Opinion
A146720
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. LEARTIS JOHNSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 01-112031-0)
In 2000, Leartis Johnson was found not guilty by reason of insanity regarding certain crimes and transferred to a state hospital, initially for inpatient treatment. By 2013, Johnson was receiving outpatient treatment. Contra Costa Mental Health Services ("Health Services") requested his outpatient status be revoked under Penal Code section 1608, which Johnson opposed. After a hearing in 2015, the court revoked his outpatient status. Johnson argues the court prejudicially erred under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) by admitting a dozen hearsay statements by Angel Johnson, the sole witness at the revocation hearing, who, as Johnson's treating clinician, testified as a percipient and expert witness. The People argue Johnson has forfeited his claim regarding most of these statements, and that they are neither hearsay nor prejudicial. Johnson disagrees and, alternatively, argues he received ineffective assistance of counsel.
We reject the People's forfeiture argument and, therefore, do not address the ineffective assistance of counsel issue. We conclude most of the disputed statements were admissible, and that the admission of the remainder was harmless error. Accordingly, we affirm the court's revocation of Johnson's outpatient status.
BACKGROUND
In 2000, the Contra Costa District Attorney filed a felony complaint against Johnson, charging him with four criminal counts, consisting of two counts of felony second decree robbery and two counts of false imprisonment by violence. The court accepted Johnson's plea of not guilty by reason of insanity and ordered him committed to a state hospital. Johnson was placed in outpatient treatment in May 2008. From then until September 2013, when Health Services requested that his outpatient status be revoked under Penal Code 1608, he was in and out of the hospital for inpatient treatment several times.
In September 2015, the court held a hearing regarding Health Services' revocation request. Angel was the sole witness, testifying as both a percipient and expert witness. In August 2013, she was employed by Contra Costa County in the state-funded Conditional Release Program (CONREP) as a mental health clinical specialist. Her main duties were to provide mental health treatment, including individual and group therapy, so that clients could remain stable in outpatient settings. She became aware of Johnson's case when she began working at CONREP in 2011, led various therapy groups in which he participated and personally treated him from June 2013 to September 2013.
We refer to Ms. Johnson as "Angel" to avoid confusion with defendant. We mean no disrespect by doing so.
Angel testified as a percipient witness and, with the court's permission, as an expert "in the diagnosis and treatment of mental illness and risk assessment in mentally ill transitioning into the community." The court stated she could testify as an expert based on her "master's degree in community counseling, her being licensed as a marriage and family therapist, her having worked in the CONREP program for two and a half years and during that time administered the HCR20 risk assessment tool . . . over 100 times . . . and possibly more—in addition to her being associated in . . . informal rounds of discussion on a regular basis with psychiatrists and psychologists assigned to the program regarding evaluation of a particular client for risk, and that she's been involved in the diagnosis of mental illness in therapy since 2007
Angel testified that Johnson was on outpatient status as of late July 2013, having been in and out of the hospital about five times in the previous two years. During the summer of 2013, Angel assessed Johnson on a regular basis, and treated him in individual therapy in order to "help his mental health stay stable, to offer support, to help with any of his anxieties or depressions, to monitor his medications, see if he was taking them, seeing if he was exhibiting symptoms, any risk for reoffending." Angel concluded Johnson had a mental illness based on her direct observations of him and her review of his chart, which included previous clinician notes, group notes and hospital summaries. His primary diagnosis was "[s]chizophrenia affective disorder, bipolar type"; Angel explained that "[t]he schizo part is a thought disorder, and the affective part would be a mood disorder, and the bipolar type would mean he has manic episodes with either a depression or manic episode and depression." Symptoms of this illness would be "delusions; hallucinations, either visual or auditory; disorganized thinking; disorganized behavior; depression lasting longer than two weeks; mania; pressured speech." Johnson had a secondary diagnosis of "cognitive disorder, a borderline intellectual functioning, a polysubstance and antisocial behavior [and] antisocial personality disorder."
According to Angel, in the summer of 2013, Johnson exhibited symptoms of his primary and secondary diagnoses, including "[p]ressured speech, delusional thinking, and disorganized thinking." On August 12, 2013, he arrived two hours late for an appointment with Angel. When he arrived, "his speech was very pressured, he was not making sense. He was not tracking conversation." Angel testified, "I could tell him one thing and he didn't understand what I was saying. He was very concerned about money, wanting to get money, and he had delusional beliefs that he was a doctor, that he could get money and needed money." He was "[t]alking really, really fast, really rapidly, not being able to hear anything or for us to get in a word, really." "[H]e was talking loudly, he was very insistent, very pressuring . . . asking me specifically for money and money over and over again."
Angel said Johnson had pressured her about money before August 12. "He had a belief at the time that he had benefits through the VA. I had explained to him many times that . . . there's no benefits, there's no more money coming to him. And he just kept wanting money and kept asking for it." In a meeting with Angel about a week before August 12, Johnson spoke "very rapidly, very fast, very loud. He had in the middle of the session . . . stood up, he was very upset, and again he was demanding money." Also, he told Angel that his commitment offense had something to do with needing money, and that when he committed the offense "he wasn't going to harm anyone and he was just looking for money." His symptoms worsened over that summer. He seemed to have no insights into his mental illness, and had "thoughts that weren't in the reality, but he believed that they were very real," such as his contention that he was a doctor.
On August 12, 2013, because Johnson's behavior "was out of the ordinary," the police and an ambulance were called and he was taken to a psychiatric emergency facility. Angel at first testified that as police were securing him, Johnson "made a comment that he just wanted to take the police's gun and shoot himself." On cross-examination, she said she could not recall if she heard this comment, but remembered others discussing it after Johnson left.
That same day, Angel wrote to the court requesting that it revoke Johnson's outpatient status under Penal Code section 1608 and hospitalize him temporarily, known as a "TANGI" hospitalization, "[b]ecause at that time we could no long safely treat him in the community. His risk for reoffending was very high." Johnson's pressured speech, disorganized thinking and late arrival were concerns to her because "he wasn't in control of himself . . . wasn't predictable at that point." This was a problem for outpatient treatment because Angel and others "weren't sure if he could even take care of himself, and we weren't sure how well he could participate if we were to make med changes with him in an outpatient setting."
Angel testified about other difficulties with Johnson between August and September 2013. There was difficulty monitoring the level of Clozaril to give him because he was not willing to provide a necessary weekly blood draw, although he had had blood draws after August 12, when he was sent to the psychiatric emergency facility. He called numerous times to Angel and other CONREP clinicians, including 15 calls in one day, and made statements indicating "he had no understanding of his current state." He demonstrated delusions in calls to Angel and in voice mails. Based on her observations and treatment of Johnson, and her review of his records, Angel thought he exhibited symptoms of his mental illness that required extended inpatient treatment, and that he was a risk to the community. He "was very disorganized in his thinking, he had delusional beliefs and he was very fixated on getting money. So the danger was he was going to try to get money in some sort of way." Further, the decision that he needed inpatient treatment "was made with the team, so [Angel] was not the only input; the program director, the psychiatrist, the other clinicians" were also involved.
After consulting with the team and psychiatrists, Angel wrote to the court on September 11, 2013, to request that Johnson's outpatient status be revoked altogether because he needed a longer time in the hospital, particularly since he had been in and out of it for the past two years. This history indicated he could not "make it" outside for a long period of time and needed a thorough workup of medication that would best sustain him in the community. On cross-examination, Angel agreed the main reason for her request was to try to get him on Clozaril. She also testified that a psychiatrist believed Johnson would be more effectively treated in an open hospital unit rather than on a TANGI because there would be more time, observation and flexibility in his treatment.
Angel also testified that in July 2013, Johnson's lithium prescription was changed after he was hospitalized due to toxic lithium levels. He stabilized after this hospitalization and was returned to the community in about a month. Angel was not sure if his medication was otherwise changed. On cross-examination, she said she understood from a psychiatrist that a change to Clozaril was suggested because the lithium was not working. She did not know if Johnson ever gave his required consent to treatment with Clozaril.
On cross-examination, Angel was asked about Johnson's intellectual functioning. She recalled he had a diagnosis of borderline intellectual functioning, "which would be a result of that IQ." Shown a 2010 neuropsychological report, she testified that it seemed to indicate he had an IQ of 61, which would create problems with abstract thinking. The report also indicated Johnson had suffered a previous head trauma, stated concerns that he might have had a brain injury and advancing dementia, stated that he would decline over time and that his dementia would overshadow his mental illness, and recommended further monitoring for him. She did not know if the hospital considered these recommendations when changing Johnson's medication, and she did not communicate this information to Johnson's psychiatrists when they were changing his medication.
At various times during Angel's testimony, his counsel objected that she was making inadmissible hearsay statements. The court repeatedly admitted these statements not for their truth, but as relevant to the validity of Angel's expert opinions. Similarly, the People objected to certain of Angel's statements about the 2010 neuropsychological report, which the court admitted for the same reason.
After Angel testified, Johnson's counsel argued the prosecution should present evidence about Johnson's condition in 2015, not just in September 2013 when Angel made the revocation request. The court disagreed based on Penal Code section 1608, but invited Johnson's counsel to present evidence regarding Johnson's condition since September 2013. Johnson's counsel did not do so. The court revoked defendant's outpatient status under Penal Code section 1608, and Johnson filed a timely notice of appeal.
DISCUSSION
Defendant was committed to a state hospital after being found not guilty by reason of insanity for the charged crimes. "If the jury finds the defendant was insane at the time of the offense, the trial court shall commit the defendant to a state hospital or other appropriate public or private facility for the care and treatment of the mentally disordered, or place the defendant on outpatient status pursuant to [Penal Code] section 1600 et seq. . . . [¶] . . . [¶] A successful insanity plea relieves the defendant of all criminal responsibility. [Citation.] The commitment of the defendant to a state hospital 'is in lieu of criminal punishment and is for the purpose of treatment, not punishment.' " (People v. Dobson (2008) 161 Cal.App.4th 1422, 1431-1432.)
An insane person committed to a state hospital may be placed by the court on outpatient status, subject to terms and conditions. (Pen. Code, § 1604.) " 'Outpatient status is . . . a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [offender] and cause no undue hazard to the community.' " (People v. Sword (1994) 29 Cal.App.4th 614, 620 (Sword).) Under Penal Code section 1608, if the treatment supervisor of a person granted outpatient status believes the person either (1) requires extended inpatient treatment, or (2) refuses to accept further outpatient treatment and supervision, he or she shall inform the court and request revocation of outpatient status. Thereafter, the court "shall hold a hearing and shall either approve or disapprove the request for revocation of outpatient status." (Pen. Code, § 1608.) The People bear the burden of establishing the grounds for revocation by a preponderance of the evidence. (People v. DeGuzman (1995) 33 Cal.App.4th 414, 419.) Section 1608 does not require a showing of dangerousness, and focuses on the treatment of the outpatient. (DeGuzman, at pp. 419-420.) An order regarding outpatient status is reviewed for abuse of discretion. (People v. McDonough (2011) 196 Cal.App.4th 1472, 1489.)
Section 1608 states in relevant part, "If at any time during the outpatient period, the outpatient treatment supervisor is of the opinion that the person requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision, the community program director shall notify the superior court in either the county which approved outpatient status or in the county where outpatient treatment is being provided of such opinion by means of a written request for revocation of outpatient status."
Section 1608 states that the court "shall" hold a hearing "[w]ithin 15 judicial days" of the revocation request's filing. The hearing did not take place here until about two years after the request's filing, resulting in revocation of Johnson's outpatient status in 2015 based on evidence of what occurred in 2013. Johnson does not raise an issue about this delay on appeal, however, and the record indicates he was represented by counsel below, the delay was in part because of his litigation actions or inaction, and the trial court gave his counsel the opportunity to present evidence for the period from 2013 to 2015, which counsel declined to present. Therefore, we do not address this issue other than to express our concern about so lengthy a delay of a hearing that should occur shortly after the revocation request is filed.
Johnson argues the trial court's consideration of Angel's hearsay statements, made in the course of her expert testimony, violated our Supreme Court's holding in Sanchez. In Sanchez, the California Supreme Court clarified the law on the scope of expert testimony: "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 disapproved of People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) "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.) Further, the court instructed, its decision did "not affect the traditional latitude granted to experts to describe background information and knowledge in the area of his expertise." (Id. at p. 685.) Also, an expert "may still rely on hearsay in forming an opinion, and may tell the [factfinder] in general terms that he did so. Because the [factfinder] 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. . . . There is a distinction to be made between allowing the expert to describe the type or source of the matter relied upon as opposing to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception. [¶] 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.)
Sanchez also held that the admission of testimonial hearsay via an expert's testimony in a criminal trial could violate the confrontation clause of the Sixth Amendment in some circumstances. (Sanchez, supra, 63 Cal.4th at p. 686.) Johnson does not raise any confrontation clause issues, and an outpatient status hearing is not a criminal trial. (Sword, supra, 29 Cal.App.4th at p. 635 [outpatient status hearing not a criminal prosecution and " ' "thus the full panoply of rights due a defendant in such a proceeding does not apply" ' "].)
At the time of the revocation hearing, Sanchez had not yet been decided. The People argue that Johnson nonetheless has forfeited most of his hearsay claims by failing to object below to most of the statements he identifies. They contend such objections would not have been futile because the California Supreme Court had already granted review of Sanchez the year before, and a majority of the United States Supreme Court had in certain opinions cast doubt on the general principle that experts may testify to hearsay evidence if the testimony is not admitted for the truth of the matter. We conclude there was no forfeiture because Gardeley was then the controlling law. "Reviewing courts have traditionally excused parties from failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5 Cal.4th 228, 237.) Therefore, we address the merits of Johnson's Sanchez claim.
Also, although neither party raises the issue, we note that "reliable hearsay evidence may properly be considered in outpatient status hearings" provided that the trial court determines the evidence bears a substantial degree of trustworthiness. (Sword, supra, 29 Cal.4th at p. 635.) Here, however, the trial court did not make such a determination. Instead, it evaluated Angel's hearsay testimony as if it were inadmissible other than for the purpose of evaluating the validity of her expert testimony. Therefore, we evaluate the court's consideration of it under Sanchez.
As a preliminary matter, we note that the parties agree that the hearsay holding of Sanchez applies retroactively to Johnson's revocation hearing. Recently, our colleagues in Division Five of this appellate district determined that Sanchez applies retroactively "in any context where liberty interests are at stake." (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1284.) Similarly, our colleagues in Division One of this appellate district applied Sanchez retroactively in reversing a denial of a petition for transfer to a conditional release program by a criminal defendant found not guilty by reason of insanity. (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507.) We conclude the Sanchez hearsay analysis applies retroactively here because a liberty interest is at stake. (See People v. Tillbury (1991) 54 Cal.3d 56, 68 [insanity acquitee moving for supervised outpatient status had a liberty interest, as " ' "[c]ommitment for any purposes constitutes a significant deprivation of liberty" ' "].)
Johnson contests the trial court's admission of 12 categories of purported hearsay statements by Angel in her testimony. According to Johnson, they "involved out-of-court statements introduced for their truth by an expert witness which did not fit within any exception to the hearsay rule. Thus, under Sanchez, they were inadmissible." Contrary to Johnson's contentions, we conclude some of this testimony was properly admitted and the remainder, while erroneously admitted, was harmless.
First, contrary to Johnson's contention, Angel's descriptions of Johnson's principal and secondary mental illness diagnoses were properly admitted as non-hearsay. Johnson argues that "based upon the way the testimony was phrased it appears that [Angel] was repeating CONREP's diagnosis with which she agreed." We disagree. The line of questioning leading up to Angel's statement of these diagnoses indicates the opposite. Angel testified as an expert "in the diagnosis and treatment of mental illness, and risk assessment in mentally ill transitioning into the community." She testified that she assessed Johnson on a regular basis in individual therapy sessions, reviewed his medical records, was his primary clinician and, based on her "review of his records as well as [her] interactions and treatment of [Johnson]" (italics added), thought he suffered from a mental illness. She thereupon stated his diagnoses. Thus, it appears Angel based these diagnoses on her personal assessments and observations of Johnson. To the extent she testified that she also relied on a review of records, this is allowed. (Sanchez, 63 Cal.4th at p. 685 [expert "may still rely on hearsay in forming an opinion, and may tell the [factfinder] in general terms that he did so"].)
We also conclude that, contrary to Johnson's contention, the trial court properly admitted Angel's testimony that Johnson's behavior and thinking in the summer of 2013 were similar to when he engaged in his commitment offense. Her understanding of this similarity was not based on a review of any records, but instead was based on Johnson's statements to her. He repeatedly asserted his need and desire for money, and said his commitment offense had something to do with needing, and looking for, money. Thus, her testimony about the similarity between the two appears to have been based on party admissions, which are admissible under Evidence Code section 1220.
Evidence Code section 1220 states: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity." --------
We further conclude Johnson cannot challenge Angel's testimony that the 2010 neuropsychological report indicated he suffered from borderline intellectual functioning because Johnson's own counsel elicited this testimony on cross-examination, thereby inviting any error. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1138-1139 [defense counsel's cross-examination questions on a topic invited any error, barring his appellate challenge].) In a footnote possibly intended to address this procedural fact, Johnson states that "[i]f the trial had been conducted with no case-specific hearsay being admitted, there would be no need for trial counsel to elicit this testimony." Johnson's attempt to avoid the doctrine of invited error does not hold up under scrutiny. The prosecution did not ask Angel on direct examination about the 2010 neuropsychological report or otherwise raise the issue of Johnson's intellectual functioning. Rather, it appears that Johnson's counsel brought them up to call into question whether Johnson's behaviors were the result of mental illness.
Johnson also challenges the admission of several other categories of Angel's testimony. These concern: (1) Johnson's hospitalization for toxic lithium levels in June 2013, a psychiatrist's recommendation that his medication be changed to Clozaril and his having had blood draws after August 12, when he was sent to the psychiatric emergency facility; (2) Johnson's numerous calls one day in the summer of 2013 to CONREP clinicians other than Angel; (3) Johnson's suicidal statement on August 12, 2013, as police were securing him; (4) the team's September 2013 decision (other than Angel's own decision, which obviously was within her personal knowledge) to seek revocation of his outpatient status; and (5) a psychiatrist's belief that Johnson would be more effectively treated in an open hospital unit rather than on a TANGI.
We agree with Johnson that this testimony was inadmissible hearsay under Sanchez. The People contend that some of this evidence was admissible under the business record exception in Evidence Code sections 1271 and 1272. Evidence Code section 1271 provides that "[e]vidence of a writing" made as a record offered to prove an act, condition or event is not inadmissible hearsay if the writing is made in the regular course of business, at or near the time of the act, condition or event; the custodian or other qualified witness testifies to its identity and the mode of its preparation; and the sources of information and method and time of preparation were such as to indicate the writing's trustworthiness. Evidence Code section 1272 allows the admission of evidence of the absence of an entry in business records under similar criteria.
The People misconstrue these exceptions to the hearsay rule. The business records exception allows admission of business records; it does not authorize admission of testimony about the content of business records, which is itself hearsay. (See People v. Landau (2016) 246 Cal.App.4th 850, 872-874.) And before the record itself may be admitted, foundational requirements must be met. (See Simons, Cal. Evid. Manual (2018 ed.) Hearsay Evidence, § 2:58 at pp. 158-159 [writing was made in regular course of business, at or near time of act, condition or event; qualified witness testifies to record's identity and mode of preparation; and sources of information and method of preparation indicate record's trustworthiness].) April testified about some matters based on her review of Johnson's medical records, and indicated these records were kept regularly regarding Johnson's treatment and care and that she prepared some in the regular course of treating Johnson. However, she did not indicate she was custodian of these records or was qualified to testify about their identity or mode of preparation, and she did not provide any details about their creation and maintenance. None of these records were presented at trial, let alone authenticated, although the one case cited by the People indicates authentication is required. (See People v. Dean (2009) 174 Cal.App.4th 186, 197, fn. 5 ["Hospital . . . records, if properly authenticated, fall within the umbrella of the business record exception," italics added], overruled on other grounds by Sanchez as discussed in People v. Stamps (2016) 3 Cal.App.5th 988, 993-996.) The People failed to meet the criteria for the business records exception.
Although this hearsay evidence was inadmissible under Sanchez, its admission was harmless. "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 error.' " (People v. Jeffrey G., supra, 13 Cal.App.5th at p. 510.) There is no reasonable probability that the court would have ruled more favorably towards Johnson if this evidence had not been admitted. As we have discussed, the People were required to prove by a preponderance of the evidence that Johnson required extended inpatient treatment or refused to accept further outpatient treatment and supervision. They easily met this threshold. Angel testified that Johnson repeatedly displayed symptoms reflecting a significant deterioration in his mental health in the summer of 2013, including disorganized and delusional thinking and a persistent concern about, and repeated demands for, money. The behaviors she observed convinced her he was not in control of himself and was at high risk of reoffending. Angel also witnessed his resistance to providing a blood draw that she understood was needed weekly to monitor him on the medication prescribed for him. She testified that Johnson called her and made statements indicating that he had no understanding of his deteriorating mental state. Also, Angel, who again was Johnson's principal clinician and the People's designated expert, testified that she believed he needed extended inpatient treatment under the circumstances. The erroneously admitted hearsay evidence Johnson identifies was much less significant than this ample evidence of Johnson's need for inpatient treatment. Any error admitting it was harmless.
DISPOSITION
The court's order revoking Johnson's outpatient status under Penal Code section 1608 is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.