Opinion
A160010
10-29-2021
THE PEOPLE, Plaintiff and Respondent, v. RAMIN JAHAN MINOU, Defendant and Appellant.
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC044388A
FUJISAKI, J.
Defendant Ramin Jahan Minou appeals from a trial court order extending his civil commitment under Penal Code section 1026.5. He contends: (1) there is insufficient evidence to support the jury's finding that his mental illness causes him to have serious difficulty controlling his dangerous behavior; (2) the court improperly admitted a psychiatric record under the business record exception to the hearsay rule; and (3) the People's expert improperly testified about case-specific facts in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Factual and Procedural Background
Defendant was committed to the California Department of State Hospitals in 1999, after being found not guilty by reason of insanity of residential burglary (§ 460, subd. (a)). He admitted allegations that he committed the crime against a person who is 65 years of age or older (§ 667.9, subd. (a)) and that the crime was a "serious felony" (§ 1192.7, subd. (c)(18)). In short, the offense involved defendant entering his father's home and beating him with his hands, causing multiple skull fractures. At the time, defendant was suffering from delusions and hallucinations: God told him and he believed he was Dino Ferrari, the dead son of Enzo Ferrari who was the man behind the vehicle brand; he believed his father was the Devil; and he heard God commanding him to hit his father.
Beginning in 2006 up to November 10, 2019, defendant stipulated to extensions of his commitment. In May 2019, the People filed a petition to extend his commitment from November 10, 2019 to November 10, 2021, pursuant to section 1026.5. A jury trial on the petition took place in February 2020. Ultimately, the jury found that defendant suffers from a mental disease, defect, or disorder that causes him to pose a substantial danger of physical harm to others, and to have serious difficulty controlling his dangerous behavior. The trial court ordered the commitment extended through November 10, 2021. The following is a brief summary of the trial evidence, which we will discuss more fully in our discussion of the issues raised on appeal.
Dr. Nancy Nauman, a licensed clinical psychologist at Napa State Hospital, was the People's sole witness and testified as an expert in the areas of clinical psychology, the diagnosis of mental illness, and risk assessments. Dr. Nauman was defendant's treating psychologist for about 18 straight months, including in 2019. She testified that defendant suffers from schizophrenia, a mental illness or disorder, and his symptoms include delusions and auditory hallucinations. These symptoms were present during the commitment offense and have persisted in the hospital despite medication and treatment. Specifically, defendant has ongoing fixed delusions that his inventions will change the world's electricity and power, and he acts on these delusions-such as by writing letters about his purported inventions to Elon Musk-and by focusing on his inventions to the exclusion of treating his mental illness. She testified that defendant has neither insight into his mental illness nor a viable relapse prevention plan.
Dr. Nauman opined that because of his mental disorder, defendant would pose a substantial danger of physical harm to others outside the structured setting of the hospital. This opinion was based on defendant's lack of insight, his ignoring the symptoms of his mental illness rather than finding a method of managing them, and his lack of a viable relapse prevention plan and coping skills for dealing with stressful situations. Additionally, Dr. Nauman opined that defendant will have serious difficulty controlling his dangerous behavior outside the hospital and is not safe to be released unconditionally.
Defendant was the sole witness on his behalf. He acknowledged he has schizophrenia, as well as visual and auditory hallucinations and delusions. He takes an anti-psychotic medication that helps to rein in his hallucinations "a little bit better" and an anti-anxiety medication that he thinks "does a little bit more harm than good." He acknowledged the violent circumstances of the commitment offense and that he harmed his father because of delusions and hallucinations. Several weeks before the commitment offense, he was involuntarily committed at a county mental health facility. At the time of the offense, he was taking medication and living in a halfway house with a supportive environment for persons with mental illness. He acknowledged that in the past, he chose to not take his medication while in the community.
Defendant does not believe he represents a danger to the community if released. He recounted that he did not fight back when he was attacked four times at Napa State Hospital; he just tried to defend himself and hold the person until help arrived. When asked if he is dangerous when symptomatic, defendant responded that "hallucinations can come in degrees" and "a more compelling delusion would draw a more willing reaction . . . ." Defendant indicated, at the time he attacked his father, the delusion coming from God was "so compelling" it made him act. But he claimed that his hearing God is not presently compelling and that he has heard God only seldomly in the past 11 years, saying benign things.
Defendant also testified contradictorily that he had not heard God in the past 11 years.
Defendant acknowledged he recently sent the prosecutor's office a copy of his relapse prevention plan which (1) did not list any doctor who would treat him in the community; (2) did not identify any facility that would support him if released; and (3) did not say where he would live or explain where he would get and pay for medications. He asserted, however, that if released he would be picked up by his brother immediately and they would take care of getting a hotel and his medications. Defendant also believed he could get medications through the jail and then "swift[ly]" qualify for emergency Medi-Cal reinstatement to get services at South County Mental Health. He claimed he had $2,000 to support himself for the first three weeks after being released, and planned to sell two of his inventions for $25 million each to support himself long-term. Defendant described one of his inventions for the jury, a type of perpetual motion energy machine.
Discussion
A. Sufficiency of the Evidence
A defendant committed to a state hospital after being found not guilty of an offense by reason of insanity generally "may not be kept in actual custody longer than the maximum term of commitment." (§ 1026.5, subd. (a)(1).) That said, a commitment can be extended if the defendant was committed for a felony and "by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (Id., subd. (b)(1).) Extension of such a commitment requires proof that the defendant has "serious difficulty controlling his dangerous behavior." (People v. Williams (2015) 242 Cal.App.4th 861, 872.) "The requirement of serious difficulty in controlling dangerous behavior 'serves "to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control." '" (People v. Sudar (2007) 158 Cal.App.4th 655, 662, italics omitted.)
Defendant challenges the sufficiency of the evidence supporting the jury's finding that he has serious difficulty controlling his dangerous behavior.
"' "In reviewing the sufficiency of evidence to support a section 1026.5 extension, we apply the test used to review a judgment of conviction; therefore, we review the entire record in the light most favorable to the extension order to determine whether any rational trier of fact could have found the requirements of section 1026.5(b)(1) beyond a reasonable doubt." '" (People v. Bowers (2006) 145 Cal.App.4th 870, 878-879.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"A single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of commitment." (People v. Williams, supra, 242 Cal.App.4th at p. 872.) "[E]xpert medical opinion evidence that is based upon a' "guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence." '" (In re Anthony C. (2006) 138 Cal.App.4th 1493, 1504.)
Here, Dr. Nauman opined as an expert that outside the supportive hospital environment, defendant would have serious difficulty controlling his dangerous behavior. Her opinion was not based on mere surmise or conjecture; rather, it was based on her personal interactions with and observations of defendant, as well as her review of his hospital records.
As defendant's treating psychologist for about 18 months, from 2018 into the first part of 2019, Dr. Nauman met with him daily when she was at the hospital, or about four times a week. She was familiar with his commitment offense and his psychiatric diagnosis and symptoms at the time of the offense. She knew that these symptoms persisted in the hospital despite treatment and medication. Dr. Nauman observed defendant deny that he has symptoms; indeed, he told her at various times that he had not been symptomatic for five, seven, and 10 years. She also observed defendant act on his ongoing delusions, such as by focusing on his purported inventions to the exclusion of participating in treatment.
Dr. Nauman testified that defendant has no insight into his mental illness and no viable relapse prevention plan. Specifically, defendant's current relapse prevention plan is that he will make "over 12 figures" of money from his inventions and use that money to support himself. He has never shared with Dr. Nauman how he plans to obtain medications, find a psychiatrist or psychologist, or deal with becoming increasingly symptomatic in the community. Defendant consistently refused to go into "CONREP"- i.e., the "Conditional Release Program" that helps patients transition from the hospital setting to the community-because doing so might interfere with his work on his inventions. Defendant believes he does not need CONREP because his projects will succeed. In mid-October 2019, defendant was transferred to a unit with a higher level of care because his treatment team believed he was not working toward discharge. When he first learned he would change units, defendant briefly and for the first time expressed a willingness to work with CONREP. Thereafter, however, he stopped going to his treatment groups so that he could focus on his entrepreneurial pursuits.
Dr. Nauman testified to her personal observations and review of his records that at times defendant gets angry, "verbally aggressive," "postures aggressively," and has made "innuendoes about possibly harming someone." Although defendant has never acted out violently in the hospital, she opined that outside the hospital's structured setting and constant monitoring defendant would pose a substantial danger of physical harm to others because he lacks insight; ignores his symptoms instead of working to manage them; has no viable relapse prevention plan; and has few, if any, coping skills for dealing with stress.
In 2018, Dr. Nauman evaluated defendant using the HCR-20 assessment instrument for dangerousness. Of three possible options-high, moderate, or low-Dr. Nauman scored defendant as a moderate risk for future violence in the community because he had not shown he had any skills to manage his mental illness under any kind of unexpected event or stress. She also rated him a moderate risk of serious physical harm in the community, indicating that even if defendant were medication-compliant, there was an "85 percent [chance] that he might have a violent episode in the community." She opined that defendant is not safe for unconditional release from the hospital.
For his part, defendant's testimony demonstrated that he continues to experience the same symptoms of mental illness that were present when he committed his commitment offense, i.e., delusions and auditory hallucinations. Moreover, he continues to take significant action based on his delusions, such as by relying on his belief that he has inventions that will make him a millionaire in lieu of devising a realistic and viable plan for maintaining himself in the community.
Defendant's testimony also implicated the importance of continuing a medication regime to dampen the severity and disturbing nature of his symptoms. With regard to his anti-psychotic medication, defendant explained: "the anti-psychotic . . . works in a couple of ways. . . . So with the wrong medication . . . I might get - I might see certain things that are, you know, by nature somehow disturbing, or even - even descriptive to a fault, distracting, connecting hallucinations with ideas of sharing thoughts with other people. So the anti-psychotic seems to reign [sic] it in a little bit better, to the point where if I do have any sensation, it's not so dramatic that it's going to pull me out of what I should be thinking or seeing or hearing." (Italics added.) Relatedly, his testimony indicated that his ability to engage in self-control when symptomatic depends on the strength and nature of his symptoms. When asked whether he is dangerous when symptomatic, he responded by stating that "a more compelling delusion would draw a more willing reaction; I would be more motivated by something convincing to act on it." (Italics added.) Defendant asserted, at the time he attacked his father, the voice of God was "so compelling" that it "made" him harm his father.
Furthermore, defendant's testimony confirmed he has no viable plan for release. Specifically, when asked what he would do if he did not make $25 million from his inventions, defendant said he had $2,000 to live on and then he would "have to find . . . a room with a friend." He testified about living in the area "for a lifetime" with people he had not spoken to in years, and talked about meeting with a former employer with whom he worked in 1988 who had reached out to him and allegedly wanted to meet as soon as possible if defendant were released. Defendant testified vaguely, and without concrete details, that he thought he could get a small supply of medications from a jail, so that he could get to the "next step" of "swift[ly]" qualifying for emergency Medi-Cal benefits to get his prescriptions from a medical center in the South Bay.
Overall, the combined testimony of Dr. Nauman and defendant made clear that, even in the structured environment of the hospital while medicated and treated, defendant still experiences delusions and hallucinations-the same types of symptoms that "made" him commit the commitment offense. He readily acts on these symptoms-ignoring that he is symptomatic-and evidences no ability to control himself when gripped by a delusion he finds compelling. Moreover, defendant at times has been "verbally aggressive" and has "postured aggressively" and "made certain innuendos about possibly harming someone." His own testimony indicated that whether he is dangerous is contingent on the strength and nature of his symptoms, which he controls to some degree by taking medications. Defendant's demonstrated lack of a viable plan for release makes the likelihood of his remaining medication-compliant in the community tenuous, at best.
"[I]n cases where lack of control is at issue, 'inability to control behavior' will not be demonstrable with mathematical precision." (Kansas v. Crane (2002) 534 U.S. 407, 413.) In this regard, "[t]he People are not required to prove the defendant' "is completely unable to control his behavior."' [Citations.] Instead, the defendant's 'impairment need only be serious, not absolute.'" (People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370.) Here, the evidence amply supported the jury's finding that defendant has serious difficulty controlling his dangerous behavior.
Defendant contends the jury's finding is unsupported because he has not engaged in physical violence during his commitment, and because his "volitional control" is demonstrated by the evidence that he gets angry but then disengages and withdraws. We are unpersuaded. A lack of physical violence in the controlled setting of the hospital is not dispositive. As one court explained: "The issue is not whether defendant could put on a facade of friendliness and cooperation in the hospital setting in order to achieve his goal of unsupervised release, but whether he would have serious difficulty in controlling dangerous behavior once he had attained that goal and no longer had expert help or support to keep him on the straight and narrow." (People v. Williams, supra, 242 Cal.App.4th at p. 875 .) Here, the jury heard all the evidence, and bearing in mind our standard of review, we cannot reweigh the evidence as defendant essentially asks us to do.
Defendant relies on People v. Redus (2020) 54 Cal.App.5th 998 (Redus) for the proposition that a defendant's "lack of violent behavior despite ongoing delusions" constitutes "proof of ability to control dangerous behavior." Redus does not compel reversal of the jury's verdict.
In Redus, the Court of Appeal dismissed the appellant's appeal from an expired commitment order as moot but, for guidance in future proceedings, undertook to examine whether substantial evidence supported the trial court's finding that the appellant's mental illness caused him serious difficulty controlling potentially dangerous behavior. (Redus, supra, 54 Cal.App.5th at pp. 1009-1010.) Although Redus acknowledged that a committed person's "lack of insight and continued delusions of the kind he or she suffered from at the time of the commitment offense can support a finding of continued dangerousness," it concluded that substantial evidence did not support the challenged finding. (Id. at pp. 1012-1013.) In particular, Redus observed that the appellant was 73 years old and described by a psychology and risk assessment defense expert as a" 'fragile old man'" who was not "physically capable of taking action against an object of his paranoia even if he wanted to." (Id. at p. 1011.) The appellant had not committed any violent act during his 45 years of commitment, and "there had not been a hint of violence, threatening behavior, or aggressiveness of any kind on the part of appellant over multiple decades, even through CONREP releases and medication lapses." (Id. at p. 1012, italics added.) The court also noted the defense expert's opinion that the appellant "would be motivated to continue taking his medications because he did not want to spend his last days in the hospital" and that such opinion "was bolstered by evidence that, upon his release, appellant's daughter, a retired deputy sheriff, testified that she was prepared to offer him a home with her and to supervise his monthly medication injections and other medical appointments." (Id. at p. 1013, fn. 4.)
The situation in Redus plainly presents no parallel to the situation here. Among other things, defendant is much younger than the appellant in Redus and has been hospitalized for far fewer years. And here, there was no testimony, expert or otherwise, that defendant was physically incapable of harming an object of his delusions or hallucinations. While there was no "hint of violence, threatening behavior, or aggressiveness of any kind" on the appellant's part in Redus (54 Cal.App.5th at p. 1012, italics added), Dr. Nauman described defendant as posturing aggressively, becoming verbally aggressive, and having "made certain innuendos about possibly harming someone." Moreover, because defendant has refused to engage in CONREP, there is no basis for evaluating any behavior on CONREP or in outpatient status. Finally, while defendant testified he intends to continue taking his medications if released, in contrast to the showing made in Redus, there was no relative or other individual who testified about offering support and medication supervision to defendant upon his release.
We likewise find defendant's reliance on People v. Johnson (2020) 55 Cal.App.5th 96 unpersuasive. In Johnson, the appellate court reversed a defendant's recommitment as a mentally disordered offender after concluding there was insufficient evidence that the defendant represented a substantial danger of physical harm to others because of his severe mental disorder. (Johnson, at p. 107.) The facts in Johnson, however, are readily distinguishable from the facts in this case. As relevant here, the sole expert who gave an opinion about the defendant's dangerousness only met with the defendant three times, for a total of 40 minutes. (Id. at p. 108.) That expert testified the defendant would act out violently if he became very delusional, but also acknowledged, among other things, that the defendant had not engaged in any violence or aggression since being hospitalized 20 years prior and there was no evidence in the last 30 years that would lead the expert to believe the defendant's decompensation in an unsupervised setting would lead to violence. (Ibid.) And unlike the present case, there was evidence the defendant-who had been released into the community for substantial periods under CONREP supervision-had stopped taking his medications for lengthy periods of time while in the community with no violent repercussions. (Id. at pp. 108-109.)
In sum, we conclude there was substantial evidence supporting the jury's finding beyond a reasonable doubt that defendant has serious difficulty controlling his dangerous behavior. This is not a situation where" 'it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the finding. (People v. Bolin, supra, 18 Cal.4th at p. 331.)
B. Alleged Evidentiary Errors
Next, defendant argues the trial court wrongly admitted an interdisciplinary note authored by a social worker and allowed Dr. Nauman to testify about case-specific facts in violation of Sanchez, supra, 63 Cal.4th 665. We address these claims in turn.
1. Additional Factual Background
Prior to trial, defendant filed motions in limine asking that: (1) the trial court prohibit expert testimony in violation of Sanchez, supra, 63 Cal.4th 665; and (2) the court deem his hospital records inadmissible under the business records exception to the hearsay rule. With regard to the first motion, the court ruled an expert could present information gathered from medical records as long as there was a hearsay exception. As for the second motion, the court disagreed there was a blanket rule rendering psychiatric records inadmissible, and ruled hearsay within such records would be admissible if there were an applicable hearsay exception. The court indicated it had not been provided with particular pieces of evidence, so would "take them on an issue-by-issue basis."
During trial, Dr. Nauman testified that the various hospital records- i.e., treatment conferences, nursing notes, risk assessments, and other documents pertaining to defendant's treatment at Napa State Hospital- were made in the regular course of work at the hospital, which is a public entity; they were made at or near the time of the recorded events; they are relied on as accurate; and the authors are hospital employees. She testified that one of the records-a handwritten interdisciplinary note by a social worker dated February 6, 2019, later marked People's Exhibit 2 (Exhibit 2) - reflected that defendant reported having a recent auditory hallucination. Dr. Nauman also discussed the contents of several other hospital records.
After the parties rested, they discussed whether and which records would be admitted. The trial court indicated generally that the business record exception to the hearsay rule applied to all the records, and it concluded defendant's statements were relevant to his state of mind, not for the truth of the matters asserted. Nevertheless, to avoid keeping the jurors waiting, the court told counsel to assume none of the records would be admitted for purposes of argument, with the exception that the prosecutor could rely on Exhibit 2. The parties then presented closing arguments. Thereafter, the court ruled it would admit only Exhibit 2.
In connection with this ruling, the trial court indicated it had concerns about Dr. Nauman's recollection and command of the facts. But we note it was for the jury-not the trial court-to evaluate the witnesses' testimony and make findings of fact.
The following is the full text of the note in Exhibit 2: "[Defendant] came to this writer's office to speak about his inventions/intellectual property & show this writer some prototypes he created on Microsoft Draw. These graphic designs were beautifully created-organized & [a]esthetically pleasing however they failed to show realistically how his invention will work. [Defendant] attempted to explain these things but failed to make any points talking in vague generalities & stopping mid-sentence. [Defendant] began talking about needing to receive funding for his creations in order to sucessfully [sic] discharge & then @ [sic] that time 'I will be a rockstar [sic] in the scientific community.' [Defendant] shared he believes his invention will spark 'a new industrial revolution'. [sic] [Defendant] was . . . also able to honestly share that he 'heard' the voice of God recently sharing 'You can even count the money.' He saw this as a sign that his invention will bring him great wealth."
2. The Admission of Exhibit 2
Defendant argues the admission of Exhibit 2 violated his "right against hearsay" and his federal and state due process right to confront witnesses. Specifically, he contends that Exhibit 2 did not qualify as a business record under Evidence Code section 1271 because the note "did not consist of mere observations of quantifiable conditions such as medication administered, but was intermingled with perceptions, thought processes, and conclusions of the person writing the note." Defendant relies principally on People v. Reyes (1974) 12 Cal.3d 486 (Reyes) to make this argument. We are unpersuaded.
Under the business records exception to the hearsay rule, "[e]vidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271.) "The trial court is vested with broad discretion to determine whether a party has laid a proper foundation for admission of records under [Evidence Code] section 1271, and the court's exercise of that discretion' "will not be disturbed on appeal absent a showing of abuse." '" (People v. McVey (2018) 24 Cal.App.5th 405, 414.)
In Reyes, a defendant confessed to murder but relied on the defense of diminished capacity, claiming he had consumed alcohol and drugs, and killed the victim after the victim made a homosexual advance on him. (Reyes, supra, 12 Cal.3d at pp. 494-495.) He sought admission of a psychiatric report showing that 20 years prior, a psychiatrist diagnosed the victim with" 'sexual psychopathy.'" (Id. at p. 502.) The defendant argued the report evidenced the victim's advance on him and was admissible as a business record. (Ibid.) The Supreme Court upheld the report's exclusion, indicating it fell outside the business record exception because the psychiatrist's conclusion that the victim had a sexual psychopathy was not evidence of an act, condition, or event. (Id. at p. 503.) Adopting portions of the intermediate appellate opinion, the Supreme Court held:"' "[A] conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion; it may or may not be founded upon sound reason; the person who has formed the conclusion recorded may or may not be qualified to form it and testify to it. Whether the conclusion is based upon observation of an act, condition or event or upon sound reason or whether the person forming it is qualified to form it and testify to it can only be established by the examination of that party under oath." '" (Ibid.)
While Reyes held the business records exception did not allow the admission of the particular report at issue, the decision made no blanket ruling that psychiatric records are inadmissible under the business records exception. (People v. Nelson (2012) 209 Cal.App.4th 698, 710, fn. 7.) Indeed, case law recognizes that "[h]ospital records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception." (People v. McVey, supra, 24 Cal.App.5th at p. 414, and cases cited.) Moreover, evidence of a patient's statement may be admissible as a statement of the patient's existing mental or physical state or as a party admission. (Evid. Code, §§ 1220, 1250, subd. (a).)
In this case, Exhibit 2 did in fact record an act or event: namely, that on the date specified, defendant spoke to the social worker about his inventions, showed her prototypes he created, and said various things related to his inventions, including that he recently heard the voice of God saying," 'You can even count the money.'" Thus, unlike the circumstances in Reyes, supra, 12 Cal.3d 486, Exhibit 2 did not reflect a diagnosis or a conclusion reached after reasoning or consideration of multiple factors. Additionally, defendant's statements to the social worker fell within the state of mind exception to the hearsay rule and also included admissions on defendant's part. (Evid. Code, §§ 1220, 1250; People v. Sword (1994) 29 Cal.App.4th 614, 635; People v. Orey (2021) 63 Cal.App.5th 529, 553-559.)
Defendant seems to suggest that at trial he denied saying that he heard God say, "You can even count the money," so the recording of this statement was an opinion. This is a non sequitur. Whether defendant denied saying this at trial does not render the recorded statement an opinion or conclusion drawn from reasoning. (Reyes, supra, 12 Cal.3d at p. 503.) Also notable is that during trial, defendant only equivocated or, at best, vaguely denied saying the foregoing. More specifically, when first asked if he said the foregoing, defendant responded "Not exactly," then elaborated about a movie he had watched and said he was making "a light reference to something from before. It was a memory. It wasn't something that was so compelling that I thought I had a million dollars." When asked if he made the statement about hearing God after going to the social worker's office to talk about his inventions and show her some prototypes, defendant said, "It may have been exactly as you've described. My memory is not that clear." When asked again if he disclosed to the social worker that he heard God, he said, "That's not how I would put it."
It is true the social worker's recordation of the conversation with defendant included her opinion that defendant's graphic designs were beautiful but failed to realistically show how his invention will work; her opinion that defendant "failed to make any points, talking in vague generalities & stopping mid-sentence" when attempting to explain how his invention worked; and her opinion that defendant was able to "honestly" share that he heard God say, "You can even count the money." But, even assuming arguendo these opinions were inadmissible under the business records exception, defendant fails to show their admission was prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836.) Whether defendant's designs were beautiful was irrelevant. And defendant himself testified at trial about his invention and how it would work, and about whether he told the social worker he heard God say, "You can even count the money." Thus, the jury could make its own determination about whether defendant could adequately explain his purported invention and whether he honestly told the social worker he heard God.
Defendant also contends that Exhibit 2 should not have been admitted as a business record because it is insufficiently trustworthy. This argument fails.
Evidence Code section 353, subdivision (a), requires "an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Italics added; People v. Tolmachoff (1943) 58 Cal.App.2d 815, 826.) Here, when Dr. Nauman provided foundational testimony for admission of the note as a business record, defendant did not object. Moreover, he fails to point to any place in the record where he specifically objected to Exhibit 2 as being "insufficiently trustworthy." As such, the argument was forfeited.
For the first time in his reply brief, defendant also argues Dr. Nauman was not a custodian of records and the prosecution did not "lay a foundation as to [her] qualifications to testify about the accuracy and authenticity of the records." This argument is forfeited, not only because it was raised for the first time in the reply brief, but also because there was no specific objection on this ground below.
Even if not forfeited, defendant's claim that Exhibit 2 was "insufficiently trustworthy" is unpersuasive. To make this argument, defendant relies on cases concerning records that were "testimonial" and prepared primarily for use in litigation. (E.g., Palmer v. Hoffman (1943) 318 U.S. 109; Bullcoming v. New Mexico (2011) 564 U.S. 647; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) But here, defendant does not allege much less point to anything in the record indicating that Exhibit 2 was "testimonial" and prepared primarily for use in litigation rather than for defendant's treatment in the hospital. (See, e.g., People v. Nelson, supra, 209 Cal.App.4th at p. 713 ["the Interdisciplinary Notes are not testimonial in nature . . . . The notes were recorded by hospital staff members for purposes of discipline and the safety of other patients and staff, and the treatment of [the mentally disordered offender] required by her conduct. The notes do not suggest staff was concerned with possible future litigation."].)
Defendant also relies on People v. Young (1987) 189 Cal.App.3d 891 to make this argument, but this case is unlike Young where "[n]o foundation was established for introduction of the psychiatric records under the business records exception to the hearsay rule." (Young, at p. 911.) Moreover, unlike the records in Young, Exhibit 2 did not contain subjective psychiatric diagnoses from unknown sources. (Id. at pp. 911-912.)
In sum, we reject defendant's arguments that the trial court improperly admitted Exhibit 2.
Because we conclude Exhibit 2 was properly admitted under the business records exception to the hearsay rule, we need not and so do not address the People's claim that it was also admissible as an official record under Evidence Code section 1280.
3. Expert Testimony About Case-Specific Facts
Finally, defendant contends Dr. Nauman relayed the following case-specific hearsay to the jury: first, in October 2019, after defendant was told he would be transferred to a unit with a higher level of care, defendant told his treating psychiatrist, Dr. Skille, that he was willing to work with CONREP; second, in April 2018, defendant told his psychiatrist at the time, Dr. Saini, that he had no changes in his symptoms; third, in October 2018, defendant became tense and verbally aggressive and failed to follow the directions of nursing staff trying to redirect him; and fourth, in July 2019, defendant became angry and said something rude to a social worker who was reviewing treatment groups with him and he also told the social worker the hospital was out to get him. Defendant contends that because the trial court excluded the hospital records, Dr. Nauman's mention of the foregoing incidents in her testimony violated Sanchez, supra, 63 Cal.4th 665.
Under Sanchez, "[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) "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." (Id. at p. 686.) Such statements are only admissible if "they are independently proven by competent evidence or are covered by a hearsay exception." (Ibid.)
Although the People largely concede Sanchez error, we conclude defendant appears to have forfeited review of his Sanchez claims by failing to move to strike the challenged testimony. Again, Evidence Code section 353, subdivision (a), requires "an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." A" '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.) "Where evidence is apparently admissible and no motion is made to strike it when the contrary is shown, an objection to its admissibility is deemed to have been waived." (Ballos v. Natural (1928) 93 Cal.App.601, 608.)
Here, as discussed, Dr. Nauman laid the foundation for the admission of the records under the business records exception. When Dr. Nauman testified about the specific content of the notes underlying the Sanchez errors, defense counsel made largely non-specific objections that the trial court overruled. Prior to closing argument, the court indicated the records qualified as business records and defendant's statements in them were admissible as proof of his state of mind. After closing argument, however, the court changed course and ruled the records inadmissible. It was at this point that portions of Dr. Nauman's previous testimony became susceptible to a motion to strike based on the ground that defendant now raises, i.e., that because the records were not admitted, Dr. Nauman's testimony about them violated Sanchez. But, despite the prosecutor openly expressing concern about the exclusion of the documents, defense counsel made no motion to strike. Defense counsel also made no objection when, during closing argument, the prosecutor referenced Dr. Nauman's testimony about Dr. Skille's note concerning defendant's move to a higher level of care, and the note concerning the incident involving nursing staff.
Even if not forfeited, defendant fails to show prejudice as to the alleged Sanchez errors.
" '[T]he erroneous admission of expert testimony,' including expert testimony containing inadmissible case-specific hearsay statements, is reviewed under the Watson standard. [Citations.] This is true even where the expert's testimony included multiple statements that were inadmissible under Sanchez." (People v. Flint (2018) 22 Cal.App.5th 983, 1003-1004.) Under the Watson standard, reversal is required only if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.)
With regard to the first alleged Sanchez error-defendant telling Dr. Skille that he was willing to work with CONREP after learning he was being transferred to a unit with a higher level of care-defendant claims this showed he was "desperate for release and reminded the jury that [he] had another way out of the hospital." But defendant's conversation with Dr. Skille was merely cumulative to other properly admitted evidence. At trial, Dr. Nauman explained, at length, how a committed person obtains release into the community and that a person could return to the community with the support of CONREP. She described defendant telling her he neither wanted nor needed to go into CONREP because it would interfere with his entrepreneurial projects, which he thought would be successful. She testified defendant "consistently" said he did not want to work with CONREP. So regardless of defendant's statement to Dr. Skille, there was abundant evidence that CONREP was an avenue out of the hospital that defendant had refused. Moreover, the jury could infer from defendant's own testimony how badly he wanted to be released.
As to the second alleged error-defendant telling his then-psychiatrist, Dr. Saini, that he did not think his symptoms had changed-defendant argues this "tied [him] back to the violent conduct of his commitment offense." But defendant himself testified about the symptoms he experienced at the time of the commitment offense and both his testimony and other evidence reflected that he still experiences those symptoms. As discussed, Exhibit 2 noted defendant's statement that he had recently heard the voice of God, and defendant's testimony was equivocal when he denied telling the social worker this. Defendant also testified that he heard God a handful of times since turning 40 years old and that his anti-psychotic medication dampened but did not eradicate his symptoms. Moreover, defendant testified at length about one of his inventions and his expectation that he will make millions to support himself after his initial $2,000 runs out, while acknowledging he had never sold an invention or held a job outside of his father's delicatessen and occasional internships. He also tacitly admitted he was relying on this invention without testing, testifying that his uncle, a civil engineer, said "he would have to experiment with it, but we already know." This evidence plainly supports a finding that defendant continues to suffer from delusions and takes significant actions based on them.
Finally, as to the third and fourth claimed errors-the 2018 incident in which defendant became verbally aggressive with nursing staff and the 2019 incident in which he became angry with a social worker-defendant claims this showed the jury that he "had trouble controlling his emotions."
We are troubled by the third and fourth claimed Sanchez errors because these were two fairly recent incidents that were probative of whether defendant has serious difficulty controlling his dangerous behavior for purposes of extending a commitment under section 1026.5. Ultimately, however, we are unpersuaded these two Sanchez errors-whether considered individually or together with the other alleged Sanchez errors-were prejudicial under the Watson standard. In this regard, we disagree with defendant's assessment that these incidents played a major role in the prosecution's case.
During closing argument, the prosecutor generally stated there was evidence defendant becomes verbally aggressive when confronted with something he does not agree with, even in a controlled environment. When arguing that defendant has no ability to cope and has difficulty controlling his behavior, the prosecutor cited to four specific examples: (1) defendant's "outbursts" in the courtroom; (2) the 2018 incident involving nursing staff; (3) Dr. Nauman's own experience in 2018 when she questioned defendant's delusions and he became verbally aggressive and told her off; and (4) an incident involving defendant "lashing out" at Dr. Skille when Dr. Skille told defendant he was going to be moved to a higher level of care because of his refusal to engage with CONREP.
Dr. Nauman testified that Dr. Skille's note documented that their meeting ended when defendant became upset and walked out, not that defendant lashed out at Dr. Skille. To the extent the prosecutor misspoke, there was no objection at the time the prosecutor made this argument and defendant has not raised an argument about this on appeal.
Overall, the reference to the 2018 incident involving nursing staff during closing argument was brief, and the prosecutor never even specifically mentioned the 2019 incident involving the social worker. Indeed, before discussing any of the other examples, the prosecutor first highlighted defendant's conduct in the courtroom. On this point, Dr. Nauman testified that by his own behavior in court, defendant had "unwillingly demonstrated that he has difficulty controlling his behaviors when he's confronted with something he doesn't agree with or contradicts his point of view." Defense counsel openly agreed, stating: "Yeah. I mean, that was shown just, basically, five minutes ago."
The record shows defendant repeatedly interjecting during Dr. Nauman's testimony on various matters, such as about defendant's inventions, his symptoms, his participation in treatment and plans for release. It appears these interjections built and then culminated in a recess. Aside from defendant apologizing because he "got upset earlier," nothing else in the record provides any more description or detail about what occurred in terms of defendant's behavior in court.
More to the point, the bulk of the evidence in the record all amply supports the jury's finding that defendant has serious difficulty controlling his dangerous behavior. As discussed in detail above, that evidence included defendant's commitment offense; the delusional and hallucinatory symptoms he experienced at that time and continues to experience; the fact that he continues to take significant actions based on his symptoms; the importance of medication in dampening those symptoms from becoming disturbing and "compelling"; and the realistic prospect that his lack of a viable plan for release will lead to his becoming medication non compliant in the community. Thus, we cannot agree with defendant that but for the alleged Sanchez errors, it is reasonably probable the jurors would have reached a different result here.
Disposition
The trial court's order extending defendant's commitment is affirmed.
WE CONCUR: Tucher, P.J., Petrou, J.