Opinion
C083164
03-23-2018
THE PEOPLE, Plaintiff and Respondent, v. DAINA STRATFORD CULLEN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P08CRF0518)
Defendant Daina Stratford Cullen appeals from a judgment denying her Penal Code section 1026.2 restoration of sanity petition. Defendant contends the trial court erred in admitting case-specific hearsay, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Defendant further contends she received ineffective assistance of counsel. We will affirm.
Undesignated statutory references are to the Penal Code. --------
I. BACKGROUND
In 2008, defendant was charged with assault with a firearm. (§ 245, subd. (a)(2).) It was further alleged defendant personally used a firearm (§ 12022.5, subds. (a), (d)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). In December 2009, defendant was committed to a state mental hospital, pursuant to section 1026.
In January 2016, defendant filed an application for the restoration of sanity under section 1026.2. During the October 4, 2016, hearing, Dr. Eugene Roeder testified on behalf of defendant. When Dr. Roeder originally evaluated defendant in 2009, she showed "significant evidence of severe mental disorder." In Dr. Roeder's opinion, in 2016 defendant was no longer a danger to the health and safety of others due to mental design, defect, or disorder. In forming his opinion, Dr. Roeder had reviewed over 1,200 pages of hospital records, including the latest hospital report, and visited defendant for two hours in July 2016. Based on the records, Dr. Roeder testified that in August 2013 hospital staff had determined she was no longer dangerous and no longer required hospitalization. Defendant transitioned out of the hospital and was placed in a conditional release program, where she did well for nine and a half months. However, in April 2014, defendant had "a difficult time" with a care home operator and was rehospitalized. Dr. Roeder testified the hospital records showed defendant had not had any diagnosis of a severe mental illness since 2013. Although she had previously been diagnosed with a personality disorder, this was not a severe mental illness and was typically treated with counseling in an outpatient setting. In addition, that diagnosis had been eliminated within the previous few months. Dr. Roeder testified defendant had no incidents of dangerousness, violence, or aggression while she was institutionalized.
Dr. Roeder testified that, although it was possible someone like defendant, with borderline personality disorder, would experience intermittent or transient psychosis such as the episode she had in 2008 and 2009, it was "more likely" that it would never reoccur. It was possible defendant's brief psychotic disorder in 2009 occurred due to a combination of alcohol, benzodiazepine, substantial stressors, personality disorder, and a head injury. Dr. Roeder testified that, if the substance abuse and benzodiazepine were addressed through treatment, the stressors were different, and there was no cognitive disability related to a head injury, it was possible to have a psychotic episode again with just the personality disorder. However, with treatment, it was "much less likely" to occur.
Defendant testified that she only met rarely with her primary hospital treatment psychiatrist, Dr. Domingo Laguitan. She had stopped going to group therapy in September 2016. She also no longer drank alcohol and was no longer prescribed benzodiazepines.
Dr. Laguitan testified on behalf of the People. As of the hearing, he had been defendant's psychiatrist at the hospital for one year. Dr. Laguitan testified he saw defendant once a week in group sessions, and once a month during individual sessions. Although defendant had been attending the group sessions, she stopped in July 2016, primarily due to her conflict with another patient. Defendant claimed the other patient was sexually harassing her. Dr. Laguitan had never seen anything during the group sessions that caused him concern. Dr. Laguitan was also aware of other conflicts between defendant and other patients.
In Dr. Laguitan's opinion, defendant needed to be retained in the hospital for further treatment, "to be sure that she is safe in the community." In March 2016, additional psychological testing, resulting in a diagnosis of borderline personality disorder with traits of histrionic personality. Dr. Laguitan explained, histrionic personality is characterized by disregulated emotion that results in erratic relationships with other people and a difficulty in calming down. Due to heightened emotion and stress, transient psychotic episodes can occur. People with histrionic personality are "in conflict with a lot of people," deal with people inconsistently, are impulsive, and exhibit inappropriate and intense anger. They also experience brief paranoia. Borderline personality disorder is a mental disorder and is treated with therapy and medication.
Dr. Laguitan testified that defendant's impulsiveness, disregulated emotion, and misperception of reality can be consistent with what "could have transpired during the incident offense." Defendant had trouble complying with her treatment while in the hospital and the conditional release program, including not participating, not doing her homework, and failing to attend. Defendant's unsuccessful treatment could be related to her disregulated emotions, impulsivity, and conflicts.
Dr. Laguitan testified a risk assessment showed defendant had a low risk for violence at the hospital, but moderate risk in the community. Although Dr. Laguitan did not administer the test, he agreed with its conclusion. According to Dr. Laguitan, defendant's personality disorder "just puts her more at risk of going into that same situation again," especially given her erratic behavior, impulsivity, and emotional disregulation. In addition, in his and the hospital's opinion, defendant had not yet embraced her treatment enough to be able to deal with her disorder if she were released.
The trial court denied defendant's application, finding she was still a danger to the health and safety of others because of a mental disease, defect, or disorder. The trial court expressed concerns with Dr. Roeder's opinion because it was "based on reviewing records," "a two-hour session in July," and a session in 2009. The trial court also expressed concern that defendant lacked insight into her diagnosis and why she had been originally brought to court. Moreover, she continued to display the symptoms of her diagnosis. Although defendant had not displayed physical violence and had stopped consuming alcohol and benzodiazepines, defendant was "still reacting and by everyone's testimony, [still] ha[s] these personality disorder traits." She also resisted treatment and did not have a clear strategy for avoiding alcohol when not in a custodial setting.
Defendant filed a timely appeal.
II. DISCUSSION
Defendant contends the trial court erred in allowing experts to testify to case-specific hearsay, in violation of Sanchez, supra, 63 Cal.4th 665, which was decided three months before defendant's October 4, 2016, hearing. Defendant points to Dr. Roeder's testimony on cross-examination, including that defendant had sometimes declined to participate in treatment. Defendant also points to Dr. Laguitan's testimony regarding (a) her attendance at treatment, which he heard from other treatment team members, (b) her conflicts with her roommate and other patients, which he did not hear about from defendant, (c) the hospital's position that defendant should stay for further treatment, (d) the results of Dr. Reagin's psychological testing and report, and (e) the risk assessment concluding defendant was a moderate risk for violence in the community, which he did not perform. According to defendant, all of the case-specific hearsay was admitted for its truth and did not fit within an exception to the hearsay rule.
Under Sanchez, "[w]hen 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." (Sanchez, supra, 63 Cal.4th at p. 686.) As such, the statements are only admissible if they either fall under a hearsay exception or are independently proven. (Ibid.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.) Although Sanchez is a criminal case, its analysis of the admissibility of expert testimony under Evidence Code sections 801 and 802 also applies to cases arising under section 1026.2. (Sanchez, supra, at p. 670; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507; see also People v. Burroughs (2016) 6 Cal.App.5th 378, 407.)
The People assert that defendant has forfeited this argument because she failed to object in the trial court. We agree. (Evid. Code, § 353; see also People v. Ramos (1997) 15 Cal.4th 1133, 1171 [a defendant who does not object at the trial court to the admission of evidence (as required under Evid. Code, § 353) fails to preserve the issue on appeal].)
Defendant further contends her trial counsel provided ineffective assistance by failing to object to Dr. Laguitan's case-specific hearsay testimony. According to defendant, there were "no valid tactical reasons for failing to make at least some Sanchez objections." Defendant argues the only reasonable inference is her counsel was unaware of Sanchez, since she "never mentioned" it. We disagree.
To establish ineffective assistance of counsel, a defendant must show counsel's performance was "deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) A defendant must also show "resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.) On review, the "court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) Reversal is appropriate only if: "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (Ibid., see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) All other ineffective assistance of counsel claims "are more appropriately resolved in a habeas corpus proceeding." (Mai, supra, at p. 1009; see also People v. Mendoza Tello, supra, at p. 267.)
Here, we do not know why counsel declined to raise a Sanchez objection to Dr. Laguitan's testimony. But there may have been reasonable tactical reasons for not objecting. As the People suggest in their briefing, such an objection could have led the prosecution to call additional witnesses who would not rely on hearsay, potentially making the People's case stronger. In addition, defense expert Dr. Roeder also testified to case-specific hearsay. Had defense counsel objected to Dr. Laguitan's testimony, the prosecution might have moved to exclude Dr. Roeder's testimony, too. Experienced trial counsel could rationally conclude that the risks of a Sanchez objection outweighed the benefits. Accordingly, we reject defendant's claim of ineffective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
ROBIE, Acting P. J. /S/_________
HOCH, J.