Opinion
D071361
01-26-2018
THE PEOPLE, Plaintiff and Respondent, v. HADEER SHAMOUN, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. ECR11141) APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Reversed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Hadeer Shamoun appeals from an order denying his application for restoration of sanity pursuant to Penal Code section 1026.2. A criminal defendant, such as Shamoun, who has been found not guilty by reason of insanity (NGI defendant) may file an application for restoration of sanity if the defendant wishes to be released from governmental supervision. (Id., subd. (a).) In order for the defendant to establish that his sanity has been restored, the defendant must prove that he is "no longer a danger to the health and safety of others, due to mental defect, disease, or disorder." (Id., subd. (e).)
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Shamoun contends that the trial court erred in permitting the People to present voluminous amounts of "case-specific" hearsay at the trial on his application, in contravention of People v. Sanchez (2016) 63 Cal.4th 665, 676 (Sanchez). In Sanchez, the California Supreme Court concluded that 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." (Id. at p. 686.)
We agree that the trial court committed reversible error under Sanchez and remand the matter for a new trial on Shamoun's application.
II.
FACTUAL AND PROCEDUAL BACKGROUND
Shamoun committed four counts of arson of an inhabited structure (§ 451, subd. (b)) in 1995. The trial court found Shamoun not guilty by reason of insanity, and, in 1996, committed him to a state hospital. The trial court entered an order in 2013 discharging Shamoun from the hospital and placing him under community supervision on an outpatient basis in a conditional release program (CONREP).
The record does not contain the charging documents or the documents pursuant to which the trial court found that Shamoun was not guilty by reason of insanity. However, it is undisputed that Shamoun was committed to a state hospital after being found not guilty by reason of insanity of four counts of arson of an inhabited structure.
Shamoun filed an application for restoration of sanity and discharge from outpatient status pursuant to section 1026.2 in June 2016. Shamoun waived his right to a jury trial on the application.
The trial court held a bench trial on Shamoun's application in October 2016. Shamoun called as witnesses Dr. Valerie Rice, a psychologist, and Dr. Sanjay Rao, a psychiatrist. Dr. Rice and Dr. Rao each testified that, in their respective opinions, Shamoun did not pose a danger to those in the community due to his mental illness. Shamoun also testified at trial and explained that he was currently receiving treatment for his mental illness and his substance abuse problem.
The People called psychologist Dr. Suzanne O'Brien, the director of the CONREP program in San Diego in which Shamoun was enrolled. Dr. O'Brien testified that, in her opinion, Shamoun's sanity had not been restored and that the interplay of his mental illness and his drug and alcohol addiction placed him at risk of reoffending in a violent manner.
At the conclusion of the trial, the court denied Shamoun's application and ordered that he remain in the outpatient program.
Shamoun timely appeals the trial court's order denying his application for restoration of sanity.
The order is appealable because it constitutes an "order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b); see People v. Coleman (1978) 86 Cal.App.3d 746, 749-750 (Coleman).)
III.
DISCUSSION
The trial court committed reversible error in permitting the People to present
case-specific hearsay during the trial on Shamoun's application for
restoration of sanity, over his continuing objection
Shamoun contends that the trial court erred in overruling his continuing objection to the People's presentation of case-specific hearsay at the trial on his application for restoration of sanity. We apply the abuse of discretion standard of review to Shamoun's claim. (See, e.g., People v. Clark (2016) 63 Cal.4th 522, 590 ["The standard of review for the trial court's . . . determination of issues concerning the hearsay rule, is abuse of discretion"].) A. Governing law
1. The law governing applications for restoration of sanity
An NGI defendant committed to a state hospital or other treatment facility can obtain release upon a finding that his or her sanity has been restored. (§ 1026.2.) Section 1026.2 sets forth a two-step graduated procedure by which a defendant may obtain release from supervision.
" 'The first step in the release process requires the defendant, who has filed a release application, to demonstrate at a hearing that he or she will not "be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community." [Citation.] If the court finds such at the hearing, the defendant is then placed in "an appropriate forensic conditional release program for one year." [Citation.] This is commonly called the outpatient placement hearing.' " (People v. Endsley (2016) 248 Cal.App.4th 110, 116.)
In People v. Dobson (2008) 161 Cal.App.4th 1422 at pages 1433-1434, the court described the second step in the section 1062.2 release process:
"The second step in the section 1026.2 release process is referred to as the restoration of sanity trial, and can only be reached if the applicant has already met the threshold test for placement in 'an appropriate forensic conditional release program.' [Citations] 'Outpatient status is a prerequisite to a finding that sanity has been restored. [Citation.]' [Citation.] At the end of one year in an outpatient program, the court 'shall have a trial to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder.' [Citations.] The applicant must show he or she would not be dangerous if unconditionally released. [Citation.] The applicant again has the [right to] a jury trial, and the burden of proving he or she would not be dangerous by a preponderance of the evidence."
2. Case-specific hearsay
Evidence Code section 801 states that an expert providing an opinion at trial must base that opinion "on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, 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, unless an expert is precluded by law from using such matter as a basis for his opinion."
Evidence Code section 802 provides that an expert may explain the basis for his or her opinion as follows:
"A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based."
In Sanchez, the Supreme Court held that Evidence Code sections 801 and 802 do not permit an expert to relate to a fact finder case-specific facts about which the expert has no independent knowledge in order to support the expert's trial testimony. (Sanchez, supra, 63 Cal.4th at pp. 670, 676.) The Sanchez court considered the admissibility of a gang expert's description of a defendant's contacts with police that was based on "case-specific hearsay" for which no admissible evidence was offered. (Id. at pp. 673-674.) The Sanchez court overruled prior case law that had permitted the admission of such testimony to establish the basis of the expert's opinion. (Id. at p. 679 [stating that prior "paradigm [permitting an expert to relate case-specific facts to the jury] is no longer tenable because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury"]. Rather, the Sanchez court concluded that permitting an expert to relate such case-specific facts to the jury constitutes the recitation of hearsay. (Id. at p. 685 ["when the gang expert testified to case-specific facts based upon out-of-court statements and asserted those facts were true because he relied upon their truth in forming his opinion, he was reciting hearsay"].)
The Sanchez court defined case-specific facts as "those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.)
The Sanchez court summarized its holding as follows:
"In sum, we adopt the following rule: 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." (Sanchez, supra, 63 Cal.4th at p. 686.)
The Sanchez court further explained:
"If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may
assume its truth in a properly worded hypothetical question in the traditional manner." (Sanchez, supra, 63 Cal.4th at p. 684.)
The Sanchez court suggested that an expert may be asked to assume facts that will be admitted in evidence after the expert testifies. (See Sanchez, supra, 63 Cal.4th at p. 677 ["If no competent evidence of a case-specific fact has been, or will be, admitted, the expert cannot be asked to assume it" (italics added)].)
The Sanchez court's analysis of state law hearsay principles applies in the context of an application for restoration of sanity. (See People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 509 (Jeffrey G.) [holding that Sanchez applies to trial of NGI defendant's petition seeking to be placed on outpatient status under section 1026.2, subdivision (a)].) B. Factual and procedural background
The Sanchez court also considered whether the admission of the gang expert's testimony in that criminal case constituted testimonial hearsay that violated the Confrontation Clause under Crawford v. Washington (2004) 541 U.S. 34. (Sanchez, supra, 63 Cal.4th at 680.) Shamoun acknowledges that the Sanchez court's "Crawford analysis does not directly apply" because this "is not a criminal case." Accordingly, we need not, and do not address this aspect of Sanchez in this appeal.
1. Shamoun's case
a. Shamoun's hearsay objections during the prosecutor's cross-examination of Drs. Rice and Rao
During cross-examination, the prosecutor asked Dr. Rice whether she was aware that "the records show" that Secret Service agents had visited Shamoun after he wrote a letter to the President and that "he was delusional . . . ?" The following colloquy then occurred:
"[Defense counsel]: Objection, your honor. Calls for -- it is hearsay. Calls for the expert opinions of nontestifying witnesses regarding an
opinion of delusion. Multiple hearsay as well. He is referring to reports.
"[The prosecutor]: Could I be heard? She is relying on it and said she is relying on it.[]
"The Court: I think that the basis of an expert's opinion is always subject to cross-examination. I think it is also appropriate for counsel to ask the effect of things that she has considered in reaching the opinion. I agree that it is not admissible as independent proof of those facts . . . . That comes to us from Sanchez, the new Supreme Court case on the gang experts. I am going to allow it for the nonhearsay purpose of testing the basis of her opinion. But I am aware that Sanchez has made very clear that the facts relied upon or the assumed facts relied upon to test the basis of an opinion have to be independently proved or they may not be considered as proof of those facts. So you may answer. I will allow it for the nonhearsay purpose of evaluating her opinion."
Dr. Rice had previously acknowledged during her cross-examination having read and relied on a report authored by Dr. O'Brien in forming her opinion. The incident involving the Secret Service is referred to on page four of Dr. O'Brien's report. Although Dr. O'Brien's report was not admitted in evidence, the bulk of the report is contained in the clerk's transcript (page six of the report is omitted). Page four of Dr. O'Brien's report contains a bullet point list of evidence drawn from CONREP records and reports, and state hospital records, that indicate that Shamoun had suffered "ongoing delusional processes dating back to 2006 until close to 2012."
Shortly thereafter, the prosecutor asked Dr. Rice whether she was aware of an incident in 2007, reflected in Dr. O'Brien's report, that suggested that Shamoun was delusional. Defense counsel objected on numerous grounds, including that the question involved "multiple hearsay." The court responded in relevant part as follows:
"I think what we are really talking about here is an order of proof question. I think it is perfectly permissible for [the prosecutor] or you to ask Dr. Rice: If we assume that this is true, does that affect your opinion or what weight does it have on your opinion? I suspect we will be hearing -- I am assuming we will be hearing from Dr. O'Brien later on?"
After the prosecutor confirmed that Dr. O'Brien would be testifying, the court stated:
"I think what I am going to do, [defense counsel], is deem your objection to be a continuing one. I am overruling it and sticking to my previous ruling. However, this will be subject to revisiting and a motion to strike if some of these things that you think are crucial don't get proven up when Dr. O'Brien testifies. So overruled. You may continue"
The prosecutor also asked Dr. Rice about a 2015 report. During that questioning, the following colloquy occurred:
"[The prosecutor:] And you would agree in April of last year, 2015, Dr. Naimark recommended that Mr. Shamoun remain in CONREP?
"[Dr. Rice:] Yes.
"[Defense Counsel]: I am going to object as . . . hearsay. We are talking about an opinion of a nontestifying witness.
"The Court: Overruled on hearsay grounds."
The court also overruled defense counsel's hearsay objection to the prosecutor's questioning of Dr. Rice concerning a report describing Shamoun's attempt to escape from a state hospital:
"[The prosecutor:] And he was transferred to Patton because he tried to escape from Metropolitan State Hospital, right?
"[Dr. Rice:] Yes.
"[Defense counsel]: Again, your honor, objection as to hearsay.
"[The prosecutor]: That's what the records show, right?
"[Defense counsel]: I am asking it not be offered for the truth of the matter asserted.
"The Court: We will note a continuing objection on this basis. For now I won't receive it for the truth of the matter asserted. Depends on whether it gets proven up independently later on in the proceeding. The answer will stand subject to that limitation. You may proceed, [prosecutor]."
Shortly thereafter, the trial court revisited the issue of the admissibility of evidence of case-specific facts of which the expert has no personal knowledge under Sanchez:
"She is testifying as an expert. [The prosecutor] is entitled -- Both sides are entitled to ask the expert to assume certain things. I am taking her testimony about all of these bullet points on Dr. O'Brien's report,[] she doesn't know if these are true, but [the prosecutor] is entitled to ask her [to] assume these things are true. Is that inconsistent with your opinion? Does that undermine your opinion? Does that affect your opinion? She is doing that.
"And the way this will all shake out is this. Under Sanchez, it is admissible to test the basis of her opinion. But it is not admissible for the truth of the facts asserted in them. I won't know if these bullet points are admissible or not until after the testimony is all over. That's why I am reserving ruling on it. You may proceed, [prosecutor]."
The report to which the court was referring is discussed in footnote 7, ante.
While cross-examining Dr. Rao with respect to whether Shamoun's statement to Dr. Rao that he had been symptom free since 2003 constituted an example of Shamoun engaging in deceitful behavior, given the evidence of more recent psychotic symptoms summarized in Dr. O'Brien's report, the following colloquy occurred:
"[Dr. Rao:] That is an example of Mr. Shamoun's recollection of his symptom history and Dr. O'Brien's report of her interaction with him and his history of symptoms that she observed.
"[The prosecutor:] They can't both be right, would you agree?
"[Defense counsel]: Your honor, I am going to object as to the contents of a report. I have an ongoing objection as to hearsay under the Sanchez case.
"The Court: You do.
"[Defense counsel]: So --
"The Court: Your ongoing objection continues."
In addition, during the cross-examination of Dr. Rao concerning Shamoun's purported tendency to minimize his mental illness, the following colloquy occurred:
"[The prosecutor:] In the records there is evidence that he does [minimize his mental illness], right?
"[Defense counsel]: Objection as to evidence, Your Honor.
"[The prosecutor]: In the records you reviewed is there evidence to suggest --
"[Defense counsel]: My objection is that --
"The Court: Hold on, [prosecutor]. Go ahead, [Defense counsel]. What is your objection?
"[Defense counsel]: If the evidence is -- if it is admitted, I would ask it not be admitted for the truth of the matter asserted. It's hearsay.
"The Court: [Defense counsel], we have covered that. I understand that. That is the state of things right now. But [the prosecutor] is entitled to ask him. [The prosecutor] could say to him, assume, sir, that in 2006 Mr. Shamoun said Mr. Shamoun was visited by Secret Service regarding letters he wrote to the President that exhibited delusions and talked about spaceships and Jews. Would that affect your opinion? It doesn't matter if it is true or not right now. It doesn't matter. I am withholding ruling on whether it is true or whether those are the facts. But he gets to ask him about it. He gets to ask him about each one of these bullet points, if he wants, and find out whether that would change his opinion. That doesn't mean
that I am finding the bullet points are true. Let's be clear. I am not. It is not received for the truth of the matter yet. It might be later on. We will address that at the end of the hearing once all the evidence is in. [The prosecutor], you may proceed."
b. Shamoun's testimony
Shamoun testified on his own behalf. He acknowledged that he has suffered from both schizophrenia and a substance abuse problem since before he committed his qualifying offense in 1995. Shamoun explained that he currently resides in a "recovery home," which provides rehabilitation for those with substance abuse problems. He also receives treatment for his mental illness from CONREP. Shamoun stated that if released from outpatient status, he would continue to take his medication for his mental illness and obtain treatment for his drug addiction.
On cross-examination, Shamoun acknowledged that he was mistaken in telling Drs. Rao and Rice that he had not suffered from any hallucinations or delusions since 2003. Shamoun explained that, in fact, the "last time" he had suffered such symptoms was "about six years" ago. Shamoun acknowledged that, during the period 2006-2011, he had suffered various psychotic symptoms as discussed by the doctors during the trial. Shamoun also stated that he had told Dr. Rice that his use of drugs intensified his delusional thinking and that he could not recall whether he had told her that he became delusional only when using drugs.
On redirect examination, Shamoun stated that he had not experienced any delusions for six years and that he had been "stable," explaining, "I was never on the right medication in the past." Shamoun also acknowledged on redirect examination that he had "two dirty tests," in January 2015, which he maintained stemmed from "the same use." Shamoun further stated that he has not used illegal drugs since February 2015 and that he has been drug testing since that time.
2. The People's case
Dr. O'Brien testified that she has been the community program director of the CONREP program in San Diego since 2014. O'Brien testified that CONREP provides individual and group therapy to Shamoun. In addition, CONREP administers drug tests to Shamoun, conducts home visits with him, and visits other people in his "support network."
Dr. O'Brien stated that Shamoun had violated the rules of CONREP by possessing legal lottery tickets. Dr. O'Brien stated that she had personally seen Shamoun with the tickets, which Shamoun was not supposed to possess because he had a "history of wheeling and dealing in the state psychiatric hospital." Dr. O'Brien also stated that Shamoun had violated CONREP's rules by testing positive for methamphetamine twice in January 2015. Dr. O'Brien explained:
"Because those dates were close together, we did call the national toxicology lab to inquire to see if that could be from just one use -- one episode of drug use. And I was told -- this is not in the report; this is based on my memory. I was told that given the level that he tested positive on January 12, it means that there were at least two discrete uses of the drug."
Dr. O'Brien explained that her knowledge of Shamoun's history of drug and alcohol abuse was based on "records going back to [Shamoun's] previous time in CONREP." The prosecutor asked, "Based on your review of the records, does Mr. Shamoun have a history of using drugs while in CONREP?" Dr. O'Brien responded in the affirmative. Dr. O'Brien explained that she had created a "timeline" of Shamoun's drug use beginning in August 1999, when he first came to the program. Dr. O'Brien described, in detail, Shamoun's use of drugs based on "test[s]" and "records." Dr. O'Brien explained that Shamoun had frequently relapsed, which was of concern to her. Dr. O'Brien also stated, "[T]he records clearly show that he has not maintained his sobriety in the community for longer than somewhere between a year and a half to two years is when he typically has had a relapse."
Dr. O'Brien also stated that although Shamoun is currently in a drug rehabilitation program, "he didn't want to go to a rehab program." The prosecutor asked, "Why are you testifying that [Shamoun] didn't want to?" Dr. O'Brien responded, "Well, to be honest, it's just a statement that I saw in Dr. Carpio's report.[]" Dr. O'Brien also stated that on one occasion, Shamoun's brother called CONREP to report that he had been using drugs and alcohol.
The report is not in the record and was not offered in evidence.
Dr. O'Brien stated that although she had not personally witnessed any "positive symptoms of schizophrenia," "one could say . . . that perhaps [Shamoun] is a bit guarded." Dr. O'Brien explained that she was basing this statement on "notes from when [Shamoun] was in jail" in 2015.
Dr. O'Brien also stated that, based on "a review of the records," it appeared that Shamoun tended to "minimize the impact" that his mental illness has had in causing him to suffer paranoia and delusions, and that he attributed such symptoms to his abuse of drugs. The prosecutor also asked Dr. O'Brien whether "based on your review of the records," Shamoun had stated that he experienced delusions and hallucinations only when using drugs. Dr. O'Brien answered in the affirmative.
Dr. O'Brien also stated that "records show at the hospital" that when Shamoun was prescribed a "lower dose of . . . Abilify he certainly was experiencing ongoing delusions." In addition, Dr. O'Brien stated that Shamoun has "a history of not taking his medications, both inside and outside of the hospital." As an example, Dr. O'Brien stated that "[i]n 2009 he actually ceased all his medications while in the state hospital because he could."
In Dr. O'Brien's opinion, Shamoun had not been restored to legal sanity because the "interplay of his mental illness and his drug and alcohol addiction . . . put him at risk of reoffense in the future."
3. The trial court's final ruling on defense counsel's hearsay objections
At the conclusion of the trial, the trial court issued a final ruling on defense counsel's hearsay objections. The trial court stated in relevant part:
"In . . . Sanchez, which we have all alluded to, the California Supreme Court substantially clarified the law of expert witness testimony. . . .
". . . What Sanchez did was put to rest the notion that an expert can get on the stand and relate a lot of hearsay without that hearsay having to be proved up. And one of the things that the Sanchez opinion did was it said, yes, hearsay is still hearsay and it is still inadmissible unless there is an exception. . . .
". . . And I think my earlier ruling was going to be, well, let's address this at [the] end of the hearing when we know what has been admitted or what hasn't been admitted.
"I think [defense counsel] was correct in the point that he was making that if, let's just pick an example, Dr. Rao got on the witness stand -- Dr. Rice. I confused Rao and Rice and made it Rao -- either one of those doctors got on the witness stand and then related a bunch of factual information that was hearsay, if that information wasn't later on proven up, then, at minimum, it would have to be subtracted and the effect of that subtraction on the expert's opinion would have to be considered by the trier of fact. I think a more faithful reading of Sanchez is it would have to be stricken. And what I did was I deferred ruling. That's why I referred to this as an order of proof situation.
"And I find now that based both on, frankly, Mr. Shamoun's testimony as well as Dr. O'Brien's testimony that those factual assertions need not be stricken. I think they are established by nonhearsay evidence. And these factual assertions were referred to in examination as the bullet points on page 4 of Dr. O'Brien's report.[] I momentarily confused the issue by thinking it was page 5. It is page 4, as counsel corrected me.
"In any event, I find that to the extent that those factors were asked of or considered by any of the witnesses, it was proper. I don't think they need to be stricken. I think they are established by appropriate nonhearsay evidence.
"[T]hat resolves that objection."
This report is discussed in footnote 7, ante.
4. The trial court's denial of Shamoun's petition
The trial court proceeded to issue its ruling denying Shamoun's petition for restoration of sanity. After outlining the issues to be determined and the requisite burden of proof, the trial court reviewed the history of Shamoun's custodial status, noting that while Shamoun "has been on an outpatient status since July of 2013," he had been in custody for six months of this period while his outpatient status was being litigated.
As noted in part II, ante, the trial on Shamoun's application took place in October 2016.
The trial court further noted that evidence of Shamoun's diagnosis of schizophrenia, combined with his history of using methamphetamine, was significant in determining his dangerousness. In addition, the court referred to evidence that Shamoun had indicated to evaluators that he did not experience psychotic symptoms unless he was using methamphetamine. The court stated that, in light of this evidence, the "tie between methamphetamine consumption and dangerousness is clear, particularly where the diagnosis is otherwise schizophrenia."
The trial court expressed skepticism of Shamoun's suggestion that he experienced psychotic symptoms only while using methamphetamine, noting that Shamoun's position had "evolved" to "it makes my symptoms worse."
The trial court found it significant that Shamoun had told two evaluators that he had not experienced delusions since 2003, which the court indicated could constitute evidence of an "attempt to mislead" the evaluators. The court stated that "at [a] minimum," the evidence demonstrated a "lack of insight" on Shamoun's part into his disorder, which the court thought was a "significant and telling factor."
As noted in part III.B.1.b, ante, Shamoun admitted to having suffered psychotic symptoms as recently as 2011. Shamoun stated that he had "made a mistake," in telling Dr. Rice that he had not suffered any delusions or hallucinations since 2003.
The court discussed evidence pertaining to Shamoun's compliance, or lack thereof, in taking his medication as follows:
"Now, I also heard testimony to the effect that when his dosages of Abilify were lowered, he began to experience delusions. And we heard from the testimony and saw in the reports that there have been more than one instance where he felt he could either go off his medications, notwithstanding the fact that he is required to take them and Dr. Glassman is giving them to him, and one kind of wonders what he was doing during that six months when he decided to go off his medications. Was he picking them up and throwing them away? I don't know. But it is apparent to me that his medication compliance has not been good over the last two decades. And I am going to get to that in a moment. Because I know [defense counsel] has focused on the last two years."
The court then discussed the relatively short period that Shamoun had been functioning outside of a custodial setting, stating:
"[H]e has not been in the community really on his own for more than 13 months at this point continuously since he got out of custody in 2015, which is to say he hasn't even made the 18 months that it took until he relapsed last time in 2015. And I think that that factor supports Dr. O'Brien's concern that we just haven't had enough of a demonstration of a track record and an ability here."
However, the court continued by noting that Shamoun had made "remarkable progress" in developing "insight and trigger awareness," and in "following the protocols." The court observed that Dr. O'Brien had noted that Shamoun was "reasonably psychiatrically stable," and that there had been no "evidence of affirmative symptoms of psychoses for a couple of years." The court continued, "I want the record to be very clear that I think that Mr. Shamoun has made some remarkable progress. I think he has good intentions."
The trial court did state that it had observed "just a whiff here and there of a tendency of [Shamoun] wanting to have it his way and substitute his own judgment for that of the program and the program's requirements." However, the court stated that "with that minor qualification, his intentions are good."
The court continued its ruling, stating the following:
"But he has a history of stopping medications. He has a history of relapsing. We have delusional thinking -- clearly delusional thinking from [2006] to [2011] on those instances that were there related on page 4 of the report.[] And I have grave concern that without the structure that CONREP provides, he will not take his medication and he will decompensate and we will have other psychiatric episodes and, God forbid, that would end up like those that got him there to begin with."
The court was referring to Dr. O'Brien's report. (See fn. 7, ante.)
After making these comments, the court went on to discuss the experts who had testified at trial. The court expressed its view that Dr. O'Brien had the "edge" over Drs. Rao and Rice in that Dr. O'Brien's expertise lay in "working and managing and supervising this population." The court also stated that it could consider "the information on which [the] experts relied." The court noted further that it did not appear "as though Dr. Rice and Dr. Rao went back more than two years," and thus, they had not considered the evidence of Shamoun's prior history of psychotic symptoms.
The court ultimately found that "the petition must be denied at this juncture because [Shamoun] has not met the burden of proof of showing that he is not a danger."
5. Defense counsel's objection to the trial court's consideration of Dr. O'Brien's report
After the court issued its ruling, defense counsel stated:
"The court made reference towards Dr. O'Brien's report, the bullet points.[] I just want to put on the record that . . . Mr. Shamoun
does not stipulate to the court reading that report or agree that the court should read that report. I would ask the court not consider that report, but to consider her testimony. Her report is hearsay. It's inadmissible. But her testimony and her opinion clearly is admissible and should be considered."
As noted in footnote 7, ante, the "bullet points" referred to evidence of Shamoun having suffered psychotic symptoms at various points in time between 2006 and 2011.
The court responded:
"[Defense counsel], your concerns are noted. The chronology of things that the court remembers is that Dr. Rice and Dr. Rao, neither had seen that report at the time they prepared their report. Dr. Rice said that she had read 300-some pages, 327 pages, on a CD that covered the last two years. She expressly said she didn't have the records that went back before then.C. Application
"There was some examination of, well, weren't some of those details contained in the updated reports. But yet there was a hearsay objection raised by [Shamoun] at that juncture.
"The court has found that Mr. Shamoun himself in his testimony established the factual correctness of those bullet points. Everybody has referred to the bullet points on page 4 during their examination of the witnesses. To the extent that you are objecting to the court's consideration of those bullet points on page 4, that objection is overruled. Everybody has referred to those in their examination of the witnesses.
"I am mindful that in your examination of Dr. Rao and Dr. Rice, they said, gosh, now having seen that report, it doesn't change my opinion. Yes, I accept that. But it doesn't change my findings either."
1. This court need not determine whether Sanchez applies to the cross-examination of an expert witness
At the outset, we note that all of defense counsel's Sanchez objections were made during the prosecutor's cross-examination of Drs. Rice and Rao. While this appeal was pending, our colleagues in the Third District decided, as an issue of first impression, the extent to which Sanchez applies to the cross-examination of an expert witness. (See People v. Malik (2017) 16 Cal.App.5th 587, 597 (Malik) [noting the lack of authority on the issue].) As the Malik court observed, the issue is not clear cut. (Ibid.) On the one hand, "a broader range of evidence may be properly used on cross-examination to test and diminish the weight to be given the expert opinion than is admissible on direct examination to fortify the opinion." (People v. Coleman (1985) 38 Cal.3d 69, 92-93; see Malik, supra, at p. 597 [noting the same].) On the other hand, where an expert witness is cross-examined with a leading question that calls for the expert to confirm a case-specific fact, one may argue that the jury is likely to consider the expert's answer for its truth, in contravention of the principles animating the Sanchez decision. (See Malik, at p. 597 [observing that if statements asked about on cross-examination were "not true, the statements would have no impeaching value"].) Ultimately, the Malik concluded, "the reasoning of Sanchez applies equally" where case-specific hearsay statements are elicited on cross-examination. (Id. at p. 598.) We need not determine whether to follow Malik because we conclude, for the reasons stated below, that the trial court committed reversible error in permitting Dr. O'Brien to testify to case-specific hearsay, in contravention of Sanchez.
Neither party addressed in its briefing on appeal the extent to which Sanchez applies to testimony provided on cross-examination.
2. Shamoun adequately preserved his claim that the trial court erred in admitting case-specific hearsay during the People's direct examination of Dr. O'Brien
In order to resolve Shamoun's appeal on this ground, we must begin by determining whether Shamoun preserved his claim that the trial court erred in admitting case-specific hearsay during the People's direct examination of Dr. O'Brien. In his brief on appeal, Shamoun contends that the trial court erred in permitting the People to present case-specific hearsay during their direct examination of Dr. O'Brien and that this claim was preserved by defense counsel's continuing objection. In response, the People state in their brief on appeal, "Given [Shamoun's] counsel's clear Sanchez objection, [the People] can fathom no reasonable argument suggesting that [Shamoun's] Sanchez issue is somehow waived or forfeited here." The People do not contend that any portion of Shamoun's appellate claim is forfeited.
Further, although Shamoun did not raise any hearsay objections during Dr. O'Brien's testimony, as detailed in part III.B.1.a, ante, Shamoun raised numerous hearsay objections pursuant to Sanchez during the prosecutor's cross-examination of Drs. Rice and Rao. Moreover, on three separate occasions, the trial court stated that Shamoun had a "continuing objection" to the introduction of case-specific hearsay under Sanchez. In addition, when ruling on Shamoun's last Sanchez objection, the court stated, "[Defense counsel], we have covered that. I understand that." Defense counsel may have reasonably interpreted the court's comment as indicating that it was not necessary for counsel to interpose further Sanchez objections during Dr. O'Brien's testimony in order to preserve an appellate claim that the trial court erred in admitting case-specific hearsay under Sanchez. Under these circumstances, we conclude that Shamoun's continuing objection adequately preserved his appellate claim that the trial court erred in permitting the People to elicit case-specific hearsay during their examination of Dr. O'Brien. (See People v. Johnson (2015) 61 Cal.4th 734, 761 [concluding appellate evidentiary claim preserved because "[i]n order to avoid disruption at trial, the trial court granted defense counsel's motion for a continuing objection to all such testimony introduced at trial"]; People v. Boyette (2002) 29 Cal.4th 381, 451 [defense counsel made a continuing objection to this line of questioning, thereby preserving the issue for appellate review].)
We have considered that in registering a hearsay objection to the trial court's consideration of Dr. O'Brien's report after the court issued its ruling, defense counsel stated that it was permissible for the court to consider Dr. O'Brien's testimony. We do not interpret defense counsel's remarks as withdrawing his continuing objection to the introduction of case-specific hearsay. Rather, defense counsel's remarks are better interpreted as indicating that counsel objected to the court's consideration of Dr. O'Brien's report in its entirety, but that counsel had no objection to the trial court's consideration of Dr. O'Brien's testimony insofar as that testimony was either based on her first-hand knowledge or constituted admissible expert testimony.
3. The trial court committed Sanchez error
Turning to the merits, we agree with Shamoun that the trial court erred in permitting the People to introduce case-specific hearsay during Dr. O'Brien's testimony. Dr. O'Brien relayed to the jury the following case-specific facts that appear to have been premised on out-of-court statements of which Dr. O'Brien had no personal knowledge:
1) Shamoun had a history of "wheeling and dealing" in the state hospital;
2) Shamoun twice tested positive for methamphetamine in January 2015;
3) A person from the toxicology lab told Dr. O'Brien that Shamoun's two positive tests must have been based on two distinct uses of the drug;
3) The "records" detailed Shamoun's history of illegal drug use while in CONREP;
4) A statement in Dr. Carpio's report indicated that Shamoun did not want to go into drug rehabilitation treatment;
5) Shamoun's brother called CONREP to report Shamoun for violating the program's rules;
6) When asked whether Shamoun has demonstrated any "positive symptoms of schizophrenia," Dr. O'Brien stated that psychiatric notes from the county jail indicated that Shamoun was "a bit guarded" in 2015 while in custody;
7) Based on "a review of the records," Shamoun tends to minimize the significance of his mental illness symptoms in causing delusions and hallucinations;
9) According to the "records," Shamoun has stated that he suffers hallucinations only when he was using drugs;
10) Shamoun has "a history of not taking his medications," including in 2009 when he ceased taking all medications while in the state hospital;
11) "The records clearly show that he has not maintained his sobriety in the community for longer than somewhere between a year and a half to two years."
All of this testimony constitutes hearsay under Sanchez. (Sanchez, supra, 63 Cal.4th at p. 686 ["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"].) Thus, we reject the People's conclusory assertion that "[t]he record demonstrates that case-specific evidence was not admitted into evidence . . . ." Further, Dr. O'Brien's hearsay testimony was inadmissible because the People made no attempt to admit the evidence "through an applicable hearsay exception." (Id. at p. 684.)
Sanchez makes clear that an expert may not relate case-specific facts of which the expert has no personal knowledge to the fact finder (ibid.), even if the fact finder is instructed not to rely on such testimony for its truth. (Id. at p. 684 ["Once we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth"].)
The People do not address the admissibility of any of these specific portions of Dr. O'Brien's testimony referred to in Shamoun's brief on appeal.
On remand, the People are free to seek admission of evidence of such facts through an applicable hearsay exception or introduce the evidence in nonhearsay form.
4. The error requires reversal
"We evaluate prejudice resulting from the allowance of expert testimony in violation of Sanchez under the standard of People v. Watson (1956) 46 Cal.2d 818, which requires reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Jeffrey G., supra, 13 Cal.App.5th at p. 510.)
In evaluating prejudice, we begin by observing that the vast majority of the testimony of the People's only witness, Dr. O'Brien, was premised on case-specific hearsay. Further, while Shamoun's testimony provided an independent and proper basis for the admission of some of the facts to which Dr. O'Brien testified (e.g., that Shamoun tested positive for methamphetamine use in 2015), many of the case-specific facts that Dr. O'Brien recounted were not testified to by any other witness (e.g., her lengthy testimony concerning Shamoun's substance abuse history and her description of Shamoun's history of failing to take his medications).
That is not to say that Dr. O'Brien could testify to such facts. "[T]estimony about case-specific facts of which [an expert] does not have personal knowledge is inadmissible, even if specific facts are independently proven by other evidence." (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413.)
In addition, while Dr. O'Brien could have been asked "to assume a certain set of casespecific facts for which there is independent competent evidence," and then have been "ask[ed] . . . what conclusions [she] would draw from those assumed facts," (Sanchez, supra, 63 Cal.4th at pp. 676677, italics added), that is not what occurred in this case. Rather, Dr. O'Brien testified as to the casespecific facts, themselves.
In addition, the trial court's remarks in ruling on the petition suggest that the court viewed this as a relatively " close case" (Jeffrey G., supra, 13 Cal.App.5th at p. 504). For example, the court stated that Shamoun had made "remarkable progress." In addition, the court observed that Dr. O'Brien stated that Shamoun was "reasonably psychiatrically stable," and that there was no "evidence of affirmative symptoms of psychoses for a couple of years."
Moreover, the court expressly referred to some of the inadmissible case-specific hearsay in denying the petition. For example, the court stated, "it is apparent to me that his medication compliance has not been good over the last two decades." In addition, the court stated that it had "heard testimony to the effect that when his dosages of Abilify were lowered, he began to experience delusions." The court's finding in this regard was based on Dr. O'Brien's case-specific hearsay testimony that "[a]t a lower dose of the Abilify, records show at the hospital," that Shamoun suffered delusions. (Italics added.)
Further, while there was nonhearsay evidence to support some of the other factors that the court mentioned in denying the petition (i.e., Shamoun's failed drug tests in 2015 and his statement to evaluators that he had not experienced delusions since 2003), it is likely that the weight that the court gave to these factors was influenced by its consideration of inadmissible hearsay. With respect to Shamoun's failed drug tests, the court also heard extensive testimony from Dr. O'Brien concerning Shamoun's substance abuse history, premised on inadmissible case-specific hearsay. With respect to Shamoun's statements to evaluators, the court expressly referred to Dr. O'Brien testimony that Shamoun is "not fully appreciating just how vulnerable he is to relapsing." Dr. O'Brien's testimony with respect to this issue was based on case-specific hearsay, namely, her assessment that "a review of the records" revealed a "pattern" of Shamoun believing that his psychotic symptoms are not attributable to his mental disorder.
Under these circumstances, it is reasonably probable that Shamoun would have obtained a more favorable result absent the error. Accordingly, we conclude that the trial court's permitting the People to present case-specific hearsay at trial, over Shamoun's continuing objection, constitutes reversible error.
Shamoun contends that "the sheer mass of the hearsay involved in this case," violated his "due process right to a fair trial." In light of our reversal of the court's order on state law evidentiary grounds, we need not consider this argument.
Shamoun also contends in the alternative that, if this court determines that trial counsel failed to adequately preserve his Sanchez claim on appeal, he was denied the effective assistance of counsel. For the reasons stated in part III.C.2, ante, we conclude that trial counsel adequately preserved the Sanchez claim. We therefore need not address Shamoun's ineffective assistance claim.
IV.
DISPOSITION
The order denying Shamoun's petition is reversed. The matter is remanded for a new trial on Shamoun's application for restoration of sanity.
AARON, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.