gno.law

People v. Lowe

California Court of Appeal · No. D060048 · 2012-11-30 · Published · 211 Cal. App. 4th 678 · 149 Cal. Rptr. 3d 860 · 2012 WL 5984471 · 2012 Cal. App. LEXIS 1225

THE PEOPLE, and v. RANDALL KENT LOWE, and

Area
criminal
Panel
Judith D. McConnell (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:58Z · confidence high

The trial court committed Randall Kent Lowe to the State Department of Mental Health as a sexually violent predator after a jury found he was likely to engage in predatory sexually violent criminal behavior. The Court of Appeal affirmed the commitment, rejecting Lowe's claims that the prosecution's expert testimony invaded the jury's province and that the indeterminate commitment violated equal protection principles.

Ruling reviewedStandardThe courtThe model
Admission of expert testimony regarding likelihood of future predatory sexually violent behavior
“We discern no abuse of discretion in this case.”
abuse of discretionnot reachedagree with court
The court held that the experts did not invade the jury's province because they utilized statutory criteria to frame their opinions and provided detailed bases for their conclusions rather than merely advocating for a specific outcome. The court distinguished the case from Summers v. A. L. Gilbert Co. by noting the experts focused on their individual assessments and did not weigh the evidence or critique other experts.

Authorities

  • relied: People v. Lindberg (2008) 45 Cal.4th 1 — Establishes the standard of review for a trial court's decision to admit expert testimony is abuse of discretion.
  • relied: People v. Wilson (1944) 25 Cal.2d 341 — Holds that expert opinion testimony is not inadmissible merely because it embraces the ultimate issue to be decided by the trier of fact.
  • relied: Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155 — Establishes that expert testimony may not invade the province of the jury to decide a case, particularly when the expert advocates for a specific outcome rather than testifying.
  • relied: People v. Dodd (2005) 133 Cal.App.4th 1564 — Supports the proposition that a qualified expert may give an opinion on the criteria necessary for committing a mentally disordered offender.
  • relied: People v. Ward (1999) 71 Cal.App.4th 368 — Recognizes that in civil commitment cases, expert prediction may be the only evidence available to determine if a person is dangerous.
  • relied: People v. Woods (1937) 19 Cal.App.2d 556 — Holds that it is not an invasion of the jury's province for an expert to give an opinion that includes the correct legal test.

The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard and distinguishes the admissible expert testimony from the impermissible advocacy seen in Summers. It effectively addresses the appellant's argument by analyzing the specific content of the experts' testimony and the jury instructions.

How this analysis was made · dispute it

inconsistent with cited authority

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The trial court, after a jury trial under the Sexually Violent Predators Act, committed Randall Kent Lowe to the State Department of Mental Health for an indeterminate term, having admitted testimony from three prosecution psychologists that he was "likely" to engage in "predatory" sexually violent offenses. The Court of Appeal affirmed, holding the expert testimony did not invade the jury's province because the experts explained the bases for their opinions using the statutory criteria rather than advocating an outcome, and (in an unpublished portion) rejecting the equal protection challenge to indeterminate commitment.

Ruling reviewedStandardThe courtThe model
Admission of the People's expert psychologists' opinion testimony that Lowe was "likely" to engage in "predatory" sexually violent criminal behavior in the future
“the trial court did not err by allowing them to testify why they believed Lowe was “likely” to engage in “predatory” sexually violent offenses in the future.”
abuse of discretioncorrectagree with court
Evidence Code section 805 permits opinion on the ultimate issue, and California cases (Dodd, Valdez, Miller, Ward) allow mental-health experts to opine on commitment criteria; the court properly distinguished Summers because the experts here explained their diagnoses, actuarial data, and history rather than weighing other evidence or telling the jury how to decide, and CALCRIM Nos. 332 and 3454 told the jury it was not bound by the opinions. The court did not engage the Baker caveat about criteria that are pure legal or factual questions, or cases like Torres barring experts from defining legal terms, but the result is consistent with the weight of authority.
Imposition of an indeterminate SVP commitment over an equal protection objection
“He additionally contends, like the appellant in People v. McKee (2010) 47 Cal.4th 1172 [104 Cal.Rptr.3d 427, 223 P.3d 566], his indeterminate commitment violates equal protection principles.”
unclearcorrectunsure
The court states it concludes the indeterminate commitment does not violate equal protection, but the analysis is in an unpublished portion (Part II) not reproduced here, so the reasoning and authorities cannot be evaluated from the opinion provided.

Authorities

  • relied: People v. Lindberg (2008) 45 Cal.4th 1 — A trial court's decision to admit expert testimony is reviewed for abuse of discretion.
  • relied: People v. Wilson (1944) 25 Cal.2d 341 — There is no hard and fast rule barring expert opinion on an ultimate issue; admissibility depends on the nature of the issue and the circumstances, with a large element of judicial discretion.
  • relied: Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155 — Expert testimony that merely tells the jury how to decide the case or opines on numerous issues of law invades the jury's province; distinguished as an extreme case of an expert advocating rather than testifying.
  • relied: Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953 — Expert opinion testimony may not invade the province of the jury to decide the case.
  • relied: People v. Dodd (2005) 133 Cal.App.4th 1564 — A qualified expert may give an opinion on the criteria necessary for committing a mentally disordered offender.
  • relied: People v. Valdez (2001) 89 Cal.App.4th 1013 — A qualified expert may opine on the statutory criteria for a mentally disordered offender commitment.
  • relied: People v. Miller (1994) 25 Cal.App.4th 913 — Expert testimony on mentally disordered offender commitment criteria is admissible.
  • relied: People v. Baker (2012) 204 Cal.App.4th 1234 — An expert may opine on some MDO criteria but not on criteria involving pure factual questions, pure legal questions, or matters outside the expert's competence (cited as a 'but see').
  • relied: People v. Ward (1999) 71 Cal.App.4th 368 — In civil commitment cases where the trier of fact must determine dangerousness, expert prediction may be the only evidence available.
  • relied: People v. Bennett (1982) 131 Cal.App.3d 488 — Expert prediction of dangerousness is admissible and often necessary in civil commitment proceedings.
  • relied: People v. Woods (1937) 19 Cal.App.2d 556 — It is not an invasion of the jury's province for an expert to frame an insanity opinion in terms of the correct legal test, because jurors are instructed they need not accept the opinion.
  • relied: People v. Davis (2005) 36 Cal.4th 510 — Jurors are presumed to follow the trial court's instructions.
  • relied: Cooley v. Superior Court (2002) 29 Cal.4th 228 — Sets out the elements the People must prove to establish a person is a sexually violent predator under the Act.
  • relied: People v. McKee (2010) 47 Cal.4th 1172 — Framework for equal protection challenge to indeterminate SVP commitments (addressed in the unpublished portion).
  • missed: People v. Torres (1995) 33 Cal.App.4th 37 — An expert may not testify to the legal definition of statutory terms or to whether conduct meets a legal definition, as the meaning of legal terms is for the court and the jury; relevant to Lowe's argument that 'likely' and 'predatory' are legal issues.

The appellate opinion: sound with gaps — The published portion correctly applies Evidence Code sections 801 and 805, the Wilson/Summers line, and the MDO and SVP commitment cases to hold that mental-health experts may frame their opinions in statutory terms when they explain their bases and do not weigh the evidence for the jury. It does not, however, directly confront the Baker caveat that 'predatory' may be a largely factual question or the Torres line barring experts from defining legal terms, and the equal protection analysis is unpublished and unavailable.

How this analysis was made · dispute it

record incomplete

Opinion — McConnell

*681Opinion

McConnell, P. J.

INTRODUCTION

Randall Kent Lowe appeals from an order under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.)1 (Act) committing him to the State Department of Mental Health for treatment and confinement in a secured facility for an indeterminate term. He contends the trial court prejudicially erred by permitting the People’s experts to testify he was “likely” to engage in “predatory” sexually violent offenses in the future as these are legal issues and the experts’ testimony invaded the jury’s province. He additionally contends, like the appellant in People v. McKee (2010) 47 Cal.4th 1172 [104 Cal.Rptr.3d 427, 223 P.3d 566], his indeterminate commitment violates equal protection principles.

We conclude the expert testimony in this case did not invade the jury’s province as the experts properly utilized statutory criteria to frame their opinions and they did not cross the line from testifying about the bases for their opinion to advocating for a particular outcome. We further conclude Lowe’s indeterminate commitment does not violate' equal protection principles. We, therefore, affirm the trial court’s order.

BACKGROUND

In 1998, Lowe pleaded guilty to committing both a lewd and lascivious act with a child under 14 years of age (Pen. Code, § 288, subd. (a)) and a forcible lewd and lascivious act with a child under 14 years of age (Pen. Code, § 288, subd. (b)). The victim was a six-year-old girl. The trial court sentenced him to 16 years in prison.

In 2010, near the conclusion of Lowe’s incarceration, the People filed a petition alleging Lowe was a sexually violent predator under the Act and seeking his commitment to the State Department of Mental Health for an indeterminate term of involuntary treatment. To establish Lowe was a sexually violent predator under the Act, the People had to prove Lowe had been convicted of a sexually violent offense against one or more victims. The People also had to prove Lowe is dangerous because he has a diagnosed mental disorder that makes him “likely” to engage in “predatory” sexually violent criminal behavior in the future. Finally, the People had to prove Lowe *682needed to be confined in a secure facility to ensure the health and safety of others. (§ 6600, subd. (a)(1); Cooley v. Superior Court (2002) 29 Cal.4th 228, 243 [127 Cal.Rptr.2d 177, 57 P.3d 654]; CALCRIM No. 3454.)

At the trial on the People’s petition, the parties stipulated Lowe’s prior offenses were sexually violent offenses.2 In addition, the People offered testimony from three psychologists, each of whom believed Lowe met the statutory criteria-for classification as a sexually violent predator.

More particularly, Psychologist Deirdre D’Orazio testified Lowe’s prior offenses were sexually violent offenses. He suffers from pedophilia, exhibitionism, and methamphetamine and alcohol dependence. He “presents a substantial likelihood to reoffend in a sexually violent way in [the] absence of appropriate treatment in custody.” His new offenses would likely be “predatory” in nature, and he could not be effectively treated if released into the community.

Psychologist Dana Putnam similarly diagnosed Lowe with pedophilia and amphetamine dependence. In addition, Putnam testified Lowe was “likely to commit sexually violent predatory offenses in the future as a result of his diagnosed mental disorder without appropriate treatment in custody,” and he “cannot be safely and effectively treated in the community.”

Finally, Psychologist Steven Jenkins also diagnosed Lowe with pedophilia as well as amphetamine, alcohol, and marijuana abuse. Jenkins testified Lowe’s pedophilia makes him dangerous, he is likely to engage in sexually violent predatory criminal behavior in the future and he “cannot be treated effectively and safely in the community.”

Lowe countered with testimony from two other psychologists. Psychologist Richard Romanoff, with whom Lowe declined to interview, testified Lowe may have had a pedophilic disorder in the past, but there was insufficient evidence to determine whether Lowe still had the disorder. Romanoff additionally testified Lowe “falls below the threshold of having a serious and well-founded and substantial risk for reoffending.” Psychologist Brian Abbott testified Lowe did not have a diagnosable mental disorder and does not present “a serious and well-founded risk” of committing a sexually violent offense in the future.

Before the jury began its deliberations, the trial court instructed the jury what the People must prove to establish Lowe is a sexually violent predator. *683These instructions included informing the jury that, “A person is likely to engage in sexually violent predatory criminal behavior if there is a substantial, serious, and well-founded risk that the person will engage in such conduct if released into the community.” (CALCRIM No. 3454.) These instructions also included informing the jury that “[sjexually violent criminal behavior is predatory if it is directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or a person with whom a relationship has been established or promoted for the primary purpose of victimization.” (Ibid.)

Regarding the evaluation of expert witness testimony, the trial court instructed the jury, “[witnesses were allowed to testify as experts and to give 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 instructions about the believability of witnesses generally. In addition, consider the expert’s 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 information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [][] If the expert witnesses disagreed 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.” (CALCRIM No. 332.)

DISCUSSION

I

Expert Witness Testimony Claim

Lowe contends the trial court erred in allowing the People’s experts to testify he was “likely” to engage in “predatory” sexually violent offenses in the future because these are legal issues and the experts’ testimony invaded the jury’s province.3 We review a trial court’s decision to admit expert testimony for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45 [82 Cal.Rptr.3d 323, 190 P.3d 664].) We discern no abuse of discretion in this case.

*684Expert opinion testimony is generally admissible if it relates to a subject sufficiently beyond common experience that the expert’s opinion would assist the trier of fact. (Evid. Code, § 801, subd. (a).) Expert opinion testimony is not inadmissible merely “because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.) As the California Supreme Court explained, “There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. ‘We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.’ ” (People v. Wilson (1944) 25 Cal.2d 341, 349 [153 P.2d 720].)

Nonetheless, expert opinion testimony may not invade the province of the jury to decide a case. (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972 [105 Cal.Rptr.2d 88]; Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178-1180, 1182 [82 Cal.Rptr.2d 162] (Summers).) Thus, expert opinion testimony that merely expresses a general belief as to how the jury should decide the case is not permissible. (Id. at pp. 1179-1183.)

This limitation does not, however, categorically preclude a qualified mental health expert from giving an opinion and explaining why a person meets or does not meet statutory criteria for classification as a sexually violent predator. (See, e.g., People v. Dodd (2005) 133 Cal.App.4th 1564, 1569 [35 Cal.Rptr.3d 692] [a qualified expert may give an opinion on the criteria necessary for committing a mentally disordered offender]; People v. Valdez (2001) 89 Cal.App.4th 1013, 1017 [107 Cal.Rptr.2d 783] [same]; People v. Miller (1994) 25 Cal.App.4th 913, 918 [31 Cal.Rptr.2d 423] [same]; but see People v. Baker (2012) 204 Cal.App.4th 1234, 1245 & fn. 9 [139 Cal.Rptr.3d 594] [a qualified expert may give an opinion on some mentally disordered offender criteria, but not criteria involving pure factual questions, pure legal questions, or questions outside the expert’s competence].) The Act specifically contemplates the trier of fact will have the benefit of expert opinion and analysis. (See § 6603, subds. (a) & (c)(1) [both parties may obtain expert evaluations and present expert testimony].) Such opinion and analysis is unquestionably helpful to the trier of fact as the diagnosis, treatment, and prognosis of people suffering from mental and personality disorders is well beyond common experience. Moreover, as we previously recognized, “In civil commitment cases, where the trier of fact is required by statute to determine whether a person is dangerous or likely to be dangerous, expert prediction may be the only evidence available.” (People v. Ward (1999) 71 *685Cal.App.4th 368, 374 [83 Cal.Rptr.2d 828]; accord, People v. Bennett (1982) 131 Cal.App.3d 488, 497 [182 Cal.Rptr. 473].)

Furthermore, the People’s experts in this case did not merely express a general belief the jury should find Lowe to be a sexually violent predator. They explained in extensive detail why they believed Lowe met each criterion at issue. Included in their explanations were references to Lowe’s personal and social history, his substance abuse and its disinhibiting effect, the circumstances of his crimes, the circumstances of other child molestations he committed, his past use of photographs and magazine cutouts of children for sexual stimulation, his postincarceration conduct, the results of actuarial assessments, and information gleaned during their interviews with him.

Additionally, the People’s experts formed their opinions independently and, while they reached the same general conclusion, the specifics of and bases for their opinions varied. Because of this variance, as well as the contrasting opinions of Lowe’s experts and the trial court’s instructions on evaluating expert testimony, which we presume the jury followed (People v. Davis (2005) 36 Cal.4th 510, 537 [31 Cal.Rptr.3d 96, 115 P.3d 417]), the jury had to actually evaluate the expert testimony and not, as Lowe asserts, mindlessly adopt the People’s experts’ opinions.

The fact the People’s experts utilized the statutory language to frame their opinions does not alter our conclusion. If the experts had not done so, the jury would not have known whether the experts’ opinions were based on the appropriate criteria. As one court explained in response to a similar challenge in the analogous context of determining whether a person was not guilty by reason of insanity, “It is no more an invasion of the province of the jury for an expert to give his opinion that an accused is insane including the correct legal test than for him to give his opinion merely that the accused is insane, and none of the cases hold that it is an invasion of the province of the jury for the expert to give his opinion that the witness is insane. It cannot fairly be argued that any prejudice is caused the accused by allowing the jury to know the basis upon which the expert has reached his conclusions and the grounds therefor. On the one hand, if the jury does not believe the expert’s opinion that the accused is insane merely, it will disregard the opinion. On the other hand, if the jury does not believe the expert’s opinion that the accused knew the difference between right and wrong, it will likewise disregard the opinion; for the jurors are instructed that the question is for *686them to decide and that they are not bound to accept the opinion of any expert as conclusive, and that they may disregard any such opinion if it shall be found by them to be unreasonable.” (People v. Woods (1937) 19 Cal.App.2d 556, 562-563 [65 P.2d 940]; see Sancom, Inc. v. Qwest Communications Corp. (D.S.D. 2010) 683 F.Supp.2d 1043, 1052 [an expert may testify that a specific item or event fits within the meaning of a statutory term]; Ways v. City of Lincoln (D.Neb. 2002) 206 F.Supp.2d 978, 991 [same].)

Summers, supra, 69 Cal.App.4th 1155, upon which Lowe relies, is distinguishable for its extremes. The expert in the Summers case, a lawyer in the transportation field, went far beyond identifying the statutory criteria underpinning his opinions. He testified to “issues of law . . . almost too numerous to list,” including that specific actions were illegal, specific contracts were illegal, and one party was liable for another parties’ actions under the doctrine of nondelegable duty, respondeat superior and negligent hiring. (Id. at p. 1185.) Rather than provide the jury with information to consider and weigh in reaching a decision, the expert usurped the jury’s role by weighing the evidence and drawing the conclusions himself. Essentially, the expert “was advocating, not testifying.” (Ibid.)

Conversely, while the expert testimony in this case was necessarily framed by the Act’s criteria, the People’s experts focused their remarks on their individual assessments of Lowe’s mental health and recidivism risk, the assessment methods they used, the research underlying the assessment methods, and the facts they believed were most probative of Lowe’s mental health and recidivism risk. They did not compare or critique the other experts’ opinions or otherwise attempt to weigh the evidence before the jury. Consequently, unlike the expert in Summers, supra, 69 Cal.App.4th 1155, the People’s experts did not cross the fine from testifying to advocating for a specific outcome, and the trial court did not err by allowing them to testify why they believed Lowe was “likely” to engage in “predatory” sexually violent offenses in the future.

II

Equal Protection Claim *

*687DISPOSITION

The order is affirmed.

Benke, 1, and McDonald, 1, concurred.

Appellant’s petition for review by the Supreme Court was denied March 20, 2013, S207940.

Further statutory references are also to the Welfare and Institutions Code unless otherwise stated.

A violation of Penal Code section 288 against a victim under 14 years old is a “sexually violent offense” as a matter of law. (§§ 6600, subd. (b), 6600.1.)

For the same reasons, he also contends a trial court should not allow an expert to testify a past offense is a sexually violent offense. He acknowledges, however, this is not an issue in this case because he stipulated his past offenses were sexually violent offenses.

See footnote, ante, page 678.

Cites, in this corpus

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