Filed 1/4/16 P. v. Cardoza CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B259789
                                                                          (Super. Ct. No. F464196001)
     Plaintiff and Respondent,                                             (San Luis Obispo County)

v.

ROBERT BARRIENTOS CARDOZA,

     Defendant and Appellant.


                   Robert Barrientos Cardoza appeals an order and judgment determining him
to be a sexually violent predator ("SVP") and committing him to the Department of State
Hospitals for treatment. (Welf. & Inst. Code, § 6600 et seq.) We affirm.
                                 FACTUAL AND PROCEDURAL HISTORY
                   On August 24, 2011, the San Luis Obispo County prosecutor filed a petition
to commit Cardoza as a SVP pursuant to Welfare and Institutions Code section 6600 et
seq. A jury trial followed, during which prosecution and defense expert witnesses testified
regarding application of statutory SVP criteria.
                                          Prosecution Expert Witnesses
                   Doctor Mark Patterson, a clinical psychologist in private practice, reviewed
Cardoza's hospital and prison records, evaluations by other doctors, and court documents
relating to Cardoza's arrests and convictions. He also interviewed Cardoza. Following his
review of the court and hospital records, Patterson concluded that Cardoza was convicted
of two qualifying sexual offenses: a 1978 attempted forcible rape and a 1980 forcible rape
and forcible oral copulation that involved use of a knife. Patterson briefly described the
factual circumstances of the sexual offenses and also described sexual and other offenses
committed by Cardoza during his incarceration. Patterson opined that Cardoza suffers
from "sexual preoccupation, . . . poor impulse control . . . and [has] obviously not learned
from experience."
              Patterson also opined that Cardoza suffers from chronic paraphilic disorder,
characterized by his commission of violent sexual offenses. Patterson opined that Cardoza
also suffers from exhibitionism, frotteurism, antisocial personality disorder, and substance
abuse. In Patterson's opinion, substance abuse contributes to Cardoza's dangerousness and
risk of reoffending, and the antisocial personality disorder results in Cardoza's impaired
empathy and persistent criminality.
              Patterson administered various tests to Cardoza to determine his likelihood
of committing sexually violent crimes. The test results suggested a moderate risk to a very
high risk of reoffending. Patterson considered Cardoza's test results, poor impulse control,
lack of treatment, lack of insight into his disorder, and psychopathic personality traits to
conclude that he presents a substantial risk of sexually violent predatory behavior.
              Doctor Garrett Essres, a forensic psychologist employed by the Department
of State Hospitals, reviewed Cardoza's hospital, court, and prison records and interviewed
him twice. Essres concluded that Cardoza was convicted of two sexually violent
qualifying offenses and that he suffers from paraphilic disorder, substance abuse disorder,
and antisocial personality disorder. Essres rested his opinion upon Cardoza's criminal
history and his sexual behavior while housed at the state hospital. Essres also opined that
Cardoza was likely to reoffend in a sexually violent predatory manner, based in part upon
his past behavior, denial of a mental disorder, and disinterest in treatment. In a written
report, Essres concluded that Cardoza was "intensely sexually driven."
              Doctor Amy Phenix, a forensic psychologist who developed the state
protocol for evaluation of violent sex offenders, testified that paraphilia is a valid diagnosis
in evaluating a violent sex offender. She explained that paraphilia is a chronic and

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longstanding mental disorder that may "ebb and flow." Phenix also stated that Cardoza's
prison records reflect a striking history of rule violations and lack of cooperation with
supervision. She opined that he is a high risk for reoffending despite his age (60 years).
                                  Defense Expert Witnesses
              Doctor Raymond E. Anderson, a forensic psychologist who specializes in
issues regarding sex offenders, interviewed Cardoza on two occasions and reviewed the
reports written by Patterson and Essres. Anderson disagreed with their conclusions that
Cardoza suffers from paraphilia, frotteurism, and exhibitionism. Anderson stated that
paraphilia is "not a permitted diagnosis" for a rapist. Anderson administered psychological
tests to Cardoza and, on the basis of the tests results, concluded that he did not suffer from
sexual psychopathy. He also concluded, based upon his own studies and that of the United
States Department of Justice, that there was only a slight possibility that Cardoza would
reoffend, in part due to his age, "good volitional control" and adequate self-discipline.
              Doctor Robert Halon, a forensic psychologist, interviewed Cardoza twice
and reviewed the reports written by Anderson and Essres. Halon concluded that Cardoza
did not suffer from a mental disorder; his qualifying offenses were merely criminal
behavior; and he does not present a risk of reoffending due to his age ("Age diminishes
everything and it's the greatest diminisher of criminal behavior").
              Doctor Theodore Donaldson, a clinical psychologist, testified that he read
Patterson's evaluation and heard Phenix's testimony. He disagreed that dangerousness
could be predicted accurately.
                                 Jury Verdict and Commitment
              On October 16, 2014, a jury found Cardoza met the statutory criteria of a
SVP. The trial court ordered him committed to the Department of State Hospitals for
treatment.
              Cardoza appeals and contends that the trial court erred by: 1) permitting
Patterson and Essres to testify with inadmissible hearsay evidence, and 2) denying a
mistrial due to his expert witness's unavailability.


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                                       DISCUSSION
                                              I.
              Cardoza argues that the trial court erred by permitting the prosecution expert
witnesses to testify with inadmissible hearsay evidence in violation of evidentiary rules
and federal and California constitutional rights to due process of law. He points to
testimony regarding his many hospital rule violations, some involving sexual misbehavior,
and his nonqualifying criminal arrests and convictions. Cardoza claims the error is
prejudicial pursuant to any standard of review.
              In California, an expert witness may testify "[b]ased on matter (including his
special knowledge, skill, experience, training, and education) perceived by or personally
known to the witness or made known to him at or before the hearing, whether or not
admissible, that is of a type that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates . . . ." (Evid. Code, § 801, subd.
(b); People v. Gardeley (1996) 14 Cal.4th 605, 617-620; In re Fields (1990) 51 Cal.3d
1063, 1070 [expert witness may base opinion on reliable hearsay including out-of-court
declarations by others].) An expert's overall opinion is "typically based on information
drawn from many sources and on years of experience, which in sum may be reliable."
(People v. Gonzalez (2006) 38 Cal.4th 932, 949.)1 In a SVP proceeding, an expert witness
may consider documentary evidence containing multiple-level hearsay statements that
relate to the issue of predicate offenses. (People v. Otto, supra, 26 Cal.4th 200, 203.) The
trial court possesses considerable discretion to control the form in which the expert is
questioned to prevent the jury from learning of unreliable hearsay. (Gardeley, at p. 619.)
              The trial court did not err by permitting expert testimony regarding Cardoza's
criminal history and hospital rule violations, including sexual misbehavior. This evidence

1
 In a related matter, our Supreme Court is considering whether a defendant's Sixth
Amendment right to confrontation is violated by an expert's reliance on testimonial
hearsay. (People v. Sanchez (2014) 223 Cal.App.4th 1, review granted May 14, 2014, No.
S216681; People v. Archuleta (2014) 225 Cal.App.4th 527, review granted June 11, 2014,
No. S218640.) Although there is no constitutional right to confrontation in civil
proceedings, "such a right does exist under the due process clause." (People v. Otto (2001)
26 Cal.4th 200, 214.)
                                              4
was properly before the jury for the non-hearsay purpose of showing the basis for the
experts' opinions. (People v. Gardeley, supra, 14 Cal.4th 605, 617-620 [expert testimony
may rest upon material not admitted into evidence as long as it is of a type that is
reasonably relied upon by experts in the particular field in forming their opinions].) The
details of Cardoza's psychosexual history, contained in his institutional records and relied
upon by the experts, were relevant to his likelihood to reoffend. (People v. Fulcher (2006)
136 Cal.App.4th 41, 55-57 [SVP's due process rights not violated by allowing experts to
testify regarding his prior conduct when explaining their opinions].) A prosecutor may
properly examine an expert witness regarding the relevant information in the records that
the witness relied upon in forming his opinion. (People v. Martinez (2001) 88 Cal.App.4th
465, 483.)
              Moreover, the trial court properly gave a limiting instruction regarding the
hearsay evidence. We presume that the jury understood and followed the instruction.
(People v. McCurdy (2014) 59 Cal.4th 1063, 1096.)1
                                              II.
              Cardoza contends that the trial court erred by not granting a mistrial when he
informed the court during trial that his expert witness, Doctor Allen Frances, would not be
available for an additional 10 days due to a family emergency. He asserts that the court
abused its discretion because Frances was a critical witness to his defense. Cardoza points
out that Frances is a leading authority regarding the rejection of "paraphilic rapism" in the
Diagnostic and Statistical Manual of Mental Disorders ("DSM"). (People v. Smith (2013)
216 Cal.App.4th 947, 952 [briefly summarizing Frances's views].) He adds that the error
denied him due process of law pursuant to the federal Constitution and is not harmless
beyond a reasonable doubt.
              The trial court possesses discretion when deciding a motion for a mistrial due
to the unavailability of an expert witness. (People v. Dunn (2012) 205 Cal.App.4th 1086,
1094 [discussing relevant factors in deciding mistrial motions due to unavailability of
expert witness].) It should grant a motion for a mistrial only if a party's chances of
receiving a fair trial have been irreparably damaged. (Ibid.) The mistrial analysis is a

                                              5
factual one that is best performed by the trial court. (Ibid. [whether a particular incident is
sufficiently prejudicial to require a mistrial involves a "'nuanced, fact-based analysis'"].)
We presume that the court considered and understood applicable law regarding mistrials in
rendering its ruling. (People v. Guerra (2006) 37 Cal.4th 1067, 1101, overruled on
another ground by People v. Rundle (2008) 43 Cal.4th 76, 151; Ross v. Superior Court
(1977) 19 Cal.3d 899, 913.) On review, we examine the court's decision pursuant to a
deferential abuse of discretion standard. (Dunn, at p. 1094.) Thus, reversal of the
judgment is not required unless the court exercised its discretion in an arbitrary or
unreasonable manner. (Ibid.)
              Through no fault of Cardoza's counsel, Frances did not testify. (People v.
Dunn, supra, 205 Cal.App.4th 1086, 1095 [counsel's diligence an important factor in
mistrial determination].) Indeed, Frances appeared on the scheduled day and was flexible
regarding his trial testimony until a family emergency precluded any testimony for 10
days.
              Frances's expected testimony would not have changed the result of the trial,
however. (People v. Dunn, supra, 205 Cal.App.4th 1086, 1095 [mistrial analysis includes
nature of expert witness's testimony and its probable effect on outcome of trial].)
Anderson testified that on five occasions, the DSM task force had rejected a diagnosis of
paraphilia based upon rape and Halon testified that "nobody knows whether [paraphilia
based on rape is an] actual valid mental disorder[]." Halon later explained: "[Paraphilia]
is a whole different category; it's based on political, religious and social norms rather than
medical or psychiatric evidence." Moreover, on cross-examination, the prosecution expert
witness Phenix acknowledged that it is "well known" that "rape had been successfully
rejected for introduction into any DSM," and that Frances merely summarized "everything
and made it more notable to the general public." Thus, Frances's testimony would have
been cumulative and would not have affected the outcome of trial.
              The trial court's ruling also did not deny Cardoza due process of law. He
presented a defense with other expert witnesses who testified that paraphilic rape is not a
mental disorder within the meaning of the DSM. Frances's absence did not "irreparably

                                               6
damage[]" Cardoza's right to a fair trial. (People v. Dunn, supra, 205 Cal.App.4th 1086,
1094.) Pursuant to any standard of review, any assumed error was harmless. (Id. at
p. 1100 [discussion of standard of review assuming error in denying mistrial motion].)
             The order and judgment of commitment are affirmed.
             NOT TO BE PUBLISHED.




                                         GILBERT, P. J.

We concur:



             YEGAN, J.



             PERREN, J.




                                            7
                                    Rita C. Federman

                       Superior Court County of San Luis Obispo

                            ______________________________




             Rudy 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, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.




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