Opinion
C083874
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. MARK FORREST KIMMEL, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF01605)
Defendant Mark Forrest Kimmel appeals his convictions for possession of ammunition by a prohibited person and possession of a firearm without a competency certificate. He contends the trial court prejudicially erred in admitting a Department of Justice (Department) certified report, which incorporated documents prepared by a hospital, to show he was the subject of a Welfare and Institutions Code section 5150 hold that prohibited him from acquiring or possessing firearms and ammunition. Page three of the disputed report, he argues, contained testimonial hearsay that violated his confrontation clause rights, and pages four and five were inadmissible hearsay that did not qualify as an official record under Evidence Code section 1280 because no evidence showed the documents were prepared at or near the time of the alleged involuntary hold.
Undesignated statutory references are to the Welfare and Institutions Code.
We conclude page three, which established that defendant was the subject of an involuntary psychiatric hold that prohibited him from acquiring or possessing firearms for five years, was not testimonial hearsay. The trial court did not err in admitting the document. Given our conclusion, we do not reach defendant's hearsay challenge to pages four and five of the Department's certified report. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2014, defendant was allegedly the subject of a section 5150 psychiatric hold that prohibited him from owning or accessing firearms for five years. Two years later, in May 2016, numerous firearms were located in defendant's home, several of which were registered to defendant.
In October 2016, defendant was charged with possession of an assault rifle (Pen. Code, § 30605, subd. (a)), possession of ammunition by a prohibited person (Pen. Code, § 30305, subd. (a)(1)), and possession of a firearm without a competency certificate (§ 8103, subd. (f)). He pleaded not guilty to the charges and was tried before a jury.
At trial, the prosecutor sought to prove defendant was the subject of the section 5150 hold in November 2014, and, thus, prohibited from owning or possessing firearms in 2016, by introducing a five-page confidential report prepared and certified by the custodian of records for the Department's Bureau of Firearms (Exhibit 19). Exhibit 19 incorporated records from the hospital where defendant was taken for the section 5150 hold, which the hospital submitted to the Department through a Web portal.
Page one of Exhibit 19 is addressed to the attention of the special agent supervisor and is in response to a request for a certified copy of defendant's firearm prohibition. Page two of Exhibit 19 contained a certification from Marlina Castillo, the legal custodian of records in the Mental Health Firearm Prohibition System maintained by the Department's Bureau of Firearms. Castillo attested that the records included with the report showed defendant was lawfully prohibited from possessing, receiving, owning, or purchasing a firearm.
Page three of Exhibit 19 is a printout from the Department's LEA Web, its online database that receives information from the Mental Health Reporting Systems. The document lists defendant's name, date of birth, and address. According to page 3, the firearm prohibition against defendant was instituted on November 12, 2014, based on a section 5150 hold where he was "assessed DTSO," meaning he was a danger to self or others, by the Harbor-UCLA Medical Center. The firearms prohibition expired December 13, 2019. Entries on the document for "date received" and "date processed" both list November 23, 2014. The process date indicates when the Department processed the information.
Page four of Exhibit 19 appears to be a document from Harbor-UCLA Medical Center containing defendant's patient information. It shows defendant was admitted on November 12, 2014, for a section 5150 hold, and was discharged two days later on November 14, 2014. Emergency psychiatric services were provided to him during the hold.
Page five of Exhibit 19 is a Department form entitled "Patient Notification of Firearms Prohibition and Right to Hearing." It lists Harbor-UCLA Medical Center as the discharging facility, and notes that the notification was given to defendant on November 12, 2014. Under the line for "[p]atient [s]ignature" is a handwritten notation stating, "refused to sign."
Defense counsel moved in limine to exclude Exhibit 19. He argued that Exhibit 19 contained hearsay without an exception and violated defendant's confrontation clause rights. The People opposed, arguing that the hospital records became part of the Department's records once the information was uploaded to the Department's LEA Web, and that even if the hospital records remained stand-alone records, they were admissible under Evidence Code section 1280 because Harbor-UCLA Medical Center was a public hospital with public employees that input the information at or near the time of the alleged section 5150 hold.
The court denied defendant's in limine motion to exclude Exhibit 19. In so ruling, the court found that the Department report itself was an admissible certified document, and that the Harbor-UCLA Medical Center documents, which were incorporated into the Department report, were admissible under Evidence Code section 1280.
At trial, Bureau of Firearms Special Agent Rosa Rueda testified that her job duties included investigating firearm cases involving persons prohibited from possessing or accessing firearms, including convicted felons, domestic violence restraining orders, and mental health holds. According to Rueda, mental health hospitals input information into the Mental Health Reporting System, and that information is then transferred to the Department's LEA Web, which she regularly accessed as part of her job to determine whether a particular person was subject to a mental health hold and not permitted to have a firearm.
Special agent Rueda testified over defense counsel's objection that in November 2014 defendant was subject to a section 5150 hold, which restricted him from possessing or accessing firearms, ammunition, and magazines for five years. According to Rueda, defendant had five firearms registered to him in 2016. After searching defendant's home, Rueda discovered multiple firearms, magazines, and ammunition. Four of the weapons located were registered to defendant.
The prosecutor questioned special agent Rueda about Exhibit 19 over defense counsel's continuing objection. She explained each page of the report, noting that page three contained the LEA Web printout with defendant's firearm prohibition summary. The information was received from the Harbor-UCLA Medical Center, a public hospital.
On cross-examination, special agent Rueda conceded that she did not know whether Harbor-UCLA Medical Center had any safeguards to ensure that the information entered was accurate or correctly entered. Nor could she explain the basis for concluding that defendant had refused to sign the patient notification as indicated by the handwritten notation on page five, or who wrote that on the form. She also acknowledged that it was possible to enter a date on the forms other than the date on which someone input the information to the Department's LEA Web.
Marlina Castillo, the custodian of records for the Department, also testified for the prosecution. She compiled the documents in Exhibit 19.
Castillo explained that mental health facilities used the Mental Health Reporting System to enter records into the Department's Web portal; the documents are then transferred to the Department's LEA Web. She conducted a search in the LEA Web database for defendant's name and retrieved documents from a hospital showing he was prohibited from possessing or accessing firearms due to a prior section 5150 hold. According to her, Department special agents routinely rely on such records to determine whether an individual is a person prohibited from having firearms or ammunition.
Castillo admitted on cross-examination that she did not know when the hospital had printed out page four of Exhibit 19, which it had faxed to her in response to a request for information. The document, she conceded, was not part of the Department's records until she received it from the hospital on April 8, 2016. She also acknowledged that page five of Exhibit 19—the Patient Notification of Firearms Prohibition and Right to Hearing form (BOF form 4009B)—was also sent in response to her request, and that the document was not originally part of the LEA Web portal entry that the Department received.
Bureau of Firearms Special Agent Supervisor Blake Graham testified that the Mental Health Reporting System is within the Bureau of Firearms, and the bureau maintains those records. Under the Welfare and Institutions Code, hospitals are required to electronically send data regarding individual mental health events. (§ 8103, subd. (f)(2).) Hospitals access the Web portal and input the relevant information, which is then transmitted to the Department's LEA Web system.
After the close of the prosecution's case, defense counsel again objected to Exhibit 19, arguing some of the items included in the report were faxed at a later date from the hospital with no proof of when or how they were actually prepared. Counsel reiterated his objection that the hospital records were inadmissible hearsay and requested that the court exclude the exhibit. The court denied the request and admitted Exhibit 19 into evidence.
During closing, defense counsel argued that Exhibit 19 was insufficient to establish that defendant was subject to the section 5150 hold. He noted that no one from the hospital testified that defendant was the person subject to the purported hold, or testified about information showing when the documents were prepared and who prepared them. In rebuttal, the prosecutor argued that there was no evidence that anyone at Harbor-UCLA Medical Center had incorrectly input information into the Mental Health Reporting System.
The jury found defendant not guilty of possessing an assault weapon, but guilty of possession of ammunition and possession of a firearm without a competency certificate. (§ 8103, subd. (f).) Based on his convictions, the trial court found defendant in violation of probation in two other matters.
At sentencing, the court placed defendant on three years of formal probation. Defendant appealed.
DISCUSSION
1.0 Right to Confrontation
Defendant contends page three of Exhibit 19 constituted testimonial hearsay within the meaning of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and that admitting the evidence without a showing the declarant was unavailable or that he had the opportunity to cross-examine her violated his Sixth Amendment right to confrontation.
Defendant specifically argues that page three includes out-of-court statements from Harbor-UCLA Medical Center employee Katrina Overstreet about him to the Bureau of Firearms—namely, that he is prohibited from possessing firearms due to a section 5150 hold that started on November 12, 2014, after he was assessed as a danger to himself or others. When Overstreet entered the data in the Mental Health Reporting System, which was then uploaded to the Department's LEA Web, defendant contends there was no ongoing emergency. Instead, the primary purpose of inputting the information into the Mental Health Reporting System was to prove a past event (the § 5150 hold) that is relevant to a criminal prosecution.
1.1 Testimonial Hearsay
The Sixth Amendment's Confrontation Clause guarantees the right to confront and cross-examine witnesses who testify against a criminal defendant. (Crawford, supra, 541 U.S. at p. 42.) It provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.)
Crawford found that the primary objective of the Sixth Amendment is to bar "testimonial hearsay" unless the witness was unavailable, and the defendant had "a prior opportunity to cross-examine." (Crawford, supra, 541 U.S. at pp. 53, 59.) While Crawford did not define " 'testimonial' " (id. at p. 68, fn. omitted), it observed that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Ibid.) Business records and statements in furtherance of a conspiracy, the court noted on the other hand, are not "by their nature" testimonial. (Id. at p. 56.)
The Supreme Court subsequently clarified in Davis v. Washington (2006) 547 U.S. 813, 822 that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." "They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Ibid., fn. omitted.)
Our own Supreme Court in People v. Cage (2007) 40 Cal.4th 965 derived six basic principles from Davis. These included: (1) "the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial"; (2) "though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony"; (3) "the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial"; (4) "the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation"; (5) "sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses"; and (6) "statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Cage, at p. 984, fns. omitted.)
Given the above, the report submitted by Harbor-UCLA Medical Center to the Department (page 3 of Exhibit 19) violates Crawford and Davis if the primary purpose of the report was to establish or prove a past event for possible use at a criminal trial and the circumstances under which the report was made were sufficiently formal and solemn to render the report akin to trial testimony. To answer these complicated questions, we must first look to the statute defendant was convicted of violating—section 8103, subdivision (f).
1.2 Welfare and Institutions Code Section 8103
At the time of his 2016 conviction, subdivision (f) of section 8103 provided in relevant part:
"No person who has been (A) taken into custody as provided in Section 5150 because that person is a danger to himself, herself, or to others, (B) assessed within the meaning of Section 5151, and (C) admitted to a designated facility within the meaning of Sections 5151 and 5152 because that person is a danger to himself, herself, or others, shall own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm for a period of five years after the person is released from the facility. A person described in the preceding sentence, however, may own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase any firearm if the superior court has, pursuant to paragraph (5), found that the People of the State of California have not met their burden pursuant to paragraph (6)." (§ 8103, former subd. (f)(1); Stats. 2015, ch. 455, § 48, eff. Jan. 1, 2016.)
Within 24 hours of admittance, the facility is statutorily required to submit an electronic report to the Department, on a form prescribed by the Department, that contains the identity of the person and the legal grounds upon which the person was admitted to the facility. (§ 8103, subd. (f)(2)(A)-(B).) "Any report submitted pursuant to [paragraph (f)(2)] shall be confidential, except for purposes of the court proceedings described in this subdivision and for determining the eligibility of the person to own, possess, control, receive, or purchase a firearm." (§ 8103, subd. (f)(2)(A).)
Prior to or concurrent with discharging the person, the facility must inform the person that he or she is prohibited from owing, possessing, controlling, receiving, or purchasing any firearm for a period of five years. (§ 8103, subd. (f)(3).) The facility must also simultaneously inform the person that he or she may request a hearing from a court for an order permitting the person to own, possess, control, receive, or purchase a firearm before the five-year period expires. (§ 8103, subd. (f)(3).)
If the person requests a hearing, within seven days the Department must file copies of the reports described above with the court, and the People, represented by the district attorney, bear the burden of showing by a preponderance of evidence at the hearing that the person would not be likely to use firearms in a safe and lawful manner. (§ 8103, subd. (f)(5)-(6).) If the court finds the People have not met their burden, or if the district attorney declines or fails to go forward with the hearing, the court shall order that the person shall not be subject to the five-year prohibition on the ownership, control, receipt, possession, or purchase of firearms. (§ 8103, subd. (f)(7)-(8).) Upon receiving a copy of the court's order so finding, the Department is required to delete any reference to the prohibition against firearms from the person's state mental health firearms prohibition system information. (Ibid.)
1.3 Analysis
While defendant argues that the primary purpose of the hospital's report to the Department was to establish a past fact for future criminal prosecution, we are not persuaded given the language and structure of section 8103, subdivision (f) and the Department's independent duty to determine whether an individual may acquire or possess a firearm.
In our view, the statute requires a health facility to make the report to the Department primarily for use as evidence if the person subject to a section 5150 hold requests a hearing under section 8103, subdivision (f)(3) to challenge the five-year firearm prohibition. (§ 8103, subd. (f)(2)(A) ["[a]ny report submitted pursuant to this paragraph shall be confidential, except for purposes of the court proceedings described in this subdivision [(the hearing for an order from the trial court to own, possess, control, receive or purchase firearms notwithstanding the prior § 5150 hold)] and for determining the eligibility of the person to own, possess, control, receive, or purchase a firearm"].)
The report is also intended to allow the Department to fulfill its mandatory duty to determine who is eligible to own, possess, or obtain a firearm. That duty is found in Penal Code, section 26710, which provides that a person may request a certificate of eligibility from the Department, and the Department is required to examine its records to determine if a person is prohibited by state or federal law from possessing, receiving, owning, or purchasing a firearm. (Pen. Code, § 26710, subds. (a)-(b); Cal. Code Regs., tit. 11, §§ 4030-4041 [regulations that "apply to any person required by statute or regulation to obtain a Certificate of Eligibility from the Department of Justice pursuant to Penal Code section 26710"]).
Neither issuing a certificate of eligibility under Penal Code section 26710, nor showing by a preponderance of evidence that a person is unlikely to use firearms in a safe and lawful manner for purposes of the five-year firearm prohibition are criminal in nature. The fact that the report might later be used in a criminal trial does not transform the report into testimonial hearsay. (People v. Taulton (2005) 129 Cal.App.4th 1218, 1224 [although records of prior convictions "may, at times, become relevant evidence in a criminal trial, or even that such future use may be foreseeable, does not change the purpose for which the records were prepared"; § 8103, former subd. (f)(9) ["[n]othing in this subdivision shall prohibit the use of reports filed pursuant to this section to determine the eligibility of persons to own, possess, control, receive, or purchase a firearm if the person is the subject of a criminal investigation, a part of which involves the ownership, possession, control, receipt, or purchase of a firearm."].)
Because page 3 of Exhibit 19 does not constitute testimonial hearsay, the trial court did not violate defendant's confrontation clause rights by admitting the document at trial.
Given this conclusion, we need not decide whether, as the People argue, page three is similar to a California Law Enforcement Telecommunications System (CLETS) rap sheet showing a person's criminal history, which courts have found do not constitute testimonial hearsay (see, e.g., People v. Morris (2008) 166 Cal.App.4th 363, 367-368; People v. Taulton, supra, 129 Cal.App.4th at p. 1224) and are admissible under the official records exception to the hearsay rule. (Evid. Code, § 1280; People v. Martinez (2000) 22 Cal.4th 106, 113, 125.)
2.0 Evidence Code Section 1280 - Official Records Hearsay Exception
Having determined that the trial court properly admitted page three of Exhibit 19 because it did not constitute testimonial hearsay, we need not address defendant's remaining contention that pages four and five of Exhibit 19, which included medical records from Harbor-UCLA Medical Center, did not qualify as official records under Evidence Code section 1280 because no evidence showed the documents were created at or near the time of the event occurring. Because page three was a firearms prohibition summary that showed defendant was subject to a section 5150 psychiatric hold on November 12, 2014, for being a danger to himself or others, which prohibited him from owning or possessing firearms before December 13, 2019, any alleged error in admitting pages four and five was harmless.
While defendant also argues that pages four and five cannot be admitted as a business record under Evidence Code section 1271 because a custodian of records from the hospital did not testify to the foundational requirements necessary under the statute and because the pages lacked the requisite certificate to satisfy the affidavit requirement under Evidence Code section 1561, he acknowledges the trial court did not rely on Evidence Code section 1271 to admit the documents.
DISPOSITION
The judgment is affirmed.
/s/_________
BUTZ, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
KRAUSE, J.