my behalf."

The trial court told Thammavong that merely hiring another expert would not ensure that the expert would provide testimony that would be favorable to Thammavong. The court confirmed with defense counsel that counsel had "looked into" the issue. Defense counsel then stated, "The defense is ready to proceed to trial and is aware of its obligation." The court denied Thammavong's request.

After the presentation of evidence, the trial court instructed the jury pursuant to CALCRIM No. 302 as follows:

"If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses or any witness, without a reason, or because of prejudice or a desire to favor one side against the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point."

2. Governing law

a. The number of expert witnesses at a trial

Evidence Code section 723 provides:

"The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party."

Local Rule 2.1.11 provides in relevant part:

"It is the policy of the court that parties are limited to one expert per field of expertise per side, pursuant to section 723 of the Evidence Code, absent a court order to the contrary."

A trial court may exercise its discretion to exclude cumulative evidence, pursuant to Evidence Code section 352. (See People v. Partida (2005) 37 Cal.4th 428, 436, fn. 2.)

b. An indigent SVPA defendant's right to obtain a mental health expert

Section 6603, subdivision (a) provides in relevant part:

"A person subject to this article shall be entitled to a trial by jury, to the assistance of counsel, to 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. 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." (Italics added.)

3. Analysis

a. The trial court's refusal to limit the number of prosecution experts

Thammavong raises three arguments with respect to the trial court's refusal to prohibit the People from presenting more than one expert witness at trial. Thammavong first claims that Local Rule 2.1.11 requires such a limitation. Assuming for the sake of argument that Local Rule 2.1.11 applies to SVPA proceedings, the expert limitation contained in that provision does not apply in cases in which there is a "court order to the contrary." (Local Rule 2.1.11.) In this case, the court authorized the People to present three experts at trial. Local Rule 2.1.11 expressly contemplates such a possibility. Thus, the trial court was not required to grant Thammavong's motion pursuant to Local Rule 2.1.11.

Thammavong next argues that the trial court abused its discretion under Evidence Code section 352 in failing to restrict the number of expert witnesses. Thammavong contends that "cumulative and repetitive testimony ─ presented by three experts discussing the same information and coming to the same conclusions ─ should not have been allowed." However, in bringing the motion in limine prior to the introduction of any evidence, Thammavong's trial counsel did not provide an offer of proof as to how the proposed expert testimony would be cumulative.^[9] Nor did trial counsel attempt to limit the testimony that the People's experts provided. The trial court did not abuse its discretion in denying Thammavong's broad request to entirely preclude the testimony of two of the People's three proposed experts.

Finally, Thammavong argues that the italicized portion of former section 6307, quoted below, supports limiting the number of experts in this case:

"The judge shall appoint not less [sic] than two nor more than three certified clinical psychologists, each of whom shall have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis of emotional and mental disorders, or psychiatrists, each of whom shall be a holder of a valid and unrevoked physician's and surgeon's certificate and have directed his professional practice primarily to the diagnosis and treatment of mental and nervous disorders for a period of not less than five years to make a personal examination of the alleged mentally disordered sex offender, directed toward ascertaining whether the person is a mentally disordered sex offender.

"If the proposed commitment is contested by either the defendant or the people, one of the clinical psychologists or psychiatrists so appointed may be designated by the defendant, and one by the people." (Italics added.)

Former section 6307, which governed the appointment of psychologists and psychiatrists in proceedings involving mentally disordered sex offenders, was repealed in 1981, and has no application to this case. (Stats. 1981, c. 928,  2, p. 3485.) Further, contrary to Thammavong's suggestion in his brief, the italicized portion of former section 6307 was not contained in the SVPA prior to the passage of Proposition 83. Thus, the trial court was not required to limit the number of the People's experts, pursuant to former section 6307.

b. The trial court's refusal to appoint an additional mental

health expert

At the outset, we note that the relevant portion of section 6603, subdivision (a) is phrased in the singular, requiring a trial court to assist an indigent defendant in "obtaining an expert or professional person . . . ." (Italics added.) Without deciding that a trial court necessarily fulfills its statutory duty whenever the defendant has obtained a single expert, we reject Thammavong's suggestion that a trial court must ensure that an SVPA defendant can obtain additional experts whenever requested.

In this case, Thammavong made his request for an additional expert on the day set for trial. He pointed to nothing beyond the fact that the People intended to present three experts, to support his request. Further, as the trial court determined, the defense intended to present an expert to testify on Thammavong's behalf, and defense counsel was aware of his obligation to present a defense. Finally, Thammavong's request for an additional expert was made against the advice of his counsel.

Thammavong cites no authority for the proposition that a trial court is required to honor a represented defendant's request for the appointment of an additional mental health expert when that request is made during a trial, against counsel's advice, and without any compelling justification. Nor is there anything in the text of section 6603, subdivision (a) that requires that the trial court ensure that the People and the defendant present the same number of experts at trial. Thus, under the circumstances of this case, we conclude that the trial court did not err in refusing to assist Thammavong in obtaining an additional mental health expert.

B. The trial court did not commit reversible error in failing to limit the testimony

of the People's experts

Thammavong raises a series of claims pertaining to the admissibility of various portions of the testimony that the People's experts provided. Thammavong has forfeited most of these claims for failure to raise any objection in the trial court. To the extent that Thammavong has adequately preserved an objection for appeal, we apply the abuse of discretion to the trial court's evidentiary rulings. (See People v. Williams (1997) 16 Cal.4th 153, 197 ["On appeal, a trial court's decision to admit or not admit evidence . . . is reviewed only for abuse of discretion"].)

1. Forfeited claims

Evidence Code section 353 provides:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:

"(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and

"(b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice."

Thammavong raises a series of claims regarding the trial court's admission of evidence pertaining to his prior sexual offenses. Thammavong argues that the trial court erred in admitting unreliable hearsay evidence regarding the offenses, allowing the People's expert witnesses to testify as to the details of the past offenses in describing the bases of their opinions, and failing to exclude the details of the past offenses as inadmissible hearsay pursuant to Evidence Code section 352.^[10]

Thammavong also raises a number of contentions regarding the trial court's admission of expert testimony that, Thammavong claims, was beyond the scope of the witness's expertise. Specifically, Thammavong claims that the trial court erred in allowing Dr. Korpi to testify that charging documents contained the most accurate information regarding the dates of Thammavong's past offenses involving Stephanie and Sherry.^[11] Thammavong further claims that the trial court erred in allowing Dr. Owen to testify regarding the legal meaning of the term "predatory." Finally, Thammavong contends that the trial court erred in allowing the People's experts to testify regarding the ultimate issues in the case.

Thammavong did not raise any of these objections in the trial court. Accordingly, these contentions are forfeited on appeal. (Evid. Code,  353.)

2. Dr. Korpi's testimony pertaining to Missy

Defense counsel did pose a series of objections during Dr. Korpi's testimony pertaining to Thammavong's alleged sexual misconduct with Missy. However, Thammavong has not demonstrated that the trial court erred in overruling those objections.

a. The objections

The prosecutor asked Dr. Korpi whether a judge had found that there was sufficient evidence that Thammavong had sexually molested Missy to take the case to

trial. Defense counsel raised a foundation objection. The trial court overruled the objection. The prosecutor also asked Dr. Korpi whether Missy "froze" during cross-examination at the trial of those offenses. Defense counsel objected, stating, "Objection, your honor, speculation at this point. Lacks foundation." The court ruled, "I think the record is clear that she froze. Why she froze might be speculation."

The prosecutor subsequently asked about testimony that Missy provided as an adult regarding her allegations that Thammavong molested her when she was a child.^[12] The prosecutor asked Dr. Korpi whether Missy had explained during this later proceeding why she "froze" in the earlier trial. Dr. Korpi responded, "She said she was scared." Defense counsel raised a hearsay objection. The court overruled the objection. Dr. Korpi continued, "She said she was scared, and specifically she did not understand the questions that were coming out at her from the respondent's attorney. And she just froze. She was 11 years old I think at the time and she just panicked."

The prosecutor asked Dr. Korpi whether he had been able to determine why the charges against Thammavong relating to Missy had been dismissed, based on Korpi's review of the records of that case. Defense counsel objected on the ground that the question called for speculation. The court sustained the objection. The prosecutor asked whether the judge in Missy's case had given a reason for dismissing that case. Defense counsel posed a hearsay objection. The trial court overruled the objection. Dr. Korpi answered, "Yes, there was." The prosecutor asked, "And what was the reason for that dismissal." Dr. Korpi responded, "You know, I can't remember now. Sorry."

b. Governing law

In People v. Catlin (2001) 26 Cal.4th 81, 137 (Catlin), the Supreme Court reviewed the admissibility of an expert's testimony regarding the bases for his opinions, where the reasons for the opinions included otherwise inadmissible hearsay:  

"'On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, " ' under the guise of reasons,' " the expert's detailed explanation " '[brings] before the jury incompetent hearsay evidence.' " ' [Citations.] In this context, the court may ' "exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value." ' [Citation.]

"Nonetheless, '[b]ecause an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment.' [Citation.]"

Similarly, in People v. Gardeley (1996) 14 Cal.4th 605, 618-619, the Supreme Court explained that, in describing the basis of his or her opinion, an expert may refer to evidence that would otherwise be inadmissible hearsay if offered for its truth:

"So long as th[e] threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. (People v. Shattuck (1895) 109 Cal. 673, 678 [42 P. 315] [medical expert could testify to patient's complaints in order 'to give a clinical history of the case to understand the significance of her symptoms']; McElligott v. Freeland (1934) 139 Cal.App. 143, 157-158 [33 P.2d 430] [certified public accountant could testify to information he relied on in property valuation]; see People v. Wash (1993) 6 Cal.4th 215, 251 [24 Cal.Rptr.2d 421, 861 P.2d 1107] [prosecution could elicit out-of-court statements relied on by the defense expert]; 2 McCormick on Evidence [(4th ed. 1992)] supra, 324.3, p. 372 [explaining that under rule 703, Fed. Rules Evid., which allows the expert to disclose to the trier of fact the basis for expert opinion, '[t]he result is that often the expert may testify to evidence even though it is inadmissible under the hearsay rule.'].)"

c. Analysis

As to trial counsel's foundation objections, although Thammavong refers to these objections in his brief, he fails to make any argument with respect to the foundational grounds that trial counsel asserted. Thammavong has thus failed to demonstrate any error with respect to these rulings. (See Evid. Code,  353 [reviewing court may reverse judgment only where "the admitted evidence should have been excluded on the ground stated [in the trial court]".)
As to defense counsel's hearsay objection pertaining to Dr. Korpi's testimony regarding Missy's explanation as to why she froze at trial, the testimony was relevant to establish why Dr. Korpi determined that Missy's allegations of sexual abuse were credible in forming his expert opinion in this case. Further, any potential for prejudice was reduced by the following instruction that the trial court gave at the outset of the trial:

"You are going to be hearing primarily totally from expert witnesses. . . . [T]hey will be referring to evidence and facts that they glean from statements and prior testimony and so forth. And those statements would normally be called hearsay, but we allow you to hear that information because it serves as a basis of the opinion of the expert."

Accordingly, we conclude that the trial court did not abuse its discretion in overruling defense counsel's hearsay objection. (See Catlin, supra, 26 Cal.4th at p. 137.)

As to defense counsel's hearsay objection regarding the dismissal ruling by the judge in the trial involving Missy, Dr. Korpi testified that he could not recall what the judge had said as to why he was dismissing the case. Further, Dr. Owen testified regarding this same issue at trial. Dr. Owen stated, "The judge basically said that if [Missy] can't respond to the questions, all of her testimony would be stricken. And that's exactly what happened."^[13] Thus, any assumed error in overruling trial counsel's hearsay objection to Dr. Korpi's testimony was harmless under any standard of prejudice. (Evid. Code,  353 [errors in admitted evidence not a basis for reversal unless "errors complained of resulted in a miscarriage of justice"].)

3. Any error the trial court committed in admitting Dr. Korpi's testimony

regarding Thammavong's beliefs about the acceptability of an adult

having sex with a 13 year old and Dr. Korpi's knowledge of Laotian

sexual mores was harmless under any standard of prejudice

Thammavong claims that the trial court erred in allowing Dr. Korpi to testify regarding Thammavong's beliefs about the acceptability of an adult having sex with a 13 year old,and about Laotian sexual mores.

a. Factual and procedural background

During the trial, the prosecutor asked Dr. Korpi, "[I]s there anything from the first conviction of having sex with [a] 13 year old[] that tells you anything about what [Thammavong's] thinking was as far as having sex with a minor?" Dr. Korpi responded, "Well, he seemed to think it was okay. At that point I'm sure he figured out in this country it wasn't okay." Defense counsel objected, stating, "Objection, your honor, speculation as to what he figured out at that point." The trial court overruled the objection.

Subsequently, the following colloquy occurred:

"[The prosecutor]: There is no indication that [Thammavong] thought that it would be okay to have sex with eight year olds, specifically as a 27-year-old man?

"[Dr. Korpi]: Correct.

"[The prosecutor]: Are you aware of whether or not that's acceptable conduct in Laos or Thailand, or any of the neighboring countries for a 27-year-old man to have sex with an eight year old?

"[Dr. Korpi]: I'm not an expert in this, but my Laotian friend says it's not.

"[Defense counsel]: Objection, your honor, lacks foundation.

"The Court: Okay.

"[Defense counsel]: Move to strike.

"The Court: You will have to lay a foundation."

Dr. Korpi proceeded to testify that he had had two conversations with people from Laos regarding the issue of older men having sex with minors. According to Dr. Korpi, during those conversations, it became "obvious that they think it's aberrant." Dr. Korpi clarified that he had not engaged in these conversations in order to educate himself as to whether such conduct was an acceptable practice in Laos. The prosecutor then asked, "And from those conversations you gleaned that it was not acceptable behavior?" The trial court sustained defense counsel's foundation objection, ruling that Dr. Korpi was not an expert on Laotian moral or ethical standards.

b. Analysis

Dr. Korpi's statement that he believed that Thammavong had "figured out" that it was not acceptable to have sex with a 13 year old after Thammavong was convicted of such an act, reflected little more than Dr. Korpi's opinion, based on his knowledge of relevant research, that people who are convicted of a sexual crime generally are deterred from committing further sexual crimes.^[14] Even assuming that the trial court should have sustained defense counsel's objection, any error was harmless under any standard of prejudice. The testimony was brief and innocuous. No possible prejudice could have flowed from the admission of this testimony.

With respect to Dr. Korpi's testimony regarding Laotian sexual mores, Dr. Korpi made it abundantly clear that his testimony was premised on only casual knowledge rather than actual expertise. Given Dr. Korpi's acknowledgement, as well as the trial

court's rulings, the jury undoubtedly accorded this testimony little or no weight. Further, given that the issue of Laotian sexual mores was tangential to the underlying issues in the case, it is clear that the trial court did not commit reversible error in failing to formally strike Dr. Korpi's testimony on this issue.

C. The SVPA as amended by Proposition 83 does not violate the constitutional

prohibition against ex post facto laws; Thammavong's commitment was

authorized pursuant to the amended SVPA

Thammavong claims that the SVPA, as amended by Proposition 83, violates federal and state constitutional protections against the enactment of ex post facto laws. Thammavong also claims that his commitment was not authorized pursuant to the amended SVPA. Both of these contentions raise questions of law, which we review de novo. (E.g., People v. Butler(2003) 31 Cal.4th 1119, 1127.)

In Hubbart v. Superior Court (1999) 19 Cal.4th 1138 (Hubbart), the Supreme Court stated that the Legislature's own characterization of a law plays a critical role in determining whether the law inflicts "punishment" such that it implicates the ex post facto clauses of the federal and state constitutions. (Id. at p. 1171.) The Hubbart court relied on the Legislature's disavowal of any punitive intent in enacting the version of the SVPA at issue in that casein rejecting an ex post facto challenge to the statute. (Ibid.)

Thammavong observes that Proposition 83 contains an "intent clause" that provides in part, "It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, 31, p. 138 (Proposition 83).) Thammavong attempts to distinguish Hubbart on the ground that this statement evinces an intent to revise the SVPA so as to punish sex offenders.

In addition to amending the SVPA, Proposition 83 made numerous amendments to the Penal Code and "increase[d] the penalties for specified sexual offenses." (Ballot Pamp., Gen. Elec. (Nov. 7, 2006)analysis of the legislative analyst, p. 43.) The second sentence of Proposition 83, section 31 provides, "It is also the intent of the People of the State of California that if any provision of law conflicts with any other provision of law that provides for a greater penalty or longer period of imprisonment the latter provision shall apply." The voters thus clearly intended for the intent described in Proposition 83, section 31 to apply to the entirety of Proposition 83, rather than solely to those portions of Proposition 83 that amended the SVPA. We therefore reject Thammavong's suggestion that the voters reference to "strengthen[ing] . . . laws that punish . . . sexual offenders" in Proposition 83, section 31 evinces an intent to convert the SVPA into a law that inflicts punishment, such that application of the amended SVPA to Thammavong would violate the ex post facto clauses of our state or federal constitutions.

Thammavong also claims that the trial court did not have jurisdiction to recommit him to an indeterminate term pursuant to section 6604 because the amended version of the statute does not refer to persons who have already been committed under the SVPA as among those subject to its reach.^[15] This court rejected a nearly identical argument in People v. Shields (2007) 155 Cal.App.4th 559 (Shields). (See also Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280 [under amended provisions of the SVPA, "petitions to extend commitment are petitions for indefinite commitment"].)

In Shields, this court observed, "The change in section 6604 from a two-year term to an indeterminate term was accomplished by the Legislature's amendment of the statute effective September 20, 2006, and again by the California voters' approval of Proposition 83 . . . effective November 8, 2006. [Citations.]" (Shields, 155 Cal.App.4th at pp. 562-563.) While noting that the revised SVPA does not expressly refer to persons already committed pursuant to the SVPA as among those subject to the amended statute, the Shields court concluded "that the indeterminate term provisions of section 6604 apply to persons confined as SVP's for two-year terms under the former version of section 6604." (Shields, supra, 155 Cal.App.4th at p. 564.) The Shields court reasoned that to conclude that persons already committed as SVPs are not covered by the amendments to the SVPA would be "contrary to the clear intent of the amendment to enhance ─ not restrict ─ confinement of persons determined to be SVP's." (Shields, supra, 155 Cal.App.4that p. 563.) The Shields court also reasoned: "The Legislature's act of changing SVP terms from two years to indeterminate terms ─ thereby dispensing with the requirement that the People petition for commitment every two years ─ conveys an unequivocal intent to continue the confinement of persons adjudicated to be SVP's." (Ibid.) We agree with the reasoning of Shields, and reject Thammavong's claim that the trial court lacked jurisdiction to consider the People's petition to commit him for an indefinite term.^[16]

D. Thammavong has not established that he received ineffective assistance of counsel

Thammavong argues that "if this court should deem any of the . . . issues [raised on appeal] waived for lack of sufficient objection, such failing should be considered the result of ineffective assistance of counsel."

In People v. Lopez (2008) 42 Cal.4th 960, 966, the Supreme Court outlined a defendant's burden in pursuing a claim that he received ineffective assistance of counsel.

" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]"

As described in part III.B., ante, Thammavong raises numerous claims regarding evidence that he maintains the trial court improperly admitted, with no objection by his trial counsel. However, in posing his ineffective assistance claim, Thammavong fails to address the specific objections he contends his attorney should have posed, and whether counsel's failure to object could have been a deliberate decision, and a reasonable trial strategy.

For example, Thammavong broadly charges that his counsel was ineffective for "failing to object to damaging testimony," without addressing any of the specific testimony or the possible reasons for defense counsel's decision not to object to the testimony. To take just one example, defense counsel did not object to Dr. Starr's testimony that she based Thammavong's pedophilia diagnosis in part on "reports" that Thammavong had molested a homeless 14-year-old girl and, in the prosecutor's words, "some indications," that Thammavong had molested his own daughters.

On cross-examination, defense counsel asked Dr. Starr whether any charges had ever been brought against Thammavong based on the purported indications that Thammavong had molested his own daughters. Dr. Starr acknowledged that she was not aware that any such charges had been filed. Defense counsel also asked Dr. Starr, "Is every allegation of child molestation true?" Dr. Starr responded, "Of course not, no." Further, defense counsel asked Dr. Starr whether, in a separate case, she had offered the opinion that a person named James Rodriguez was an SVP, only to later find out that the victim in that case had admitted that the allegations of sexual misconduct were false.

During closing argument, defense counsel emphasized that "in order for you to find Mr. Thammavong to be a sexually violent predator the prosecution has to have proven to you that the allegations Missy made were true beyond a reasonable doubt." Defense counsel argued that Dr. Nair's determination that there was not enough evidence in the record to conclude that Missy's allegations were true was reasonable. Defense counsel also argued, "[A]ny assumption that [the People's experts] made about Mr. Thammavong was in the negative. Particularly, with Dr Starr. We saw that Mr. Thammavong was not the only one she does that with. James Rodriguez was sent to a state mental hospital, based on Dr. Starr's evaluation of him that he was a[n] [SVP]." Thus, defense counsel's decision not to object to Dr. Starr's testimony regarding the basis for her diagnosis may have been part of a trial strategy premised on portraying the pedophilia diagnoses of the People's experts as based on unsubstantiated allegations of sexual misconduct.

In light of Thammavong's failure to present any argument that his counsel's actions did not represent a reasonable trial strategy, we conclude that Thammavong has failed to establish that he received ineffective assistance of counsel.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.

^[2] "In November 2006, the voters approved Proposition 83, a wide-ranging initiative measure covering sex offenses, registered sex offenders, and [the SVPA]." (People v. Litmon (2008) 162 Cal.App.4th 383, 409.)

^[3] Dr. Korpi testified, "Later they talk to her."

^[4] Although, according to the reporter's transcript, Dr. Korpi testified that the acts with Missy occurred between September 1990 and December 1994, it appears that Dr. Korpi intended to testify that acts occurred between September 1990 and 1991. As noted in the text following this footnote, Dr. Korpi testified that Thammavong molested Sherry and Stephanie in 1992. Dr. Korpi stated that he agreed with the prosecutor that the acts with Missy had occurred "a whole year before anything happened with Sherry and Stephanie."

^[5] Dr. Korpi testified that Missy was eight years old and that Sherry was 12 years old at the time of the offenses.

^[6] Dr. Starr stated that paraphilia is a "broad category," which she defined generally as having intense, typically deviant sexual interests, fantasies, urges or behaviors.

^[7] Although not expressly stated, Dr. Nair was undoubtedly referring to Thammavong's sexual offenses against Stephanie and Sherry in 1992.

^[8] The parties do not cite any authority regarding the standard of review that applies to this claim.

^[9] Defense counsel did object during Dr. Owen's testimony regarding one of Thammavong's prior offenses on the ground that the testimony was cumulative. (See fn. 10, post.)

^[10] Thammavong also notes in his brief that the trial court overruled defense counsel's objection to Dr. Owen's testimony, in which Owen described the details of the offense involving Stephanie, as cumulative, in light of Dr. Korpi's testimony regarding that offense. However, Thammavong has not argued in his brief on appeal that the trial court erred in overruling this objection. Accordingly, we do not address this ruling of the trial court in this opinion.

^[11] This testimony was offered in the context of the prosecutor's attempt to establish that the offenses against Stephanie and Sherry spanned more than a six-month period.

^[12] The nature of the proceeding in which Missy provided this testimony is not clear from Dr. Korpi's testimony.

^[13] Although defense counsel posed a foundational objection at trial to the prosecutor's question that elicited this testimony, the trial court overruled the objection. Thammavong has not argued on appeal that the trial court erred in overruling this objection.

^[14] Dr. Korpi testified that it is "