Opinion
A147607
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT WAYNE JONES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR145094)
Appellant Robert Wayne Jones appeals from the trial court's order extending his involuntary commitment at Atascadero State Hospital for one year, as a mentally disordered offender (MDO). He contends the court violated both state evidentiary law and his due process right to confrontation when it permitted three experts to testify at his trial to case-specific facts based on inadmissible hearsay. Because we find that appellant was not prejudiced by the erroneous admission of case-specific hearsay, we shall affirm the trial court's order extending his commitment.
PROCEDURAL BACKGROUND
On September 14, 2015, the Napa County District Attorney filed a petition under Penal Code sections 2692 and 2970 to extend appellant's commitment as an MDO for one year.
All further statutory references are to the Penal Code unless otherwise indicated.
Previously, in January 2010, appellant was sentenced to three years in state prison, pursuant to a negotiated disposition under which he pled no contest to felony assault and three related misdemeanors. Shortly before his release from prison, in July 2014, the district attorney filed a petition requesting that appellant receive involuntary treatment as an MDO. (See § 2970, subd. (a).) A jury subsequently found appellant was an MDO, and his one-year commitment began on January 3, 2015.
Appellant's first jury trial ended when the trial court declared a mistrial on December 16, 2015, after the jury was unable to reach a verdict.
On February 10, 2016, at the conclusion of a second trial, the jury found that appellant continued to qualify as an MDO. Also on February 10, the court ordered appellant's commitment extended until January 3, 2017.
On February 17, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Three witnesses testified for the prosecution at appellant's commitment extension trial. Dr. Kevin Perry, a forensic psychologist at Atascadero State Hospital (ASH), testified as an expert in forensic psychology, diagnosis of mental illness, and risk assessment of the mentally ill. Perry, who evaluated appellant on November 12, 2015, almost three months before trial, did not treat patients he evaluated in order to maintain objectivity in his evaluations and to promote continuity of care and staff safety. Perry estimated that he had found that approximately one-third of the patients he evaluated did not meet the criteria for an MDO commitment extension.
Perry attempted to interview appellant as part of his evaluation, but appellant refused to answer any questions. Perry therefore evaluated appellant based on various hospital and other records and discussion with appellant's treating psychologist, Dr. Steed.
Appellant was first diagnosed with bipolar disorder in 2001, at age 20. He was in the army at the time and was subsequently discharged because of his psychiatric symptoms. He had been "in and out" of the Veterans Affairs (VA) system between 2001 and 2008. In 2008, appellant was committed to Napa State Hospital (NSH) under a conservatorship. While at NSH, he became aggressive while a psychiatrist was attempting to give him an injection of antipsychotic medication; appellant pushed a piano bench into a police officer and punched another officer in the head. Following that incident, appellant was convicted of assault with force likely to cause great bodily injury and was sentenced to prison.
Based on his evaluation, Perry was of the opinion that appellant had a severe mental disorder, specifically a combination of bipolar disorder and schizophrenia. His symptoms included a history of auditory hallucinations, delusions, paranoia, thought disorganization, bizarre behaviors, and mood swings.
In addition, based on his review of hospital progress notes, Perry did not believe appellant's severe mental disorder was in remission. Perry had found evidence of active symptoms of schizoaffective disorder, including ongoing delusions, mood instability, agitation, and paranoia. He offered examples of recent delusional behavior, including appellant's expressed belief in October 2015, that "there were bottomless cracks that were going to open up in the earth and release flesh eating insects or something to hurt him or to devour him" and the claim that same month that he had great wealth. In November, he required extra medication for psychotic symptoms after expressing the belief that he was the father of his own father. Later that month, he was described as being very tense and agitated, and had "asked a staff member to stab him in the belly button." In December, he expressed the belief that David Copperfield was communicating with him telepathically.
Perry also assessed whether appellant's mental illness could be kept in remission with treatment by examining whether he had been physically violent toward others during the past year, whether he had made any serious threats to hurt other people, whether he had caused property damage intentionally, and whether he had voluntarily followed his treatment plan. Perry found that appellant was involved in some violent incidents between March and September 2015, including a fight with another patient and several incidents involving threats and/or violent conduct toward staff. In addition, in the past year, appellant did not voluntarily follow his treatment plan as a reasonable person would. He attended only about 30 percent of his assigned therapy groups and was under an involuntary medication order; most patients at ASH were not under such an order.
One of those groups was a substance abuse treatment group, to which appellant was referred due to a history of abusing alcohol in the community. He had also used methamphetamine and heroin.
Perry believed appellant's behavior was consistent with a lack of insight, and he did not believe appellant would take his medications if he were released into the community. This opinion was based on appellant's long history of refusing his medications, his recent violations of the medication compliance protocol, and his remaining under an involuntary medication order. In addition, appellant had not completed treatment to address his substance abuse history and had not yet completed a relapse prevention plan.
Finally, Perry opined that, as a result of his severe mental disorder, appellant presently represented a substantial danger of physical harm to others. This opinion was based on appellant's long history of violent behavior between 2001 and the present time, his long psychiatric history, his history of medication noncompliance, his current involuntary medication order, and his ongoing psychiatric symptoms.
Dr. Martin Steed, a staff psychiatrist at ASH, testified as an expert in diagnosing and treating mental illness and in risk assessment. Steed worked in the Enhanced Treatment Unit (ETU) at ASH, which was reserved for the most violent patients in the hospital. During Steed's testimony, over defense counsel's hearsay objection, the court admitted into evidence People's exhibit 2, which contained notes by various treatment professionals at ASH, and which Steed had assembled from appellant's medical file. The court found this documentary evidence admissible as government (official) records.
Steed testified that he had initially been appellant's treating psychiatrist in the ETU for four months when appellant came to ASH on January 4, 2012, and treated him again for seven months, from April to November 2015, when appellant was again in the ETU. He also saw appellant "a few times in between" those two periods. In the ETU, staff is "responsible for treating the most aggressive patients," with a reduced staff to patient ratio and two police officers on duty 24 hours a day. The ETU is a locked unit. Appellant had spent a total of 21 months in the ETU over the course of three admissions to ASH.
Steed regularly spoke with appellant several times a week, but also "walk[ed] by him multiple times a day" and was "observing him throughout the day."
In Steed's opinion, appellant suffered from a severe mental disorder, specifically schizoaffective disorder, bipolar type. Appellant's symptoms included persistent irritable mood, aggressiveness, hostility, and assaultive behavior. He also had symptoms of hyperactivity, rapid pressured speech, and decreased sleep. Appellant had demonstrated grandiosity, having said he was an army psychiatrist, a psychologist, a lawyer, and God; he also said he had met two presidents. Appellant had expressed a recent grandiose delusion "that he was building an invisible RV and trailer that's top secret for the army. And you could see him acting as if he were putting something together that was not there." Appellant also believed he had the power of telekinesis and that he could telepathically communicate with his parents. Other symptoms included "command auditory hallucinations," during which voices told him to hurt others.
At that point in Steed's testimony, appellant interjected, "I worked for the motor pool. I think about how to improve vehicles." Appellant made several additional comments at various times during Steed's testimony.
Appellant had been diagnosed with schizoaffective disorder around 2001. Regarding appellant's understanding of his diagnosis, he had stated that he has schizoaffective disorder, but tended to minimize and rationalize his symptoms. Steed believed "he lack[ed] full insight into the severity of his illness and his need for treatment." Appellant's medications included Clozapine and Risperidone, which are antipsychotic medications, as well as Depakote and lithium, which are both mood stabilizers. Clozapine is reserved for patients who do not improve on trials with at least two other antipsychotic medications because it can have severe side effects, including a low white blood count and constipation. Steed believed appellant needed all four drugs because of his high level of aggression and treatment resistance. Although appellant's medications had caused side effects, they had helped to decrease his risk of violence. For example, he could go four or five months at a time without needing restraints because he was stable on his medications.
Appellant had also been diagnosed with alcohol and cannabis dependence and antisocial personality disorder.
Steed testified that in 2014, appellant had convinced a psychiatrist to take him off of Depakote and he gradually became less stable until March 2015, "when he assaulted a unit supervisor, hitting her in the face several times and then chasing her down the long hallway, hitting her from behind." Appellant was transferred back into the ETU, where Steed restarted him on Depakote, after which his assaultive behavior decreased.
Appellant told Steed several times a week that he wanted to reduce or stop his medications. Steed had reviewed appellant's medication compliance records in jail, where he was placed pending his commitment extension trial. The jail records from December 2015, reflected that appellant had refused his Depakote on 17 occasions, refused Risperdal on 5 occasions, his lithium on 3 occasions, and his Clozaril on 8 occasions. Steed was "convinced" that appellant would not take his medication in an unsupervised setting. This opinion was based on appellant's ongoing requests to reduce or stop his medications, his refusal of medications while in jail, and the fact that he currently had an involuntary medication order at ASH due to concerns that he would refuse to take medications on his own. According to Steed, when appellant stops taking his medications, he "becomes manic and aggressive," and Steed believed he would inevitably become violent in the community.
Clozaril apparently is the brand name for Clozapine.
Steed did not believe appellant's severe mental disorder was currently in remission. Nor were his symptoms completely controlled by medication. Steed could not say whether appellant was presently dangerous while a patient in the hospital, since he had not seen appellant since November 2015, when he had been deemed safe enough to be transferred out of the ETU. Steed believed appellant had insight into his aggressive behaviors, but he did not have full insight that those behaviors were related to his mental illness.
Steed further believed appellant "would soon become very dangerous" if released into the community without supervision. This opinion was based on appellant's past violent behavior in prison and his assault on the unit supervisor at ASH in March 2015. Moreover, appellant had been hospitalized 15 to 20 times in all, and had previously assaulted staff at the VA Hospital and Napa State Hospital. Appellant had also threatened to kill Steed on one occasion, on January 6, 2012. Finally, appellant had significant martial arts skills and had been through basic training in the army, which made him dangerous when he became aggressive and manic. Before appellant could be safely released from the hospital, "he would need to understand the severity of his illness and [would] need to stay on the medications as prescribed."
Bryan Nelson, a forensic mental health specialist with California's conditional release program (CONREP), also testified at trial. CONREP provides outpatient treatment and case management services for people released from the state hospital. Patients are evaluated twice a year to determine their readiness for outpatient treatment, using certain criteria, including that they are psychiatrically stable on their medications, are behaviorally stable, have completed a relapse prevention plan, and have participated in about 90 percent of their groups in the hospital setting.
Nelson had evaluated appellant four times since 2012, most recently in September 2015. In February 2015, he met with appellant in person, but in September, he performed a chart review only because appellant was housed in the ETU, and CONREP does not go into that unit for safety reasons. Based on his assessment of appellant, Nelson opined that appellant had a severe mental disorder, specifically schizoaffective disorder, which was not in remission. He also believed that appellant was at high risk for violence if released from the hospital and that he was much too dangerous at present to be treated in the community.
Appellant, who was 34 years old at the time of trial, testified on his own behalf. He began showing symptoms of mental illness when he was about 19 years old while in the army. He was discharged from the army and treated for schizophrenia and manic depression at a VA hospital.
Appellant testified to the side effects he suffered from his medications, including the Risperidone, which made him feel weird and caused him to "see an alien in" people and made it so he could not "complete connections with them because you see a blockage in the eyes, and the eyes connect and they—they draw out magnets and stuff . . . ." He testified that Risperidone and other medications, including Depakote, "make[] me snap on people because I see—I see scary images in their faces . . . ." He preferred the medication Thorazine.
Appellant testified that he does not get in fights on the streets, but only in the hospital, where "it's the prodrome [sic] and it's that—the officers and the workers, the attitudes. . . ." If released from the hospital, he would take Thorazine. When asked whether he would get into fights or assault people if released, appellant responded, "I won't get in no fights out there. Out there is different. When you have a problem, you take a piece of jerky and snap it to a slender Slim Jim, um, or you get a Twizzler or you get Skittles. . . ."
When asked if he thought he had a mental illness, appellant responded, "I got a lot of memories and I go through feelings sometimes," and described how his dad would tell him what medications to take. He testified that after his dad died, his family saw his "dad leave the coffin. And I could talk with my dad, I could talk with him. I hear his voice and I see him in my dreams." His father also told him to do things, saying he was looking out for appellant, which made appellant feel safe. Appellant also testified, however, that he gets scared around his father "because he's a general and he's scary, he's been through war and stuff and he gets scary sometimes."
Appellant testified about the bad side effects of the medications he took, including one that was "a heart pill that was making my heart go bad and it would make me—I would have strokes and then I had a heart attack and then most of the time where I hit that lady, I had a heart attack. I think, I don't know, but I don't know why I hit her. . . ." If released, he would need to take his medication, specifically Thorazine. On cross-examination, he testified that he had hit the unit supervisor due to a heart problem from being on Risperidone and other medications. He said it was a mistake to hit her; she did not do anything to cause it "except hanging in my face."
After both the prosecutor and defense counsel said they had no further questions, appellant said he was not done. When his counsel asked what appellant wanted to tell the jury, appellant described his roommate in prison, Jerry, who "started off nice and then he got mean." Jerry started cutting appellant's feet with razors, and appellant, who was on medication, started crying. Appellant was shutting down because of the medication he was on. He therefore asked Jerry to write a letter to his mother. When Jerry said no, "I jumped on him, I tried to give him a lobotomy. I stabbed him in the back of the head. I gave him a lobotomy. Lobotomies don't kill people. I had two of them in the army by my drill sergeant."
DISCUSSION
Appellant contends the court violated both state evidentiary law and his due process right to confrontation when it permitted three experts to testify at trial to case-specific facts based on inadmissible hearsay.
I. Statutory Framework Regarding the MDO Law
"The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. ([] § 2960 et seq.) . . . . [T]he purpose of the scheme is to provide MDOs with treatment while at the same time protecting the general public from the danger to society posed by an offender with a mental disorder. [Citation.]" (In re Qawi (2004) 32 Cal.4th 1, 9.)
" 'Accordingly, "[a]s a condition of parole, a prisoner may be designated and civilly committed as an MDO for involuntary treatment of a 'severe mental disorder' if certain conditions are met." ' [Citation.] These conditions include: ' "the prisoner has a severe mental disorder" that "is not in remission, or cannot be kept in remission without treatment," and which "was one of the causes or was an aggravating factor in the prisoner's criminal behavior"; "the prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to his or her parole release day"; and "by reason of his or her severe mental disorder the prisoner represents a substantial danger of physical harm to others." ' [Citation.]
"The initial MDO commitment can be continued. 'Not later than 180 days prior to the termination of parole, or release from prison,' the district attorney may petition the court to continue MDO treatment for one year. (§ 2970.)
"Section 2972 sets forth the procedures for the hearing of a petition for continued MDO treatment. 'The court shall conduct a hearing on the petition. . . ,' and the prisoner has the right to a jury trial. (§ 2972, subd. (a).) 'The standard of proof under this section shall be proof beyond a reasonable doubt . . . .' (Ibid.) The People are represented by the district attorney, and the prisoner has the right to representation by the public defender. (§ 2972, subd. (b).) The court shall continue commitment for one year if the trier of fact finds that 'the patient has a severe mental disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.' (§ 2972, subd. (c).)" (People v. Gregerson (2011) 202 Cal.App.4th 306, 313-314 (Gregerson).)
II. Appellant's Challenge to Expert Testimony
Based on Case-Specific Hearsay
Recently, in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court clarified the law on the proper scope of expert testimony, as follows: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. . . ." (Id. at p. 686, fn. omitted.) The Sanchez court disapproved its prior decision in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, at p. 686, fn. 13.) The court also made clear that its decision "does not affect the traditional latitude granted experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Id. at p. 685.)
In this case, appellant contends that because the three experts—Perry, Steed, and Nelson—all testified at trial to case-specific facts based on inadmissible hearsay in explaining their opinions, they violated the rule set forth in Sanchez. (See Sanchez, supra, 63 Cal.4th at p. 686.) He points to 39 instances in which the experts purportedly were permitted to testify to case-specific hearsay, to which no exception applied. Those instances include the following testimony by Perry, including when appellant was first diagnosed with a mental illness; his treatment in the VA system; his commitment to ASH for competency restoration; his service in the army and his discharge for mental illness; the facts of his committing offense and his conviction of assault with force likely to cause great bodily injury; someone telling Perry that he should have a police officer present during his interview with appellant; information Perry obtained from Steed about appellant's treatment progress and symptoms; appellant's long history of psychiatric symptoms and treatment; appellant's symptoms based on records, not personal observations; instances in which appellant had received mental health treatment since 2001; the treatment appellant was currently receiving and his participation in that treatment; specific active symptoms appellant allegedly exhibited in the past year; appellant's involvement in violent incidents in the past year; appellant's lack of compliance with his medications; specific examples of appellant's failure to follow his treatment plan, including being under an involuntary medication order; appellant's history of abusing alcohol and using methamphetamine and heroin; appellant's history of violent behavior; other health professionals' belief that appellant was not competent to stand trial; appellant's being held in restraints more than 30 times at ASH; appellant's assaultive behavior at VA hospitals; problems appellant had with his treatment; appellant's substance abuse history; appellant's failure to complete treatment for substance abuse; appellant's past symptoms and history of violence; and the contents of a report prepared by a Dr. Hines.
Appellant also complains of Steed's case-specific hearsay testimony regarding appellant having been diagnosed with schizoaffective disorder since 2001 and given a psychiatric honorable discharge from the army; appellant suffering three DUIs; appellant requiring over 1400 hours of restraint since 2012, because of his aggression and violence; occurrences during appellant's treatment when Steed was not directly involved in that treatment, including an alleged assault on a staff member; the contents of appellant's medical records in jail; appellant being on an involuntary medication order most of the time since 2002, and having 15 to 20 hospitalizations in his life; criminal charges appellant faced in 2012, based on events in prison; various incidents of appellant's behavior inside other institutions; the contents of a psychiatric admission assessment prepared by someone else; appellant's martial arts skills and training from fifth grade through his time in the army; appellant's father having schizophrenia or schizoaffective disorder; and appellant being around age 20 and in the army when his mental illness began.
Finally, appellant argues that Nelson improperly testified to the following case-specific hearsay: appellant was housed in the ETU in September 2015; the diagnosis in appellant's file as of July 31, 2015; the incidents in 2015 in which appellant was "aggressive, threatening, not taking his medications, [and] not following his treatment plan as a reasonable person would because he wasn't going to treatment at a reasonable rate"; and the fact that appellant's treatment group attendance was worse in late 2015 than it was in February of that year.
Appellant objected to admission of some though not all of this evidence on hearsay and other grounds, and the court sustained some of those objections, but overruled many of them on the ground that the hearsay evidence was not being admitted for its truth. Appellant asserts, however, that he was not required to object at all because it would have been futile. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 [no objection in trial court is required "if it would have been futile" where trial court would have been required to follow authority that was binding at time of trial].) Appellant notes that at the time of his trial, Sanchez had not yet been decided and, under Gardeley, courts permitted expert testimony on case-specific hearsay on the ground that it was not admitted for its truth. (See Sanchez, supra, 63 Cal.4th at p. 683, citing Gardeley, supra, 14 Cal.4th at pp. 619-620.) We find that, because, at the time of appellant's trial, most courts were applying the law as stated in Gardeley, any additional objections by defense counsel would likely have been futile. (Cf. People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted Mar. 22, 2017, S239442 [declining to find forfeiture because any objection to admission of testimonial hearsay on confrontation clause grounds "would likely have been futile because the trial court was bound to follow pre-Sanchez decisions"].)
Appellant also argues, in the alternative, that if we find he has failed to preserve this hearsay issue on appeal, counsel was ineffective for failing to object on that ground in the trial court. (See Strickland v. Washington (1984) 466 U.S. 668, 694, 697.)
Moreover, the Sanchez court explained it was clarifying the evidentiary rules (see Evid. Code, §§ 801 & 802) that had been distorted by prior case law, rather than changing the applicable law. Hence, we also find that Sanchez's stated rules are applicable here even though appellant's trial took place before Sanchez was decided. We will therefore address appellant's claim on the merits. (See Sanchez, supra, 63 Cal.4th at pp. 670, 686, fn. 13 [even though decisions at time of trial suggested an expert may testify regarding case-specific hearsay, Supreme Court reversed true findings on gang allegations due to admission of expert testimony relating case-specific statements concerning defendant's gang membership, which "constituted inadmissible hearsay under California law"].)
The experts' testimony at trial included case-specific hearsay, such as information from hospital and treatment records, much of which was not admitted into evidence. Under Sanchez, it was error to admit this hearsay testimony. (Sanchez, supra, 63 Cal.4th at p. 686; see People v. Roa (2017) 11 Cal.App.5th 428, 452 [in sexually violent predator (SVP) commitment proceedings, trial court erred in admitting experts' testimony regarding case-specific facts they obtained from reports that had not been admitted into evidence].) We must therefore determine whether appellant was prejudiced, i.e., whether it is reasonably probable that, absent the inadmissible hearsay, the result of the trial would have been different. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Stamps (2016) 3 Cal.App.5th 988, 997 ["We review the erroneous admission of expert testimony under the state standard of prejudice"].)
Even without the case-specific hearsay, a great deal of non-hearsay evidence was admitted at trial to support the jury's findings that appellant continued to suffer from a severe mental disorder that was not in remission or could not be kept in remission without treatment, and that because of his mental disorder, he would represent a substantial danger of physical harm to others. (See § 2972, subd. (c); Gregerson, supra, 202 Cal.App.4th at p. 314.) Importantly, Steed had been appellant's treating psychiatrist and based much of his testimony on his interactions with and observations of appellant. In addition, all of the experts' ultimate opinions were permissibly based on their training and experience and their review of appellant's records. (See Sanchez, supra, 63 Cal.4th at pp. 685-686 [an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].)
First, Steed who had treated appellant for four months when appellant first came to ASH in 2012, and again for seven months not long before trial, met with him several times a week and also saw him multiple times a day in the ETU. Steed's opinion that appellant suffered from a severe mental disorder—schizoaffective disorder, bipolar type—and his testimony regarding current symptoms necessarily were based at least in large part on his day to day interactions with and observations of appellant. Steed's belief that appellant lacked full insight into the severity of his illness and the need for treatment was also based on Steed's experience with appellant. For example, appellant had told Steed since they first met in 2012 that he did not want to take his medications, and he generally asked Steed several times a week to reduce or stop his medications. Based on these interactions and the fact that appellant currently had an involuntary medication order at ASH, Steed was convinced that appellant would not take his medications in an unsupervised setting, which would lead to violence.
Steed also based this opinion in part on case-specific hearsay: appellant's jail records from 2015.
Steed's opinion that appellant's severe mental disorder was not currently in remission and that his symptoms were not completely controlled by medication was thus based, to a significant degree, on personal knowledge gleaned from his experience as appellant's treating psychiatrist. Steed's opinion that appellant would become very dangerous if released from the hospital was based in part on hearsay, but also on appellant's prior threat to kill Steed and his placement in the ETU, as well as his lack of understanding of the severity of his illness and the likelihood that he would stop taking his medications if released.
Second, Perry's opinion that appellant continued to suffer from a severe mental disorder—schizophrenia combined with bipolar disorder—that was not in remission was based on his review of various hospital and other records and discussion with Steed. Thus, while some of Perry's testimony involved inadmissible case-specific hearsay, his ultimate opinions were properly based on that hearsay. (See Sanchez, supra, 63 Cal.4th at pp. 685-686.) Likewise, Perry's beliefs that appellant would not take his medication if released and that he would pose a substantial danger of physical harm to others if released from the hospital were properly based in his review of the records and discussion with appellant's treating psychiatrist.
Third, Nelson from CONREP, who had met with appellant a year before trial but had most recently evaluated him by reviewing his hospital records, also found that appellant had a severe mental disorder, specifically schizoaffective disorder, which was not in remission, and that appellant was at high risk for violence if released from the hospital.
The evidence thus shows that, although the experts' testimony did include case-specific hearsay, much of Steed's testimony was based on his frequent interaction with and observations of appellant, and all of the experts properly relied on hospital records and other documents in reaching and expressing their opinions that appellant continued to suffer from a severe mental disorder that was not in remission, and that because of his mental disorder, he would represent a substantial danger of physical harm to others if released. (See Sanchez, supra, 63 Cal.4th at pp. 685-686; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 415-416 [any error in permitting detective to testify about hearsay bases of his opinion that defendant was a gang member was harmless where prosecution also relied on witness with personal knowledge of defendant's gang involvement to prove his gang affiliation]; compare People v. Wright (2016) 4 Cal.App.5th 537, 546 [because expert's opinion that defendant suffered from hebephilia was "was based on pure speculation and conjecture about the victims' physical and sexual development, it did not possess any evidentiary value"]; see also § 2972, subd. (c).)
In addition, many of the hospital records upon which the experts relied and from which they obtained some of the facts described in their testimony were admitted into evidence as official records under Evidence Code section 1280. Appellant acknowledges that "most of the contents" of exhibit 2, which Steed had compiled from staff treatment notes, "appear to have been admissible under section 1280." Those notes include staff descriptions of aggressive and/or violent acts by appellant between 2012 and 2015, including his attack on the unit supervisor. Thus, a substantial portion of the case-specific hearsay testified to by the experts about appellant's aggression while in the hospital was contained in exhibit 2, which was admitted into evidence under an exception to the hearsay rule. (See Evid. Code, § 1280; cf. Sanchez, supra, 63 Cal.4th at p. 686 ["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"].)
Appellant argues, however, that exhibit 2 could have had no effect on the jury's verdict because the jury deliberated for only six minutes before reaching a verdict, and therefore could not have even reviewed the exhibit. First, regardless of the timing of jury deliberations, exhibit 2 was in evidence, and much of the case-specific hearsay in the expert's testimony was therefore "independently proven by competent evidence." (Sanchez, supra, 63 Cal.4th at p. 686; cf. People v. Burroughs (2016) 6 Cal.App.5th 378, 403-404 [where probation reports reciting facts underlying offenses qualifying defendant for SVP status were admitted at trial, those facts were proven independently and experts were permitted to relate those facts to jury as basis of their opinions].) Second, even if we were to ignore this documentary evidence containing information relied on by the experts, as already discussed, a great deal of non-hearsay expert testimony was presented at trial regarding whether appellant continued to be an MDO under section 2972. (See Sanchez, at pp. 685-686.)
In addition, appellant's testimony further supports our finding of harmless error. He confirmed much of the experts' hearsay testimony and also provided independent support for their findings as to his illness not being in remission, his lack of insight, and the likelihood that he would not be medication compliant if released, all of which would cause him to represent a substantial danger of physical harm to others. For example, appellant testified that he had begun to show symptoms of mental illness at age 19 when he was in the army, and that he was subsequently discharged from the army and treated for his mental illness. He further testified that side effects from some of the medications he was taking caused his delusions and hallucinations and also caused him to assault a unit supervisor. Appellant's testimony, as well as his interjections during the experts' testimony, also provided evidence that his mental illness was not in remission and that he currently had symptoms, including both delusions and hallucinations. Indeed, even after both the prosecutor and defense counsel stated they had no further questions, appellant insisted on telling the jury about stabbing a prison roommate in the back of the head in an effort to give him a lobotomy after the roommate refused to write a letter to appellant's mother.
Appellant asserts that it cannot be assumed he would have elected to testify absent admission of the case-specific hearsay. First, given that much of the testimony, particularly of Dr. Steed, and the opinions of all experts were properly admitted, any assumption that appellant would not have testified had none of the improper hearsay been admitted is speculative. In addition, as noted, in light of the admissible expert testimony, together with the properly admitted hospital and treatment records contained in People's exhibit 2, it is not reasonably probable that appellant would have obtained a more favorable result had the hearsay been excluded. (See Watson, supra, 46 Cal.2d at p. 836.)
For these reasons, we conclude appellant was not prejudiced by the improper admission of case-specific hearsay at his trial. (See Watson, supra, 46 Cal.2d at p. 836.)
We find unpersuasive appellant's assertion in support of his prejudice argument that this was a close case, based on the fact that the jury in his first trial could not reach a verdict, and despite the fact that the jury in the present trial reached a verdict in six minutes. In addition, while acknowledging that the error in this case was "an error of state evidentiary law," which requires a prejudice analysis under the Watson standard, appellant nevertheless asserts that the error also violated his due process right to confront witnesses. Again, a great deal of properly admitted evidence supported the experts' opinions in this case and, moreover, the documents in exhibit 2, which were admitted as official records, supplied many of the case-specific facts to which the experts testified. Appellant was not denied the right to confront witnesses against him at his trial. --------
DISPOSITION
The trial court's order extending appellant's MDO commitment for one year is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.