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Name: People v. Lowe
Case #: D060048
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/30/2012

In a trial pursuant to Welfare and Institutions Code section 6600 et seq. (Sexually Violent Predator Act), a qualified expert may testify as to whether he/she believes a person is likely to commit sexually violent criminal behavior in the future, if the testimony does not advocate for a specific outcome. In 1998, appellant was convicted of lewd and lascivious acts with a child and forcible lewd and lascivious acts with a child, and sentenced to 16 years in state prison. At the end of the term, the prosecution initiated proceedings to commit appellant to the Department of Mental Health for treatment as a sexually violent predator. To prove that appellant qualified for commitment under the Act, among other criteria, the prosecution had to prove he was dangerous because he has a diagnosed mental disorder that makes him likely to engage in predatory sexually violent criminal behavior in the future. At trial, three prosecution psychologists each testified as to his/her belief that appellant met this requisite criteria. The court instructed the jurors pursuant to CALCRIM No. 3454 as to the criteria that must be found to establish appellant as a sexually violent predator and CALCRIM No. 332, evaluating expert testimony. The appellate court rejected appellant’s contention that it was error to permit the experts to so testify as this testimony involved legal issues which invaded the jury’s province. Expert opinion testimony is not inadmissible simply because it embraces the ultimate issue to be decided by the trier of the fact. Rather, admissibility depends on the nature of the issue and circumstances of the case, with there being considerable judicial discretion as to its admission. Here, the Act specifically contemplates that the trier of fact will have the benefit of expert opinion and analysis. With civil commitment cases, such as the instant one, expert prediction as to future dangerousness may be the only evidence available. Furthermore, in this case, the experts did not simply testify as to a general belief but explained why appellant met the criteria, with references to his background, and other details. This testimony was used to evaluate the opinions expressed and to consider the variances between prosecution and defense experts. The experts’ use of statutory language to frame the opinions expressed was useful as it allowed the jury to evaluate whether the opinions were based on the appropriate criteria. Because this expert testimony did not cross the line from testifying to advocating for a specific outcome, there was no error.