Opinion
A131995
01-25-2012
THE PEOPLE, Plaintiff and Respondent, v. LARRY O. JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County
Super. Ct. No. VCR171091)
In December 2010, the Solano County District Attorney filed a petition for recommitment for involuntary treatment pursuant to the Mentally Disordered Offenders Act (MDO or act), Penal Code section 2960 et seq., asserting that appellant Larry O. Johnson was "a mentally disordered offender who, by reason of a severe mental disorder that is not in remission or cannot be kept in remission without treatment, represents a substantial danger of physical harm to others." Following a court trial, the court found that appellant was a mentally disordered offender who represented a substantial danger of such harm to others, and ordered a one-year extension of his commitment to Atascadero State Hospital (Atascadero or hospital). In this timely appeal, appellant maintains that there was insufficient evidence to support the recommitment order. We affirm.
Unless otherwise noted, all statutory references are to the Penal Code.
I. BACKGROUND
A. Legal Framework
The MDO sets forth a comprehensive scheme for treating prisoners with severe mental disorders that were a cause or aggravating factor in the commission of the crime for which they were incarcerated. (§ 2960.) The act aims to balance the state's interest in protecting the public from dangerous and mentally ill former prisoners, and the liberty and due process interests of the individual subject to involuntary civil commitment. (People v. Allen (2007) 42 Cal.4th 91, 97-98.)
The MDO addresses treatment in three situations: as a condition of parole (§ 2962); as continued involuntary treatment for one year upon termination of parole or pending release from prison if the prisoner refused treatment as a condition of parole (§§ 2970, 2972, subds. (a)-(c)); and as an additional year of treatment upon expiration of the original, or previous, one-year commitment (§ 2972, subds. (a)-(c), (e); People v. Cobb (2010) 48 Cal.4th 243, 251).
Recommitment proceedings commence with a petition for recommitment, followed by a civil hearing. The standard of proof for recommitment is proof beyond a reasonable doubt, tried to a jury unless waived by the individual and the district attorney. (§ 2972, subds. (a), (e).)
Three criteria must be satisfied to justify a one-year extension and continued treatment. These criteria do not relate to past events, but rather to the prisoner's current condition. (People v. Cobb, supra, 48 Cal.4th at p. 252.) A one-year extension for continued treatment is mandatory if the following criteria are met: (1) the person continues to have a severe mental disorder; (2) the disorder is not in remission or cannot be kept in remission without treatment; and (3) the person continues to represent a substantial danger of physical harm to others. (§ 2972, subds. (c), (e).)
The MDO defines " 'remission' " as "a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support." (§ 2962, subd. (a)(3).) Further, "[a] person 'cannot be kept in remission without treatment' if during the year prior to the question being before the Board of Prison Terms or a trial court, he or she has been in remission and he or she has been physically violent, except in self-defense, or he or she has made a serious threat of substantial physical harm upon the person of another . . . , or he or she has intentionally caused property damage, or he or she has not voluntarily followed the treatment plan. In determining if a person has voluntarily followed the treatment plan, the standard shall be whether the person has acted as a reasonable person would in following the treatment plan." (Ibid.) B. Expert Testimony
Forensic psychologist Dr. Kevin Perry from Atascadero testified as an expert in the general practice of psychology and the evaluation of mentally disordered offenders. Over the years he performed more than 400 evaluations under the MDO law. Dr. Perry was assigned to this case first for the section 2970 hearing and later for the appeal from appellant's original commitment.
Appellant was admitted to Atascadero from prison on October 19, 2007. Dr. Perry reviewed all of appellant's medical records that were maintained at the hospital as well as his treatment plan, and met with him on October 27, 2010, and once thereafter.
Dr. Perry did not have access to all of appellant's prison central file.
Dr. Perry expressed his opinion that appellant suffered a severe mental disorder. He has a history of psychiatric symptoms consistent with a diagnosis of schizophrenia, undifferentiated type. These symptoms include self-reported auditory hallucinations, persecutorial delusions, and grandiose delusions. Further, appellant has "a history of thought disorganization characterized by rambling, sometimes incoherent, illogical speech patterns, psychomotor agitation, paranoia, and irrational fear and suspicion of other people and impairment [of] his judgment and behavior based on those symptoms."
Dr. Perry opined, based on a review of the hospital progress notes, that appellant's severe mental disorder was not in remission and he could not be kept in remission without treatment. He had engaged in physical violence within the past year, notably a progress note from January 3, 2011, noted that appellant was in a mutual combat with another patient. He also made several threats requiring his placement in room seclusion as an imminent danger to others for the periods October 24-25, October 29-31 and November 1-4, 2010. Additionally, he did not voluntarily comply with treatment in that he refused psychotropic medication offered during the first several weeks in the hospital, necessitating an involuntary medication order initiated on November 3, 2010, which was in place as of the date of the instant hearing. Further, appellant refused to attend the majority of assigned treatment groups.
On redirect examination, Dr. Perry stated that appellant was not voluntarily taking medication at the time. Appellant spoke up orally, saying, "Yes, I am."
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Finally, Dr. Perry was of the opinion that appellant posed a substantial danger of physical harm to others. Appellant had a history of engaging in violent and threatening behavior during periods of psychiatric instability. For the qualifying offense of which he was convicted—assault with a deadly weapon—appellant attempted to stab a person on the street while making a delusional statement. Specifically, he said, "This is a penitentiary." This crime was adjudicated as having been caused or aggravated by his severe mental disorder. Dr. Perry stated the symptoms of his disorder were "not yet in clinical remission and cannot be kept in remission as evidenced by current involuntary medication order." Dr. Perry believed that because appellant's symptoms remained active and were related to violence in the past, in a less structured setting he would represent a substantial danger of physical harm to others because of the disorder.
On cross-examination, Dr. Perry acknowledged that, as to the January 3, 2011 combat incident, the other combatant was more aggressive than appellant. As well, the threats occurred within the first week and a half of his hospitalization. And, since the November 2010 medication order, appellant has not refused his medication, and there have not been any incidents of physical violence or verbal threats. Attendance at assigned therapy groups also improved, but he was not in complete compliance. Appellant also exhibited symptoms after November 2010, specifically on two occasions in March and April 2011 when he was noted to exhibit tangential speech, a form of thought disorganization. And, at the end of January 2011, he was noted to be agitated, perseverative and hostile, symptoms which are consistent with schizophrenia. Dr. Perry observed that appellant's symptoms "have gotten better over the year," but "[t]hey're just not in remission yet."
II. DISCUSSION
Appellant attacks the recommitment order as lacking evidentiary support. He first argues that there was no substantial evidence to sustain the recommitment order because there was no competent evidence adduced at trial to support Dr. Perry's testimony. He asks, what "value inheres in the testimony of this psychologist who had not seen Mr. Johnson in five months, and whose opinion is based upon unnamed and untested hearsay?" He complains that there was no testimony recounting the sources of Dr. Perry's information, and thus no way to measure its reliability.
Appellant did not object that Dr. Perry's opinions lacked a proper foundation or were based on improper hearsay, nor did he cross-examine Dr. Perry on the basis of his opinions. Having failed to preserve these points by appropriate objection in the trial court, they are waived. (Evid. Code, § 353, subd. (a); People v. Seijas (2005) 36 Cal.4th 291, 301.) These principles of waiver and objection apply to the examination of expert witnesses. (People v. Miller (1994) 25 Cal.App.4th 913, 915-917; see also Parlier Fruit Co. v. Fireman's etc. Ins. Co. (1957) 151 Cal.App.2d 6, 14-15.)
Appellant attempts to build a case for proper objection below by pointing to a sequence in which Dr. Perry testified to procedural facts pertaining to appellant's situation. Specifically, when the deputy district attorney (DDA) asked how appellant was "originally found to be a mentally disordered offender," Dr. Perry replied: "Originally? Well, he would have been certified by the chief psychiatrist while he was in prison. I'm not sure what date that was. He then would have had a hearing with the Board of Parole . . . ." Defense counsel objected: "Speculation. Lacks foundation." Rephrasing the inquiry, the following colloquy took place:
DDA: "You reviewed . . . all of his medical records at Atascadero and his prison records as it relates to the commitment under Penal Code Section 2962?"
Dr. Perry: "I reviewed his medical records as they're contained at Atascadero . . . . I did not have access to all of his prison central file."
DDA: "Okay. . . . [H]ow are you aware that he was committed under the [MDO]?"
Dr. Perry: "It was a form by the Board of Parole hearings that indicates that he had a hearing and that he was found to meet the criteria."
Defense counsel: "Objection. Hearsay."
The court: "Overruled."
This sequence does not aid appellant, which he asserts amounted to the trial court riding "roughshod" over objections such that the prosecutor never laid an adequate foundation for Perry to testify about any records he discussed. First, it bears clarifying that the only questions on the table were when appellant was found to be an MDO and how Dr. Perry became aware of that fact. The underlying facts—that there had been a finding under the MDO law and appellant was committed pursuant to that law at a particular time—are not in dispute and had already been established by the record and earlier hearings in the case. Dr. Perry's reference to the official form was not offered for the truth but to show how he found out what everyone had accepted as true and formed the basis for the current procedural action.
Second, even if the court had improperly overruled the objection, this action did not amount to a roughshod ride over appellant's evidentiary rights. Appellant states that after the above interchange, Dr. Perry was "permitted to testify about a myriad of conclusory statements and supposed historical details, the source of which is utterly unknown." But, to reiterate, appellant interposed no objections thereafter; defense counsel allowed the testimony to flow without objection.
Third, Dr. Perry qualified without objection as an expert in the evaluation of mentally disordered offenders and indicated he reviewed appellant's medical records lodged at Atascadero and his treatment plan, and spoke with appellant on two occasions. He formed his opinion that appellant met the applicable criteria under the MDO law, based on his review of the above documents.
The opinion of an expert must be based on matter, perceived by or personally known to or made known to the witness, 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 . . . ." (Evid. Code, § 801, subd. (b).) A qualified mental health professional may render his or her opinion on the relevant MDO criteria. (People v. Valdez (2001) 89 Cal.App.4th 1013, 1017 [stating also that professional may rely on underlying probation report in formulating opinion regarding criterion of force or violence].) In keeping with Valdez, we conclude that a qualified mental health professional may reasonably rely on the mentally disordered offender's treatment plan and medical records maintained at the treating facility in rendering an opinion that the offender meets the criteria for a one year-extension pursuant to section 2972. These are the very records that would detail vital information pertinent to the person's condition and symptoms, treatment and progress, the very information the expert would have to consult prior to rendering an opinion under the MDO. Indeed, if the expert did not consult such records, appellant would no doubt argue the basis of the opinion was unreliable.
Appellant also argues that even if Dr. Perry's testimony was competent, there is no substantial evidence to sustain the findings that he was not in remission and remained a substantial danger to others, particularly since his behavior had improved since November 2010. Appellant's behavior prior to the November 2010 medication order, in particular threats to others resulting in seclusion, as well as the January 2011 mutual combat incident, is not "ancient history" as appellant suggests, but rather occurred well within the year before the hearing. As well, appellant was under an involuntary medication order, and refused to go to some of his assigned treatment groups, demonstrating lack of compliance with his treatment plan. Further, appellant displayed thought disorganization symptoms in the spring of 2011, and in January of that year exhibited symptoms consistent with schizophrenia. Dr. Perry testified that appellant exhibited behaviors that met the criteria of having a severe mental disorder that is not in remission or cannot be kept in remission without treatment. He further testified that appellant had a history of violent and threatening behavior during periods of psychiatric instability, notably the qualifying offense for which he was convicted, and his symptoms were not yet in clinical remission and could not be kept in remission as demonstrated by the involuntary medication order. Thus in a less structured environment, appellant did represent a danger of harm to others due to his severe mental disorder. Dr. Perry's opinion, and the supporting facts he attested to, constitute substantial evidence that satisfy the criterion for recommitment under the MDO. (§§ 2962, subd. (a), 2970, 2972, subd. (e); People v. Beeson (2002) 99 Cal.App.4th 1393, 1398-1399.)
III. DISPOSITION
The recommitment order is affirmed.
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Reardon, Acting P.J.
We concur:
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Sepulveda, J.
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Rivera, J.