*987Scott D. Flint was committed to the custody of the California Department of State Hospitals (DSH) for an indeterminate term, after a jury found he was a sexually violent predator (SVP) under the Sexually Violent Predators Act ( Welf. & Inst. Code,
I. BACKGROUND
In 1992, Flint was sentenced to eight years in prison after pleading guilty to three counts of violating Penal Code section 288, subdivision (a), by committing lewd and lascivious acts on children under the age of 14 in 1987 and 1988. Flint was paroled in 1996, but pleaded guilty in 1997 to another count of violating section 288, subdivision (a), by committing lewd and lascivious acts on a child under the age of *91414. He was sentenced to prison.
Flint was scheduled to be released from custody in August 2011. In July of that year, the Mendocino County District Attorney filed a petition to involuntarily commit him as an SVP. A supporting declaration averred that DSH
A jury trial followed, and the People called Flint as a witness in their case in chief. The People also called as witnesses three victims of Flint's past offenses and, as an expert witness, DSH psychologist and SVP evaluator, G. Preston Sims. Flint in turn called as witnesses a behavior specialist at the state hospital where he was confined, two expert psychologists who had evaluated him, and a friend who had offered him a job and housing on his release. At the conclusion of the trial, the jury found Flint qualified as an SVP. On February 19, 2015, the court ordered Flint committed for an indefinite term to DSH for appropriate treatment and confinement in a state hospital. This timely appeal followed.
II. DISCUSSION
In his original opening appellate brief, Flint contends the trial court violated his equal protection rights by compelling him to testify as a witness in the People's case-in-chief during his commitment trial. After our Supreme Court issued its decision in Sanchez , supra , Flint requested and secured leave to file a supplemental opening brief asserting that reversal is required because the trial court allowed the People's expert, Sims, to provide testimony that included a large amount of case-specific hearsay. In his supplemental opening brief, Flint also included a cumulative error argument. The People subsequently filed a supplemental respondent's brief and Flint filed a supplemental reply. We address Flint's arguments in turn below.
A. Compelled Testimony
1. The SVPA
To frame Flint's equal protection argument, we provide a brief overview of the SVPA. The act "provides for indefinite involuntary civil commitment of certain offenders who are found to be SVP's following the completion of their prison terms. [Citation.]" ( People v. Field (2016)
2. Analysis
Flint makes the following equal protection argument: SVP's are similarly situated to NGI's; because NGI's cannot be required to testify at their commitment extension hearings ( Hudec v. Superior Court (2015)
We decided these issues in our prior opinion in Curlee , supra ,
a. SVP's and NGI's Are Similarly Situated for Purposes of Compelled Testimony
" 'The concept of equal protection recognizes that persons who are similarly situated with respect to a law's legitimate purposes must be treated equally. [Citation.] Accordingly, " '[t]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' " [Citation.] "This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' " [Citation.]' [Citation, italics omitted.]" ( *990People v. Valencia (2017)
In Curlee , supra ,
The People argued in Curlee "that SVP's [were] not similarly situated to NGI's for purposes of whether they may be called as witnesses for the prosecution because an SVP is initially evaluated while in the custody of [CDCR] [citation], while the NGI has been committed to [DSH] for treatment since having been found insane at the time of the offense [citation]." ( Curlee , supra ,
Focusing on the court's preliminary observation about the state of the record in that case, the People here claim Curlee was incorrectly decided and should not be followed, and then attempt the same "similarly situated" argument that Curlee rejected. Curlee was incorrectly decided, the People contend, because "the issue is legal not factual." This court need not consider, as a factual matter, the relative amounts of information available under the two statutory schemes, the People argue; regardless, NGI's and SVP's cannot be considered similarly situated because there are "schematic differences" between the groups. In particular, one group (NGI's) is "committed for treatment in the state hospital," the People point out, while the other (those *992alleged to be SVP's) have "been sentenced to serve a term in prison." This necessarily "means the amount of treatment data and the [People's] access to the data" also will differ, and that difference provides "the explanation for the disparity" in treatment. It is "a legislative fact .... regardless of any judicial facts."
The People's terminology here is perplexing,
b. Strict Scrutiny Applies
The People contend that any disparate treatment here need only be justified under the rational basis test. In McKee I , supra , our Supreme Court applied strict scrutiny to review differences in definitional standards and burdens of proof among civil commitment schemes. However, the People point out the court specifically rejected the notion that its decision extended *918the strict scrutiny standard to " 'every detail of every civil commitment program.' " ( McKee I , supra ,
The People raised the same arguments in Field , supra ,
c. A Remand Is Appropriate
"Under the strict scrutiny test, the state has the burden of establishing it has a compelling interest that justifies the law and that the distinctions, or disparate treatment, made by that law are necessary to further its purpose. [Citation.] Here, the People have offered no justification under the strict scrutiny test to justify the disparate treatment. Thus, following [citation], '[w]e emphasize that, like our high court in [ McKee I , supra ], we do not conclude the People cannot meet their burden to show the testimony of an NGI is less necessary than that of an SVP. We merely conclude that they have not yet done so. In our view, the proper remedy is to remand the matter to the trial court to conduct an evidentiary hearing to allow the People to *919make an appropriate showing.' " ( Field , supra ,
The People contend that, even if Flint had a right not to testify, we should affirm because there is no reasonable probability Flint would have achieved a more favorable outcome had he not testified in the People's case-in-chief and denial of the right, therefore, was harmless. ( People v. Watson (1956)
The People maintain that Curlee's harmless error analysis was faulty because, taken to its logical conclusion, it would require reversal any time a trial court erroneously admits testimony by a prosecution witness. Curlee did not create such a rule, however; nor do we. As support for its conclusion that any error necessarily was prejudicial, Curlee focused on the identity of the person whose testimony was compelled. Quoting our Supreme Court in Cramer v. Tyars (1979)
The People also fault Curlee contending that it effectively established a rule of per se reversal where a prisoner is compelled to testify in this context, and that the error of doing so is demonstrated here because Flint's testimony at best was cumulative of other evidence. Again, we must disagree. As noted previously, to commit Flint as an SVP, the jury unanimously had to conclude, beyond a reasonable doubt, among other things, that Flint (1) had a diagnosed mental disorder, (2) making it likely that, if released, he would engage in sexually violent conduct (3) that was predatory. ( Field , supra ,
B. Sanchez
Flint contends the order committing him to DSH also should be reversed because the evidence against him "consisted almost entirely of [an expert witness's] case-specific hearsay," which did not otherwise fit a qualifying hearsay exception, and admission of the evidence deprived him of a fair trial resulting in a miscarriage of justice. ( Cal. Const., art. VI, § 13.)
*9961. Flint Did Not Forfeit His Hearsay Objections
Flint's trial under the SVPA occurred a year before our Supreme Court issued Sanchez, supra ,
In Sanchez , however, the court concluded "this paradigm [was] no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." ( Sanchez , supra ,
At Flint's commitment trial, the People's expert, Sims, gave testimony that included details and circumstances of Flint's offenses, and facts about Flint's subsequent treatment history, which Sims derived from his review of Flint's legal and medical records, his interviews with Flint, and his conversations with staff of the state hospital where Flint was committed before the trial. We conclude Flint did not forfeit his legal claim regarding the admissibility of this testimony by failing to object at the hearing. On this point, we find persuasive the reasoning of Division One of this court, in Jeffrey G. , supra , which we quote here at some length: "There is no dispute that Sanchez materially changed the law governing expert testimony in effect at the time of the [commitment trial]. The Sanchez court expressly disapproved six prior Supreme Court decisions, noting, in particular, 'We also disapprove *997People v. Gardeley [ (1996) ]
" ' "[R]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." ' [Citation.] In addition, parties are generally not required to anticipate rulings that significantly change the prevailing law. Our Supreme Court has consistently entertained claims premised on Crawford v. Washington [ (2004) ]
In arguing for forfeiture, as in Jeffrey G. , the People contend that much of Sims's hearsay testimony was based on documentary evidence that otherwise would have been admissible under statutory hearsay exceptions. To the extent the People are suggesting Flint's argument here is foreclosed because he did not provide them an opportunity to cure the problem by objecting before the trial court, we conclude, as the court did in Jeffrey G. , that they "fail [ ] to overcome the futility concern present here. Even if defense counsel had interposed appropriate hearsay objections, the objections would undoubtedly have been resisted by the prosecution and overruled by the court, which would have left [Sims's] testimony unchanged and lacking the foundation required by Sanchez . Only if the trial court had refused to follow applicable precedent would the prosecution have been forced to lay a Sanchez -appropriate foundation." ( Jeffrey G. , supra ,
*998The People also contend that trial counsel could have anticipated "that Sanchez would one day issue and change the law," if he paid more attention to our Supreme Court's docket and recent developments in the case law governing experts. ( Jeffrey G. , supra ,
2. Analysis
In his opening brief, Flint presents a list of 13 instances in which, he asserts, Sims's testimony included case-specific hearsay statements prohibited under Sanchez . The People counter that most of that testimony was not prohibited under Sanchez because Sims was merely discussing case-specific facts the People independently proved through the trial testimony of other witnesses-i.e., through testimony from the victims, Flint himself, and Flint's witness, psychologist Brian Abbott-and that the remaining portions of Sims's challenged testimony either were covered by a hearsay exception or were not hearsay. In his reply brief, Flint asserts that, although an expert might properly refer to the testimony of other witnesses confirming certain *923case-specific facts, Sanchez does not allow an expert to freely repeat such facts. Additionally, while acknowledging that Sims could testify about any out of court statements Flint made to him, under the hearsay exception for party admissions ( Evid. Code, § 1220 ), Flint contends the People could not rely on his own trial testimony as providing independent evidentiary support for Sims's hearsay statements, because his testimony was improperly compelled. Flint also disputes the People's argument that one of the listed instances of challenged testimony did not qualify as hearsay.
a. Whether Sanchez Permits An Expert To Relate "Independently Proven" Case-Specific Hearsay
We begin with Flint's argument that Sims's case-specific hearsay statements were inadmissible under Sanchez even though other admissible evidence-i.e., other witness testimony-independently confirmed those case-specific facts. Flint submits that Sanchez includes "some ambiguity" on this point. For example, as he acknowledges, the Supreme Court there remarked, "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." ( Sanchez , supra ,
At least one recently-decided case, citing our decision in People v. Stamps (2016)
b. The Expert Recited Certain Case-Specific Hearsay As A Basis For His Opinions
Certain of Sims's testimony based on alleged case-specific hearsay did not recite hearsay at all, but instead statements that were properly admitted under a hearsay exception or that did not constitute hearsay at all.
First , the People point out that, in his challenged testimony, Sims relied on statements Flint made to Sims during their evaluation interviews, and the People contend this testimony was admissible under the hearsay exception for party admissions. ( Evid. Code, § 1220.) The People submit the exception applied to 2 of the 13 instances that Flint includes in his list of Sims's case-specific hearsay testimony. In one of those instances, after recounting facts he gleaned from a police report about how Flint abused one of his four young *925victims, Sims testified that Flint gave him the same account in one of their interviews. In the other instance, Sims testified that he diagnosed Flint as having an amphetamine use disorder by reviewing reports and "discussing the specific symptoms of [that] disorder...." Although Sims did not specify the person with whom he discussed those symptoms, he confirmed he based *1001the diagnosis in large part on Flint's self-reporting, suggesting the discussion was with Flint. The conclusion is further supported by the fact that before and after this testimony, Sims was recounting information Flint provided in their interviews. Flint does not specifically deny that he self-reported his amphetamine use to Sims, or that Sims's testimony in the two instances was covered by the hearsay exception for party admissions to the extent it described statements Flint made in their interviews. Rather, he expressly concedes that statements he made to Sims were not inadmissible. We conclude that the exception did apply and that Sims's testimony in those two instances was admissible to the same extent. Sims's succinct accounts of (identical) information that he read in police or medical reports on those points constituted case-specific hearsay.
Second , the People also contend that one of the instances of Sims's challenged testimony was not hearsay. In that instance, Sims testified generally that he spoke to three doctors and a behavioral specialist at the state hospital where Flint was held before trial. The district attorney then asked whether those individuals "at any point ... indicate[d] ... that [Flint] had been working in depth on his previous offenses." Sims responded, "None of them stated [Flint] was working in depth" on his previous offenses. The People contend the response did not qualify as hearsay because Sims merely testified about the absence of any such statements. Flint objects that the exchange implied the state hospital personnel effectively conveyed an opinion that Flint was not working in depth on his issues. The testimony, he contends, therefore effectively permitted inadmissible hearsay to be presented "through the back door." Flint cites no authority to support his argument and we are not persuaded.
As our Supreme Court observed in People v. Zamudio (2008)
Having concluded that Sims's challenged testimony in two instances relied in part on information Flint provided him, which was covered by a hearsay exception for party admissions, and in a third instance did not qualify as hearsay, we are left with 10 instances in which Sims's testimony included some case-specific facts that he gleaned from out-of-court statements contained in legal and medical reports, and that no hearsay exception applied, arguably making that testimony inadmissible. In those instances, and in the two instances previously mentioned when he drew in part on case-specific hearsay statements, Sims primarily described the facts and surrounding circumstances of Flint's prior offenses. Additionally, he: repeated one fact contained in the report prepared by Flint's witness, psychologist Abbott; recounted that Flint attempted to enter the sex offender treatment core group at the state hospital, but then withdrew from it; and asserted that Flint corresponded with one victim's mother while he was in prison following his conviction for abuse of other victims. The admission of such expert testimony arguably was error. As we discuss in the next section, however, we conclude that any such error was harmless.
c. Any Error Was Harmless
The People contend that any error in admitting Sims's testimony was harmless under the standard set forth in Watson , supra ,
As an initial matter, we are not persuaded that Blackburn requires automatic reversal here without inquiry into the strength of the evidence. (See Blackburn , supra , 61 Cal.4th at pp. 1132-1133,
In Blackburn , the error was a failure to obtain a valid jury waiver from a mentally disordered offender before a trial to extend his involuntary civil commitment. ( Blackburn , supra , 61 Cal.4th at pp. 1116-1117, 1132-1133,
Flint cites no case law concluding that automatic reversal is required following an evidentiary error concerning an expert's hearsay testimony. Our review confirms, to the contrary, that "the erroneous admission of expert testimony," including expert testimony containing inadmissible case-specific hearsay statements, is reviewed under the Watson standard. ( *1004Conservatorship of K.W. , supra ,
Applying this standard, we note first that Sims's testimony on these points was relatively brief. While his entire testimony consumed 218 transcript pages, the challenged portions comprise no more than 16 pages. Further, our review confirms that, with one exception, Sims's inadmissible case-specific hearsay testimony, based on out of court statements contained in reports he read, merely duplicated other testimony to which Flint did not object.
In particular, Sims's hearsay testimony duplicated testimony by three of Flint's former victims, who confirmed facts and surrounding circumstances of Flint's prior offenses. Further, police and probation reports describing statements by two of the three testifying former victims upon which Sims relied, would have been independently admissible under section 6600, subdivision (a)(3),
Sims's testimony also duplicated other testimony he provided about statements Flint made when Sims interviewed him, which were admissible as party admissions. ( Evid. Code, § 1220.) Specifically, Sims testified Flint told him certain facts about his abuse of the four victims, that he had had an amphetamine problem, and that he entered and withdrew from some class or group that included members of the formal sex offender treatment program but did not himself join the formal program.
*1005Finally, Sims testified about a fact included in the report of Flint's expert, psychologist Abbott-i.e., that Flint admitted having masturbatory fantasies about one of his young victims, which intruded on his relationship with his wife-but Abbott also provided testimony on this point. Abbott's testimony about what Flint told him was admissible as relaying a party admission. ( Evid. Code, § 1220.)
Flint does not suggest Sims's hearsay testimony offered any facts not included in the unchallenged testimony that it duplicated. Because Sims's case-specific hearsay testimony duplicated other admissible evidence, the evidentiary error in permitting it was harmless under the standard stated in Watson , supra ,
The sole exception-the one instance in which Sims testified to a case-specific fact not otherwise covered by unchallenged testimony-also was harmless under Watson , to the extent it qualified as inadmissible hearsay. In that instance, Sims testified that Flint corresponded, while he was in prison following his conviction for his first offenses, with the mother of his later victim. As Sims did not state the source of his information on this point, we cannot determine whether he relied on information Flint supplied (i.e., an admissible party admission) or on inadmissible hearsay contained in a report. In any event, the testimony was not so significant that there was a reasonable probability the jury would not have found Flint to be an SVP if the testimony had been excluded. The point was relevant to whether Flint was likely to engage in sexually violent conduct that was predatory if released. ( § 6600, subd. (e).) As noted, "predatory" includes an act "directed toward ... a person of casual acquaintance with whom no substantial relationship *929exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (Ibid ., italics added.) Sims had testified that, in his opinion, Flint's victims all qualified as casual acquaintances, and, if credited by the jury, this would have satisfied the predatory element. One of Flint's victims also had testified that Flint gave her candy and a ride in his truck, and this also arguably demonstrated predatory conduct. Sims's testimony that Flint wrote to the later victim's mother, possibly with the intent of having a connection to the victim, therefore, was not essential to the People's case and on its own was harmless.
We are unconvinced by Flint's argument that the People's case would have been fatally weakened if Sims's case-specific hearsay testimony had been excluded, because, as discussed, that testimony duplicated other admissible evidence, including testimony from three of Flint's past victims, two of whom Flint elected not to cross-examine, and testimony recounting Flint's *1006own admissions on various points.
Flint submits the error must be considered prejudicial because this was a "close case." It was a close case, he contends, because he presented the testimony of two expert witnesses who concluded he was not an SVP, and who criticized Sims's methodology. If not for Sims's "extensive case-specific hearsay," Flint contends, a reasonable jury easily could have reached a different result. We are not persuaded, however, either that a disagreement among experts signals a close case, or that it is reasonably probable Sims's case-specific hearsay testimony, duplicating other unobjected to testimony, here tipped the scales. By way of comparison, in Jeffrey G. , supra , this court concluded the introduction of unsupported case-specific expert testimony, in a case involving the conditional release of a criminal defendant following his NGI commitment, was prejudicial based in part on the fact that the trial court there expressly found the decision to be a "close call, " signifying that relatively small changes in the record could be important. ( Jeffrey G. , supra ,
C. Cumulative Error
Finally, Flint contends the commitment order should be reversed for cumulative error. We have already concluded that any error in compelling Flint to testify was prejudicial. A new SVP civil commitment *930hearing will be required, therefore, if, on remand, the trial court determines the differential statutory treatment of SVP's and NGI's was not justified, signifying that it was error to compel Flint to testify. Absent such a finding, the only error was that under Sanchez , which we have already determined was not prejudicial. We therefore reject Flint's claim of cumulative error. *1007III. DISPOSITION
The matter is remanded to the trial court for further proceedings. On remand, the trial court is directed to conduct an evidentiary hearing at which the People will have the opportunity to show that the differential statutory treatment of SVP's and NGI's discussed herein is justified. If the trial court determines the People have carried their burden to do so, it shall confirm its order finding Flint an SVP and committing him to DSH. If it determines the People have not carried their burden, the trial court shall conduct a new hearing under the SVPA to determine whether Flint is an SVP.
We concur:
Streeter, Acting P.J.
Reardon, J.
Notes
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
While in prison, Flint pled guilty to committing an unrelated offense and his sentence was extended.
DSH previously was known as the State Department of Mental Health. (State Dept. of State Hospitals v. Superior Court (Novoa ) (2015)
The trial court's ruling predated this division's decision in People v. Curlee (2015)
Although a proceeding under the SVPA is civil in nature, the common practice is to characterize the parties to the action as "the prosecution" and "defense." (Field , supra ,
Although not relevant here, a level of intermediate scrutiny also " 'has been applied to discriminatory classifications based on sex or illegitimacy. [Citations.]' [Citations.]" (People v. Wilkinson , supra , 33 Cal.4th at pp. 836-837,
Here, for example, after the commitment petition was filed and a probable cause hearing held, the trial court ordered Flint housed in a state hospital, where he remained for more than three years, until his trial commenced.
The People's contention that the distinction between NGI's and SVP's involves an issue of "legislative fact" not susceptible to proof at an evidentiary hearing is not persuasive. "Legislative facts" typically refer to "the legislative findings with regard to the need for, or probable effect of," a challenged statutory provision. (See, e.g., American Academy of Pediatrics v. Lungren (1997)
Flint asserted in his opening brief that no remand is necessary because the equal protection issue was litigated and resolved against the People in the trial court. However, because neither the parties nor the trial court had the benefit of our decision in Curlee , the People did not present evidence to justify the disparate treatment of SVP's and NGI's, and the trial court did not hold an evidentiary hearing to address that issue. Under those circumstances, as Flint ultimately acknowledged in his reply brief, remand is appropriate.
Both parties assume that the Watson standard would apply.
This argument raises a purely evidentiary issue since, as Flint acknowledges, the Sixth Amendment right to confront witnesses does not apply in civil proceedings under the SVPA. (People v. Otto (2001)
Although in People v. Perez (2018)
Because we conclude Flint did not forfeit the Sanchez issue, we need not address his claim of ineffective assistance of counsel resulting from the failure to object on hearsay grounds.
There is no suggestion that the defendant's testimony there was compelled. (Jeffrey G. , supra ,
Section 6600(a)(3) provides in pertinent part: "The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of State Hospitals."
Our analysis of prejudice does not rely on the existence of corroborating evidence supplied by Flint's compelled trial testimony.
Flint also submits that Sims's "version of the facts was not exactly the same" as the versions that Flint and the victims supplied in their respective testimony, and suggests the People's case therefore would not "have inspired confidence." As he does not develop this argument by identifying specific differences in the testimony, citing to the record where the differing testimony appeared, and explaining the significance of the differences, we cannot evaluate this argument. (See, e.g., Pfeifer v. Countrywide Home Loans, Inc. (2012)