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People v. Gill

California Court of Appeals, Fourth District, First Division
Jul 25, 2008
No. D049919 (Cal. Ct. App. Jul. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. STEPHEN J. GILL, Defendant and Appellant. D049919 California Court of Appeal, Fourth District, First Division July 25, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCE209147, Robert P. Ahern, Judge.

O'ROURKE, J.

Stephen Jagemal Gill appeals from a judgment extending his commitment as a mentally disordered offender (MDO) under Penal Code section 2970. Gill contends (1) "the improper use of hearsay evidence pervaded the trial to [his] prejudice;" and (2) the jury was improperly instructed regarding the burden of proof. We affirm.

All further statutory references are to the Penal Code unless otherwise stated.

FACTUAL AND PROCEDURAL BACKGROUND

On April 17, 2001, Gill was found guilty of assault with a deadly weapon (§ 245, subd. (a)(1).) He was sentenced to 3 years in state prison.

On November 27, 2004, Gill was certified as a MDO and transferred to Atascadero State Prison. His parole termination date was July 27, 2006.

On May 1, 2006, the district attorney filed the instant petition to have Gill recommitted to the California Department of Mental Health for one year of involuntary treatment under the Mentally Disordered Prisoners Act (§ 2960 et seq.). The petition alleged Gill "still suffers from a severe mental disorder which is not in remission or cannot be kept in remission without treatment, and by reason of such mental disorder presents a substantial danger of physical harm to others."

At trial, Dr. Randy Stotland, a clinical psychologist, testified as an expert. On September 10, 2006, he interviewed Gill, administered some psychological tests to him, and concluded Gill suffered from impairment of brain functions and a lower than average I.Q.

Dr. Stotland testified he reviewed Gill's medical records, and determined Gill suffered from schizophrenia. Specifically, Gill demonstrated flat affect, a poverty of content in his responses, poor insight, poor judgment, fair to poor interpersonal rapport, and auditory hallucinations. Separately, Gill had a history of using three or more illicit drugs, including cocaine, methamphetamine and LSD. His medical records showed a history of suicide attempts when he was 5 and 11 years old, and admissions to a mental hospital when he was 9 and 14 years old. Nonetheless, Gill, in an interview with Dr. Stotland, denied he had ever thought about committing suicide.

Dr. Stotland determined Gill's severe mental disorder made him dangerous, and the symptoms of his mental disorder were not in remission because he still exhibited the symptoms of schizophrenia. In the past year at the hospital Gill had many behavioral problems and was threatening and verbally abusive, but Gill never expressed remorse for the hurt he caused other people.

Dr. Stotland testified Gill was a danger to others based on several incidents documented in Gill's medical records. In September 2005, Gill assaulted another patient and called him a "nigger." In October 2005, he called a staff member a "bitch" twice. In January 2006, Gill threatened to kill a staff member, and was put in restraints as a result. In February 2006, he made an inappropriate sexual comment. The hospital staff also observed him masturbating openly.

In writing about a March 2006 incident, a staff member wrote, "[Gill] came to office and asked other staff member if there was going to be a smoke break this morning. The staff member told [Gill] that he didn't know. This writer informed [Gill] that there would be a courtyard break after breakfast. [Gill] responded with, 'Okay, whatever, nigger. You fucking nigger. I don't care, you fucking nigger.' " Dr. Stotland testified Gill's response was "pretty inappropriate" because he was just "being told there is going to be a break later."

In March 2006, Gill had visual hallucinations, which Dr. Stotland testified is more severe than auditory hallucinations. In April 2006, two different hospital notes stated Gill was not attending group sessions. In May 2006, Gill "continued to show anxiety;" he was agitated; and he was hearing voices that he could not stand. Gill was given extra medications for agitation. In May 2006, a hospital note stated Gill was not showering or cleaning his room. Dr. Stotland concluded, based on the above, that Gill could not be safely treated for schizophrenia on an outpatient basis.

Gill did not believe he needed medication or counseling if he was released. This signaled to Dr. Stotland that Gill, if released, would be noncompliant with medication and cause problems. Dr. Stotland testified, "[Gill is] impulsive and has been impulsive in the hospital. He's had a lot of conflict with people at the hospital, staff and other patients." Moreover, "[G]enerally speaking, if a person is in a controlled situation like that, their behavior is going to be better than if they're out in the community and . . . nobody is supervising them, they can act anyway [sic]they want . . . . Generally their behavior is going to get even worse than it's been in the hospital." Dr. Stotland testified Gill "can't obviously take any action to make sure that his mental illness is not going to crop up and become a problem for him and other people."

Dr. Joshua Deane, a staff member at Atascadero State Hospital, was Gill's treating psychiatrist. He testified as an expert that he diagnosed Gill with schizophrenia. Gill demonstrated delusional thinking by stating he was a vampire who would come out at night and suck other patients' blood. Gill's hospital records show he once admitted he heard voices. Dr. Deane testified that at the hospital Gill sometimes shouted things that did not make sense, and smiled and talked as if he was carrying on a conversation in his head.

Dr. Deane concluded Gill demonstrated grossly impaired insight or judgment in several ways. Gill on multiple occasions expressed rage towards African-Americans. Gill said, "Nigger, I hate them all, they're just dumb nigger. You should hang them all." Gill also has called the Atascadero staff members "nigger." Dr. Deane testified he was concerned that Gill's use of that inappropriate language would, "literally invite violence against [Gill]." Dr. Deane testified Gill had numerous fights with various patients at the hospital. Gill masturbated openly without properly covering himself on several occasions. Gill also entered other patients' rooms, in violation of hospital policy.

Gill did not complete group classes relating to anger management, substance abuse or mental health awareness at the hospital. Although Gill expressed a desire to stop abusing drugs, Gill told a staff member that he was thinking about where to get acid and cocaine. Dr. Deane testified that comment was noteworthy because Gill failed to complete basic treatment relating to substance abuse.

Dr. Deane pointed out that Gill, at 17 years old, got on a bus, opened a beer bottle, took out a pipe and invited the bus driver to smoke marijuana with him. Gill was convicted for this incident. While Gill was in custody, he fought a law enforcement officer.

Dr. Deane testified Gill "is [a] quite rageful fellow," who has some internal anger problems that had not been appropriately addressed through medication or education. Gill has a history of being verbally and physically aggressive to his mother. A statement appearing in Gill's hospital notes relates that in 2004 he stated, "I hate my mother. She's a bitch. I will kill her." In January 27, 2006, Gill, for the second time, threatened to kill a staff member with a knife. Consequently, Dr. Deane put Gill in room seclusion (with a staff monitor outside the room) for an hour and a half, to ensure he would not harm anyone. Gill stated on March 18, 2006, that he would kill anyone who did not leave him alone.

Dr. Deane concluded Gill's mental illness was not in remission, and he would be a danger to others if he was discharged without supervision. Dr. Deane testified that it is easy to envision that if Gill left the hospital, lacking supervision, he would use alcohol or drugs, and stop using his medications for his mental disorder. Moreover, Dr. Deane stated Gill's family asked Dr. Deane to give Gill "either vitamin supplement, some product that is made by some health guru." Therefore, Dr. Deane was troubled that Gill's family was in denial regarding Gill's need for psychiatric medication.

On November 6, 2006, a jury found true the allegations of the petition. The trial court ordered a one-year extension of Gill's commitment as a MDO.

DISCUSSION

I

Gill contends — without pointing to specific examples — that during trial, "[t]hroughout the hundreds of pages of the doctors' testimony, the evidence regarding incidents of ostensible assaultive, aggressive and inappropriate behavior was discussed without any real attempt to control whether or not the jury should consider incidents as actually having happened." Gill focuses on the prosecutor's closing arguments, which he contends gave the impression the hearsay reports in Gill's medical records were substantive evidence. Gill expressly disavows any claim of prosecutorial misconduct. Rather, he contends, "the prosecutor's invitation to the jury to consider the hearsay evidence as direct evidence makes it impossible to conclude the jury actually followed the court's admonition not to so use the evidence."

Evidence Code section 801, subdivision (b) states that an expert may testify in the form of an opinion based on matters "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." The California Supreme Court stated, "Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.' Pursuant to this statute, ' "we have consistently held that the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable." ' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)

An appellate court will credit jurors with intelligence and common sense and does not assume those virtues will abandon them when presented with a trial court's instructions. (People v. Coddington (2000) 23 Cal.4th 529, 594, disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) This is the crucial assumption underlying our constitutional system of trial by jury — that jurors generally understand and faithfully follow instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)

Gill's appellate briefs omit the following specific admonition the trial court gave during Dr. Stotland's testimony on direct examination: "Ladies and gentlemen, I'm going to admonish you on my own since neither counsel ha[s] raised an evidentiary objection . . . [¶] Questions have been asked . . . by both counsel . . . dealing with information the witness has relied on outside of this court [sic]. Ordinarily an attorney cannot ask a witness about hearsay. Hearsay is something done and said outside the courtroom, and then there is an attempt to offer it in the court for the truth of the matter. Most witnesses cannot do that. They cannot rely on hearsay. There is an exception, if you will. [¶] An expert can rely on hearsay, questions are asked that have hearsay in them. But you, as the jury, I am admonishing you may not consider the hearsay information for the truth of the matter. You may only consider it as it lends itself to the doctor's opinion or the expert's opinion. It is the expert's opinion that is in issue. The hearsay material is not being received for the truth of the matter."

Defense counsel, during cross-examination of Dr. Stotland, introduced into evidence, without objection, a report by Dr. Davantzis, a psychiatrist who had reviewed Gill's records. When Gill's counsel questioned Dr. Stotland about the report, the trial court stated, "Now, again, ladies and gentlemen, keep in mind what I told you a moment ago. When it comes to an expert opinion, the expert witness may consider hearsay. You, the jury, may not consider the hearsay for the truth of the matter, may only consider it as it lends itself to the doctor's . . . opinion, accept or reject it. But you may not consider the hearsay for the truth of the matter."

Before jury deliberations, the court instructed the jury with CALCRIM No. 360 as follows: "An expert testified that in reaching his conclusions as an expert witness, he considered statements made by others. You may consider those statements only to evaluate the expert's opinion. Do not consider those statements as proof that the information contained in the statements is true." The court also instructed in the language of CALCRIM 222 as follows: "Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence."

Gill waived his contention by failing to object during the testimony of the expert witnesses or the prosecutor's closing argument. We conclude that the court's admonitions and instructions sufficed to instruct the jury regarding the proper way to interpret the experts' use of hearsay materials. Moreover, the testimony of Drs. Stotland and Deane established by overwhelming evidence that Gill, by reason of his severe mental disorder, represented a substantial danger of physical harm to others. Accordingly, we conclude it is not reasonably probable the jury would have found the allegations of the petition not true even if defense counsel had objected to the prosecutor's closing argument on hearsay grounds, because most likely the trial court would have repeated the admonitions regarding hearsay. (See People v. Martinez (2001) 88 Cal.App.4th 465, 486-487 [applying the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 in the context of an expert's testimony in a hearing to determine whether the defendant was a sexually violent predator].)

II

We reject Gill's contention the trial court erred in instructing regarding the burden of proof for the extension of commitment in MOD cases.

The instruction given by the court combined the language of CALCRIM 3453, and language from case law. Gill contends the language from CALCRIM 3453, which is an instruction for extending the commitment of an offender found not guilty by reason of insanity, was inappropriate because Gill's defense was that "he was not ill and did not need medication to control his behavior." Gill concludes, "[I]t is impossible to determine whether the jury reached its conclusion because it found the prosecution carried their burden of proof, or because it found [Gill] failed to carry his." Defense counsel at trial expressly agreed to the court's instruction, and therefore we conclude that any error in giving the challenged instruction was invited. "In cases involving an action affirmatively taken by defense counsel, [the court has] found a clearly implied tactical purpose to be sufficient to invoke the invited error rule." (People v. Coffman (2004) 34 Cal.4th 1, 49.)

The instruction regarding "extension of commitment" stated:

Gill, for the first time in his reply brief, makes a perfunctory argument that he received ineffective assistance of counsel in the trial court. The contention is waived. A court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points. (People v. Failla (2006) 140 Cal.App.4th 1514, 1519-1520, fn. 3.) Moreover, Gill failed to develop this contention by applying — as opposed to citing to — the proper legal standards, or supporting the contention with adequate arguments and citations to the record and authority as required by California Rules of Court, Rule 8.204, subdivisions (a)(1)(B) and (C).

DISPOSITION

The judgment is affirmed.

WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.

During Dr. Deane's testimony, defense counsel objected to a reference to Dr. Davantzis' report. The trial court initially overruled the objection, stating, "The expert can consider hearsay in rendering his opinion. The jury is already admonished they may not consider the hearsay for the truth of the matter, it only goes to the expert's opinion." The court subsequently sustained the objection on hearsay grounds.

In another instance, when Dr. Deane was testifying regarding Gill's long criminal history, defense counsel objected on the basis of hearsay. The court stated, "Again, ladies and gentlemen, hopefully you appreciate this by now, an expert may consider hearsay in rendering his or her opinion. You may not consider the hearsay for the truth of the matter."

"Respondent has been committed to a mental health facility. You must decide whether he suffers from a severe mental disorder, that his severe mental disorder is not in remission or cannot be kept in remission without treatment, and that as a result of his severe mental disorder, he is unable to control his behavior and currently poses a substantial danger of physical harm to others as a result of a severe mental disorder. That is the only purpose of this proceeding. You are not being asked to decide the respondent's mental condition at any other time or whether he is guilty of any crime. [¶]

To prove that respondent currently poses a substantial danger of physical harm to others as a result of a severe mental disorder, the Petitioner must prove beyond a reasonable doubt that:

1. Respondent suffers from a severe mental disorder;

2. His severe mental disorder is not in remission or cannot be kept in remission without treatment; AND

3. As a result of his severe mental disorder, he is unable to control his behavior and currently poses a substantial danger of physical harm to others. [¶] 'Severe mental disorder' means an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment; or which grossly impairs behavior; or that demonstrates evidence of an acute brain syndrome from which prompt remission, in the absence of treatment, is unlikely. The term 'severe mental disorder' as used in this section does not include a personality or adjustment disorder, epilepsy, mental retardation or other developmental disabilities, or addiction to or abuse of intoxicating substances. . . . [¶] . . . [¶] . . . [¶] . . . [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If you find that the respondent has met this burden on these issues, you should find that the respondent does not represent a substantial danger of physical harm to others."


Summaries of

People v. Gill

California Court of Appeals, Fourth District, First Division
Jul 25, 2008
No. D049919 (Cal. Ct. App. Jul. 25, 2008)
Case details for

People v. Gill

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. STEPHEN J. GILL, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Jul 25, 2008

Citations

No. D049919 (Cal. Ct. App. Jul. 25, 2008)