P. v. Schuler

Filed 4/20/10 P. v. Schuler CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
BRIAN ROBERT SCHULER,
Defendant and Appellant.
H033090
(Santa Clara County
Super. Ct. No. 211121)
I. INTRODUCTION
Appellant Brian Robert Schuler was convicted of forcibly raping a fellow resident
of a locked residential psychiatric facility and sentenced to a term of eight years in state
prison. Before Schuler was released on parole, the People filed a petition to commit him
as a sexually violent predator under the Sexually Violent Predators Act (SVPA). (Welf.
& Inst. Code, § 6600, et seq.)1 A jury found the allegation that Schuler was a sexually
violent predator to be true. By order filed on June 18, 2008, the trial court committed
Schuler to the State Department of Mental Health for an indeterminate term.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

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On appeal, Schuler challenges the order of commitment. He contends that the
finding that he is a sexually violent predator should be reversed for several reasons: the
trial court abused its discretion in allowing the People‟s experts to testify regarding the
details of prior misconduct other than the qualifying offense; the trial court abused its
discretion when it admitted into evidence the district attorney‟s summaries of Schuler‟s
criminal and institutional history; the admission of multiple hearsay, through the experts‟
testimony and the district attorney‟s summaries, violated due process; the trial court
failed to sua sponte instruct the jury that the hearsay relied upon by the experts in forming
their opinions was admitted for the limited purpose of showing the basis for the experts‟
opinions and not for the truth; trial counsel was ineffective in failing to request that
limiting instruction; the jury was told that the consequence of finding Schuler to be a
sexually violent predator was that he would be committed to a state hospital; and the
SVPA violates the due process, ex post facto, double jeopardy, and equal protection
clauses of the state and federal constitutions.
Pursuant to the recent decision of the California Supreme Court, People v. McKee
(2010) 47 Cal.4th 1172 (McKee), ruling that the equal protection challenge to the SVPA
has potential merit, we will reverse the order committing Schuler to the custody of the
State Department of Mental Health for an indeterminate term and remand the matter to
the trial court for the limited purpose of, as stated in McKee, allowing the People to
demonstrate “the constitutional justification for imposing on SVP‟s a greater burden than
is imposed on MDO‟s and NGI‟s in order to obtain release from commitment.” (Id. at
pp. 1208-1209.) We find no merit in the remaining issues raised by defendant, for the
reasons stated below. 2
2 As we will discuss, in his supplemental briefing Schuler has conceded that his
constitutional challenges, other than the equal protection claim, lack merit in light of
People v. McKee, supra, 47 Cal.4th 1172.)

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II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Commitment Petition
In 1998, Schuler was a resident of Crestwood Manor (Crestwood), a locked
residential psychiatric facility. L. was also a resident of Crestwood. One day, Schuler
asked L. to listen to music with him in his room. When they went to his room, Schuler
pushed L. onto his bed, held her down and raped her. Schuler was convicted of forcible
rape (Pen. Code, § 261, subd. (a)(2)) of L. in 2000 and sentenced to a term of eight years
in state prison.3
Before Schuler‟s scheduled parole release date of March 13, 2007, the People
filed, on March 2, 2007, a petition to commit him as a sexually violent predator under the
SVPA. The petition stated that the State Department of Mental Health had requested that
Schuler be civilly committed as a sexually violent predator based upon the evaluations of
two psychologists whose reports were attached to the petition.4
After a probable cause hearing was held, the trial court issued its May 24, 2007
order finding that there was probable cause to believe that (1) Schuler had been convicted
of a qualifying sexually violent offense against at least one victim; and (2) he has a
diagnosable mental disorder that makes it likely that he will engage in sexually violent
predatory criminal conduct if released. The trial court also ordered the matter to be set
for trial.
3 This court upheld the 2000 conviction. (People v. Schuler (Oct. 16, 2002,
H022585) [nonpub. opn.].)
4 The psychologists‟ evaluations attached to the commitment petition were not
included in the record on appeal.

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B. The Jury Trial
1. In Limine Orders
The jury trial began on June 2, 2008, with a hearing on the parties‟ motions in
limine.5 The trial court made several in limine rulings pertinent to this appeal.
Schuler‟s motion in limine No. 6 sought to exclude hearsay evidence of his prior
nonqualifying misconduct obtained from police reports, probation reports, psychological
evaluations, prison records and state hospital records. During oral argument on the
motion, defense counsel contended that the specific facts of an incident of November 9,
1996, in which Schuler was alleged to have had sexual intercourse with J., a fellow
resident of the Dominican Mental Health Facility, should be excluded due to
unreliability. The court denied the motion, finding that J. had testified in an Evidence
Code section 402 hearing and at a trial and therefore the evidence of the 1996 incident
was sufficiently reliable for the experts to rely upon it. The court also denied the motion
to exclude other evidence of Schuler‟s prior nonqualifying misconduct, finding that the
evidence was relevant and, under Evidence Code section 352, the probative value was not
“substantially outweighed” by a “substantial danger of undue prejudice or misleading the
jury.”
The trial court granted Schuler‟s motion in limine No. 9 to exclude any mention of
the consequences of a true finding, such as any suggestion that he would go to a hospital
for treatment if he was found to be a sexually violent predator.
The People‟s motion in limine No. 2 was granted over Schuler‟s objection. The
trial court ruled that the expert witnesses would be allowed to testify regarding the
evidence they had relied upon in forming their opinions, including Schuler‟s statements
5 The record reflects that a hearing on some of the parties‟ motions in limine and
other pretrial matters was held on November 14, 2007.

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and their review of records pertaining to him. Defense counsel objected to the experts
testifying about any of Schuler‟s prior nonqualifying misconduct.
The trial court denied the People‟s motion in limine No. 3 for an order allowing
the admission of evidence of Schuler‟s nonqualifying prior sexual assaults and other
criminal history. The court reasoned that “[n]aturally that information comes in as the
basis of the expert‟s opinion, but it doesn‟t come in for the truth of the matter asserted.”
Finally, the trial court granted the People‟s motion in limine No. 4 for an order
allowing the People to question Schuler as if he was under cross-examination. Defense
counsel objected on the ground that it would be unfair to allow the People to lead a
person who is mentally ill during questioning. The court indicated that it would intervene
if the examination became unfair to Schuler.
2. The People’s Evidence
The People‟s evidence was presented through three expert witnesses and the
testimony of Schuler. Because several of Schuler‟s contentions on appeal concern the
experts‟ testimony, we will summarize each expert‟s testimony separately.
Testimony of Dr. Dale Arnold
Dale Arnold has a Ph.D. in psychology. His employment history includes
working as a psychologist at Atascadero State Hospital where he was primarily assigned
to the sexually violent predator program. Under his contract with the State Department
of Mental Health, Dr. Arnold evaluated Schuler for the purposes of rendering a
psychological diagnosis and assessing the risk that he would reoffend in a sexually
violent predatory manner.
Dr. Arnold‟s evaluation included interviewing Schuler and reviewing Schuler‟s
records from 25 different sources, including courts, prisons, and hospitals. According to
Dr. Arnold, records such as police reports, court documents, probation reports, prison
records, and hospital records are routinely used in performing sexually violent predator

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evaluations and are reliable sources of information. Dr. Arnold found that the
information regarding Schuler‟s crimes was consistent in the different sources.
Regarding the qualifying offense involving the rape of L., Dr. Arnold stated that
the records, including a transcript of L.‟s trial testimony, indicated that when L. and
Schuler were at Crestwood, Schuler asked L. if she would like to listen to some music in
his room. She agreed, but when they got to his room, “he pushed her down onto his bed
and held her with his knee and then proceeded to rape her by putting his penis into her
vagina.” L. was acquainted with Schuler but they were not in a dating relationship. She
had no intention of having sexual contact with Schuler and very clearly said no.
Although the rape occurred in May 1998, L. did not report the crime until March 1999.
The delay in reporting was due to her fear of Schuler. However, when L. encountered
Schuler at another facility in March 1999, she reported the rape to staff because she was
fearful of something like that happening again. Schuler told Dr. Arnold during his
interview that his sexual contact with L. was consensual, which conflicted with his report
to police that he never had any sexual contact with L.
To determine whether Schuler has “a diagnosable mental disorder that predisposes
him to committing criminal sexual acts,” Dr. Arnold looked at Schuler‟s psychosocial
history, relationship history, sexual history, and criminal history. The records indicated
that Schuler has been hospitalized between 20 and 30 times, with six hospitalizations
before 1989. His criminal history included another rape in 1996, which led to a charge of
sexual battery of J. at Dominican Mental Health Center. Dr. Arnold described the 1996
incident as follows: “[J.] was in the day room of the facility . . . . And Mr. Schuler had
come up to her and came on to her sexually and at that time essentially started to fondle
her and then stuck his finger into her vagina and then forced, coerced her to go into a
room, a private room, where he then raped her.” Dr. Arnold found that while there was
some inconsistency in J.‟s reports of the 1996 incident, she had consistently said that
there were unwanted sexual acts with digital and penile penetration of her vagina.

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The 1996 incident involving J. was significant, in Dr. Arnold‟s view, because it
predated the 1998 rape of L. and showed that the social and legal consequences that
Schuler had suffered as a result of the 1996 incident did not stop him from later raping L.
Dr. Arnold acknowledged that the criminal case concerning the 1996 rape of J. was
dismissed and Schuler was not convicted of any crime relating to that incident.
Dr. Arnold also reviewed a one-page chart provided by the district attorney
entitled “Criminal History of Brian Schuler,” which Dr. Arnold believed to accurately
summarize Schuler‟s criminal history. The chart indicated the following incidents: (1)
February 4, 1992, committing battery with a rock; (2) November 9, 1996, rape and digital
penetration of J.; (3) January 20, 1998, battery conviction for biting a staff member on the
cheek; (4) May 1998, rape of L.; (5) 1998, sexually harassing C., another patient, in the
day room of a facility; (6) 1998, forcibly kissing a staff member; (7) 1998, exposing
himself to a house cleaner; (8) 1998, exposing himself on several occasions to another
staff member, rubbing his penis against her buttocks, and brushing up against her breasts;
and (9) June 1999, grabbing and squeezing A.‟s rear end. Some of the information
pertaining to the incidents came from trial transcripts that Dr. Arnold had reviewed.
Additionally, Dr. Arnold determined that Schuler had a history of substance abuse
involving cocaine, marijuana, methamphetamine, PCP, inmate-manufactured alcohol, and
“Vic‟s inhalers.” Schuler‟s prison records indicated that he had been disciplined for
incidents of “mutual combat” in 2002 and 2003. Schuler also violated his parole in 2006
by failing to attend an outpatient mental health clinic and, as a result, his parole was
revoked after two months.
Dr. Arnold further stated that Schuler‟s psychiatric history showed that he has
received treatment for major mental disorders, including schizophrenia and
schizoaffective disorder, since his early twenties. Dr. Arnold diagnosed Schuler as
currently suffering from schizoaffective disorder, bipolar type; a personality disorder;
paraphilia, not otherwise specified; and polysubstance abuse. The diagnosis of

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paraphilia, not otherwise specified, means that Schuler has “recurrent fantasies, urges or
behaviors to engage [in]. . . non-consenting sexual activity.” Paraphilia is a “chronic and
lifelong condition” that Schuler had recently demonstrated in his interactions with female
staff, in particular by becoming fixated on one female and persistently trying to make
contact with her.
Dr. Arnold also gave his opinion that Schuler was likely to commit another
sexually violent offense if he were to be released into the community. His opinion was
based in part on using a risk assessment actuarial instrument known as the Static 99.
Schuler scored an eight, which placed him on the high risk category according to the
Static 99. Schuler also scored a 30.5 on the Hare Psychopathy Checklist, which “placed
him the severe range of psychopathy” and indicated that he is likely to reoffend much
more quickly than the average sex offender. The third risk assessment tool that Dr.
Arnold used was the Minnesota Sexual Offender Screening Tool, on which Schuler‟s
score of 11 placed him the high risk category.
Dr. Arnold explained that his conclusion that Schuler was likely to reoffend in a
sexually violent predatory manner was also based on Schuler‟s mental disorders, which
included a deviant sexual interest and caused him to be unstable, impulsive, and
manipulative, and also caused him to act under false beliefs.
Testimony of Dr. Mark Scherrer
Mark Scherrer received a Ph.D. in psychology and specializes in clinical and
forensic psychology. His employment history includes serving as a unit psychologist at
Atascadero State Hospital where he worked with mentally disordered offenders. He was
later promoted to a position in the forensic services department that involved providing
evaluations throughout the hospital, including sex offender evaluations. He is currently
in private practice and evaluated Schuler under his contract with the State Department of
Mental Health.

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Dr. Scherrer‟s evaluation of Schuler included two interviews and reviewing
Schuler‟s prison records and state hospital medical records, as well as records of his
criminal history and psychological and psychiatric evaluations. He also reviewed police
and probation reports regarding the rape of L. as well as L.‟s trial testimony. From his
review, Dr. Scherrer determined that when Schuler was a resident of a locked facility, he
asked L. to listen to some music in his room and then got L. on his bed, after which he
held her down with his knee, arm, and hands on her shoulders, removed her pants, and
forcefully raped her over her objections.
Schuler‟s criminal history involved another rape, according to Dr. Scherrer. In
1996, Schuler sexually assaulted J., a 21-year-old female patient, in a locked psychiatric
wing of a hospital where they were both patients. J. was severely mentally ill. Schuler
accosted J. in a day room where he digitally penetrated her, then got her into a room
where he digitally penetrated her again and raped her against her will. Dr. Scherrer was
aware that the criminal case involving J. was ultimately dismissed.
Dr. Scherrer was also aware of additional criminal acts by Schuler, which were
sufficiently summarized on a chart provided by the district attorney and marked as
People‟s exhibit No. 1. The additional criminal acts included a battery conviction in
1992, and a “set of incidents” in 1998 involving either patients or employees of the
facility where Schuler was a resident. Dr. Schuler found that the 1998 incidents had a
common sexual element, consisting of Schuler accosting women who were not willing,
including unsolicited kissing, exposing himself, rubbing his genitals on their buttocks,
and grabbing their buttocks.
In Dr. Scherrer‟s opinion, Schuler suffers from mental disorders that predispose
him to committing criminal sexual acts. Dr. Scherrer‟s opinion was based upon the
information he had received from his records review and his interviews with Schuler. Dr.
Scherrer diagnosed Schuler as suffering from two primary mental disorders, paraphilia
not otherwise specified (sex with non-consenting persons) and schizoaffective disorder,

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bipolar type. Additionally, Dr. Scherrer determined that Schuler has a borderline
personality disorder, not otherwise specified, with antisocial and narcissistic traits.
Dr. Scherrer further determined that what made Schuler most sexually dangerous
was the paraphilic disorder, since he has an urge for coercive sexual activity that is
exacerbated by the schizoaffective disorder that impairs his judgment and impulse
control, as well as the personality disorder that causes him not to care about the rights of
others.
As to his risk assessment, Dr. Scherrer concluded that Schuler is likely to engage
in sexually violent predatory criminal behavior. His risk assessment included his
diagnosis of Schuler‟s mental disorders and data from risk assessment tools. Using the
Static 99 risk assessment tool, Dr. Scherrer gave Schuler a score of eight. Dr. Scherrer
originally gave Schuler a score of seven, but after later learning that rape victim J. was a
stranger to Schuler, Dr. Scherrer increased his score to eight. Both scores placed Schuler
in the high risk category.
Testimony of Dr. Andrea Shelley
Andrea Shelley is a forensic psychologist who performed an evaluation of Schuler
to determine whether he met the statutory criteria for a sexually violent predator. She has
a Ph.D. in clinical psychology. Her employment history includes treatment of sex
offenders at Patton State Hospital as well as risk assessment of released sex offenders.
She currently works under contract with the State Department of Mental Health to
evaluate individuals who are alleged to be sexually violent predators.
As part of her evaluation, Dr. Shelley interviewed Schuler and reviewed about
20 different sources of information about him, including his criminal history as
accurately summarized on the chart marked People‟s Exhibit No. 1. She had also
previously performed a mentally disordered offender evaluation of Schuler. When Dr.
Shelley first evaluated Schuler to determine if he was a sexually violent predator, she
determined that he did not have a diagnosis as defined in the SVPA and he was not likely

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to reoffend in a sexually violent criminal predatory manner. She changed her opinion
after reviewing the testimony of other patients and staff regarding their experiences with
Schuler, as well as reports about Schuler‟s non-consensual sexual intercourse with victim
J. This information indicated to Dr. Shelley that Schuler has a “chronic pattern” of
“being sexual with women against their will.” Dr. Shelley further stated, “[I]t was the
details of those events that changed my mind.” A two-page chart entitled “Institutional
History of Brian Schuler,” marked as People‟s exhibit No. 9, accurately summarized
some of Schuler‟s institutional behavior from June 2007 to March 2008, according to
Dr. Shelley.
Dr. Shelley‟s current opinion is that Schuler has two mental disorders, including
schizoaffective disorder, bipolar type, and personality disorder not otherwise specified
involving antisocial, borderline and narcissistic features. She did not initially diagnose
him as suffering from paraphilia, but added that diagnosis after further records review
indicated that between the years of 1994 and 1999 Schuler had touched or had intercourse
with eight women without their consent.
Dr. Shelley also believes that Schuler has a high risk of committing sexually
violent predatory offenses due to the combination of his mental disorders, which make it
extremely difficult for him to control his desire to have sex with non-consenting persons
or to care about the other person. Additionally, her review of his records showed that he
had a pattern of “becoming manic and hypersexual.”
The inconsistencies in the reports by rape victim L. did not change her opinions
because L. had consistently said that Schuler had forcible sexual intercourse with her
against her will. L.‟s one-year delay in reporting the rape was not significant, according
to Dr. Shelley, because residents of a board and care facility may be afraid of the
consequences of reporting or fear that they will not be believed. However, Dr. Shelley
acknowledged that she had some doubt as to whether the claim of rape by J. was valid
due to the inconsistencies about that incident.

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Dr. Shelly‟s opinion was also based upon Schuler‟s score of eight on the Static 99
risk assessment tool, which placed him in the high risk category. Schuler also received a
high risk score on the Minnesota Sexual Offender Screening Tool.
Testimony of Brian Schuler
During his testimony, Schuler denied that he suffered from schizoaffective
disorder and described himself as “a real ladies‟ man.” He acknowledged that he had
intercourse with L. twice, but told the investigating police officer that he did not have
intercourse with her because his attorney was not present. He knew J. “from the mental
health system” and wanted to be with her, but he did not rape her.
3. Defense Evidence
Schuler presented one expert witness, Dr. Brian Abbott. Dr. Abbott has a Ph.D. in
clinical psychology and is in private practice as a clinical social worker and a clinical
psychologist. His work experience includes the position of executive director of the
Giarretto Institute, which provides therapeutic services and counseling to sexually abused
children, their families, and the perpetrators. More recently, he has been in private
practice as a psychologist. He performs forensic evaluations, including sexually violent
predator evaluations. The trial court found that Dr. Abbott was qualified as an expert “in
psychology and statistical methods as it relates to sexual recidivisim.”
Dr. Abbott testified regarding his statistical analysis of the Static 99 risk
assessment tool. He believes that the Static 99 tends to overpredict the sexual recidivism
rate for persons who, like Schuler, are over the age of 40. Dr. Abbott also believes that
the Static 99 has never been validated for use on sexually violent predators. Additionally,
there is a danger of obtaining a false positive (determining a person is a likely recidivist)
on the Static 99. Dr. Abbott further explained that because Schuler is nearly 49 years of
age, he falls into an age group where the rate of recidivism declines and is one-third less
than what the Static 99 would predict. Consequently, Dr. Abbott considers that “it would

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be dangerous to try and quantify someone‟s risk level based on their categorical [Static
99] score of zero to six plus.”
Dr. Abbot also criticized the People‟s expert witnesses‟ diagnosis of paraphilia not
otherwise specified, or being aroused by coercive sexual behavior, as “essentially an
invented diagnosis.” However, he did not provide any other specific opinions regarding
Schuler‟s mental condition or his risk of reoffending.
4. Jury Verdict and Commitment Order
On June 18, 2008, the jury rendered its verdict finding the petition alleging that
Schuler was a sexually violent predator within the meaning of section 6600 to be true.
On the same day, June 18, 2008, the trial court issued its order committing Schuler
to the custody of the State Department of Mental Health for an indeterminate term for
appropriate treatment and confinement in a secure facility, pursuant to section 6604.
Thereafter, Schuler filed a timely notice of appeal.
III. DISCUSSION
On appeal, Schuler argued that the finding that he is a sexually violent predator
should be reversed for several reasons: the trial court abused its discretion in allowing
the People‟s experts to testify regarding the details of prior misconduct other than the
qualifying offense; the trial court abused its discretion when it admitted into evidence the
district attorney‟s summaries of Schuler‟s criminal and institutional history; the
admission of multiple hearsay, through the experts‟ testimony and the district attorney‟s
summaries, violated due process; the trial court failed to sua sponte instruct the jury that
the hearsay relied upon by the experts in forming their opinions was admitted for the
limited purpose of showing the basis for the experts‟ opinions and not for the truth; trial
counsel was ineffective in failing to request that limiting instruction; the jury was told
that the consequence of finding Schuler to be a sexually violent predator was that he
would be committed to a state hospital; and the SVPA violates the due process, equal
protection, ex post facto and double jeopardy provisions of the state and federal

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constitutions. We will begin with a brief overview of the SVPA, followed by our
analysis of the issues arising from the expert witness testimony.
A. Brief Overview of the SVPA
The SVPA provides for the involuntary civil commitment, for treatment and
confinement, of an individual who is found, by a unanimous jury verdict (§ 6603, subds.
(e) & (f)), and beyond a reasonable doubt (§ 6604), to be a “sexually violent predator”
(ibid). The criteria for a finding that a person is a sexually violent predator are set forth
in section 6600, subdivision (a)(1) as follows: “ „Sexually violent predator‟ means a
person who has been convicted of a sexually violent offense against one or more victims
and who has a diagnosed mental disorder that makes the person a danger to the health and
safety of others in that it is likely that he or she will engage in sexually violent criminal
behavior.”
The SVPA was amended twice in 2006 -- in September, by Senate Bill 1128
(Stats. 2006, ch. 337, § 62), and in November, by Proposition 83 (see Cal. Const., art. II,
§ 10, subd. (a)). Prior to the amendments in 2006, an individual determined to be a
sexually violent predator was committed to the custody of the Department of Mental
Health for a two-year term. The individual‟s term of commitment could be extended for
additional two-year periods. (Former § 6604, as amended by Stats. 2000, ch. 420, § 3;
former § 6604.1, as amended by Stats. 2000, ch. 420, § 4.)
On September 20, 2006, the Governor signed into law Senate Bill 1128, which
amended the SVPA effective immediately. (Stats. 2006, ch. 337, § 62.) Among other
changes, the amended SVPA provided for an indeterminate term of commitment. (Stats.
2006, ch. 337, § 55.) The references to two-year commitment terms and extended
commitments in sections 6604 and 6604.1 were eliminated. (Stats. 2006, ch. 337, §§ 55,
56.)
Less than two months after Senate Bill 1128 amended the SVPA, voters approved
Proposition 83, which amended the SVPA effective November 8, 2006. (See Cal. Const.,

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art. II, § 10, subd. (a).) Like Senate Bill 1128, Proposition 83 amended the SVPA to
provide that a sexually violent predator‟s commitment term is “indeterminate.” (§ 6604;
see § 6604.1.) Proposition 83 also eliminated all references to a two-year term of
commitment and most references to an extended commitment in sections 6604 and
6604.1. Thus, a person found to be a sexually violent predator under the SVPA is subject
to an indeterminate term of involuntary civil commitment. (People v. Whaley (2008)
160 Cal.App.4th 779, 785-787.)
B. Expert Witness Testimony
Schuler contends, for several reasons, that the trial court abused its discretion
when the court allowed the People‟s expert witnesses to testify in detail about his alleged
nonqualifying “offenses or behaviors” in violation of Evidence Code section 352. Our
analysis begins with the applicable standard of review.
1. Standard of Review
The standard that generally applies to review of a claim of erroneous admission of
evidence is abuse of discretion. “ „As a general matter, a trial court is vested with broad
discretion in ruling on the admissibility of evidence. The court‟s ruling will be upset only
if there is a clear showing of an abuse of discretion, i.e., that the court exceeded the
bounds of reason.‟ [Citation.]” (People v. Dean (2009) 174 Cal.App.4th 186, 193.)
Also, “ „[i]t is . . . well settled that the erroneous admission or exclusion of evidence does
not require reversal except where the error or errors caused a miscarriage of justice.
[Citation.] “A „miscarriage of justice‟ should be declared only when the court „after an
examination of the entire cause, including the evidence,‟ is of the „opinion‟ that it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” [Citations.]‟ [Citations.]” (People v. Fields (2009)
175 Cal.App.4th 1001, 1018.)
Keeping in mind the general standard of review, we next consider the limitations
on expert witness testimony.

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2. Limits on Expert Witness Testimony
In the present case, the claim of erroneous admission of evidence arises from
expert witness testimony. “Evidence Code section 801[6] limits expert opinion testimony
to an opinion that is „[b]ased on matter . . . perceived by or personally known to the
witness or made known to [the witness] 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 [the expert] testimony relates . . . .‟ [Citation.]”
(People v. Gardeley (1997) 14 Cal.4th 605, 617 (Gardeley).)
Thus, expert testimony may be based “on material that is not admitted into
evidence so long as it is material of a type that is reasonably relied upon by experts in the
particular field in forming their opinions. [Citations.]” (Gardeley, supra, 14 Cal.4th at
p. 618.) “Of course, any material that forms the basis of an expert‟s opinion must be
reliable. [Citation.]” (Ibid.) “So long as this threshold requirement of reliability is
satisfied, even matter that is ordinarily inadmissible can form the proper basis for the
expert‟s opinion testimony. [Citations.]” “And because Evidence Code section 802[7]
6 Evidence Code section 801 provides, “If a witness is testifying as an expert, his
testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to
a subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact; and [¶] (b) Based on a 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, unless an expert is precluded by law from
using such matter as a basis for his opinion.”
7 Evidence Code section 802 provides that “A witness testifying in the form of an
opinion may state on direct examination the reasons for his opinion and the matter
(including, in the case of an expert, his special knowledge, skill, experience, training, and
education) upon which it is based, unless he is precluded by law from using such reasons
or matter as a basis for his opinion. The court in its discretion may require that a witness
before testifying in the form of an opinion be first examined concerning the matter upon
which his opinion is based.”

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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. [Citations.]” (Ibid.)
A trial court, however, “ „has considerable discretion to control the form in which
the expert is questioned to prevent the jury from learning of incompetent hearsay.‟
[Citation.]” (Gardeley, supra, 14 Cal.4th at p. 619.) “A trial court also has the discretion
„to weigh the probative value of inadmissible evidence relied upon by an expert witness
. . . against the risk that the jury might improperly consider it as independent proof of the
facts recited therein.‟ [Citation.]” (Ibid; People v. Bell (2007) 40 Cal.4th 582, 608.)
Further, “[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. [Citations.] Most often,
hearsay problems will be cured by an instruction that matters admitted through an expert
go only to the basis of his [or her] opinion and should not be considered for their truth.
[Citation.]” (People v. Montiel (1993) 5 Cal.4th 877, 919 (Montiel); People v. Catlin
(2001) 26 Cal.4th 81, 137.) “Sometimes a limiting instruction may not be enough. In
such cases, Evidence Code section 352 authorizes the court to exclude from an expert‟s
testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice
outweighs its proper probative value. [Citations.]” (People v. Bell, supra, 40 Cal.4th at
p. 608.)
3. Analysis
According to Schuler, the trial court erred in allowing the People‟s expert
witnesses to testify about the details of his nonqualifying “offenses or behaviors” because
the hearsay evidence relied upon by the expert witnesses was unreliable and a proper
limiting instruction was not given. He also argues that the error is reversible because he

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would have obtained a more favorable outcome if the jurors had not heard a substantial
amount of inadmissible hearsay evidence pertaining to his alleged nonqualifying
“offenses or behaviors” and had not assumed the evidence to be true.
The People disagree, contending that the trial court properly allowed the expert
witnesses to testify as to the bases of their opinions because the records of Schuler‟s prior
acts, including probation reports, police reports, psychological reports, prison records,
and hospital files, are of the type commonly relied upon by expert witnesses in sexually
violent predator cases. The People also argue that Schuler had the opportunity at the time
of trial to show that the expert witnesses‟ reliance on such records was unreasonable and
assert that Schuler has not, on appeal, demonstrated that the records of his prior acts were
so unreliable that they should have been excluded. Additionally, the People maintain that
the recent decision in Dean, supra, 174 Cal.App.4th 186, suggesting that expert witnesses
in sexually violent predator trials should not testify regarding the details of nonqualifying
criminal behavior, was wrongly decided. They argue that the expert witnesses must
discuss the nature and details of a defendant‟s prior acts in order to explain why he or she
suffers from a mental disorder and poses a substantial risk of reoffending.
At the outset, we observe that it is undisputed that a limiting instruction was not
given in this case that would have informed the jurors “that matters admitted through an
expert go only to the basis of his [or her] opinion and should not be considered for their
truth,” as set forth in Montiel, supra, 5 Cal.4th at page 919. Therefore, to the extent that
any hearsay problems arose from the testimony of the People‟s expert witnesses, they
were not cured by the giving of the limiting instruction approved in Montiel.
However, we agree with the People that the evidence regarding Schuler‟s prior
nonqualifying misconduct that was presented through the expert witnesses‟ testimony
was properly before the jury for the nonhearsay purpose of showing the bases for the
experts‟ opinions. (People v. Martinez (2001) 88 Cal.App.4th 465, 486.) As this court
has previously determined, the SVPA “contemplates and expressly provides for the

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disclosure of all relevant records, including medical and psychological records, and their
consideration in [sexually violent predator] commitment proceedings.” (Id. at p. 475-
476; § 6601, subd. (b) [screening by State Department of Corrections and Rehabilitation
for likely sexually violent predators must be based on review of the person‟s social,
criminal and institutional history]; § 6601, subd. (c) [evaluation by State Department of
Mental Health to determine whether a person is a sexually violent predator must assess
risk factors including criminal and psychosexual history, type, degree, and duration of
sexual deviance, and severity of mental disorder]; § 6603, subd. (a) [person subject to
SVPA is entitled to access to all relevant medical and psychological records and
reports].)
In short, “the SVPA contemplates that the psychological evaluators will have
access to and consider these records in rendering their opinions and writing their reports.”
(People v. Martinez, supra, 88 Cal.App.4th at p. 476.) The same is true when the
psychological evaluators testify at trial, because the prosecutor may properly examine a
psychological evaluator regarding the relevant information contained in the records that
the evaluator relied upon in forming the opinion that a person is a sexually violent
predator. (Id. at p. 482.) Moreover, Schuler has not challenged, either on appeal or in the
trial court, the testimony of Dr. Arnold that the records that he reviewed in forming his
expert opinions about Schuler, including police reports, court documents, probation
reports, prison records, and hospital records, are routinely used in performing sexually
violent predator evaluations. Thus, Schuler cannot show that the out-of-court statements
in the records relied upon by the People‟s experts were not of the type reasonably relied
upon by psychological evaluators in performing sexually violent predator evaluations.
(Evid. Code, § 801; Gardeley, supra, 14 Cal.4th at p. 618.)
However, Schuler emphasizes his contentions that the trial court abused its
discretion in denying his motion in limine No. 6 to exclude hearsay evidence of his
nonqualifying “offenses or behaviors” obtained from police reports, probation reports,

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psychological evaluations, prison records and state hospital records because the evidence
was unreliable. Schuler also argues that the experts‟ testimony regarding his prior
nonqualifying misconduct contained a level of detail that was unduly prejudicial, relying
on Dean, supra, 174 Cal.App.4th at pages 487-489. We find no merit in either
contention.
Reliability
The contention that the evidence regarding Schuler‟s prior nonqualifying
misconduct, on which the experts based their opinions, was unreliable is not persuasive in
light of the record below. Schuler‟s motion in limine No. 6 argued for a blanket
exclusion of all of the evidence concerning his prior nonqualifying offenses and
misconduct, without specifying any particular piece of evidence or information as lacking
sufficient indicia of reliability to satisfy due process other than the evidence regarding the
alleged rape of J. Schuler also failed to object during trial to the experts‟ testimony
regarding any specific act of prior nonqualifying misconduct on the ground that the
testimony was based on unreliable evidence. We therefore find that Schuler has forfeited
this issue on direct appeal as to any evidence of misconduct other than the rape of J.
(Evid. Code, § 353;8 People v. Doolin (2009) 45 Cal.4th 390, 448.)
While Schuler argued that J.‟s reports of the rape were unreliable due to her
mental illness and because the criminal case involving J. had been dismissed, the
People‟s psychological experts, Dr. Arnold and Dr. Scherrer, testified that they found the
8 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.”

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information concerning that offense to be reliable. The experts explained that despite J.‟s
severe mental illness and the lack of any criminal prosecution, the rape incident was
significant because J. had consistently reported the key facts that Schuler had forced her
to have sexual intercourse. Additionally, Schuler had the opportunity to cross-examine
these experts as to the information and reasoning underlying their opinions. (People v.
Stoll (1989) 49 Cal.3d 1136, 1155; Evid. Code, § 721, subd. (a).)9 Our review of the
record shows that the issue of whether the evidence concerning the alleged rape of J. was
reliable was thoroughly explored during Schuler‟s cross-examination of the experts.
Moreover, the trial court found that J. had testified in an Evidence Code section
40210 hearing and at a trial and therefore the evidence of the 1996 incident was
sufficiently reliable for the experts to rely upon it. The court also denied the motion to
exclude other evidence of Schuler‟s prior nonqualifying misconduct, finding that the
evidence was relevant and, under Evidence Code section 352, the probative value was not
“substantially outweighed” by a “substantial danger of undue prejudice or misleading the
jury.” On this record, we determine that Schuler has failed to show that the trial court
abused its discretion in making these findings and denying his motion in limine No. 6 to
9 Evidence Code section 721, subdivision (a) provides, “(a) Subject to subdivision
(b), a witness testifying as an expert may be cross-examined to the same extent as any
other witness and, in addition, may be fully cross-examined as to (1) his or her
qualifications, (2) the subject to which his or her expert testimony relates, and (3) the
matter upon which his or her opinion is based and the reasons for his or her opinion.”
10 Evidence Code section 402 provides, “(a) When the existence of a preliminary
fact is disputed, its existence or nonexistence shall be determined as provided in this
article. [¶] (b) The court may hear and determine the question of the admissibility of
evidence out of the presence or hearing of the jury; but in a criminal action, the court
shall hear and determine the question of the admissibility of a confession or admission of
the defendant out of the presence and hearing of the jury if any party so requests. [¶]
[c] A ruling on the admissibility of the evidence implies whatever finding of fact is
prerequisite thereto; a separate or formal finding is unnecessary unless required by
statute.”

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exclude evidence of his nonqualifying offenses and misconduct on the ground of
unreliability.
Level of Detail
We also find no merit in Schuler‟s contention that the trial court erroneously
allowed the experts to testify to an improper level of detail regarding Schuler‟s prior
nonqualifying misconduct.
The California Supreme Court has stated the general rule that “ „[w]hile an expert
may state on direct examination the matters on which he [or she] relied in forming his
opinion, he [or she] may not testify as to the details of such matters if they are otherwise
inadmissible. [Citations.] The rule rests on the rationale that while an expert may give
reasons on direct examination for his opinions, including the matters he [or she]
considered in forming them, he [or she] may not under the guise of reasons bring before
the jury incompetent hearsay evidence. [Citations.]‟ [Citation.]” (People v. Coleman
(1985) 38 Cal.3d 69, 92 (Coleman).) In other words, “[t]he court in Coleman was
attempting to balance the desirability of allowing an expert to explain the basis for an
opinion and the need to prevent the jury from considering inadmissible matter for an
improper purpose.” (People v. Martin (2005) 127 Cal.App.4th 970, 977.) Thus, some
level of detail may be necessary. “An expert opinion cannot reasonably be based on
nonspecific and conclusory hearsay that does not set forth any factual details of an act
necessary for the opinion.” (People v. Dodd (2005) 133 Cal.App.4th 1564, 1570 [parole
report lacked sufficient factual detail on which to base an expert opinion that the
defendant was a mentally disordered offender].)
In Dean, supra, 174 Cal.App.4th 186, which concerned an appeal from an order
committing the defendant as a sexually violent predator under the SVPA, the appellate
court addressed the issue of whether the trial court had abused its discretion in allowing
the People‟s experts to testify as to the details of the defendant‟s institutional behavior as
noted in the records of Atascadero State Hospital and other institutions. (Id. at p. 196.)

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The court determined that testimony of one expert should have been limited as follows:
“We believe Dr. Goldberg‟s testimony should have been limited. In bringing before the
jury the matters relied upon to form his opinion, his testimony should have been
circumscribed to more general testimony. He could have permissibly testified that the
records demonstrated the extent to which [the defendant] participated in treatment while
at [Atascadero State Hospital], the degree to which [the defendant] followed his diabetic
regimen, and how he interacted with women staff members and other individuals at
[Atascadero State Hospital]. Additionally, he could have properly testified that the
records reflected [the defendant‟s] interaction with the criminal justice system. Limiting
Dr. Goldberg‟s testimony in such a way still affords him the ability to communicate to
the jury the matters relied upon in forming his opinion without bringing before it
inadmissible hearsay.” (Id. at p. 200.)
The Dean court also determined that the trial court had abused its discretion by
allowing another expert, Dr. Starr, to testify regarding “the specifics of the entries” in the
records regarding prior nonqualifying misconduct, such as Dean‟s juvenile offenses,
other criminal convictions, and reports of nonconsensual sex while in custody. (Dean,
supra, 174 Cal.App.4th at p. 200.) The court found that “[t]his testimony is highly
inflammatory and, without foundational testimony concerning the records, is of
questionable reliability. The value of this testimony to support the bases of Dr. Starr‟s
opinions is simply outweighed by the risk that the jury will impermissibly use the
information.” (Id. at pp. 200-201, fn. omitted.)
In so ruling, the court in Dean stated that “[e]xperts can properly and credibly
place before the jury the matters they relied upon and the nature of those matters, without
testifying as to the specific details of the documentary entries not otherwise admitted into
evidence.” (Dean, supra, 174 Cal.App.4th at p. 201.) The court nevertheless concluded
that the trial court had not committed reversible error in allowing the experts to
improperly testify as to the details contained the records, because the trial court had given

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a limiting instruction, the majority of the information was also testified to by the
defendant, and it was not reasonably probable that the defendant would have achieved a
more favorable result “in the absence of the jury hearing about these matters on the direct
examination of the prosecutor‟s experts.” (Id. at p. 202.)
We view the decision in Dean as applying the rule articulated in People v.
Coleman, supra, 38 Cal.3d at page 92--that while an expert may state on direct
examination the matters on which he or she relied in forming his opinion, he or she may
not testify as to the details of such matters if they are otherwise inadmissible--to the facts
of the case before that court. We do not understand Dean to prohibit expert testimony in
SVPA proceedings regarding any of the details contained in institutional records. In
other words, we believe that the trial court‟s exercise of its discretion regarding the level
of detail allowed when an expert testifies as to the material that formed the basis for his
or her opinion must be made on a case by case basis. The trial court must balance the
need for an expert to adequately explain the basis for an opinion with the need to prevent
the jury from considering inadmissible evidence for an improper purpose. (People v.
Martin, supra, 127 Cal.App.4th at p. 977; Gardeley, supra, 14 Cal.4th at p. 619; People
v. Bell, supra, 40 Cal.4th at p. 608.)
In the present case, as we have noted, the trial court denied Schuler‟s motion in
limine to exclude hearsay evidence of his prior nonqualifying misconduct obtained from
police reports, probation reports, psychological evaluations, prison records and state
hospital records. During oral argument on the motion, defense counsel only contended
that the specific facts of the alleged 1996 rape of J. should be excluded due to
unreliability. Then, at the time of trial defense counsel did not object to any of the
experts‟ testimony on the ground that the level of detail given about Schuler‟s
nonqualifying offenses and misconduct was excessive. Therefore, Schuler has forfeited
his appellate challenge to the experts‟ testimony on that ground. (Evid. Code, § 353;
People v. Doolin, supra, 45 Cal.4th at p. 448.)

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Even assuming that Schuler had objected, we would find that the level of detail
was appropriate because the details of Schuler„s psychosexual history, as indicated in the
records reviewed by the experts, were relevant to the experts‟ diagnoses of Schuler‟s
mental disorders. Most significantly, the details of Schuler‟s interactions with female
patients and staff were relied upon by the experts in forming their opinion that Schuler is
likely to reoffend as a sexual predator because his mental disorders cause him to lack
impulse control over his urge to have coercive, nonconsensual sex. For example,
Dr. Shelley testified that her review of the details of Schuler‟s interactions with female
patients and staff, as noted in his records, indicated to her that Schuler had a “chronic
pattern” of “being sexual with women against their will.”
Moreover, much of the factual detail regarding the alleged rape of J. was elicited
by defense counsel during cross-examination of Dr. Arnold, after defense counsel asked,
“Now, the description of the [J.] incident that you gave left out quite a few factors, is that
fair to say?” Defense counsel then asked a series of questions regarding the details of the
incident, in an effort to demonstrate the inconsistencies in J.‟s reporting of the incident.
Defense counsel also asked Dr. Arnold a series of questions regarding the details of
Schuler‟s uncharged sexual misconduct in an effort to show that the misconduct was not
sexually violent.11 Thus, our review of the record shows that the level of detail regarding
11 For example, the following colloquy occurred during defense counsel‟s
examination of Dr. Arnold: “Q. Then we have the situation with Lynn who was working
there . . . . [¶] A. Yes. [¶] Q. She indicates that she‟s preparing for a Halloween party,
that Mr. Schuler is very excited by what‟s going on, and during the preparations and that
type of excitement, he grabs her and kisses her? [¶] A. Correct. Actually, it‟s my
understanding that he asked for a hug and she is initially stating no, and then she consents
to the hug, and that‟s when she is grabbed by Mr. Schuler and he kisses her hard. . . .
[¶] . . . [¶] Q. So it appears that she doesn‟t think this is serious enough behavior to call
the police right away, and it‟s something that perhaps she expecting that‟s going to
happen and that she‟s going to try to take corrective action on her own by counseling Mr.
Schuler? [¶] A. Yes. [¶] Q. And so at that point Mr. Schuler really gets obnoxious with

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Schuler‟s nonqualifying misconduct to which the experts testified was relevant and
necessary for an explanation of the bases for the experts‟ opinions, and was also brought
out on cross-examination in order to support Schuler‟s defense theories. Accordingly, we
find that the trial court did not abuse its discretion in allowing the expert witnesses to
testify regarding the details of Schuler‟s nonqualifying offenses and misconduct.
Finally, even assuming that some of the details of Schuler‟s nonqualifying
misconduct should have been excluded, we would find the error to be harmless. (People
v. Watson (1956) 46 Cal.2d 818, 836.) It is not reasonably probable that, had the
People‟s expert witnesses provided less detail regarding the facts of the nonqualifying
misconduct on which they based their uncontradicted opinions that Schuler meets the
criteria for a sexually violent predator, the outcome would have been different.
Limiting Instruction
Finally, we consider Schuler‟s contention that a limiting instruction should have
been given that told the jurors that the matters on which an expert based his or her
opinion were admitted only to show the basis of the opinion and not for the truth of the
matter. Although Schuler did not request such an instruction at the time of trial, he
argues on appeal that the trial court had a duty to sua sponte give this instruction, trial
counsel was ineffective in failing to request the instruction, and the absence of a proper
limiting instruction constitutes reversible error.
The instructions given by the trial court regarding expert testimony included the
following instructions based on CALCRIM No. 332: “Witnesses were allowed to testify
as experts and to given opinions. You must consider the opinions, but you are not
required to accept them as true or correct. The meaning and importance of any opinion
are for you to decide. In evaluating the believability of an expert witness, follow the
her and says she would be missing out on him and he was going to cut off her head?
[¶] A. Yes.”

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instructions about the believability of witnesses generally. In addition, consider the
experts[‟] knowledge, skill, experience, training and education, the reasons the expert
gave for any opinion, and the facts or information on which the expert relied in reaching
that opinion. You must decide whether the information on which the expert relied was
true and accurate. You may disregard any opinion that you find unreliable, unreasonable
or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical
question. A hypothetical question asks the witness to assume certain facts are true and to
give an opinion based on the assumed facts. It is up to you to decide whether an assumed
fact has been proved. If you conclude that assumed fact is not true, consider the effect of
the expert‟s reliance on that fact in evaluating the expert‟s opinion. [¶] If the expert
witness disagrees with one another, you should weigh each opinion against the others.
You should examine the reasons given for each opinion and the facts or other matters on
which each witness relied. You may also compare the experts‟ qualifications.”
The trial court also instructed the jurors that “[d]uring the trial, certain evidence
was admitted for a limited purpose. You may consider that evidence only for that
purpose and for no other.” However, our review of the record indicates that the trial
court did not expressly advise the jurors that any particular evidence was admitted for a
limited purpose.
The People maintain that the instructions given regarding expert testimony
properly required the jurors to determine whether the evidence relied upon by the experts
concerning Schuler‟s nonqualifying offenses and misconduct was true and accurate.
They explain that “whether the jury „was specifically told that [the evidence was
admitted] for only the purpose of describing how [the experts] arrived at their opinions‟ is
a distinction without a difference in SVP cases.” They further explain that “[u]nlike a
criminal case, there was no danger of the jury drawing an improper inference based on
[Schuler‟s] character. The ultimate issue was [Schuler‟s] character. Therefore, drawing

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the inference that the past behavior was true, thus supporting a belief that [he] suffers
from a mental disorder that makes him likely to reoffend, would not be improper.”
Our evaluation of Schuler‟s claim of instructional error is guided by the California
Supreme Court‟s rulings on limiting instructions, as follows: “ „When evidence is
admissible as to one party or for one purpose and is inadmissible as to another party or
for another purpose, the court upon request shall restrict the evidence to its proper scope
and instruct the jury accordingly. (Evid. Code, § 355, italics added.) Thus, although a
court should give a limiting instruction on request, it has no sua sponte duty to give one.
[Citation.] [People v.] Collie [(1981) 30 Cal.3d 43] at page 64, recognizes a possible
exception in „an occasional extraordinary case in which unprotested evidence . . . is a
dominant part of the evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose. [Citation.]” (People v. Hernandez (2004)
33 Cal.4th 1040, 1051-1052.) We independently determine whether the trial court had a
duty to give a particular jury instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
Applying these rules, we find that the trial court did not have a sua sponte duty to
instruct the jurors that the matters on which an expert based his or her opinion were
admitted only to show the basis of the opinion and not for the truth of the matter. While
the matters on which the People‟s experts primarily based their opinions--Schuler‟s
criminal offenses and other misconduct as stated in his records--were arguably dominant
in the experts‟ testimony, these matters were highly relevant to the experts‟ opinions
regarding Schuler‟s mental disorders and the risk that he would reoffend as a sexually
violent predator. Therefore, this case is not “ „an extraordinary case‟ ” warranting a sua
sponte limiting instruction. (People v. Hernandez, supra, 33 Cal.4th at pp. 1051-1052.)
The decision in People v. Housley (1992) 6 Cal.App.4th 947 (Housley), on which
Schuler relies, does not convince us that the trial court had a sua sponte duty to give a
limiting instruction. In Housley, the issue was whether a sua sponte limiting instruction
should have been given with respect to a psychological expert‟s testimony about child

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sexual abuse accommodation syndrome (CSAAS). (Id. at p. 956.) The appellate court
determined that “because of the potential for misuse of CSAAS evidence, and the
potential for great prejudice to the defendant in the event such evidence is misused, it is
appropriate to impose upon the courts a duty to render a sua sponte instruction limiting
the use of such evidence. Accordingly, in all cases in which an expert is called to testify
regarding CSAAS we hold the jury must sua sponte be instructed that (1) such evidence
is admissible solely for the purpose of showing the victim‟s reactions as demonstrated by
the evidence are not inconsistent with having been molested; and (2) the expert‟s
testimony is not intended and should not be used to determine whether the victim‟s
molestation claim is true.”12 (Id. at pp. 958-959.)
The present case is distinguishable. Unlike Housley, the expert testimony
regarding Schuler‟s nonqualifying offenses and misconduct was not “unusually
susceptible of being misunderstood and misapplied by a jury . . . .” (Housley, supra,
6 Cal.App.4th at p. 958.) To the contrary, we find that the expert testimony regarding the
record of Schuler‟s nonqualifying offenses and misconduct was likely to be understood
by the jurors to form a substantial part of the basis for the experts‟ opinions that Schuler
had certain mental disorders and was likely to reoffend as a sexually violent predator.
The jurors were also instructed to evaluate the reasons for the experts‟ opinions, as stated
in the following portion of the instructions on expert testimony: “In addition, consider
. . . the reasons the expert gave for any opinion, and the facts or information on which the
expert relied in reaching that opinion. You must decide whether the information on
12 CALCRIM No. 1193 is based upon Housley, supra, 6 Cal.App.4th 947: “You
have heard testimony from <insert name of expert> regarding child sexual abuse
accommodation syndrome. [¶] ________‟s <insert name of expert> testimony about
child sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against (him/her). [¶] You may consider this
evidence only in deciding whether or not _________‟s <insert name of alleged victim of
abuse> conduct was not inconsistent with the conduct of someone who has been
molested, and in evaluating the believability of (his/her) testimony.”

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which the expert relied was true and accurate. You may disregard any opinion that you
find unreliable, unreasonable or unsupported by the evidence.” Under these
circumstances, we do not believe that a further limiting instruction was necessary to
prevent the jurors from misapplying or misusing the evidence regarding Schuler‟s
nonqualifying offenses and misconduct.
Our determination is supported by the decision in Montiel, supra, 5 Cal.4th at
pages 919-920, which involved a first degree murder conviction. In that case, the
defendant argued that the prosecution drug expert had improperly disclosed prejudicial
hearsay information regarding the defendant‟s drug use while explaining his conclusions
on direct examination. Like the present case, no instruction was given that informed the
jurors that “matters admitted through an expert go only to the basis of his [or her] opinion
and should not be considered for their truth.” (Id. at p. 919.) Also, as in the present case,
the jurors were instructed that “some evidence has been admitted for a limited purpose
and must be considered accordingly. However, this instruction was never tied to
particular evidence, and the jury‟s attention was never drawn to specific hearsay
disclosed by expert witnesses which should only be considered as a basis for evaluating
their opinions.” (Ibid.)
Despite the lack of a limiting instruction, the court in Montiel rejected the
defendant‟s argument that the prosecutor had used the drug expert to improperly
introduce hearsay evidence for the truth of the matter. Finding that the “central theory of
both defense and prosecution cases was that defendant was a lifelong abuser of drugs,”
the court determined that the prosecution drug expert “was entitled to place his
conclusions in the context of defendant‟s overall pattern of drug use.” (Montiel, supra,
5 Cal.4th at p. 920.) Thus, the court concluded that the “admission of evidence about
defendant‟s drug history, even without a limiting instruction, does not undermine
confidence in the penalty judgment.” (Ibid.)

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We reach a similar conclusion in the present case. Here, the People‟s
psychological experts were entitled to place their conclusions about Schuler‟s mental
disorders and risk of reoffending as a sexually violent predator in the context of his
overall pattern of misbehavior with female staff and patients and other nonqualifying
offenses and misconduct. And, as we have discussed, the level of detail regarding
Schuler‟s misconduct to which the experts testified was appropriate in light of the need
for the experts to provide an adequate factual basis for their opinions. Accordingly, the
admission of this expert testimony without a limiting instruction does not undermine our
confidence in the jurors‟ finding that the allegations of the sexually violent predator
petition were true.
For these reasons, we also find that trial counsel was not ineffective in failing to
request a limiting instruction. To prevail on an ineffective assistance of counsel claim,
the defendant must show that (1) “counsel‟s performance fell below a standard of
reasonable competence” and (2) “prejudice resulted.” (People v. Anderson (2001)
25 Cal.4th 543, 569; Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
Moreover, the California Supreme Court has “ „repeatedly emphasized that a claim of
ineffective assistance is more appropriately decided in a habeas corpus proceeding.‟
[Citations.] The defendant must show that counsel‟s action or inaction was not a
reasonable tactical choice, and in most cases „ “ „ “the record on appeal sheds no light on
why counsel acted or failed to act in the manner challenged. . . .” ‟ ” [Citations.]‟ ”
(People v. Jones (2003) 30 Cal.4th 1084, 1105.)
Here, the record does not show whether trial counsel had a tactical reason for
failing to request a limiting instruction. Therefore, we cannot find ineffective assistance
of counsel on the record before us. (People v. Jones, supra, 30 Cal.4th at p. 1105.) Even
if we were to find that reasonably competent counsel would have requested that the court
instruct the jury that the matters on which an expert based his or her opinion were
admitted only to show the basis of the opinion and not for the truth of the matter, we

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would find no prejudice. It is not reasonably probable that Schuler would have achieved
a more favorable verdict had the limiting instruction be given. (People v. Anderson,
supra, 25 Cal.4th at p. 569; Housley, supra, 6 Cal.App.4th at p. 959.)
We therefore find no merit in any of the issues Schuler has raised on appeal with
regard to the testimony of the People‟s expert witnesses.
C. The District Attorney’s Summaries
Schuler argues that the trial court abused its discretion when it failed to exclude
the admission of People‟s exhibit No. 1, which is a one-page chart summarizing
Schuler‟s “criminal history,” and People‟s exhibit No. 9, which is a two-page chart
summarizing Schuler‟s history of institutional misconduct.13 According to Schuler, these
exhibits should have been excluded under Evidence Code section 352 as more prejudicial
than probative, because the exhibits “delineate[d] incidents for the truth of the matter
asserted.”
The People respond that exhibit Nos. 1 and 9 were merely “brief summaries of the
chronology of [Schuler‟s] behavior prior and after his rape conviction” and were “simply
demonstrative evidence” of the facts to which the experts had testified. They contend
that the trial court properly overruled Schuler‟s objection to the admission of exhibit
Nos. 1 and 9, based on the court‟s reasoning that “[w]ith regard to 1 and 9, I do find that
they are key facts on which the experts based their opinions, and the list itself helps the
jury keep those in mind. I think it‟s more helpful than prejudicial, and there is no
assertion that it‟s inaccurate. [¶] So based on those reasons, I‟m going to admit 1 and 9.”
The standard of review for a trial court order under Evidence Code section 352 is
abuse of discretion. (People v. Robinson (2005) 37 Cal.4th 592, 625.) For several
reasons, we determine that the trial court did not abuse its discretion in admitting
13 In his reply brief, Schuler acknowledges that his opening brief argument on this
issue erroneously references documents that were not exhibit Nos. 1 and 9. He corrected
his argument in his reply brief.

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exhibit Nos. 1 and 9. First, the California Supreme Court has approved the use of visual
aids at trial, stating that “[t]he use of photographs and tape recordings, intended later to
be admitted in evidence, as visual or auditory aids is appropriate. [Citations.]” (People
v. Fauber (1992) 2 Cal.4th 792, 827.)
Second, exhibit Nos. 1 and 9 contain very brief summaries of Schuler‟s criminal
offenses and misconduct that had already been described in more detail during the expert
witnesses‟ testimony. For example, exhibit No. 1, which is captioned “Criminal History
of Brian Schuler,” lists “2/4/92 Charged with Assault with a Deadly Weapon; Convicted
of Battery 2/7/92,” followed by “11/9/96 Raped & Digitally Penetrated [J.]” The entirety
of the one-page exhibit No. 1 chart lists only nine incidents in the period of 1992 through
2000.
Similarly, exhibit No. 9, which is captioned “Institutional History of Brian
Schuler,” includes very brief summaries of 16 incidents from 1996 through 2008. For
example, exhibit No. 9 lists “7/11/96 Fight,” followed by “8/17/96 Behavior Contract”
and “11/9/96 [J.].” Schuler does not dispute the expert witnesses‟ testimony that exhibit
Nos. 1 and 9 are accurate summaries according to their review of his criminal and
institutional records.
Thus, we find that exhibit Nos. 1 and 9 are visual representations of the expert
testimony regarding Schuler‟s nonqualifying offenses and misconduct that we have
already determined, as discussed above, was relevant and necessary for an explanation of
the factual basis for the experts‟ opinions. Accordingly, we agree with the trial court that
the probative value of exhibit Nos. 1 and 9 was not outweighed by irrelevance,
unreliability, or the potential for prejudice. (People v. Bell, supra, 40 Cal.4th at p. 608.)
D. Admission of Multiple Hearsay--Due Process Violation
In his supplemental opening brief, Schuler argues that the admission of “multiple
hearsay,” consisting of “detailed expert testimony about multiple alleged nonpredicate
offenses and behaviors” and the “government-generated „summaries‟ of [his] criminal

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history and institutional history” violated his due process rights under the Fourteenth
Amendment because the “multiple hearsay” was unreliable. He explains, relying on
People v. Otto (2001) 26 Cal.4th 200 (Otto) and People v. Carlin (2007) 150 Cal.App.4th
322 (Carlin), that the admission of unreliable multiple hearsay constitutes “prejudicial
constitutional error” because “[t]he jury . . . was permitted to hear, and accept as true,
every indiscretion noted in [Schuler‟s] file.”
According to the People, the decision in Carlin, supra, 150 Cal.App.4th 322, is
inapplicable because it was limited to the issue of the admissibility of hearsay evidence in
an SVPA proceeding to prove a qualifying offense. The People further argue that any
error in allowing expert testimony about Schuler‟s nonqualifying offenses and
misconduct and admitting exhibit Nos. 1 and 9 was harmless error, because there was no
reasonable probability of a more favorable outcome. They assert that even if the expert
witnesses‟ testimony had not included the details of Schuler‟s criminal and institutional
history, the jurors would have heard the uncontradicted opinions of three experts that
Schuler met the statutory criteria for a sexually violent predator.
We recognize that “[b]ecause civil commitment involves a significant deprivation
of liberty, a defendant in an SVP proceeding is entitled to due process protections.
[Citation.]” (Otto, supra, 26 Cal.4th at p. 209.) Due process was not violated in the
present case, however, as a result of the expert testimony or the admission of exhibit
Nos. 1 and 9. We reiterate our determination that the evidence regarding Schuler‟s
history of misconduct was properly admitted for the nonhearsay purpose of allowing the
People‟s expert witnesses to explain the factual basis for their opinions. We also reiterate
our determination that the trial court did not err in admitting that district attorney‟s
summaries that were visual representations of that properly admitted evidence. (People
v. Martinez, supra, 88 Cal.App.4th at p. 486.) Therefore, we reject at the outset Schuler‟s
contention that the trial court admitted “multiple hearsay” regarding his “multiple alleged
nonpredicate offenses and behaviors.”

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Moreover, as discussed above, Schuler failed to object to any particular piece of
evidence or information regarding any specific act of nonqualifying misconduct on the
ground that it lacked sufficient indicia of reliability to satisfy due process, and, therefore,
he has forfeited that issue on direct appeal with the exception of the evidence concerning
the rape of J. to which he did expressly object. (Evid.Code, § 353; People v. Doolin,
supra, 45 Cal.4th at p. 448; People v. Waidla (2000) 22 Cal .4th 690, 717.) As to the
rape of J., the experts‟ records review included the transcripts of J.‟s testimony in an
Evidence Code section 402 hearing and at a trial, and we have concluded that the
evidence of the incident was therefore sufficiently reliable for the experts to rely upon it.
And, as we have observed, much of the detail regarding the rape of J. was elicited by
defense counsel during cross-examination of the People‟s expert witnesses for the
purpose of supporting a defense theory and challenging J.‟s credibility.
We also determine that the decisions in Otto and Carlin do not support Schuler‟s
contention that a due process violation arose from the testimony of the expert witnesses.
In Otto, the California Supreme Court considered the issue of whether due process was
violated in an SVPA proceeding because the victims‟ hearsay statements in presentence
reports were admitted to show the details of the qualifying offenses. (Otto, supra,
26 Cal.4th at pp. 206-207.) The court concluded there was no due process violation
because, among other reasons, the victims‟ hearsay statements “possessed sufficient
indicia of reliability to satisfy due process” since the defendant had been convicted of the
offenses and courts routinely rely upon presentence reports to make factual findings in
sentencing hearings. (Id. at pp. 211-213.) Additionally, the court noted that procedural
safeguards further diminished the risk of unreliable hearsay, including the defendant‟s
opportunity to present his own psychological experts and to cross-examine the
prosecution witnesses, as well as the trial court‟s discretion to exclude unreliable hearsay
under Evidence Code section 352. (Id. at p. 214.) Thus, as the People have pointed out,
the decision in Otto is distinguishable because it concerned the admission of hearsay

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evidence to prove a qualifying offense, and not evidence admitted through expert
testimony for the nonhearsay purpose of revealing the factual basis for the expert‟s
opinion.
The decision in Carlin is similarly unhelpful to Schuler. In that case, this court
found a due process violation in an SVPA proceeding arising from the admission of
certain hearsay evidence to prove a qualifying offense. (Carlin, supra, 150 Cal.App.4th
at p. 328.) The hearsay evidence in question was an investigator‟s report that included
2000 and 2001 hearsay victim statements regarding a 1990 child molestation, to which
the defendant pleaded guilty in 1991, that were inconsistent with the victim‟s statement in
a 1991 police report. (Id. at pp. 336-337.) Because the circumstances surrounding the
2000 and 2001 hearsay victim statements showed that the statements were not
spontaneous, were inconsistent, were not made in close proximity to the offense, and
were not contained in a presentence report, the statements were found to lack indicia of
reliability and their admission to prove a qualifying offense violated due process. (Id. at
pp. 341-342.) The Carlin decision is therefore distinguishable because, again, it
addressed the admission of hearsay evidence in an SVPA proceeding to prove a
qualifying offense, and not evidence admitted through expert testimony for the
nonhearsay purpose of revealing the factual basis for the expert‟s opinion.
For these reasons, we find no merit in Schuler‟s due process claim.
E. Consequence of a True Finding
Schuler contends that reversible error occurred when the trial court‟s pretrial order
excluding any mention of the consequences of a true finding--that Schuler would go to a
hospital for treatment--was violated. He asserts that the order was violated during
Dr. Arnold‟s testimony, when Dr. Arnold mentioned that he was involved in the sexually
violent predator program at Atascadero State Hospital and also stated, according to
Schuler, that “ „people who reach the end of their prison terms are evaluated for
likelihood of committing sexual crimes, and if they are found to meet the criteria they can

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be committed to the hospital for treatment to reduce their risk of reoffending in the
future.‟ ” Schuler also claims that Dr. Arnold further testified that he was evaluating
Schuler for the purpose of commitment to a state hospital due to a sexual disorder.
The People view Dr. Arnold‟s testimony as speaking to his qualifications as an
expert witness and maintain that he did not specifically state that Schuler could be
committed to a state hospital. Alternatively, they argue that any error was cured by the
jury instruction given that instructed the jurors that it was improper to consider the
disposition of Schuler as a result of the verdict. Further, they argue that, assuming there
was an error, the error was harmless because there was no possibility of a more favorable
verdict since the evidence overwhelmingly demonstrated that Schuler is a sexually
violent predator.
It is well established that in a proceeding under the SVPA, the consequence of a
finding that a petition to commit a person as a sexually violent predator is true is
irrelevant and therefore the jury should not consider what will happen as a result of its
verdict. (People v. Rains (1999) 75 Cal.App.4th 1165, 1170-1171 (Rains); People v.
Calderon (2004) 124 Cal.App.4th 80, 91.) Where there is expert testimony regarding the
consequences of a true finding that the defendant is sexually violent predator, the error
requires reversal of the judgment “only when the court, after an examination of the entire
cause, including the evidence, is of the opinion that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error. [Citation.] This is the same standard of review utilized for reviewing the
erroneous admission of evidence in a criminal case. [Citations.]” (Rains, supra,
75 Cal.App.4th at p. 1170; People v. Watson (1956) 46 Cal.2d 818, 836.)
In the present case, the record reflects that the trial court ruled on Schuler‟s motion
in limine No. 9 as follows:

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“THE COURT: Okay. Number nine is to exclude any mention of the
consequences of a true finding, such as go the hospital for treatment. [¶] Any objection,
[Prosecutor]?
“[THE PROSECUTOR]: Well, no, Your Honor. . . .
“THE COURT: We are talking about the consequences of a true finding. The
request is granted.”
Thereafter, the following exchange occurred during the direct examination of
Dr. Arnold:
“[THE PROSECUTOR]: Now, at that point while working at Atascadero [State
Hospital] did you start to have any involvement in what is sometimes known as the
Sexually Violent Predator Program?
“[DR. ARNOLD]: Yes. Actually, that‟s the program I was primarily assigned to.
“[THE PROSECUTOR]: And what does that mean?
“[DR. ARNOLD]: It‟s individuals who once they reach the end of their prison
terms can be evaluated to assess their likelihood of committing sexual crimes, and if
they‟re found to meet certain criteria they can be committed to the hospital for treatment
to reduce their risk of reoffending in the future.”
Then, during Dr. Arnold‟s testimony regarding his opinions about Schuler, the
following exchange occurred:
“[THE PROSECUTOR]: Is that generally, the topic of masturbation, is that
generally a topic that you do need to go into when you‟re evaluating someone for our
purposes?
“[DR. ARNOLD]: Yes.
“[THE PROSECUTOR]: Why?
“[DR. ARNOLD]: Well, again, this is a -- I‟m evaluating for the purpose of
possible commitment to a state hospital because of a sexual disorder, and so one thing
that we know about--

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“[DEFENSE COUNSEL]: Your Honor, I‟m going to object. Can we approach?”
The trial court ruled on the objection as follows in the presence of the jury:
“[THE COURT]: [Prosecutor], I‟m going to strike the entire last answer, and you
may continue at this point. [¶] . . . [¶] Ladies and gentlemen, when I say „I‟m striking
this answer,‟ you [remember] earlier I told you yesterday that when the Court strikes any
testimony, that means you are to treat it as though you never heard of it.”
Subsequently, on June 6, 2008, during the course of Dr. Arnold‟s testimony,
Schuler made a motion for mistrial. The motion was based on Dr. Arnold‟s testimony
that he was involved with the sexually violent predator program at Atascadero State
Hospital. Schuler argued that this testimony violated the pretrial order that there would
be no mention that the consequence of a true finding would be that he would go to a
hospital for treatment. The trial court deferred its ruling until the trial testimony
concluded on July 17, 2008, when the court denied the motion on the grounds that Dr.
Arnold‟s comment was not “so incurably prejudicial that a new trial is required. I think
that any prejudice that came from the comment by the witness has been cured by striking
testimony, admonishing the jury, and then together with further admonitions and
instructions from the packet of instructions that I‟m about to use after argument.”
Having reviewed the record in its entirety, for several reasons we are not
convinced that reversible error occurred as a result of Dr. Arnold‟s testimony. First,
contrary to Schuler‟s claim, we do not find that Dr. Arnold expressly testified that he was
evaluating Schuler for the purpose of commitment to a state hospital due to a sexual
disorder.14 The issue is whether the jurors would have inferred the consequences of a
true finding from Dr. Arnold‟s testimony, as quoted above. Based on our review of the
14 The record cite in Schuler‟s opening brief for his claim that Dr. Arnold testified
that he was evaluating Schuler for the purpose of commitment to a state hospital due to a
sexual disorder references defense counsel‟s argument during the motion to dismiss and
not Dr. Arnold‟s actual testimony.

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record and all of the evidence, we believe that, even assuming the jurors inferred that the
consequence of a true finding would be that Schuler would be committed to a state
hospital, there is no reasonable probability of a more favorable verdict.
Most significantly, the People‟s three expert witnesses, Dr. Arnold, Dr. Scherrer,
and Dr. Shelley, all agreed that Schuler had diagnosed mental disorders, including
paraphilia, and was likely to reoffend as a sexually violent predator. Schuler‟s expert
witness, Dr. Abbott, did not contradict these opinions because he did not provide any
specific opinions about Schuler in his testimony. Therefore, the expert opinion testimony
that Schuler is a sexually violent predator was essentially undisputed.
Additionally, the challenged testimony was very brief and a portion of it was
stricken by the court. As quoted above, the trial court struck Dr. Arnold‟s answer that
masturbation was a topic that he considered in performing an “evaluation for the purpose
of possible commitment to a state hospital because of a sexual disorder.” The trial court
also admonished the jurors to treat that answer as if they had never heard it, and later
instructed the jurors, “You must reach your verdict without any consideration of the
consequences.” We must presume that the jury followed this instruction and the court‟s
admonishment. (People v. Yeoman (2003) 31 Cal.4th 93, 139; People v. Avila (2006)
38 Cal.4th 491, 574.)
Under these circumstances, even assuming the complained-of testimony by
Dr. Arnold constituted error because the testimony suggested that the consequences of a
true finding would be that Schuler would be committed to a state hospital, we are
satisfied that the error was harmless because it is not reasonably probable that Schuler
would have obtained a more favorable verdict absent the error. (Rains, supra,
75 Cal.App.4th at p. 1170.)

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F. Constitutional Challenges
Lastly, Schuler contends that that the SVPA, as amended in 2006,15 violates the
due process, equal protection, ex post facto and double jeopardy clauses. After briefing
was completed in this case, the California Supreme Court issued its decision in McKee,
supra, 47 Cal.4th 1172, which addressed similar constitutional challenges to the amended
SVPA. We requested and received supplemental briefing from the parties regarding the
application of the decision in McKee to the issues in the present appeal. Having reviewed
the supplemental briefing letters, we now turn to Schuler‟s constitutional claims.
1. Due Process
In his original briefing, Schuler argued that the amended SVPA violates the due
process clause of the Fourteenth Amendment to the United States Constitution. In his
supplemental briefing, Schuler concedes that the California Supreme Court in McKee
rejected a similar due process claim to the amended SVPA.
In McKee, the Supreme Court determined that a person committed under the
amended SVPA is not deprived of due process because he or she has the burden, after the
initial commitment, to show by a preponderance of the evidence that he or she no longer
meets the statutory criteria for commitment as a sexually violent predator. (McKee,
supra, 47 Cal.4th at p. 1191.) The court explained that a person committed under the
SVPA has been found to have previously committed the requisite qualifying offenses
and to have, beyond a reasonable doubt, a “ „diagnosed mental disorder that makes the
person a danger to the health and safety of others in that it is likely that he or she will
engage in sexually violent criminal behavior.‟ (§ 6600, subd. (a).)” (Id. at p. 1191.)
Therefore, as in Jones v. United States (1983) 463 U.S. 354, 367, the likelihood that the
person will be civilly committed on the basis of behavior that is “ „ “within a range of
15 As we have noted, the SVPA was amended twice in 2006, by Senate Bill 1128
(Stats. 2006, ch. 337, § 62), and by Proposition 83 (see Cal. Const., art. II, § 10, subd.
(a)).

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conduct that is generally acceptable” ‟ ” or merely idiosyncratic is “greatly diminished.”
(McKee, supra, at p. 1191.)
The McKee court also found no merit in the contention that the trial court‟s
discretion to deny as frivolous a committed person‟s petition for conditional release
pursuant to section 6608, subdivision (a) violates due process. “The fact that the statute
gives the court the authority to deny such petitions does not, of itself, serve as an obstacle
to the primary due process goal of ensuring that only those individuals who continue to
meet SVP criteria will remain involuntarily committed.” (McKee, supra, 47 Cal.4th at
p. 1192, fn. omitted.)
Finally, the McKee court construed the amended SVPA to implicitly provide for
the appointment of a state-funded mental health expert when a committed person
petitions for release under section 6608, subdivision (a). “Given that the denial of access
to expert opinion when an indigent individual petitions on his or her own to be released
may pose a significant obstacle to ensuring that only those meeting SVP commitment
criteria remain committed, we construe section 6608, subdivision (a), read in conjunction
with section 6605, subdivision (a), to mandate appointment of an expert for an indigent
SVP who petitions the court for release. [¶] Construing the amended [SVPA] in the
above manner, we conclude it does not violate the due process clause.” (McKee, supra,
47 Cal.4th at p. 1193.)
Accordingly, based on the decision in McKee, supra, 47Cal.4th 1172, we find
defendant‟s concession that the SVPA does not violate the due process clause to be
appropriate. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Ex Post Facto Law and Double Jeopardy
Schuler argues in his supplemental briefing that the amended SVPA violates the
ex post facto and double jeopardy clauses of the United States Constitution because
Proposition 83 increased the punishment of sex offenders by lengthening the period of
civil confinement and amending the Penal Code to provide an indeterminate sentence for

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certain sex offenses. According to Schuler, “the voters made it clear that the purpose of
the initiative was simply to lock up sex offenders (whether in prison or in the Department
of Mental Health) for as long as possible.” However, Schuler concedes that the
California Supreme Court in McKee rejected the claim that the amended SVPA violates
the ex post facto clause of the United States Constitution.16
In McKee, the court noted that the ex post facto clause “prohibits only those laws
that „retroactively alter the definition of crimes or increase the punishment for criminal
acts.‟ [Citation].” (McKee, supra, 47 Cal.4th at p. 1193.) The court reiterated its
decision in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 that the SVPA was not
punitive because it had two nonpunitive objectives, “treatment for the individual
committed and protection of the public.” (McKee, supra, at p. 1194) After examining
the amended SVPA, the McKee court determined that “the Proposition 83 amendments at
issue here cannot be regarded to have changed the essentially nonpunitive purpose of the
[SVPA],” and therefore the court concluded that the amended SVPA does not violate the
ex post facto clause. (Ibid.)
We therefore find defendant‟s concession that the SVPA does not violate the ex
post facto clause of the United States Constitution to be appropriate. (Auto Equity Sales,
Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
3. Equal Protection
Schuler also contends in his supplemental briefing that the amended SVPA
violates the equal protection clauses of the United States Constitution and the California
Constitution. He argues that an individual committed under the amended SVPA is
16 We construe defendant‟s silence in his supplemental briefing regarding his
double jeopardy challenge to constitute a concession that the claim has no merit under
McKee, supra, 47 Cal.4th 1172. In any event, we conclude that the amended SVPA also
does not violate the double jeopardy clause because a civil commitment procedure does
not constitute a second prosecution for purposes of the double jeopardy clause. (Kansas
v. Hendricks (1997) 521 U.S. 346, 369.)

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subject to an indeterminate term, while the commitment of a mentally disordered
offender (MDO; § Pen. Code, § 2960 et seq.), the commitment of an individual found not
guilty by reason of insanity (NGI; Pen. Code, § 1026 et seq.), the commitment of a
mentally disordered sex offender (MDSO; former § 6316.2, subd. (f)), the commitment of
juvenile offenders (§ 1802) or the conservatorship of a gravely disabled person under the
Lanterman-Petris-Short Act (§§ 5350, 5361), is subject to extensions of one year or two
years.
According to Schuler, the California Supreme Court in McKee agreed with his
contention that MDOs and NGIs are similarly situated to persons committed under the
SVPA (SVPs) and found merit in the claim that the amended SVPA violates the equal
protection clause of the federal constitution due to the differences in the commitment
periods for SVPs, MDOs, and NGIs.
The McKee court determined that SVPs and MDOs are similarly situated for equal
protection purposes because they have been involuntarily committed with the objectives
of treatment and protection of the public. (McKee, supra, 47 Cal.4th at p.1202.) The
court also determined that SVPs have “different and less favorable procedural
protections” than MDOs because “SVP‟s under the amended [SVPA] are given
indeterminate commitments and thereafter have the burden to prove they should be
released (unless the [Department of Mental Health] authorizes a petition for release). In
contrast, an MDO is committed for one-year periods and thereafter has the right to be
released unless the People prove beyond a reasonable doubt that he or she should be
recommitted for another year.” (Ibid.) The court rejected the appellate court‟s finding
that the “legislative findings recited in the [Proposition 83] ballot initiative” were
sufficient to justify the disparate treatment of SVPs and MDOs. (Id. at p. 1207.)
The McKee court further found that SVPs and NGIs are also similarly situated and
a “comparison of the two commitment regimes raises similar equal protection
problems. . . .” (McKee, supra, 47 Cal.4th at p.1207.) Consequently, the court agreed

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with the defendant “that, as with MDO‟s, the People have not yet carried their burden of
justifying the differences between the SVP and NGI commitment statutes.” (Ibid.)
However, the McKee court did not rule that the defendant had succeeded in
establishing that the amended SVPA violates the equal protection clause. The court
explained that it “did not conclude that the People could not meet its burden of showing
the differential treatment of SVP‟s is justified. We merely conclude that it has not yet
done so. Because neither the People nor the courts below properly understood this
burden, the People will have an opportunity to make the appropriate showing on remand.
It must be shown that, notwithstanding the similarities between SVP‟s and MDO‟s, the
former as a class bear a substantially greater risk to society, and that therefore imposing
on them a greater burden before they can be released from commitment is needed to
protect society.” (McKee, supra, 47 Cal.4th at p. 1208.)
The McKee court accordingly remanded the case with the following instructions:
“We therefore remand this case to the trial court to determine whether the People,
applying the equal protection principles articulated in [In re Moye (1978) 22 Cal.3d 457]
and related cases discussed in the present opinion, can demonstrate the constitutional
justification for imposing on SVP‟s a greater burden than is imposed on MDO‟s and
NGI‟s in order to obtain release from commitment. The trial court may, if appropriate,
permit expert testimony. [¶] On remand, the government will have an opportunity to
justify Proposition 83‟s indefinite commitment provisions, at least as applied to McKee,
and demonstrate that they are based on a reasonable perception of the unique dangers that
SVP‟s pose rather than a special stigma that SVP‟s may bear in the eyes of the California
electorate. [¶] Moreover, we emphasize that mere disagreement among experts will not
suffice to overturn the Proposition 83 amendments. The trial court must determine
whether the legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based--not whether they are incontrovertible or uncontroversial.

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The trial court is to determine not whether the statute is wise, but whether it is
constitutional.” (McKee, supra, 47 Cal.4th at p. 1208-1211, fns. omitted.)
In the present case, Schuler contended in his first supplemental briefing letter that
the People had the opportunity to demonstrate constitutional justification for the disparate
treatment of SVPs, as required by the decision in McKee, but failed to do so. He
therefore argued that the appropriate remedy for the equal protection violation is reversal
of his indeterminate sentence. Alternatively, Schuler requested that the matter be
remanded to the trial court for an evidentiary hearing similar to that ordered in McKee.
The People, in their first supplemental briefing letter, acknowledged that the
McKee court ruled that the amended SVPA potentially violates the equal protection
clause and asserted that the proper remedy under McKee is remand to the trial court for
an evidentiary hearing. They invited this court to “appropriately guide the trial court by
stating that the narrow issue in a McKee hearing is whether the People have provided
„reasonable and factually based‟ evidence demonstrating that SVP‟s pose a greater
danger to society than do MDO‟s and NGI defendants. [Citation.]”
The People further maintained in their first supplemental briefing letter that the
evidentiary hearing should be limited. In their view, Schuler should not be permitted to
offer “affirmative evidence,” “the hearing should not become a battle of experts,” and the
prosecutor should be allowed to make a “reasonable and factually-based” showing that
imposing an indeterminate term of commitment on SVPs furthers the state‟s compelling
interest in public safety.
The case was not submitted at the time of oral argument on February 18, 2010,
pending the finality of the California Supreme Court‟s decision in McKee. The court
denied rehearing in McKee and issued the remittitur on March 10, 2010. The People
subsequently submitted a second supplemental briefing letter, dated March 11, 2010. In
their second supplemental briefing letter, the People now request that this court appoint a
special master to conduct an evidentiary hearing pursuant to California Rules of Court,

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rule 8.252(c), rather than remand the matter to the trial court for an evidentiary hearing.
According to the People, “[r]etaining jurisdiction to directly review the hearing would
hasten the eventual resolution of the equal protection issue by the California Supreme
Court and would significantly reduce the period during which lower courts and litigants
operate in uncertainty as to the constitutionality of the SVPA.”
In his second supplemental briefing letter, Schuler reiterates his contention that the
appropriate remedy is reversal of his indeterminate commitment. Alternatively, Schuler
concurs with the People‟s request for appointment of a special master.
We decline the People‟s request for an appointment of a special master to conduct
an evidentiary hearing pursuant to Code of Civil Procedure section 90917 and California
Rules of Court, rule 8.252.(c).18 “It has long been the general rule and understanding that
„an appeal reviews the correctness of a judgment as of the time of its rendition, upon a
record of matters which were before the trial court for its consideration.‟ [Citation.] This
rule reflects an „essential distinction between the trial and the appellate court . . . that it is
the province of the trial court to decide questions of fact and of the appellate court to
decide questions of law . . . .‟ [Citation.] The rule promotes the orderly settling of
factual questions and disputes in the trial court, provides a meaningful record for review,
and serves to avoid prolonged delays on appeal. „Although appellate courts are
authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and
[former] rule 23 of the California Rules of Court, the authority should be exercised
17 Code of Civil Procedure section 909 provides in part, “In all cases where trial
by jury is not a matter of right or where trial by jury has been waived, the reviewing court
may make factual determinations contrary to or in addition to those made by the trial
court.”
18 California Rules of Court, rule 8.252(c)(1) states, “A party may move that the
reviewing court take evidence.”

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sparingly. [Citation.] Absent exceptional circumstances, no such findings should be
made. [Citations.]” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
In accordance with the California Supreme Court‟s decision in McKee, we will
reverse the order committing Schuler to the Department of Mental Health for an
indeterminate period and remand the matter to the trial court for the limited purpose of, as
stated in McKee, allowing the People to demonstrate “the constitutional justification for
imposing on SVP‟s a greater burden than is imposed on MDO‟s and NGI‟s in order to
obtain release from commitment.” (McKee, supra, 47 Cal.4th at p. 1208.) We decline
the People‟s invitation to limit the scope of the remand hearing, since the decision in
McKee includes the California Supreme Court‟s direction as to the proper scope of the
hearing.
IV. DISPOSITION
The order of June 18, 2008 committing appellant Brian Schuler to the custody of
the State Department of Mental Health for an indeterminate term for appropriate
treatment and confinement in a secure facility is reversed and remanded for the limited
purpose, as stated in People v. McKee (2010) 47 Cal.4th 1172, 1208, of allowing the
People to demonstrate “the constitutional justification for imposing on SVP‟s a greater
burden than is imposed on MDO‟s and NGI‟s in order to obtain release from
commitment.”
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BAMATTRE-MANOUKIAN, ACTING P.J.
WE CONCUR:
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MCADAMS, J.
_________________________
DUFFY, J.

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