Opinion
H043937
04-23-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES COLYAR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 179154)
Appellant James Colyar seeks review of an order extending his civil commitment to Napa State Hospital pursuant to Penal Code section 1026.5. Appellant contends that the order was based on expert testimony derived from case-specific hearsay, which was inadmissible under judicial authority decided after the order was filed. We conclude that the admission of the challenged evidence was not prejudicial. We will therefore affirm the order extending appellant's commitment.
All further statutory references are to the Penal Code except as otherwise specified.
Background
Appellant was committed to Napa State Hospital (NSH) in 1997, after pleading not guilty by reason of insanity to a felony violation of section 422 (making criminal threats to commit a crime resulting in death or great bodily injury) and a misdemeanor violation of section 245, subdivision (a)(1) (assault with force likely to produce great bodily injury). His commitment was extended multiple times, until on July 29, 2014, the court extended appellant's commitment to January 31, 2017. On October 23, 2015, however, this court reversed that order of recommitment because defendant had not been advised on the record of his right to jury trial, nor had he personally waived that right. (See People v. Tran (2015) 61 Cal.4th 1160, 1163.)
We take judicial notice of our prior opinion in People v. Colyar (Oct. 23, 2015, H041325) [nonpub. opn.].
On remand, appellant waived his right to a jury and requested a court trial, which took place on June 22, 2016. The prosecution introduced a report dated April 9, 2014, which described appellant's original commitment offense in 1994, his personal history and criminal record, and his behavioral responses to the treatment he had received at NSH. The report included appellant's diagnosis of schizophrenia, which was "currently in partial remission." Unquestionably, much of the content in these reports consisted of case-specific hearsay, as they recounted behavior and statements by appellant of which the authors had no personal knowledge, including events occurring in appellant's teenage years.
At trial, appellant's attorney called staff psychologist Danielle Bryce, Psy.D, who had been appellant's treating psychologist from September 2012 until August 5, 2015. Dr. Bryce was qualified without objection as an expert "in the area of diagnosing mental illnesses, conducting risk-for-violence evaluations, and putting together treatment plans for patients." She was asked to address the period between April 2013 and April 2014, in expressing her clinical opinion regarding the risk to the community if appellant were released. Dr. Bryce included in her assessment appellant's display of behavioral symptoms, any social support he had outside the hospital, any destabilizing factors he might encounter in his environment, and his coping mechanisms for stress. Dr. Bryce personally saw symptoms that included disorganized thinking, elements of paranoia, difficulty distinguishing a safe from an unsafe situation, and difficulty attending to cleanliness of his person and his room, which was "very, very disorganized." The diagnosis of schizophrenia, Dr. Bryce explained, had been made by Dr. Michael Ganz, the treating psychiatrist. During the period under scrutiny, appellant was on the most secure unit in the hospital; he did not have any independent access to any activities off the unit. Appellant needed an escort to go from the locked unit to any other place on campus, including the dining room. Appellant had participated in Dr. Bryce's karaoke group, and occasionally he would attend her stress-management group.
The greatest barrier to discharge for appellant in 2014 was his level of insight; he did not "consistently acknowledge that he had a psychotic illness that affected how he perceived the world." He also did not consistently acknowledge his commitment offense against a family member. He was compliant with his medication, but only because it was required; he disagreed that he needed it and frequently asked for it to be eliminated or decreased. Dr. Bryce was also concerned that his plans for discharge "lacked feasibility for the support that he would need in the community." Appellant had shown difficulty coping with stressors during the applicable period; there had been nine incidents of aggression—seven of them physical—when he disagreed with an authority figure's enforcement of a limit. At some point, she explained, his medications were changed, which decreased his violent behavior. However, his cognitive limitations manifested themselves in the "urge to respond impulsively." His risk for a violent act in July 2014 was high, and Dr. Bryce doubted that appellant would have complied with any supervision in the community.
Dr. Bryce was briefly cross-examined by the district attorney regarding the April 2014 report. She testified that she was one of the signatories and that the report accurately reflected appellant's condition at that time.
The copy of the report that is in the appellate record, marked as exhibit 1, is actually unsigned. Blank spaces are left for the signatures of the staff psychiatrist, the medical director, and Dr. Bryce. Nevertheless, exhibit 1 was admitted into evidence without objection. --------
Appellant then testified in his own behalf by video conference from NSH. He declared that he was "a perfect patient." He admitted that he had had some "aggressive incidents" in 2014, but he had "learned [his] lessons," having "gone through the school of hard knocks." He wanted to live in a veteran's home, because it had a bowling alley, and he loved to bowl; he also suggested that he could live in a house in Aptos that his brother had bought. He believed that he was doing a "pretty good job" on his relapse prevention plan, but he did not believe in taking the medicine he had been prescribed, because the medicine made him tired and he was "not psychotic." On cross-examination, appellant clarified that his relapse prevention plan was something he was currently working on, not one he had developed in 2014. He disagreed with a medication prescribed in 2014 as well; he continued to take it only because the psychiatrist told him he needed it.
The court concluded, "Mr. Colyar, based upon the evidence that I have received today, as to your condition, your state of mind, and your status in 2014, July of 2014, I'm going to find that the petition that was filed at that time is true beyond a reasonable doubt, that you have a severe—." At this point appellant interrupted, saying, "I agree. I agree." The court continued, "You have a severe mental disorder that cannot be kept in remission without treatment. And, for that reason, you represent a substantial danger of physical harm to others." Accordingly, the court sustained the petition to extend appellant's commitment from January 31, 2015 to January 31, 2017.
As this was already the middle of 2016, the court noted that the district attorney had recently filed a new petition to extend appellant's commitment from January 31, 2017 to January 31, 2019. The court advised appellant that the new petition would be addressed at a later date.
From the court's written order filed June 23, 2016, appellant filed this timely appeal.
Discussion
Seven days after the court filed its extension order, the California Supreme Court filed People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which clarified the proper use of hearsay evidence in expert testimony. The court confirmed that the expert may rely on "background information accepted in their field of expertise" as well as "information within their personal knowledge" and "nontestimonial hearsay properly admitted under a hearsay exception." (Id. at p. 685.) He or she may also, of course, give an opinion based on a hypothetical scenario. And the expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Ibid.) However, "[w]hat 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 p. 686.) Accordingly, under the rule adopted in Sanchez, "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." (Ibid.)
Although Sanchez pertained to testimony about criminal street gangs, the holding has been held to apply to civil commitments under section 1026.5. (See, e.g., People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507 (Jeffrey G.) [application to commitment extension for defendant found not guilty by reason of insanity]; cf. People v. Roa (2017) 11 Cal.App.5th 428, 450-453 [discussing expert testimony about case history described in investigator reports, medical records, and prison record].)
Appellant contends that when all the case-specific hearsay is eliminated from his case, "what is left is the diagnosis of appellant, some opinions about the cause of his behavior, miscellaneous evidence that might have been derived from statements from appellant, and some observations of appellant that might have been personally made by one of the authors of the evaluation. What is missing, however, is any evidence that appellant is currently dangerous as a result of his diagnosis and his mental disorder." Appellant acknowledges that the opinion of a single expert may support the extension of a commitment. (Evid. Code, § 411; People v. Bowers (2006) 145 Cal.App.4th 870, 879; People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1508.) Here, however, he believes that without the case-specific hearsay, Dr. Bryce's opinion lacks support. He notes, for example, that her testimony regarding the multiple acts of aggression was inadmissible, because "there was no claim that she had been a precipitant [sic] witness to any actual acts of aggression."
The People concede that "some of the information" described in the April 2014 report was "of the type later held inadmissible under Sanchez." They maintain, however, that there was "ample admissible evidence" supporting the trial court's decision to extend appellant's commitment. The People therefore argue that reversal is not warranted because there is no reasonable probability of a more favorable result. We agree.
The erroneous admission of hearsay evidence is governed by the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (Jeffrey G., supra, 13 Cal.App.5th at p. 510; People v. Dean (2009) 174 Cal.App.4th 186, 202 (Dean); cf. Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286.) Here, Dr. Bryce based her opinion of continuing dangerousness not only on conduct recounted in the April 2014 report but on her own personal observations of appellant. She worked on his unit and saw him daily in the hallway or in her karaoke "leisure group." Occasionally he would attend her stress-management group, and each quarter she would meet with him for a formal appointment. For her risk assessment she consulted hospital records written by doctors, nurses, and alienists; but she also interviewed appellant. During the period covered by her assessment, Dr. Bryce observed symptoms of schizophrenia that suggested risk: disorganized thinking, paranoid reactions to ordinary situations, lack of cleanliness, and his need to be on the most secure unit with no independent outside access. The other indications of dangerousness—appellant's lack of insight about his illness, his reluctance to take medication, the lack of feasibility in his plans for release, his impulsivity, and his tendency toward aggression—could have been based at least in part on the admitted hospital records, on which Dr. Bryce was permitted to rely in forming her expert opinion. (Sanchez, supra, 63 Cal.4th at pp. 685-686; see Dean, supra, 174 Cal.App.4th at pp. 196-201 [addressing use of hospital records containing hearsay in expert testimony]; see also Evid. Code, § 1271 [business records exception to hearsay rule].) But even if those data had been excluded, Dr. Bryce had sufficient evidence on which to determine that appellant was not ready for release at the time relevant to her assessment. Notably, when the trial judge announced his findings, appellant himself interjected his agreement with the decision. No more was needed to support the court's order extending appellant's commitment to January 31, 2017.
We thus conclude that appellant has not shown a reasonable probability that appellant would have obtained a more favorable outcome had there been no inadmissible hearsay evidence before the trial court at the June 2016 hearing. The evidence supplied by Dr. Bryce's personal observations, together with appellant's own testimony, was more than enough to support the conclusion reached by the trial court.
Disposition
The order is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.