Opinion
A148231
01-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT BRADFORD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VC20596)
I.
INTRODUCTION
Robert Bradford appeals the trial court's order, after a jury trial, extending his commitment to Napa State Hospital pursuant to Penal Code section 1026.5. Bradford contends the court erred in allowing two expert witnesses to testify at his trial about case-specific facts based on inadmissible hearsay as prohibited by People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We conclude that to the extent these expert witnesses testified to inadmissible hearsay, Bradford was not prejudiced by the erroneous admission of this evidence, and his constitutional rights were not violated. We affirm the order extending his commitment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
On March 7, 2016, the Solano County District Attorney filed a petition pursuant to Penal Code section 1026.5, subdivision (b) to extend Bradford's commitment to Napa State Hospital. At the time, Bradford's commitment was due to expire on April 5, 2016. On March 30, 2016, a jury found the petition true and the court ordered Bradford's commitment extended to April 5, 2018.
B. Commitment Hearing
1. Motions in Limine Regarding Expert Testimony
Prior to the hearing, respondent filed a trial management conference statement, which included a motion in limine to allow experts to testify about any hearsay upon which they based their opinions. Evidence Code section 801, subdivision (b) allows an expert witness to rely on inadmissible evidence to form their opinion. Citing People v. Gardeley (1996) 14 Cal.4th 605, 618 (Gardeley), respondent argued expert testimony may be "premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field forming their opinion." The experts should be able to rely upon Bradford's entire criminal and psychological history. Respondent further argued the experts could describe the material that formed their opinions, including police records, probation reports, court transcripts, prison records, and medical records because it was reliable hearsay.
All statutory references are to the Evidence Code, unless otherwise indicated.
Bradford filed a motion in limine to limit any expert's testimony regarding hearsay on which he or she relied in forming an opinion. "Any expert may rely on certain types of hearsay when forming an opinion. Cal. Evid. Code § 801. However, this cannot be used as a vehicle to introduce hearsay to a jury which would otherwise not be permissible." Bradford also moved to limit the description of Bradford's underlying crimes to the jury pursuant to section 352.
The court held a hearing on the motions and stated that under the Evidence Code, "experts are permitted to rely on hearsay evidence as long as it's reasonably reliable." The experts intended to use medical records, police reports, interviews with Bradford, and testing results. The court found "[a]ll of those sources of information would be considered to be reliable, and, therefore, I would permit the experts to rely on that information." The court further ruled the experts could discuss the original committing offense to the extent it bears on the issue of whether Bradford still posed a danger to the community. The court instructed Bradford's counsel that if she believed the hearsay was unreliable, she could raise a foundational objection.
2. Expert Testimony
a. Dr. Domingo Laguitan
Dr. Domingo Laguitan is a staff psychiatrist at Napa State Hospital. Dr. Laguitan first described how records are maintained at Napa State Hospital and that the records include the underlying police and probation reports. Bradford had been Dr. Laguitan's patient since 2014. Dr. Laguitan testified that Bradford suffers from a severe mental disorder, specifically schizoaffective disorder—depressed type. He also has a mild substance abuse disorder.
As part of his psychiatric diagnosis, he considered Bradford's past conduct and history. Over defense counsel's objection, Dr. Laguitan testified that the medical records included Bradford's conduct for the commitment offense. Dr. Laguitan then outlined Bradford's conduct in 1986: "he drove his car into a dwelling, an occupied dwelling, which resulted in the injury of two people, one of them seriously." Bradford was hearing voices that ordered him to drive into the building to commit suicide. Bradford had been diagnosed with a mental disorder at the time, but he had stopped taking his medication two weeks before the incident. Dr. Laguitan had not reviewed the police report but took the information from wellness relapse prevention plans that synthesize all the information including identification data, forensic data, and clinical data. Dr. Laguitan did not know of the author of the progress reports he had reviewed and did not know if the author had reviewed the police reports.
Bradford was released from Napa State Hospital twice in 1996. He was released to the Conditional Release Program. The first time his symptoms became worse so he returned to the hospital. He was released again and he absconded. Bradford traveled to another state and stopped taking his medication and began abusing substances. When he was arrested, he resisted arrest and fought the officers.
Defense counsel objected to the testimony and the court reserved ruling to get more information. Dr. Laguitan testified the hospital medical records that he reviewed contained the information about the incident. The court overruled counsel's objection.
Dr. Laguitan testified that when Bradford's illness is not controlled, he suffers from auditory hallucinations and paranoia. His schizoaffective disorder is a lifelong condition. He takes two kinds of medication: Risperal, an antipsychotic, and Sertaline, an antidepressant.
Bradford refused to participate in treatment so it was difficult to gauge the state of his disorders. Dr. Laguitan testified "what is concerning is that he's not participating in treatment right now, and he hasn't been for a while. And that generally doesn't bode well if they go out in the community." A report from 2014 documented Bradford stated he was still hearing voices. But, in the time Dr. Laguitan had been treating him, he was not aware of Bradford having any delusions or hallucinations. Dr. Laguitan was also not aware of any disciplinary incidents over the past two years.
Bradford is cooperative in that he takes his medication voluntarily and is pleasant in his interactions with staff and peers. But Bradford refuses to attend his treatment conferences and does not believe he has a mental illness. Bradford informed Dr. Laguitan that he does not think he has a severe mental disorder and he does not believe he needs medication; he only takes it because Dr. Laguitan prescribes it to him and it is pointless to refuse. Bradford is uncooperative in his treatment and stated he does not trust doctors. As recently as February 2016, Bradford stated he did not have schizophrenia. However, in June 2015, Bradford did state the medications help him.
At the time of the hearing, Bradford was in the stabilization unit. As his treatment progresses, he can move to the transition unit and finally to the discharge unit.
Dr. Laguitan's opinion was Bradford would be a substantial danger to the community if he was released. "For people who don't believe they are ill and they don't see the benefit of treatment, there's a likelihood that they will not continue to take care of themselves; and history indicates that when his symptoms are not well controlled, when they are intense that it influences his behavior." Bradford's substance abuse could exacerbate his mental disorder leading to an increased likelihood of violent conduct. Dr. Laguitan stated there is a likelihood that Bradford would not continue taking his medication if released. Dr. Laguitan noted the earlier incidents in 1986 and 1996 when Bradford stopped taking his medication.
Dr. Laguitan stated that the most important factor in his assessment was Bradford's "current presentation" or current clinical condition, but history is also important. Bradford has not acknowledged the symptoms of his illness or a knowledge of the triggers. Bradford is not "insightful" of what he needs to learn so he can progress inside the hospital.
In order for Dr. Laguitan to consider Bradford not a danger upon release, Bradford would need increased interaction with his treatment team and to develop more insight into his illness.
b. Dr. Cheryline Mancusi
Dr. Cheryline Mancusi is a staff psychologist for Napa State Hospital. She has been Bradford's treating psychologist since September 2013. Dr. Mancusi testified Napa State Hospital's medical records are kept in the normal course of business. Dr. Mancusi reviewed the preliminary hearing transcript from the 1986 incident but she was unsure if she reviewed the police reports. She reviewed Bradford's "legal chart" contained in his records. With regard to the 1996 incident, she reviewed a psychological evaluation from February 2005.
Dr. Mancusi testified based on her review of the preliminary hearing transcript, Bradford drove a vehicle through an apartment building, landing in a swimming pool causing injury to two people. She also reviewed two alienist's reports who evaluated Bradford. Bradford told the alienists he was experiencing delusions and hallucinations including that the building was talking to him and commanding him to drive his car into it.
The last documented period when Bradford was displaying symptoms was February 2015 when he stated he was hearing voices.
Dr. Mancusi stated that due to Bradford's unwillingness to engage in treatment, she did not have "enough information" to "confident[ly] say that he does not pose a substantial risk" if released into the community. She testified Bradford had refused every interaction with her for the past two plus years. Bradford refused to comply with medical assessments including exams and blood tests.
Dr. Mancusi evaluated multiple factors to determine Bradford's risk to the community. She looked at psychosocial factors including familial support, social support, educational history, employment, and finances. She also considered Bradford's history of violence including when he committed his first violent act, mental illness, drug history, and failure of prior supervision. She had no information on his familial support but was aware he had no visitors at the hospital and his mother had not visited in two to three years. She stated she believed his mother lived in Hawaii.
She conducted an assessment called the Historical Clinical Risk 20 (HCR-20), which is a psychological instrument to assess risk. The HCR-20 evaluated ten historical factors, five current factors, and five future factors. Bradford showed five of the ten historical factors including previous violence, relationship instability, substance abuse problems, major mental illness, and prior supervision failure. There was also partial evidence of two additional factors: age of his first violent incident and employment problems.
For the current factors, he showed evidence of three of the five: lack of insight, active symptoms of major mental illness, and being unresponsive to treatment. He also showed partial evidence of a fourth factor: negative attitude. Dr. Mancusi explained that Bradford has not acknowledged his mental illness and has not shown insight into his symptoms or the need for treatment. He has failed to engage in treatment.
For the future factors, he displayed evidence of all five factors: his plan lacked feasibility, likely exposure to destabilizers, lack of personal support, noncompliance with remediation attempts, and stress. Bradford had failed to propose any community reentry plan. He had also failed to comply with a treatment plan in the past, which makes it likely he will continue that behavior. He had not developed techniques to deal with stress.
In sum, she concluded Bradford posed a moderate to high risk for violence if released into the community. Dr. Mancusi had concerns that Bradford would not continue to take his medication if released because of his history of noncompliance and his denial of his mental illness. Given his lack of interaction, she had no means to determine if he was still hearing voices. If he is, then she would be "very concerned that he may act upon them again."
3. Documentary Evidence
The court took judicial notice of a minute order dated September 2, 1986, indicating Bradford pleaded guilty to assault with a deadly weapon and vandalism and was found not guilty by reason of insanity. The court also took judicial notice of the charging document accepted as part of Bradford's plea. The charging document stated that Bradford committed felony assault with a deadly weapon, an automobile, on two named victims. It further charged that he committed vandalism by destroying real or personal property.
4. Requested Limiting Instruction
Defense counsel requested an instruction that any hearsay allowed as the basis of an expert opinion is only allowed on that basis. The court stated CALCRIM No. 332 states that it is for the jury to decide whether the information on which the expert relied is reliable. The court stated it could provide a limiting instruction, noting both sides have not only referred to the records, but provided copies of the records. The court concluded: "[W]hile I understand your concern, since there is no instruction readily available that I can just pull from the book, I'm not inclined to generate a special instruction."
III.
DISCUSSION
A. Expert Testimony Based Upon Case-Specific Hearsay
The admissibility of evidence, including one that turns on the hearsay nature of the evidence, is reviewed under the abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
In Sanchez, the California Supreme Court clarified existing law on the proper scope of expert testimony distinguishing between general knowledge that forms the basis for an expert's testimony and case-specific facts. (Sanchez, supra, 63 Cal.4th at p. 676.) The Sanchez court disapproved its prior decision in Gardeley, supra, 14 Cal.4th 605 "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.) "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests . . . . [¶] 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." (Id. at pp. 685-686, italics omitted.)
B. Admissibility of Experts' Testimony
In this case, Bradford contends both experts testified to case-specific facts based on inadmissible hearsay. He identifies three categories of hearsay: (1) details of Bradford's commitment offense in 1986; (2) details of Bradford's conditional release in 1996; and (3) information about Bradford's social support system.
Bradford objected to some of the statements at trial on hearsay or lack of foundation grounds. For example, Bradford objected to Dr. Laguitan's testimony about his commitment offense and conditional release and rearrest in 1996. The court overruled the objections. Bradford also requested a limiting instruction that any hearsay could only be considered as the basis of the expert's opinion. The court rejected the instruction as unnecessary. At the time of Bradford's trial, Sanchez had not yet been decided, and Gardeley permitted expert testimony on case-specific facts as long as it was not admitted for the truth of the matter. (See Sanchez, supra, 63 Cal.4th at p. 683, citing Gardeley, supra, 14 Cal.4th at pp. 619-620.)
Respondent argues Bradford has forfeited the issue, stating that the Supreme Court granted review in Sanchez nearly two years before Bradford's trial and a plurality of the United States Supreme Court had cast doubt on the principle that experts may testify to hearsay evidence if that testimony is not admitted for the truth. (Williams v. Illinois (2012) 567 U.S. 50 (Williams).) According to respondent: "If appellant wanted to ensure a benefit from a potentially helpful decision in Sanchez, he should have objected on the proper bases." We echo what Division One of this court recently stated in response to this precise argument: "We decline to require such prescience." (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 508 (Jeffrey G.).)
On November 7, 2017 respondent filed a letter pursuant to California Rules of Court, rule 8.254, subdivision (a) notifying us of People v. Perez (2017) 16 Cal.App.5th 636. In Perez, the Fourth District held that the appellant had forfeited an objection to expert testimony relying on case-specific hearsay by failing to raise it in anticipation of Sanchez. (Id. at p. 638.) Although Perez's trial was held before Sanchez was decided, the Fourth District court concluded that Williams and other cases called into question the practice of admitting case specific hearsay and competent and knowledgeable counsel should have objected to such evidence. (Id. at p. 645.) We find the reasoning of Jeffery G. more persuasive.
We also agree with the Jeffrey G. court's observation that at the time of the trial here, most court were applying the law set forth in Gardeley. (See Jeffrey G., supra, 13 Cal.App.5th at p. 507 & fn. 4.) Furthermore, Sanchez explained it was clarifying the evidentiary rules that had been distorted by prior case law, rather than changing the applicable law. Therefore, its stated rules are applicable here even though appellant's trial took place before Sanchez was decided. (See Sanchez, supra, 63 Cal.4th at pp. 670, 686, fn. 13.) We will therefore address Bradford's claim on the merits.
We will analyze each of three categories of case-specific hearsay. First, Bradford objects to the testimony from both experts about the facts underlying his 1986 conviction. Dr. Laguitan testified Bradford drove his car into an occupied building injuring two people. He stated Bradford heard voices commanding him to do it. Dr. Mancusi testified based on her review of the preliminary hearing transcript, Bradford had driven his car into an apartment building injuring two people. Based on interviews with Bradford in the alienists' reports, Bradford stated the building was talking to him and commanded him to drive the car.
Under Sanchez, an expert can relate case-specific facts if they are independently proven by competent evidence, or covered by a hearsay exception. (Sanchez, supra, 63 Cal.4th at p. 686.)
In People v. Roa (2017) 11 Cal.App.5th 428 (Roa), the court examined the applicability of Sanchez to a civil commitment trial for a sexually violent predator (SVP). Roa argued his commitment must be reversed because the court improperly admitted three types of hearsay: "(1) expert testimony regarding the facts and circumstances of the qualifying predicate offenses; (2) expert testimony concerning the content of the 1999 district attorney investigator reports; and (3) expert testimony and documentary evidence regarding Roa's personal life, employment status, substance abuse history, and conduct in the state hospital." (Id. at p. 449.) For the first category, the appellate court disagreed concluding that the facts about Roa's qualifying offenses were independently proven by documentary evidence. (Id. at p. 450.)
Most of the facts relayed about the commitment offense by the two experts were contained in the charging document and minute order regarding the guilty plea of which the court took judicial notice, and which were admitted at the hearing. A court may take judicial notice of records of any court of this state. (§ 452, subd. (d).)
Dr. Mancusi testified she relied on two alienist's reports and Bradford told the alienists he was having delusions and hallucinations that the building was commanding him. Thus, the information about the reason for Bradford's conduct was based on Bradford's own statements which fell within the hearsay exception for party admissions. (§ 1220.)
In Roa, the court found the admission of the expert's hearsay testimony was prejudicial and required reversal partially because the "experts related a substantial amount of hearsay to the jury, including the details of sex offenses Roa was not charged with or convicted of committing[.]" (Roa, supra, 11 Cal.App.5th at p. 454.) In the present case, both experts relayed the details of the prior offense as background information without providing any graphic detail.
Dr. Laguitan stated Bradford "drove his car into a dwelling, an occupied dwelling, which resulted in the injury of two people, one of them seriously." Dr. Mancusi testified Bradford drove a vehicle through an apartment building, landing in a swimming pool, causing injury to two people.
The second category of hearsay Bradford questions is the experts' testimony about his release in 1996 and subsequent arrest. Dr. Laguitan testified Bradford was released and went to another state. He was arrested and returned to the hospital. Defense counsel objected to Dr. Laguitan's testimony that Bradford absconded, stopped taking his medication, and starting using substances again. Once Dr. Laguitan explained he had reviewed Bradford's medical records as the foundation for his testimony, the court overruled the objection. Dr. Mancusi also testified Bradford absconded from conditional release, went off his medication, and started abusing substances.
It is possible, as respondent argues, that these records could have been admitted pursuant to a hearsay exception for business records. (See People v. Nelson (2012) 209 Cal.App.4th 698, 710 [properly authenticated hospital records fall within the umbrella of the business record exception].) Both Dr. Laguitan and Dr. Mancusi testified that Napa State Hospital's medical records were kept in the normal course of business.
Assuming some of the information conveyed to the jury was case-specific hearsay from the medical records, as we discuss below, its admission was not prejudicial. We also note Dr. Laguitan's testimony that both incidents were precipitated by Bradford stopping his medication was not the recitation of case-specific hearsay, but his expert opinion based on his review of Bradford's records.
Finally, Bradford objects to Dr. Mancusi's testimony that Bradford's mother was his primary support and she was not aware of her visiting him in the past two to three years. Dr. Mancusi stated she was not aware at present what familial support Bradford had, but historically his mother was his primary support. She testified she was not aware of him having any visitors. She stated she did not know where his mother lived, but the reports indicated she resided in Hawaii. Finally, she stated she could not obtain information about any potential support because of his refusal to talk to her. The majority of Dr. Mancusi's testimony was based on her direct observations or personal knowledge. The one case-specific fact that was based on the reports was that Bradford's mother had resided in Hawaii, and this admission was error under Sanchez.
Small portions of both experts' testimony included case-specific hearsay relying on hospital and police records that were not admitted into evidence, under Sanchez, we must determine whether Bradford was prejudiced. (Sanchez, supra, 63 Cal.4th at p. 686.)
In our review of the record, even without the case-specific hearsay, there was strong evidence that supported the jury's finding that Bradford posed a substantial danger of harm to others. Both experts had been treating Bradford for more than two years and relied upon their training and experience as well as a review of his records in reaching their opinions. (See Sanchez, supra, 63 Cal.4th at pp. 685-686, italics omitted [an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].)
The primary reason both experts concluded Bradford posed a substantial danger was his current clinical condition. Both experts testified Bradford had refused to participate in treatment. Both experts testified Bradford had expressed a belief that he was not severely mentally ill and he only took his medication because he was being forced to do so. His failure to participate in treatment supported their view that he lacked insight into his illness. Bradford had not developed a community reentry plan.
Both experts also testified they did not have confidence that Bradford would continue to take his medication on his own. Dr. Laguitan stated Bradford had a schizophrenic disorder that was currently controlled by medication, but it was a lifelong condition. The doctors could not assess how well his disorder was controlled because of his refusal to interact with them. He did, however, report hearing voices as recently as February 2015.
Dr. Laguitan gave his opinion that Bradford would be a substantial danger to the community if he were released. Dr. Mancusi testified Bradford posed a moderate to high risk for violence if released into the community. Dr. Mancusi believed that given Bradford's lack of interaction with his treatment team, she had no means to determine if he was still hearing voices. If he was, then she would be "very concerned that he may act upon them again." Due to Bradford's refusal to engage in treatment, Dr. Mancusi did not have enough information to confidently say he did not pose a substantial risk of danger if released.
Based upon this evidence, Bradford was not prejudiced by the admission of the case-specific hearsay. This case is distinguishable from the recent decision of Division One of this court in Jeffrey G., supra, 13 Cal.App.5th 501. Division One applied the rule set forth in Sanchez, and reversed the denial of a petition for conditional release because it was a "close case" where it was reasonably probable the court would have granted the petition but for the expert testimony rendered inadmissible by Sanchez. (Id. at p. 503.) Division One noted that under Sanchez, the evidence of defendant's purported " 'lengthy history' " of rule violations, decompensation on release, and hostile and aggressive interpersonal relations would have been excluded. (Id. at p. 511.) "Because this evidence reinforced the trial court's decision, its absence would have made a different decision more likely." (Ibid.)
In the present case, even if the few case-specific facts about Bradford's commitment offense, 1996 release, and subsequent arrest were excluded and any unsupported testimony about his outside support system were excluded under Sanchez, it is not reasonably probable the court would have reached a different decision. The court took judicial notice of both the charging document and minute order related to Bradford's conviction which provided a basis for the expert's brief discussion of his commitment offense. The experts' testimony about Bradford's behavior while under their care was properly admissible. Bradford's refusal to engage in treatment for more than two years, his statements that he did not believe he suffered from a mental illness, and his display of symptoms as recently as February 2015, all supported the doctors' conclusions that he posed a substantial danger if released. Furthermore, Dr. Mancusi's use of the HCR-20 to conduct a risk assessment was properly admissible. (See People v. Therrian (2003) 113 Cal.App.4th 609, 616.)
In a conservatorship case for an individual with a bipolar schizoaffective disorder, Division Five of this court considered whether the trial court erred in allowing the jury to consider case-specific hearsay from an expert witness. (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1278 (K.W.).) Portions of the expert's testimony were drawn from medical and institutional records documenting K.W.'s behavioral history. (Id. at p. 1286.) The expert, however, also testified to his own diagnosis and symptoms as well as K.W.'s lack of insight into his mental illness. (Ibid.) Given that the only medical evidence before the jury was the expert's unimpeached opinion of K.W.'s illness, the court found it was not reasonably probable the jury would have reached a different result. (Ibid.)
Although Dr. Mancusi and Dr. Laguitan both relied on the medical records, which included investigative reports and police reports, the majority of their testimony was based on Bradford's current clinical diagnosis and refusal of treatment. In light of all of the evidence admitted at the trial, it is not reasonably probable that the jury's verdict would have been more favorable to Bradford absent the experts' testimony involving inadmissible case-specific hearsay. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Testimonial Hearsay
Bradford also argues the case-specific hearsay that was improperly admitted was testimonial in nature because it was derived from police reports. Under Crawford v. Washington (2004) 541 U.S. 36, 62 (Crawford), the admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront a witness unless the declarant is unable to testify.
In Sanchez, the court held hearsay information contained in police reports generated in an official investigation of a completed crime was testimonial. (Sanchez, supra, 63 Cal.4th at p. 694.) The gang expert in Sanchez recited detailed information contained in police reports. (Id. at p. 672.) " '[T]he 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.' [Citation.] Thus, only when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment." (Id. at p. 685, italics omitted.) However, an expert may still rely on hearsay in forming her opinion. (Ibid.) ". . . Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests." (Id. at p. 686.)
In Sanchez, the expert testified about information he learned from police reports that were not admitted into evidence. (Sanchez, supra, 63 Cal.4th at p. 694.) The reports contained hearsay information gathered during official investigations of completed crimes. (Ibid.) The "improper admission of hearsay may constitute state law statutory error[,]" but where the hearsay was testimonial and violates the confrontation clause, we must determine if the error was harmless beyond a reasonable doubt. (Id. at p. 698.)
Although both Crawford and Sanchez arose in the context of criminal prosecutions, they apply to Bradford's commitment hearing. Under the Penal Code, a person committed to a state hospital under section 1026 shall be "entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings. All proceedings shall be in accordance with applicable constitutional guarantees." (Pen. Code, § 1026.5, subd. (b)(7).) "There is no right to confrontation under the state and federal confrontation clause in civil proceedings, but such a right does exist under the due process clause. [Citation.]" (People v. Otto (2001) 26 Cal.4th 200, 214.) The defendant in a commitment hearing is entitled to due process at trial. (People v. Landau (2016) 246 Cal.App.4th 850, 878.)
However, Bradford did not object on Sixth Amendment grounds to the reliance on any information from police reports contained in his medical records so he has forfeited his claim that its admission violated his right to confrontation. (People v. Redd (2010) 48 Cal.4th 691, 729.) Bradford raised hearsay and foundation objections but did not mention the confrontation clause. While Sanchez had not been decided at the time of his commitment hearing, Crawford and a long line of cases interpreting it had been in place for more than a decade.
Even if we consider Bradford's claim on the merits, it fails. In People v. Ochoa (2017) 7 Cal.App.5th 575 (Ochoa), Division Five of this court evaluated whether a gang expert's testimony that relied on police reports violated California hearsay rules and the confrontation clause. Division Five noted that it could not weigh the expert's out-of-court statements to the Sanchez standard because the defendant failed to object to the expert's testimony on confrontation clause grounds, resulting in an underdeveloped record. (Id. at p. 584.) "Had defendant lodged contemporaneous objections during trial, the People, as the proponent of the evidence, would have had the burden to show the challenged testimony did not relate testimonial hearsay. [Citations.]" (Ibid.) "To summarize, it is possible the admissions of gang membership related to the jury by [the expert] came from police reports or other records and, thus, may have been testimonial hearsay under Sanchez. However, due to defendant's failure to object, the record is not clear enough for this court to conclude which portions of the expert's testimony involved testimonial hearsay. Accordingly, defendant has not demonstrated a violation of the confrontation clause." (Id. at p. 586.) The court further concluded that the admission was harmless beyond reasonable doubt. (Ibid.)
The procedural posture here is strikingly similar to Ochoa. Dr. Mancusi testified she was unsure if she had ever reviewed the police reports, but she had reviewed the preliminary hearing transcript and the medical records. Bradford did not object on confrontation clause grounds so the prosecutor did not have the opportunity to either show that the underlying reports were not testimonial, or attempt to introduce them under a hearsay exception. Like the Ochoa court, under these circumstances we cannot simply assume Dr. Mancusi's expert opinion was based on testimonial hearsay. (Ochoa, supra, 7 Cal.App.5th at p. 585.) Furthermore, Dr. Laguitan specifically testified he had not reviewed the underlying police reports, but relied on the wellness prevention plans that synthesized data about patients.
Due to the underdeveloped record, Bradford has failed to demonstrate a violation of the confrontation clause. Furthermore, we conclude any admission was harmless beyond a reasonable doubt. Dr. Mancusi could properly rely on the police and investigative reports in forming her expert opinion. (Roa, supra, 11 Cal.App.5th at p. 451.) The bulk of her testimony related to Bradford's current clinical condition and her risk assessment evaluation.
In any event, the experts' testimony that was properly admitted, as compared to the minor instances of improperly admitted hearsay, renders the admission harmless. (People v. Campos (1995) 32 Cal.App.4th 304, 308-309 [expert's references to reports of nontestifying experts were hearsay, but harmless because they consumed a small portion of testimony and remainder of testimony was sufficient to show that defendant was mentally disordered offender].)
IV.
DISPOSITION
The trial court's order extending Bradford's commitment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
RIVERA, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.