Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR 454100
Sepulveda, J.
Defendant Steven Lynn McHugh was adjudged a mentally disordered offender and civilly committed to a psychiatric hospital for one year. (Pen. Code, § 2972, subd. (c).) Defendant, with the assistance of appointed counsel, appeals and contends that the trial court erred in admitting and considering the contents of hospital records when determining defendant’s mental health status. We reject the contention and affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In December 2004, defendant was accused of stealing a case of beer from a gas station and hitting the store clerk in the face with the case of beer when the clerk tried to stop him. Defendant pleaded guilty to misdemeanor battery and second degree burglary. (Pen. Code, §§ 242, 459, 460, subd. (b).) The court sentenced defendant to two years in prison.
In early 2006, defendant was found to be a mentally disordered offender (MDO) and was committed to Atascadero State Hospital (Atascadero) for confinement and treatment rather than being released into the community on parole. (Pen. Code, § 2962.) His initial commitment was set to expire in January 2009. In June 2008, the People filed a petition for continued involuntary treatment of defendant for an additional year. (Pen. Code, §§ 2970, 2972.) The People alleged that defendant “is a person whose severe mental disorder is not in remission and cannot be kept in remission without continued treatment; and that, by reason of his severe mental disorder represents a substantial danger of physical harm to others.”
A bench trial was held on the petition in March 2009, at which one witness testified. An Atascadero forensic psychologist, Brendon Yakush, testified that he interviewed defendant on three separate occasions and reviewed hospital records. Yakush also consulted with defendant’s treating psychiatrist. Yakush diagnosed defendant with schizoaffective disorder, bipolar type: “a combination of suffering from the severe psychotic symptoms typical of schizophrenia—delusions, disorganized thinking, hallucinations—with a severe mood component. That is, a bi-polar component where an individual shows signs of suffering from both depression [and] mania, and will cycle back and forth between the two.” Yakush opined that defendant’s “severe mental disorder” was not in remission and could not be kept in remission without treatment. Yakush also testified that defendant’s mental disorder presented “a substantial risk of physical harm to others.”
In reaching his conclusions, Yakush relied, in part, upon information entered in defendant’s hospital file, or “chart,” concerning defendant’s treatment at Atascadero. In opining that defendant’s mental disorder was not in remission, Yakush referred to staff entries in defendant’s chart from early 2008 reporting that defendant requested and received psychiatric medication multiple times after defendant told staff that he was “[f]eeling agitated,” “tense and irritable,” “psychotic,” or “hearing voices.” Defendant’s requests for medication continued through February 2009. Yakush concluded that defendant was showing symptoms of mental illness and “did not know how to deal with the symptoms in the absence of a medication on the spot.” Yakush also opined that defendant’s reliance upon on-the-spot medication to control his emotions demonstrated a risk of physical harm to others if he were released into the community because such medication and psychiatric oversight are not readily available outside an institutional setting.
In assessing defendant’s inability to control his emotions and the physical threat it poses to others, Yakush also referred to hospital staff reports that defendant engaged in acts of physical violence in April and December 2008. In the first incident, defendant and another patient had a verbal argument. Defendant said “fuck you,” threw off his jacket, approached the other patient in a threatening manner, and said “ ‘[d]o you want to go at it?’ ” Hospital staff told defendant to stop, but he did not comply. Defendant lunged at the patient and hit him in the face with a closed fist. In the second incident, staff found defendant and another patient in mutual combat and separated the men. After being separated, the other patient verbally accosted defendant and defendant responded by hitting the man in the face. Almost two weeks after this fight, defendant requested medication because he wanted to hit the man again.
Defendant’s trial counsel repeatedly lodged hearsay objections to the expert’s recitation of information from the hospital records. The court overruled the objections, noting that the information is “not coming in for the truth; it is coming in for the basis of [the expert’s] opinion.” At the end of trial, the court found, beyond a reasonable doubt, that defendant is an MDO and ordered defendant’s continued involuntary commitment. (Pen. Code, § 2972, subd. (c).) Defendant, with the assistance of appointed counsel, appeals.
II. DISCUSSION
Defendant contends that the trial court erred in allowing the expert witness, forensic psychologist Yakush, to describe the contents of hospital records used in forming his opinion. We reject the contention. As we discuss below, the court acted well within its discretion in allowing Yakush to refer to the details of the hospital records when explaining the basis for his expert opinion in a bench trial. Defendant’s argument to the contrary rests on principles applicable to jury trials, where limitations are sometimes imposed on an expert’s detailed recitation of out-of-court statements from documents to prevent the substantive use of inadmissible hearsay by a lay jury. In a bench trial, the judge can be expected to limit his or her consideration of any third party evidence recited by an expert witness to an evaluation of the expert’s opinion, and not as proof of the truth of the matter recited by the expert. Such is the case here.
Defendant disputes that conclusion and argues that the trial judge here failed to limit the use of hospital records and erroneously considered the details of reports relied upon by Yakush for the truth of the matter asserted in the reports. The argument rests on two isolated remarks. When read as a whole, the record shows that the trial judge did not rely upon the truth of the hospital records. Finally, even if the judge did rely upon the truth of the records, the records were admissible under exceptions to the hearsay rule and thus no prejudicial error occurred.
A. General Principles
The principles concerning an expert’s reliance on third party information in forming his or her opinion, and recitation at trial of that information, are well-settled. “California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness (Evid Code, § 720) and to give testimony in the form of an opinion [citation]. Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ ” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) “Evidence Code section 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter... perceived by or personally known to the witness or made known to [the witness] 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 [the expert] testimony relates....’ ” (Ibid.)
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 in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert’s opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert’s opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.’ [Citation.] [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert’s opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter... upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.] [¶] A trial court, however, ‘has considerable discretion to control the form in which the expert is questioned to prevent the jury from learning of incompetent hearsay.’ [Citation.] A trial court also has discretion ‘to weigh the probative value of inadmissible evidence relied upon by an expert witness... against the risk that the jury might improperly consider it as independent proof of the facts recited therein.’ [Citation.] This is because a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into ‘independent proof’ of any fact.” (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619, original italics.)
B. The expert witness’s reliance on hospital records, and recitation of certain details from those records, was permissible in a bench trial
The expert witness here, forensic psychologist Yakush, relied on hospital records in forming his opinion. Yakush testified that the records were prepared by psychiatrists, psychiatric nurses, and psychiatric technicians who reported their observations and conversations with defendant concerning defendant’s treatment at the hospital, and noted the medications administered to defendant. Yakush testified that he, and other psychologists, routinely rely on a patient’s hospital record to evaluate a patient’s mental health.
The hospital records were plainly “of a type that reasonably may be relied upon by an expert in forming an opinion” about a patient’s mental health. (Evid. Code, § 801, subd. (b).) “Psychiatrists, like other expert witnesses, are entitled to rely upon reliable hearsay, including the statements of the patient and other treating professionals, in forming their opinion concerning a patient’s mental state.” (People v. Campos (1995) 32 Cal.App.4th 304, 307-308.) Defendant concedes in his opening brief that “it is standard practice—and entirely reasonable—for a state hospital psychologist to consult the person’s institutional records” when “evaluating whether a person under commitment continues to meet the MDO criteria.” Defendant also concedes that the psychologist “may even tell the trier of fact that he or she reviewed such records and relied on them in reaching his or her opinion.”
Defendant’s dispute lies with the psychologist’s recitation of details from the record. Defendant is correct in noting that an expert witness’s recitation of third party statements in support of the expert’s opinion presents evidentiary concerns in a jury trial. But those concerns relate to a jury trial, not a bench trial as we have here. A court excludes report details, or administers a cautionary limiting instruction, to prohibit a jury’s impermissible, substantive use of information recited by an expert witness to support his or her opinion.
As our Supreme Court has explained: “An expert may generally base his opinion on any ‘matter’ known to him, including hearsay not otherwise admissible, which may ‘reasonably... be relied upon’ for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, ‘ “under the guise of reasons,” ’ the expert’s detailed explanation ‘ “ [brings] before the jury incompetent hearsay evidence.” ’ [Citations.] [¶] Because an expert’s need to consider extrajudicial matters, and a jury’s need for information sufficient to evaluate an expert opinion, may conflict with an accused’s interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court’s sound judgment. [Citations.] Most often, hearsay problems will be cured by an instruction that matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.] [¶] Sometimes a limiting instruction may not be enough. In such cases, Evidence Code section 352 authorizes the court to exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.” (People v. Montiel (1993) 5 Cal.4th 877, 918-919.)
Concerns about the misuse of extrajudicial evidence admitted to support an expert’s opinion do not apply where a judge, and not a jury, is the fact finder. (People v. Martin (2005) 127 Cal.App.4th 970, 977.) In a bench trial, an expert witness may be permitted to testify in greater detail about the basis for his or her opinion without fear that the testimony will be misconstrued as substantive evidence of the truth of the matters discussed. The expert’s “need to consider extrajudicial matters,” and the fact finder’s “need for information sufficient to evaluate an expert opinion” can be fulfilled without presenting a conflict “with an accused’s interest in avoiding substantive use of unreliable hearsay.” (People v. Montiel, supra, 5 Cal.4th at p. 919.) A trial judge, with his or her legal training, is able to make fine distinctions in the use of evidence that may be beyond the ability of lay jurors untrained in such matters. The trial court therefore did not err in permitting Yakush to relate details from the hospital records to explain his expert opinion in a bench trial.
C. The trial judge evaluated information from the hospital records as a basis for the expert witness’s opinion, and not for the truth of the matters asserted in those records
The trial judge here understood that the expert witness’s references to statements by defendant and observations of hospital staff contained in hospital records were offered to explain and to evaluate the expert’s opinion—not as proof of the truth of the matters recited by the expert. This understanding is expressed numerous times in the record. At the start of trial, defendant objected to Yakush referring to any incidents observed by other hospital staff members and reported in defendant’s chart. The matter was discussed at great length between the court and counsel. The court ruled as follows: “the Court will accept the testimony of the witness and will allow the expert to refer to other reports or other documents that fall within the province of hearsay for the conclusions that the doctor makes if the Court believes it is reliable hearsay. [¶]... [¶] If the Court finds it is reliable hearsay for the expert to rely upon in forming the conclusion—that is, that doctor—and he or she opines a conclusion, that is all they are being used for. [¶] They are not being used for or coming in as truth.” (Italics added.)
Throughout trial, defense counsel continued to object to Yakush’s reference to the contents of hospital records, and the court repeatedly stated the principle that the information was being used to show the basis for the expert’s opinion and not for the truth of the matter asserted. For example, when Yakush testified that defendant reported hearing voices to hospital staff, and staff noted that defendant was delusional, the court overruled defense counsel’s hearsay objection stating: “For the record, the Court is allowing this in not to stand on its own; rather to use as part of the information which creates a diagnosis of [defendant by] this witness, period.” [¶]... [¶] It is not accepted for the truth itself, but rather, the information that this witness is using.” Likewise, when Yakush described defendant’s fight with a fellow patient that was observed and reported by hospital staff, the court said “[i]t’s not coming [in] for the truth; it is coming in for the basis of [the expert’s] opinion.”
Defendant focuses on two isolated remarks by the trial court in arguing that the court “changed course” during the trial and accepted the contents of the hospital records for the truth of the matters asserted in those records. The court’s remarks are imprecise and somewhat confusing but do not prove that the court misapplied the law.
The first remark occurred when the prosecutor asked Yakush if defendant was in compliance with the hospital’s treatment plan and defense counsel objected that the question called for hearsay because it would allow Yakush to introduce information from the hospital record for the truth of the matters asserted. The prosecutor responded that she was “not asking the Court to take as truth these incidents” but instead “asking the Court to take them for the fact that [Yakush is] relying on them.” The court observed that it is not enough for Yakush to rely upon the information—the information itself must be a type that reasonably may be relied upon by an expert in forming an opinion, which implies that the expert accepts the information as true. The court asked the prosecutor to confirm her position that the hospital records were “reliable hearsay” sufficient to support the expert’s opinion, and coming in for that basis. It is this dialogue between the court and the prosecutor about the reliability of the information used by the expert that produced the remark challenged on appeal.
“THE COURT:... I thought yesterday we had determined that the reports—that the contents of incidents contained within the case file of [defendant] were being taken for the truth of the matter asserted; therefore were hearsay; however, were admissible under the phrase of ‘reliable hearsay.’ [¶]... [¶] [THE PROSECUTOR]: Yes, they are reliable hearsay.... [¶] THE COURT: And let me stop for a moment. Is not the definition of hearsay that it’s coming in for the truth of the matter asserted[?] [¶] [THE PROSECUTOR]: Yes, that’s true. [¶]... [¶] THE COURT:... [¶] [S]o, it either is or isn’t hearsay. Now, then, it either is or is not reliable hearsay. Because if we stick with what you just said a few... minutes ago and we don’t care if it’s true, then this doctor is making a determination of a diagnosis based on something he doesn’t know is true. That’s not what you mean to say. [¶] [THE PROSECUTOR]: I’m not saying that at all. [¶]... [¶] THE COURT: So are you of the posture that the contents of the patient’s file that has thus far been referred to is reliable hearsay? [¶] [THE PROSECUTOR]: Yes. [¶] THE COURT: Okay. [¶] [THE PROSECUTOR]: I’m referring to it as reliable hearsay and that it can come into this hearing to show the basis of... how Dr. Yakush arrived at his conclusions. [¶] THE COURT: Yeah, okay. [¶] [THE PROSECUTOR]: That’s all I’m saying. [¶] THE COURT: Okay.”
The court’s remarks are confusing, and the confusion is generated by the use of the imprecise, and legally inaccurate phrase, “reliable hearsay.” Yakush did not rely upon hearsay in its legal sense. Yakush relied upon third party statements and other information that might informally be called hearsay in the vernacular (as second-hand accounts often are), but the information was not hearsay under the strict legal definition of the term because the information was not introduced at trial for the truth of the matter asserted. The court’s remarks obscure this distinction.
Nevertheless, the remarks do not demonstrate that the court changed its position, enunciated throughout the trial, that the third party accounts of events related by Yakush during his testimony were permitted to establish the basis for Yakush’s opinion and not as proof of the events themselves. The court’s remarks seemed aimed at testing the reliability of the third party information, and pointing out to the prosecutor that Yakush must himself reasonably believe in the reliability of the information if he was relying upon it to form an expert opinion and that the prosecutor overstated matters by suggesting that the veracity of the hospital records was irrelevant. The prosecutor responded to the court’s inquiry by stating that the information was reliable, and reaffirmed her position that “reliable hearsay” was being used at trial “to show the basis” of Yakush’s opinion.
When defense counsel accused the prosecutor and the court of “changing mid-stream” from allowing Yakush’s testimony about hospital records to show the basis of the expert’s opinion to allowing the information to be admitted for the truth of the underlying event, the prosecutor denied it. The prosecutor explained: “My position has not changed, that if the hearsay is reliable, it comes in. And it comes in and forms the basis of Dr. Yakush’s opinion. And that’s clearly stated under Evidence Code [s]ection 802. The facts upon which this opinion is based must be stated in order to show the witness had some basis for forming an intelligent opinion.” The court accepted the prosecutor’s position and did not change its prior ruling limiting the use of the hospital records.
It will be recalled that the court, in its initial ruling on the matter, said: “the Court will accept the testimony of the witness and will allow the expert to refer to other reports or other documents that fall within the province of hearsay for the conclusions that the doctor makes if the Court believes it is reliable hearsay. [¶]... [¶] If the Court finds it is reliable hearsay for the expert to rely upon in forming the conclusion—that is, that doctor—and he or she opines a conclusion, that is all they are being used for. [¶] They are not being used for or coming in as truth.” The court’s statement later in the trial about the use of reliable hearsay is consistent with this initial ruling and does not show that the court “changed course” during the trial and admitted hospital documents for the truth of the matter asserted in the documents.
The second remark highlighted by defendant on appeal was made by the trial court during defense counsel’s closing argument. Defense counsel argued that Yakush relied upon an earlier diagnosis by a prior psychologist in forming an opinion about defendant’s mental health. The court interrupted counsel. The court agreed that Yakush read a report containing a prior diagnosis but stated that Yakush formed an independent opinion without consideration of the prior diagnosis. The court said Yakush “gathered from all the material in... your client’s file all the situations that the Court has allowed in as hearsay for the truth of the matter asserted, sans the diagnosis, without the diagnosis being considered by this doctor, per se, in his final evaluation.”
Defendant focuses on the comment by the court that information from hospital records was “allowed in as hearsay for the truth of the matter asserted.” This is a troubling statement. The information was presented by the prosecutor for the limited purpose of showing the basis for the expert’s opinion, not to prove the truth of the matter asserted. The court’s comment suggests that the court misunderstood this point, when the comment is read in isolation. But, when read in the context of the record as a whole, the court’s comment appears to mean that the expert accepted the reliability (and veracity) of the hospital records in forming his opinion—not that the court accepted the information in the hospital records as true. Importantly, other comments by the court after the challenged comment support the People’s argument that the court did understand its duty as the fact finder: to evaluate the credibility of the expert by determining whether the bases of the opinion were reliable, not to simply accept the outside records as true.
Soon after the challenged comment, and shortly before it rendered judgment, the court remarked on the need to weigh the expert’s opinion against the reasons offered for that opinion. The court rhetorically asked: “[W]hat were the reasons? Were they powerful? Were they convincing beyond a reasonable doubt? Was the Court just sort of barely led in the direction of accepting it was true? I mean, that all has to go towards the credibility of a particular witness and, you know, in this case the Court truly believed that the witness was knowledgeable about [defendant] and about the history.” If the court had accepted as true the events related in the hospital records, it would have no need to engage in this analysis about the expert’s reliance on those records. Thus, despite a couple of earlier remarks in the trial transcript that are ambiguous, defendant has failed to demonstrate that the court used the hospital records as substantive evidence. “A judge is presumed to know and follow the law.” (People v. Martin, supra, 127 Cal.App.4th at p. 977.) That presumption has not been overcome here.
D. Any reliance upon the contents of hospital records for the truth of the matters asserted was harmless because the records were admissible under exceptions to the hearsay rule
Even if we credit defendant’s argument that the judge accepted as true the events related in hospital records, no prejudice occurred because the records were admissible in evidence under exceptions to the hearsay rule. “Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule” when properly authenticated. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742; see Evid. Code, § 1271.) While the prosecutor here did not rely upon the business records exception at trial, sufficient authentication was provided by Yakush’s testimony. Yakush testified that the record entries were made by trained hospital personnel as a routine and regular course of operations and recorded contemporaneous acts and events. Staff reports of defendant’s violent interactions with other patients, for example, were personal observations of attending psychiatric nurses and technicians that were documented as a matter of hospital routine, according to Yakush.
Some of the entries in the hospital records relate statements by defendant, such as defendant’s statements to hospital staff members that he “felt tense and irritable” and was “hearing voices.” These statements were admissible as spontaneous declarations and expressions of state of mind. (Evid. Code, § 1240, 1250; People v. Sword (1994) 29 Cal.App.4th 614, 635.) In summary, to the extent that the trial judge did rely on the contents of hospital records for the truth of the matter asserted, such reliance was not prejudicial error because the record contents were admissible evidence.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.