Filed 8/29/19




                             CERTIFIED FOR PUBLICATION
                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                        G055482

          v.                                           (Super. Ct. No. M90013)

 STEVEN FORCE,                                         OPINION

      Defendant and Appellant.



                  Appeal from an order of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Reversed and remanded.
                  Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
                  Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski, Deputy
Attorney General, for Plaintiff and Respondent.
              Our criminal justice system has only one absolute requirement: the accused
must receive a fair trial. As this case demonstrates, prosecutors’ understanding of their
burden to provide such a trial is more important than their understanding of the burden of
proof. And more demanding.
              Judges and juries bear the responsibility of identifying what justice
requires. They must decide, through their verdicts and judgments, the outcome of the
trial. The prosecutor’s job is to provide them the platform for their decisions by
presenting the evidence against the defendant clearly and fairly.
              That’s it. When you get right down to it, that’s the whole job of the trial
prosecutor: Provide a fair trial.
              Enforcing the law, protecting the public, supporting crime victims, any
phraseology you choose for other aspects of criminal prosecution are subsets of that one
job. It’s not about convictions, it’s not about courtroom mastery, it’s not about prison
sentences. And it’s certainly not about won/lost records. It’s about fair trials. Fairness is
the sine qua non of the criminal justice system, and no amount of technical brilliance or
advocative skill can make up for a failure to provide it.
              The National District Attorneys Association phrases it somewhat
differently, adding appropriate eloquence, but the focus is – significantly – aspirational;
the goal of the prosecutor is phrased not in terms of obtaining convictions but of seeking
justice: “The primary responsibility of a prosecutor is to seek justice, which can only be
achieved by the representation and presentation of the truth.” (Nat. Dist. Attys. Assn.,
National Prosecution Standards (3d. ed. 2009), § 1-1.1.)
              Human systems are not capable of perfection, so we cannot guarantee the
criminal defendant justice, although we seek it in every case. But we can – and have –
promised fairness. And the prosecutor’s job is to fulfill that promise.




                                              2
                 A prosecutor who gives the defendant a fair trial has completed that task,
no matter the outcome. Successful prosecution is defined not by the result, but by the
process.
                 That’s not to say it’s an easy job. It is not. It is suited only to people who
are capable of handling exceptional stress, complicated legal issues, and difficult
judgment calls. We are fortunate in this state that our legal history has been informed and
shaped by ethical and honorable prosecutorial agencies.
                 But we still encounter cases where a prosecutor has lost sight of the one
paramount goal: fairness. That’s a failure. Acquittals are not failures. Unfair trials are.
                 This is such a case. The prosecutor here took his eyes off the prize just
long enough to commit misconduct in a way that requires reversal. We publish that
reversal not to pillory him, but as a reminder of the unrelenting vigilance and ethical
clarity required daily of prosecutors if they are to fulfill our nation’s promise of a fair
trial.
                 Appellant Steven Force is a sexually violent predator (SVP; Welf. & Inst.
Code, § 6600, subd. (a)(1)) who is currently receiving treatment at a state mental hospital
for pedophilia and exhibitionism. He challenges the trial court’s order denying his
                                                                                                1
petition to be placed in the conditional release program known as CONREP.                           According
to appellant, he was denied a fair trial because the prosecutor interfered with his right to
testify, and the trial court erroneously refused to admit his release plan into evidence. We
agree with both contentions. Accordingly, we reverse the trial court’s order and remand
the matter for a new trial.




         1
                More specifically, Liberty CONREP, a private firm that contracts with the state to supervise
SVP’s who have been released from Coalinga State Hospital. Liberty’s program includes daily monitoring with
GPS technology, drug testing, polygraph assessments, weekly treatment, and job and housing assistance.


                                                       3
                                          FACTS
              Having been sexually abused as a child, appellant began committing sex
crimes himself when he was a teenager. In 1980, at the age of 21, he exposed himself to
a girl on a playground and pressed his erect penis against her buttocks. When the girl
tried to get away, he grabbed her arm and made her touch his penis. This resulted in his
commitment to Patton State Hospital, where he was treated as a mentally disordered sex
offender for two years. In 1985, a few years after he was released, he forced an eight-
year-old girl to orally copulate him in an elevator. He served three years in prison for
that offense. After he was paroled, he got married in the hope of turning his life around,
but ended up molesting his wife’s young relatives and found himself sentenced to 20
years in prison.
              Appellant served half of that term before being transferred to Coalinga
State Hospital, where he was committed as an SVP. In 2010, he exposed himself to a
nurse at Coalinga, and in 2015, his petition for conditional release was denied. He filed
the present petition for conditional release two years later, in 2017.
              At trial on the petition, appellant waived his right to a jury. He did not
dispute he has a sexual disorder and has committed the predicate offenses to satisfy the
first two criteria for his continued commitment at Coalinga. Thus, the only issue before
the court was whether appellant could be placed in CONREP without jeopardizing public
safety; more precisely, whether there was a serious and well-founded risk he would
commit a sexually predatory offense if placed under the supervision of CONREP. (See
Welf. & Inst. Code, § 6608, subd. (g); People v. Superior Court (Ghilotti) (2002) 27
Cal.4th 888, 922.)
              There was conflicting testimony on that issue. Dr. Hy Malinek, a clinical
and forensic psychologist, testified appellant was ready for CONREP, even though he
had only participated in Coalinga’s sex offender treatment program (SOTP) for two
years. That program has four modules: 1) treatment readiness, 2) skills training, 3) skills

                                              4
application and 4) community integration, which starts with CONREP. Appellant
completed the first two modules but was rejected for advancement to module three
because the review panel felt he had yet to fully process his prior offenses and because,
by his own admission, he was still having “fleeting thoughts” about sex with children.
              Despite this setback, Dr. Malinek believed appellant was doing very well in
treatment. He noted that, in addition to participating in the SOTP at Coalinga, appellant
had taken a number of ancillary classes to help him cope with his sexual disorders. In Dr.
Malinek’s opinion, these classes have enabled appellant to improve his empathy, problem
solving and impulse control. He acknowledged appellant still needs work in these areas,
especially since he scored in the high-risk group on the Static-99R recidivism test.
However, Dr. Malinek found it significant that appellant has been well behaved – a
“model patient” by most accounts – since he exposed himself to the nurse in 2010. All
things considered, Dr. Malinek felt appellant could be safely maintained at CONREP.
              Dr. Jeannie Brown, a psychologist who has been involved in appellant’s
SOTP, shared this view. She felt appellant would do well in CONREP because he has
meaningfully applied himself in the SOTP at Coalinga, and CONREP is a highly-
structured program that has proven very effective for its patients. Indeed, the evidence
was undisputed that no one has ever reoffended in a sexually violent manner while they
were in the program.
              Nevertheless, the director of CONREP and three other psychologists who
evaluated appellant did not consider him a suitable candidate for conditional release.
These witnesses expressed concern about appellant’s high score on the Static-99R and his
inability to advance to module three in the SOTP. They were also troubled by the fact
appellant has minimized his sexual history at times, has admitted committing numerous
sex crimes that were never reported (mostly of a voyeuristic nature), and has conceded he
was at risk of reoffending if he did not monitor his emotions closely.



                                             5
              In ruling on appellant’s petition, the trial judge recognized appellant had
made excellent progress in the two SOTP modules he had completed thus far. But the
judge felt appellant had not yet progressed to the point where he could be safely released
into CONREP. In that regard, the judge made it clear appellant’s failure to make it into
module three of the SOTP was a concern for him. “From what I’m gathering,” he said,
“people are in these modules for an extended period of time, years, before they’re
released. And there seems to be a good reason for it. These are stepping stones. And the
good news is California has all of that available.” “I have a sense that once [appellant is]
in mod three, if he gets there, for some time it may change things around for him.”
However, at this time, “it’s too early. He’s not ready yet.” Therefore, the judge denied
his petition for conditional release.
                                        DISCUSSION
                                  Prosecutorial Misconduct
              Appellant challenges the fairness of his hearing. He contends the
prosecutor impermissibly infringed his constitutional right to testify by raising the
prospect of perjury with his attorney before trial. The point is well taken.
              The perjury issue stems from appellant’s statements about his prior sexual
misconduct, particularly the 1985 offense in which he forced a girl to orally copulate him,
and the 2010 incident in which he exposed himself to a nurse at Coalinga. At appellant’s
previous SVP trial in 2015, while under oath, he denied committing those acts. However,
he subsequently admitted them as he progressed through treatment. Those admissions
came in 2016, after appellant failed a polygraph test relating to his prior sexual
misconduct.
                On the eve of trial in the present case, defense counsel informed the court
appellant wanted to testify, and his testimony would include admissions about those
instances of sexual misconduct in 1985 and 2010. However, defense counsel was
worried the prosecutor would retaliate by charging appellant with perjury. In fact, she

                                              6
told the court the prosecutor had already indicated to her that he “would charge”
appellant with perjury if he testified inconsistently with his prior testimony denying those
incidents.
              This allegation concerned the trial judge. He told the prosecutor, “You
can’t do that. There is a case that says you can’t.” The prosecutor insisted, “I never said
that.” “What I said is [appellant] could be charged with perjury because he admittedly
lied” in his prior testimony. (Italics added.)
              The attorneys then took turns describing their recollection of what the
prosecutor said on that topic. According to defense counsel, the prosecutor told her, “‘I
hope [appellant] testifies because I could charge him with perjury.’” However, the
prosecutor denied saying that, too. He said he told defense counsel, “‘It would be great if
[appellant] testified because then theoretically he could be charged with perjury.’”
(Italics added.) In regard to that statement, the prosecutor told the judge he was talking
about the perjury issue “conceptually,” and “[t]here was no personal threat” to actually
charge appellant with perjury. The prosecutor said, “I asked the question to [defense
counsel], like ‘couldn’t he be charged with perjury? Why would you put him in a
position where that could happen?’”
              The judge said if the prosecutor merely stated appellant “could” be charged
with perjury, that might be okay. However, if he told defense counsel appellant “would”
be charged with perjury, the prosecutor would be in “big trouble” and “might be working
in a flower shop next week.” Defense counsel conceded the prosecutor never said in so
many words, “If [appellant] testifie[s] I will charge him [with perjury].” She also
recognized that even if the prosecutor had not raised the issue with her, she probably
would have had to advise appellant of the possibility of perjury. However, she felt
perjury charges would be particularly inappropriate in this case because appellant’s
admissions about his prior sexual misconduct were important in terms of facilitating his
progress in treatment. That’s why she was so alarmed by the prosecutor’s comments.

                                                 7
              She said the issue really hit her when she saw appellant was on the
prosecution’s witness list. She said, “I didn’t anticipate [the prosecutor] would call my
client after hinting that he could be charged with perjury.” When the judge asked the
prosecutor if he was actually going to call appellant as a witness at trial, he responded, “I
have to see how they put their case on first to see whether [his testimony would be]
pertinent or not.”
              The judge then asked the prosecutor if he intended to charge appellant with
perjury if he testified inconsistently with his prior testimony, and he said no. However,
based on the way the prosecutor answered the question, the judge got the impression the
prosecutor was suggesting that while he personally would not charge appellant with
perjury, someone else in the district attorney’s office might do so. The judge warned the
prosecutor against that prospect, advising him not to “play games” with the perjury issue.
The prosecutor insisted that was not his intention. Although he admitted he was not
thoroughly versed in the case law on the issue, he said he knew it is improper for a
prosecutor to threaten a prospective defense witness with perjury.
              The conversation turned to the issue of immunity. Defense counsel argued
that if the prosecutor really had no intention of charging appellant with perjury, then the
court should grant appellant immunity for it. The judge thought that was a good idea in
theory. However, he felt he lacked the authority to grant immunity on his own. When
the prosecutor was unwilling to offer immunity to appellant, the prospect was forgotten.
              Instead, the judge sought more information about what the prosecutor said
to defense counsel regarding the prospect of appellant testifying at trial. The prosecutor
said he questioned the wisdom of counsel’s decision to file a petition for conditional
release at this time because she would have to call appellant as a witness to meet her
burden of proof. By his reckoning, that was tactically unsound because appellant’s
testimony would likely conflict with his prior testimony, raising the prospect of perjury.
However, if defense counsel waited a couple of years to file the petition, until appellant

                                              8
was 60 years old, his Static-99R score would go down, there would likely be more
institutional support for his conditional release, and he would not have to risk committing
perjury by taking the stand. In other words, the prosecutor said, he was simply
questioning the timing of the petition from a tactical perspective.
              Following a break in the proceedings, the judge, obviously concerned by it,
asked the prosecutor to explain more precisely what he had said to defense counsel. The
prosecutor replied, “I can’t state verbatim what I said. This was an offhand conversation
we had informally months ago. But . . . I’m very comfortable saying I never threatened
anything. I was making more of an inquiry on the line of reasoning that ‘if you have the
burden, and from my perspective your client would have to get on [the stand], aren’t you
worried about [the] potentiality [of perjury]?’” The prosecutor did not recall having any
more conversations with defense counsel about the issue.
              However, defense counsel said the issue of perjury came up more than
once. She recalled the prosecutor telling her on more than one occasion, “I don’t know
how you make your burden without your client taking the stand. And wouldn’t he be
charged with perjury?” Defense counsel told the judge she took that to mean appellant
would be charged with perjury if he decided to testify. She also related that she asked the
prosecutor, “‘So . . . if [appellant] testifies you’re going to charge him with perjury?’”
and he would not answer.
              Asked to respond to this claim, the prosecutor said, “I don’t remember that.
And I think I would remember it.” As for the rest of the allegations, the prosecutor said,
“I don’t remember specifics, Your Honor. . . . I remember one conversation, but it was
many months ago. So if there was a second, I’m not going to challenge that. I just don’t
recall it.” But the prosecutor did remember telling defense counsel at some point that
“there is no right to perjure yourself. You don’t have a right to make statements that are
knowingly false, and then later on say, ‘I want to testify and not have that come back to
haunt me.’” The prosecutor told the judge he did not see that as a threat; he was simply

                                              9
asking defense counsel why she would want to file a petition for conditional release at a
time when perjury could be an issue.
                  In the end, the judge decided not to act on the prosecutor’s statements. He
strongly suggested it would be a good idea for the prosecutor to grant appellant
immunity, which would make the entire intimidation issue go away. But no immunity
offer was made, and appellant – after being informed by defense counsel what the
prosecutor told her in regard to the perjury issue – decided not to testify at his trial.
                  The defendant in proceedings such as these has a constitutional right to
present a defense, which includes calling witnesses in his favor and testifying on his own
         2
behalf. (U.S. Const., amend. VI; Rock v. Arkansas (1987) 483 U.S. 44, 51; People v.
Lucas (1995) 12 Cal.4th 415, 444.) Prosecutors must be sensitive to this right; they are
not allowed to engage in conduct that undermines the willingness of a defense witness to
take the stand. (People v. Warren (1984) 161 Cal.App.3d 961, 972.) Such conduct
includes making statements to the effect that the witness would be prosecuted for any
crime he or she committed in the course of testifying, such as perjury. (In re Martin
(1987) 44 Cal.3d 1, 30 (Martin).)
                  That the prosecutor may have acted without culpable intent does not bear
on the issue. In Martin, our Supreme Court made clear the prosecutor’s intentions are
irrelevant in determining whether a prosecutor has stepped over the line in this regard.
To establish misconduct in the form of improper intimidation the defendant “need show
only that [the prosecutor] engaged in activity that was wholly unnecessary to the proper
performance of his duties and of such a character as ‘to transform [a defense witness]
from a willing witness to one who would refuse to testify . . . .’ [Citations.]” (Martin,
supra, 44 Cal.3d at p. 31; accord, Webb v. Texas (1972) 409 U.S. 95, 98 [due process


         2
                  Though civil in nature, SVP proceedings are rooted in criminal convictions and therefore retain
the due process rights associated with criminal trials. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 648; People
v. Allen (2008) 44 Cal.4th 843, 870.)


                                                         10
violation found where judge’s admonition regarding the consequences of perjury
effectively drove defense witness off the stand].) Bad faith is not part of the required
showing.
              In this case, there is no question the prosecutor’s statements to defense
counsel about the prospect of perjury were wholly unrelated to his duties. Coaching the
defense is so outside a prosecutor’s job description that we need spend little time on that
analysis. Defense counsel was presumably aware of the perjury issue and well equipped
to discuss it with appellant. There was no need for the prosecutor to raise the issue with
her, even if he thought the timing of her petition questionable from a tactical perspective.
              According to the prosecutor, he did nothing more than raise the perjury
issue as a “theoretical possibility” in an attempt to understand why defense counsel filed
the petition when she did. However, as we have noted, the timing of the petition was
really none of the prosecutor’s business. Moreover, he didn’t just raise the issue of
perjury as an abstract possibility, he specifically asked defense counsel if she was worried
about appellant being charged with perjury. He also told defense counsel that no one has
the right to avoid the consequences of making false statements at trial, which seems a
thinly-veiled reference to appellant’s prior testimony. If the prosecutor had simply made
the point that such false testimony could be used to impeach appellant if he contradicted
it in the present case, he would have been on solid ground; pointing out the weaknesses in
an opponent’s case is a legitimate approach to negotiation. But he prefaced his remarks
by saying, “[T]here is no right to perjure yourself.” Indeed, in every description given of
what the prosecutor said, the word “perjury” was used in some form or another.
              Furthermore, the prosecutor was unable to deny defense counsel’s
representation that he raised the perjury issue with her on more than one occasion. It’s
hard to see this as a “theoretical” or “conceptual” point, an interesting legal issue worth
discussing over a beer. It appears to us that by repeatedly raising the prospect of perjury
with defense counsel with a trial looming, the prosecutor was rather pointedly trying to

                                             11
convince her to withdraw the petition and file it at another time. It is undisputed defense
counsel was within her rights in filing the petition when she did, since it had been over a
year since petitioner’s previous petition for conditional release had been denied, (Welf.
& Inst. Code, § 6608, subd. (j).) and the wisdom of defense counsel’s strategy was not
something he was called upon to evaluate.
              One could argue that, despite what the prosecutor told defense counsel
before trial, the perjury threat was not real because at the hearing on the issue the
prosecutor told the court he was not going to charge appellant with perjury if he testified
inconsistently with his prior testimony. However, the prosecutor’s representation in that
regard did not inspire a lot of confidence in the court, nor in us.
              The trial judge concluded the prosecutor was telling him with “a wink and a
nod” that he was not going to charge appellant with perjury, but “the guy next door” to
him in the district attorney’s office might very well to do so. The judge warned the
prosecutor he would have dirty hands if that happened, and it would create “a big, big
problem.” And although the prosecutor told the judge he was not trying to “play games”
with the perjury issue, the judge remarked, “Something is smelling here, and I don’t like
it. . . . It’s getting very close to not passing the smell test.”
              To our minds, it failed. The prosecutor “has a special duty commensurate
with a prosecutor’s unique power, to assure that defendants receive fair trials.” (United
States v. LaPage (9th Cir. 2000) 231 F.3d 488, 492.) To that end, the American Bar
Association standards governing prosecutorial conduct provide, “The prosecutor should
know and follow the law and rules of the jurisdiction regarding victims and witnesses.”
He “should not act to intimidate or unduly influence any witness.” And, he should not
discuss the potential criminal liability of a witness in a manner that is likely to
“intimidate the witness, to influence the truthfulness or completeness of the witness’s
testimony, or to change the witness’s decision about whether to provide information.”



                                               12
(ABA Criminal Justice Standards for the Prosecution Function, Standards 3-3.4 (b), (c) &
(g).) Repeated reminders of the applicability of the law of perjury to the defendant
crosses that line and here had precisely the effect the ABA was concerned about.
                 Closer to home, the California District Attorneys Association’s ethics
manual advises prosecutors “must be careful to avoid witness intimidation problems,” so
as not to interfere with the defendant’s right to present a defense. (CDAA (2016)
Professionalism, A Sourcebook of Ethics and Civil Liability Principles for Prosecutors,
Ch. VII, p. 17.) In that regard, the manual cautions, “Prosecutorial witness intimidation
does not require threatening language, and it may occur even when the prosecutor’s
motives are impeccable.” (Ibid.) It also states, “A prosecutor must never tell the attorney
for a defense witness that the witness might be prosecuted based upon expected
testimony.” (Ibid.) And, it recommends any discussions regarding that possibility occur
                                                                                           3
on the record in court, or be otherwise documented. (Id. at pp. 17, 20.)
                 Unfortunately, it appears the prosecutor in this case did not fully appreciate
all of the rules and ramifications surrounding his decision to raise the topic of perjury
with defense counsel. Although he may have merely acted unwisely rather than with
culpable intent, we cannot escape the conclusion that he impermissibly infringed
appellant’s constitutional right to testify on his own behalf. It’s hard to imagine appellant
being anything other than intimidated after his attorney told him what the prosecutor said
to her privately on the topic of perjury and what he said at the hearing in which she
challenged his remarks. Taken together, the prosecutor’s statements signaled perjury
charges were not out of the question if appellant testified inconsistently with his prior
testimony, which is – according to his counsel – why he chose not to take the stand.


        3
                 The guidelines promulgated the ABA and CDAA are not binding authority on this court.
However, as our courts have often recognized, they serve as a useful reference for evaluating the propriety of a
prosecutor’s conduct. (See, e.g., County of Santa Clara v. Superior Court (2010) 50 Cal.4th 35, 51; People v. Hill
(1998) 17 Cal.4th 800, 832; People v. Frank (1985) 38 Cal.3d 711, 727, fn. 1; People v. Bolton (1979) 23 Cal.3d
208, 213; People v. Hickey (1980) 109 Cal.App.3d 426, 431, fn. 4.)


                                                        13
                 At any rate, the Martin case, supra, reminds us that the prosecutor’s intent
is not what we judge here; we need not gauge the prosecutor’s credibility in explaining
his conduct. The test is simply whether he “engaged in activity that was wholly
unnecessary to the proper performance of his duties and of such a character as ‘to
transform [a defense witness] from a willing witness to one who would refuse to testify
. . . .’ [Citations.]” (Martin, supra, 44 Cal.3d at p. 31.) That, we think, is
unquestionable.
                 In this regard, we find it telling respondent does not dispute appellant’s
claim the prosecutor’s actions were a substantial cause of his decision not to testify. Nor
does respondent dispute appellant’s assertion his testimony would have been material and
favorable to his case. (See Martin, supra, 44 Cal.3d at pp. 31-32.) Instead, respondent
argues any infringement of appellant’s right to testify was harmless beyond a reasonable
                                                 4
doubt, an issue to which we now turn.
                 Respondent’s harmless error argument is straightforward. It is based on the
trial court’s stated concern that appellant had not made sufficient progress in treatment to
warrant his release into CONREP. The court, as respondent notes, was distressed that
appellant had yet to make it to module three of the SOTP. Given this, respondent argues
there is nothing appellant could have said on the witness stand that would have convinced
the court to grant his petition. We cannot agree.
                 It is obvious from the trial judge’s ruling he did not consider this to be an
open-and-shut case. After the conclusion of the lengthy evidentiary phase, the judge
commended both parties on the presentation of their case and commented on how much
he had learned about the SVP system from listening to the testimony. He had questioned
the attorneys extensively during their closing arguments, invited them to submit

        4
                  The parties agree the harmless beyond a reasonable doubt standard applies in this case. (See
People v. Allen (2008) 44 Cal.4th 843, 871 (Allen).) Under that standard, respondent has the burden “‘to prove
beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (People v. Neal
(2003) 31 Cal.4th 63, 86.)


                                                        14
additional arguments via email (which they did), and taken the matter under submission
                                                     5
for several days before issuing his ruling.
                   In addition, the judge made it clear he considered defense expert Malinek to
be the most compelling witness in the case. Dr. Malinek, like Dr. Brown, believed
appellant had made sufficient progress in treatment to be safely released into CONREP.
He did not believe it was necessary for appellant to enter module three of the SOTP
before making this transition.
                   The trial judge explored that possibility at some length. At one point
during closing argument, he observed it is possible for some students to skip a grade in
school and still achieve success. Analogizing that situation to appellant’s case, the judge
wondered aloud why it would not be possible for appellant to bypass module three of the
SOTP and enter CONREP directly from module two, especially since Dr. Malinek and
Dr. Brown were on board with that. Although the prosecutor was dismissive of that idea,
the judge held it open as a possibility, saying, “See, I don’t know. . . . I’m not [ready to
reject it] yet.”
                   That’s where appellant’s testimony could have made a significant impact
on the case. By explaining to the judge how dedicated he was to treatment, how
positively it had affected him, and why he felt he could safely transition to CONREP,
appellant might have been able to bridge the gap between the testimony of Drs. Malinek
and Brown and the judge’s apprehension. He might have been able to convince the judge
he would not present a serious and well-founded risk to public safety while in CONREP,
despite his lack of a module three pedigree. Or he might have performed badly and made
this the open-and-shut case respondent considers it.
                   We recognize a person’s dangerousness cannot be gleaned simply from
hearing them testify in court. But our system puts great store in viewing witnesses; we’ve

        5
                 We have grown accustomed to reviewing the work of conscientious trial judges, but we still feel
the hard work expended in this case deserves acknowledgement.


                                                         15
put it in our Constitution. If appellant had taken the witness stand, he could have
addressed some of the concerns the judge had about his suitability for CONREP. He
could also have given the judge an opportunity to assess the level of his insight into his
sexual disorders and to gauge his overall credibility. If appellant had been able to make a
credible presentation in these areas – as he had to two psychologists – there’s no telling
how the matter would have turned out.
              Relying on Allen, supra, 44 Cal.4th 843, respondent contends no amount of
testimony from appellant would have changed the outcome of the case. In Allen, the
Supreme Court found the improper exclusion of the defendant’s testimony in an SVP trial
harmless beyond a reasonable doubt because his proposed testimony – that his victims
allegedly consented to or otherwise encouraged his sexual misdeeds – was related to
irrelevant issues and uncharged acts that played a small part in the experts’ opinions
about his future dangerousness. (Id. at pp. 872-875.) However, the court also recognized
“‘it is only the most extraordinary of trials in which a denial of the defendant’s right to
testify can be said to be harmless beyond a reasonable doubt. [Citation.]’ [Citation.]”
(Id. at p. 872.) That’s because the most important witness for the defense is often the
defendant himself. (Rock v. Arkansas, supra, 483 U.S. at p. 52.) As the Supreme Court
put it, “A defendant’s opportunity to conduct his own defense by calling witnesses is
incomplete if he may not present himself as a witness.” (Ibid.)
              Unlike the defendant in Allen, appellant had no intention of denying or
attempting to mitigate his history of sexual misconduct. Indeed, we’re in this briar patch
because he was prepared to admit his prior misdeeds and take full responsibility for them.
Although appellant’s acknowledgment of his prior sexual misconduct is documented in
his evaluation reports and was brought up during the trial, the judge did not have the
opportunity to hear appellant speak to that issue under oath. Thus, he did not have the
chance to observe appellant’s demeanor and sincerity in person.



                                             16
              We cannot say appellant would have obtained a more favorable result had
he testified at trial. But that is not before us. The test is whether we are confident
beyond a reasonable doubt that his testimony would have had no effect upon the judge’s
decision. We are not. Therefore, we cannot say the prosecutor’s interference with
appellant’s right to testify was harmless.
                            Exclusion of Appellant’s Release Plan
              At trial, the court refused to admit appellant’s release plan into evidence on
the basis it was hearsay. Appellant contends this was error, and respondent makes no
attempt to defend the court’s decision. The only disputed issue is the extent to which the
plan’s exclusion prejudiced appellant. While we do not think the case was ever going to
turn on the release plan, the court’s error in excluding it could only have exacerbated the
prejudice resulting from the infringement of appellant’s right to testify, so neither was it
entirely inconsequential.
              Appellant’s release plan consisted of a 26-page self-composed document
entitled “Community Safety and Accountability Plan.” At trial, the judge described the
plan as the “I am the good guy” document, and the prosecutor said it contained “a dozen
or more pages of exactly what [appellant] thinks and his opinions [about] why he thinks
he is doing so well” in treatment. The prosecutor argued the plan constituted
inadmissible hearsay because, having elected not to testify, appellant could not be cross-
examined about its contents.
              In response, defense counsel asserted appellant’s unavailability was
attributable to the prosecutor’s perjury threats, an issue we discussed in the preceding
section. She also maintained the report should be admitted because many of the
witnesses alluded to it during their testimony, and they considered it in forming their




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                                                     6
opinions about appellant’s dangerousness. Defense counsel insisted, “There is nothing
[in the release plan] that the court doesn’t already know.” That caused the judge to
ponder whether the plan was cumulative. However, he did not base his decision on that
prospect. Instead, he tried to take a more pragmatic approach to the issue.
                 Since the case was not tried before a jury, the judge felt he had more
leeway in terms of how to handle the release plan. He told the parties he was not going to
admit the plan into evidence. But, he was going to “review and consider it” in order to
“give [himself] an overview” and get “an idea of what [appellant] has said.”
                 This was a confusing ruling. If the plan constituted inadmissible hearsay,
the judge should not have considered it at all. (Evid. Code, § 1200.) However, not all
hearsay is subject to exclusion at trial. As appellant correctly notes, hearsay statements
that directly reflect the declarant’s state of mind when the declarant’s mindset is at issue
in the case are admissible for their truth as an exception to the hearsay rule. (Evid. Code,
§ 1250, subds. (a)(1).) Witkin says hearsay statements “that do not directly declare a
mental or emotional state, but are merely circumstantial evidence of it, are outside the
hearsay rule” altogether. (1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 199, p.
1057.)
                 Appellant argues the contents of his release plan were admissible as direct
evidence of his mental state, which was the central issue in the case, and respondent does
not disagree. Respondent’s only rejoinder to the argument is that the exclusion of the
release plan amounted to harmless error because 1) the plan was discussed and relied on
by various witnesses, 2) the judge ended up considering the plan, even though he ruled it
was inadmissible; and 3) the plan had little bearing on appellant’s dangerousness or the
judge’s decision to deny his petition.


         6
                 One witness described it as a “good plan” that improved appellant’s prospects for a successful
transition to CONREP, and another said the plan did not mean much because it had not been vetted by appellant’s
treatment team.


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              We agree with respondent that the prejudice resulting from the judge’s
wrongful exclusion of the release plan was mitigated by these three factors. But that’s
not to say appellant’s case would not have been more persuasive had the judge admitted
the plan into evidence and given it full consideration. If nothing else, the plan would
have bolstered appellant’s argument that, despite being rejected for advancement to
module three of the SOTP, he could be housed safely at CONREP, which was the central
issue in the case.
              Standing alone, the court’s decision to exclude the release plan would not
be enough to warrant a reversal in this case. But, as we have explained, not only was the
release plan improperly excluded, defendant was effectively driven away from the
witness stand by virtue of the prosecutor’s perjury comments. Having kept appellant
from testifying through intimidation, the prosecution also succeeded in keeping a written
version of his words out of evidence. Taken together, these two errors infringed
appellant’s fair trial rights to an intolerable degree; we cannot conclude their combined
effect was harmless beyond a reasonable doubt.
              The matter must be retried. Should appellant elect to testify on retrial, the
trial court can take appropriate measures to ensure he is not punished for exercising his
constitutional right to do so. (See People v. Masters (2016) 62 Cal.4th 1019, 1051-1052
[recognizing there may be circumstances under which the interests of fairness demand
that a witness be granted immunity].)




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                                     DISPOSITION
             The trial court’s order denying appellant’s petition for conditional release is
reversed and the matter is remanded for a new trial consistent with the views expressed
herein.




                                                 BEDSWORTH, ACTING P. J.


WE CONCUR:



ARONSON, J.



THOMPSON, J.




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