Opinion
E061492
12-14-2015
THE PEOPLE, Plaintiff and Respondent, v. ERIN RICHARDSON, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FELSS1400553) OPINION APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Affirmed. Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Erin Richardson met the criteria of being a mentally disordered offender. (Pen. Code, §§ 2962, 2966, subd. (b).) The trial court also found defendant met the criteria of a mentally disordered offender. The trial court ordered that defendant remain committed to the Department of State Hospitals and denied defendant's motion for conditional outpatient treatment.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
Defendant raises four issues on appeal. First, defendant contends the trial court erred by denying her request to instruct the jury on her defense that, as a result of medication, she is not dangerous to others. Second, defendant contends the trial court erred in ruling on 20 evidentiary objections made during trial and two motions in limine, which resulted in the denial of a fair trial. Third, defendant asserts the trial court erred by admitting into evidence five exhibits that contained inadmissible hearsay. Fourth, defendant contends the cumulative effect of the foregoing errors deprived her of due process and a fair trial. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. UNDERLYING OFFENSE
As to the underlying offense, in 2012, defendant's husband came home and "confronted her about eating a bunch of cookies." Defendant admitted punching her husband's eye because she felt he was not listening to her. The victim suffered swelling and bruising around his eye. Defendant did not sustain any visible injuries.
B. PROCEDURAL HISTORY
In San Diego County, defendant was sentenced to prison for two years for willfully inflicting corporal injury upon a spouse. (§ 273.5, subd. (a).) On December 13, 2013, at a certification review, the Board of Prison Terms determined defendant met the criteria of a mentally disordered offender (§ 2962) and required she accept treatment through the State Department of Mental Health/Department of State Hospitals as a condition of parole. On January 27, 2014, at a certification hearing, the Board of Prison Terms reaffirmed its conclusion that treatment would be required as a condition of defendant's parole.
On February 3, defendant filed a petition in San Bernardino County Superior Court requesting a hearing to determine if she met the criteria for a mentally disordered offender. On July 2, a jury found defendant met the criteria of a mentally disordered offender. (§§ 2962, 2966, subd. (b).) The trial court also found defendant qualified as a mentally disordered offender and ordered she remain committed to the Department of State Hospitals.
C. MENTAL HEALTH
1. OCTOBER 11, 2013
Dr. Hoehing was a clinical psychologist who worked for the Department of Corrections at the Central California Women's Facility. Hoehing conducted a mental health evaluation of defendant on October 11, 2013. As part of the evaluation, Hoehing interviewed defendant and read defendant's file, including her rap sheet, arrest report, and probation report. Hoehing diagnosed defendant with schizophrenia, paranoid type.
At the time of the interview, defendant was taking psychotropic medications. Defendant was "stable," "talking, having a good conversation." Defendant denied having hallucinations, "[b]ut then she seemed to be responding to . . . voices behind [her], like turning around 'shush,' like this, like I'm trying to focus"—there was no one behind defendant. Hoehing explained that sometimes people suffer auditory hallucinations wherein the person imagines "somebody behind them talking to them, and they're trying to tell them to shut up so they can focus on what [Hoehing] is saying." That type of auditory hallucination was what Hoehing observed in defendant's conduct.
In reviewing defendant's file, Hoehing saw defendant "had two 115's for fighting. She also had another minor write-up." Hoehing opined that domestic violence programs are less successful when the defendant suffers a mental illness. Hoehing believed defendant's acts of domestic violence were "consistent with the expression of her schizoparanoia."
2. OCTOBER 25, 2013
Dr. White was a forensic psychologist employed by the Department of Corrections and Rehabilitation. As a forensic psychologist, White focused on evaluating patients, whereas clinical psychologists focused on treating patients. White evaluated defendant on October 25, 2013, at the Central California Women's Facility in Chowchilla. White also reviewed defendant's institutional records, including her legal and medical records. White diagnosed defendant as suffering from paranoid schizophrenia, which is a "severe medical disorder."
During the in-person interview, defendant was "go[ing] off on different tangents, talking about different topics." Defendant initially denied suffering active hallucinations, but then conceded she "might have been having hallucinations." Defendant appeared to be "internally preoccupied," such as taking a bit of time before responding to White's questions. Additionally, defendant "had some difficulties with tracking and staying with [White]," and her mood appeared to be "very constricted."
During the interview, defendant said, "'I see someone doing something bad to me.'" There was no one in the room approaching defendant or doing anything harmful to her; White interpreted defendant's statement as a delusion. White opined that the delusion was consistent with paranoid schizophrenia.
In speaking to defendant about the underlying domestic violence offense, defendant "mentioned that she had been experiencing hallucinations at the time immediately before and during and shortly thereafter of committing that crime." Defendant "also admitted that she wasn't taking her psychiatric medication" at the time of the underlying offense. White concluded defendant's mental illness was a contributing factor in her 2013 domestic violence offense. Defendant told White that she was not convinced she suffered from a mental illness. Defendant did not understand what services she may need if paroled into the community.
White concluded defendant's mental illness was not in remission because, during the interview, defendant "was displaying symptoms of [her] severe mental disorder." At that time, defendant had gone through approximately 270 days of treatment. White opined that defendant represented a substantial danger of physical harm to others due to her severe mental disorder because (1) defendant had a history of not complying with treatment, (2) defendant was suffering active symptoms of schizophrenia, and (3) defendant had a history of violent acts. White explained that a person with active symptoms of schizophrenia could misinterpret a social situation and respond in an illogical way, such as responding with violence when confronted about eating cookies.
3. NOVEMBER 14, 2013
Dr. Trompetter was a clinical psychologist, specializing in forensic psychology. Trompetter conducted a mental health evaluation of defendant on November 14, 2013, at the Central California Women's Facility in Chowchilla. Trompetter reviewed defendant's medical and legal files. Trompetter also met with defendant in person. Trompetter concluded defendant suffered from a severe mental disorder.
During the interview, defendant admitted suffering paranoia. Defendant said, "'Someone's going to come over. I don't know. I'm just paranoid of people around me.'" Defendant also admitted suffering auditory hallucinations. In regard to the underlying domestic violence offense and hearing voices, defendant explained, "'The other person could hear them. I think my husband is doing two voices to me. He'd be a total prick. He'd say things and then deny it when I was right next to him.'"
Defendant continued, "'I don't know if it was him or getting overpowering us [sic]. A voice said I had to come in the back door. I couldn't hardly do my housework. I had to do what the voice said. I think it was [my husband]. The voices either want to get with me or they don't.'" Trompetter concluded defendant's mental illness was "at minimum" an aggravating factor in her domestic violence offense based upon her statement that she heard a voice around the time of the offense. Trompetter described the voices as hallucinations, and concluded defendant had developed paranoid thoughts about the hallucinations. Trompetter explained that defendant heard an auditory hallucination, which she interpreted as her husband's voice, and she perceived it was a sort of trick by him and became "very paranoid of him."
Defendant also mentioned hearing Jesus speak to her. Defendant said, "'I was hearing the holy Jesus talk to me. Sometimes I watch TV, and it does it to me." In elaborating upon what she believed she heard when watching television, defendant said, "'I don't know why he's so degrading on me. He seems like he wants to talk with me. He's like real violent.'" Defendant also believed she was told by or through the television, "'Get up and touch the TV.'" Defendant said Jesus last spoke to her the day prior to the interview with Trompetter, i.e., November 13. Trompetter concluded defendant was not in remission, despite being in treatment, because she was still experiencing auditory hallucinations.
4. DECEMBER 17, 2013
Dr. Su was a staff psychiatrist at Patton State Hospital and worked in admissions, evaluating patients when they arrive at the hospital. Su evaluated defendant on December 17, 2013. During the interview, defendant informed Su that she hears negative or derogatory voices commanding her to harm herself or others. Defendant explained that the voices she hears also converse with one another. Defendant said, "'They get violent and real bad sometimes.'"
During the interview, defendant "was tangential," which meant she did not answer questions in a focused way, she would answer on a tangential topic such that Su could not follow defendant's "train of thought from one thought to another." Su noted defendant suffered from paranoid ideation, which meant she fears someone might want to harm her. Su diagnosed defendant as suffering from schizophrenia, paranoid type. Su concluded defendant's aggression was "'impulsive and psychotic,'" which means it is not planned but is driven by moods or symptoms. Defendant did not believe she was schizophrenic, which created a barrier to treating defendant's illness.
In looking at defendant's records, Su found defendant had a history, since 2004, of being hospitalized, but defendant denied being hospitalized. Defendant also had a history of not complying with medication directives. Not taking medication causes a relapse of symptoms or worsening of symptoms. Su also noted defendant "had two incidents in prison for fighting and assaulting inmates," which occurred in 2012. Defendant also had a suicide attempt or suicide gesture in 2012. While in prison, defendant tied a bra around her neck in an attempt to harm herself. Defendant did so because she was "'hearing voices.'"
Su testified that defendant's prison fights occurred in 2012; however, it appears from reports in the clerk's transcript that the fights may have occurred in 2011, when defendant was incarcerated for a different domestic violence incident.
5. DECEMBER 2013 THROUGH MARCH 2014
Dr. Johnson was a staff psychologist at Patton State Hospital. Johnson worked in the admissions unit, seeing new patients at Patton for four to six months before they were assigned to long-term units. Defendant was Johnson's patient from December 2013 to March 2014—for approximately three and a half months. Johnson diagnosed defendant as suffering from schizophrenia, paranoid type, which is a severe mental disorder. Johnson noted defendant's medication levels were low, indicating, while in prison, she was not given her medication every day or she refused to take her medication. Johnson continued defendant on the anti-psychotic medication she had been taking while in prison, but found defendant continued to display symptoms of schizophrenia while medicated.
D. DEFENSE'S CLOSING ARGUMENT
During closing arguments, defendant's trial counsel asserted defendant's medications, at the time of trial, were "working well, pretty well," although she "apparently still had some residual symptoms." Defense counsel pointed out defendant had not had a violent episode since 2012. Counsel also argued that the rule violation reports concerning defendant's two prison fights reflected defendant was not acting "'bizarre, unusual, or uncharacteristic'" at the time of the fights, thus indicating her mental illness was not a factor in her violent behavior.
DISCUSSION
A. JURY INSTRUCTION
1. PROCEDURAL HISTORY
Defendant requested the trial court give the jury a special jury instruction based upon the case of People v. Noble (2002) 100 Cal.App.4th 184 (Noble). Defendant, taking language from Noble, suggested the special instruction read, "'The People have the burden to prove, beyond a reasonable doubt, that if released, the [Petitioner/Respondent] will not take his or her prescribed medication and in an unmedicated state, the [Petitioner/Respondent] represents a substantial danger of physical harm to others.'" (Id. at p. 190.)
The prosecutor opposed defendant's request. The prosecutor asserted the language from Noble was useful in the past when "we were still using CALJIC." The prosecutor asserted that CALCRIM instructions included the information from Noble, so there was no need for the special instruction—the special instruction would be duplicative of CALCRIM No. 3456.
CALCRIM No. 3456, as given in this case, reflected: "The petition alleges that [defendant] is a mentally disordered offender. To prove this allegation, the People must prove beyond a reasonable doubt that at the time of her hearing before the Board of Parole Hearing[s] on January 27[,] 2014:
"1. She was convicted of Corporal injury to a spouse and/or roommate in violation of Penal Code section 273.5 and received a prison sentence for a fixed period of time;
"2. She had a severe mental disorder;
"3. The severe mental disorder was one of the causes of the crime for which she was sentenced to prison or was an aggravating factor in the commission of the crime;
"4. She was treated for the severe mental disorder in a state or federal prison, a county jail, or a state hospital for 90 days or more within the year before her parole release date;
"5. The severe mental disorder either was not in remission, or could not be kept in remission without treatment;
"AND
"6. Because of her severe mental disorder, she represented a substantial danger of physical harm to others.
"A severe mental disorder is an illness or disease or condition that substantially impairs the person's thought, perception of reality, emotional process, or judgment; or that grossly impairs his or her behavior; or that demonstrates evidence of an acute brain syndrome for which prompt remission, in the absence of treatment, is unlikely. It does not include (a personality or adjustment disorder[,]/ [or] epilepsy[,]/ [or] mental retardation or other developmental disabilities[,]/ [or] addiction to or abuse of intoxicating substances).
"Remission means that the external signs and symptoms of the severe mental disorder are controlled by either psychotropic medication or psychosocial support.
"A severe mental disorder cannot be kept in remission without treatment if during the year before the Board of Parole hearing, on January 27 2014, the person:
"1. Was physically violent except in self-defense; or
"2. Made a serious threat of substantial physical harm upon the person of another so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family; or
"3. Intentionally caused property damage; or
"4. Did not voluntarily follow the treatment plan.
"A person has voluntarily followed the treatment plan if he or she has acted as a reasonable person would in following the treatment plan.
"A substantial danger of physical harm does not require proof of a recent overt act.
"You will receive a verdict form on which to indicate your finding whether the allegation that [defendant] is a mentally disordered offender is true or not true. To find the allegation true or not true, all of you must agree. You may not find it to be true unless all of you agree the People have proved it beyond a reasonable doubt."
In regard to defendant's request for a special instruction, the trial court said, "Well, it appears to me that CALCRIM covers that area and discusses it adequately. So I'm going to deny the request for the instruction . . . ." The trial court instructed the jury with CALCRIM 3456 as set forth ante.
2. ANALYSIS
Defendant contends the trial court erred by denying her request to instruct the jury on her medication defense because the "jury had no idea that they needed to consider whether appellant was likely to take her medication if released and, if so, whether she was not dangerous while taking that medication."
A trial court has a sua sponte duty to instruct on general principles of law that are closely connected with the facts of the case. This includes the duty to instruct on a defense when it is relied upon by the defendant or when it is supported by substantial evidence and is consistent with the defendant's theory of the case. (People v. Garvin (2003) 110 Cal.App.4th 484, 488.) However, the trial court is not obligated to give a pinpoint instruction on a defense theory of the case if that instruction "merely duplicates other instructions." (People v. Bolden (2002) 29 Cal.4th 515, 558.) We apply the de novo standard of review when reviewing alleged instructional errors. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1418.)
In Noble, the defendant contended the trial court erred in placing upon him the burden of proving that, as a result of medication, he was not dangerous to others. (Noble, supra, 100 Cal.App.4th at p. 189.) As explained in Noble, the question of whether a defendant is not dangerous as a result of medication is not an affirmative defense; rather, it challenges two of the elements the prosecutor is required to prove: (1) defendant has a mental disorder that is not in remission, and (2) defendant represents a substantial danger to others. (Id. at pp. 189-190.) "A mental disorder is in remission if its symptoms are controlled by medication. (§ 2962.) Thus, an MDO whose symptoms are controlled by medication and who is not dangerous while on medication is by definition 'in remission,' and represents no danger to others. Such a person does not meet the statutory criteria for an extension of his or her MDO commitment." (Noble, supra, 100 Cal.App.4th at p. 190.)
In the instant case, the jury was instructed with CALCRIM No. 3456. That CALCRIM instruction informed the jury the prosecutor must prove: (1) defendant's "severe mental disorder either was not in remission, or could not be kept in remission without treatment"; and (2) "Because of her severe mental disorder, she represented a substantial danger of physical harm to others." The instruction further informed the jury, "Remission means that the external signs and symptoms of the severe mental disorder are controlled by either psychotropic medication or psychosocial support." The instruction reminded the jurors that the prosecution bore the burden of proving the elements beyond a reasonable doubt.
Thus, from CALCRIM No. 3456, the jury was informed that defendant only meets the criteria of an MDO if she was not in remission, i.e., if medication was not controlling her symptoms, and if she represented a danger to others. With the special instruction, defendant wanted the jury to know it was the prosecution's burden to prove (1) defendant will not take her medication, and (2) when unmedicated she represented a substantial danger to others.
CALCRIM No. 3456 instructs the jury to consider the issues presented in Noble. A separate instruction was not needed. If a jury found a defendant was likely to take her medication and that, as a result, she did not pose a danger to others, then the jury necessarily could not find the prosecutor proved, beyond a reasonable doubt, that defendant represented a substantial danger of physical harm to others. A defendant cannot simultaneously be found to (1) represent a substantial danger to others and, (2) likely to take medication and therefore not pose a risk to others due to being medicated. Accordingly, we conclude the trial court did not err because the special instruction was duplicative of CALCRIM No. 3456. (People v. Bolden, supra, 29 Cal.4th at p. 558 [an instruction that pinpoints a defense theory need not be given if it duplicates other instructions].)
B. EVIDENTIARY RULINGS
1. CONTENTION
Defendant contends the trial court erred in ruling on two motions in limine and 20 evidentiary objections made during trial.
2. MOTIONS IN LIMINE
In regard to the two motions in limine, in defendant's Appellant's Opening Brief she recounts the procedural history of the motions in limine, but provides nothing in the way of legal analysis. In defendant's brief, she explains that she moved in limine to prevent the prosecution's expert witnesses from (1) revealing the content of the hearsay upon which they relied in forming their opinions, and (2) testifying on questions of law. Defendant then recounts the parties' arguments and details the trial court's ruling denying the motions. Defendant has not offered a reasoned legal analysis as to why the trial court should have ruled differently. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 [appellant must present meaningful legal analysis].)
In defendant's Appellant's Reply Brief, she recounts Respondent's argument on appeal, and, in a single sentence, suggests this court "stand by its ruling in Baker." (People v. Baker (2012) 204 Cal.App.4th 1234 [Fourth Dist., Div. Two].) Defendant does not provide any details about Baker or explain why the decision should be followed. Due to defendant's failure to explain why the trial court erred in ruling on the two motions in limine, we deem the motions in limine issue to be waived. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [if appellant does not provide legal argument, the court may treat the issue as waived].)
3. RULINGS DURING TRIAL
(a) Dr. Su
(1) Other Evaluators' Conclusions
(i) Procedural History
The following exchange occurred during trial:
"[Prosecutor]: Now, what were the sources of information that you used to make an evaluation on 12-17?
"[Dr. Su]: I did not make a list of all the sources, but in my evaluation I do note that there were two MDO evaluations that had been completed in October and November. And both evaluators concluded that [defendant]
"[Defense Counsel]: Objection. Hearsay. Not that it's going to come in anyway.
"[Prosecutor]: It's the document she's relying on to form her opinion, your Honor.
"The Court: Overruled.
"[Dr. Su]: And the two evaluators concluded that [defendant] met all six criteria of MDO commitment."
(ii) Analysis
Defendant contends the trial court erred by permitting Dr. Su to testify that two other people who evaluated defendant concluded defendant was a mentally disordered offender. Defendant asserts, "Whatever the limits on admissibility of hearsay offered by experts to explain the basis of their opinion, it does not extend to the actual opinions of non-testifying experts."
Defendant does not explain what the rules are or offer meaningful analysis as to why Dr. Su's testimony was impermissible. Nevertheless, we will address this issue. "Mental health experts routinely rely on interview reports and observations of nontestifying experts. [Citations.] 'A qualified expert is entitled to render an opinion on the criteria necessary for an MDO commitment, and may base that opinion on information that is itself inadmissible hearsay if the information is reliable and of the type reasonably relied upon by experts on the subject. [Citations.] A trial court, however, may not admit an expert opinion based on information furnished by others that is speculative, conjectural, or otherwise fails to meet a threshold requirement of reliability.'" (People v. Nelson (2012) 209 Cal.App.4th 698, 707.)
The October and November evaluators whose conclusions Su testified about were presumably Trompetter and either Hoehing or White, who all testified at defendant's trial. There was nothing in the testimonies of Trompetter, Hoehing, and White that indicated the information relied upon by Su would have been unreliable. Accordingly, we conclude the trial court did not abuse its discretion in overruling defendant's objection. (See People v. Waidla (2000) 22 Cal.4th 690, 717 (Waidla) [abuse of discretion standard applies when reviewing a ruling on the admissibility of evidence].)
(2) Diagnostics and Statistic Manual of Mental Disorders (DSM)
(i) Procedural History
"[Defense Counsel]: Now, on the DSM-V—are you familiar with the DSM-V?
"[Dr. Su]: Not as familiar as with the DSM-IV.
"[Defense Counsel]: I understand. It's the newer version?
"[Dr. Su]: Sure.
"[Defense Counsel]: I know it's sometimes called the Bible for the psychology/psychiatric community. What is the DSM-V Diagnostic and Statistical Manual?
"[Dr. Su]: Yes, it is the manual that psychiatrists use to code mental disorders and to diagnose mental disorders.
"[Defense Counsel]: Thank you. And that book also talks about on page 743—has a rating scale for dementia, psychosis, and symptoms vary. Are you familiar with that?
"[Dr. Su]: Yes.
"[Defense Counsel]: Okay. Now, since I'm going to be asking you some questions, do you want a copy of the book?
"[Dr. Su]: Sure.
"[Defense Counsel]: Okay.
"[Dr. Su]: We're still in a transition period, you know.
"[Defense Counsel]: I know. I understand that. That's why I have both of them. I have heard that. Yes, I understand.
"[Prosecutor]: Your Honor, I'm going to object to foundation to the DSM-V. It just—it is established at this point the witness has expressed some concern about it. I would just object at this point as to foundation to the DSM-V.
"[Dr. Su]: At the time I did my evaluation, we were going by DSM-IV, so my assessment is based on the DSM-IV.
"The Court: It's only the DSM-IV we should be concerned about as to this particular witness. I'll sustain the objection in that sense."
(ii) Analysis
Defendant contends the trial court erred by sustaining the prosecutor's objection to defense counsel questioning Su about the DSM-V. Defendant asserts that, although Su testified she was more familiar with the DSM-IV than the DSM-V, and that she used the DSM-IV when evaluating defendant, there was no reason to limit questioning her about the DSM-V.
Expert witnesses may testify about their opinions and the matters upon which their opinions are based. (Evid. Code, § 802.) Su testified that her opinion was based upon the DSM-IV, in that she used the DSM-IV when evaluating defendant. Accordingly, given that Su's opinion was not based upon the DSM-V, the trial court's ruling was within the bounds of reason because it was reasonable to stop Su from testifying about material that did not help her in forming her opinion. (See Waidla, supra, 22 Cal.4th at p. 717 [abuse of discretion standard applies when reviewing a ruling on the admissibility of evidence].)
Evidence Code section 721 provides that an expert may not be cross-examined regarding the content of a professional text unless (1) the witness used the text in forming her opinion; (2) the text has been admitted into evidence; or (3) the text has been established as reliable authority by expert witness testimony or judicial notice. The prosecutor objected to defense counsel's questions about the DSM-V due to a lack of foundation. We note that, had a greater foundation been established about the DSM-V being a reliable authority, it is possible defense counsel could have properly questioned Su about the DSM-V, despite Su not having relied on the DSM-V when forming her opinion. (Evid. Code, § 721.)
(iii) Equal Treatment
Defendant contends the trial court erred three times by overruling her objections to the prosecutor's questions regarding the DSM-V, while sustaining the prosecutor's objections to defendant's questions regarding the DSM-V. Defendant asserts the trial court was inconsistent in its treatment of the defense and prosecution. Defendant cites no law in support of her argument so it is unclear if she is asserting (1) an error regarding the admissibility of evidence; (2) a constitutional violation; or (3) something else. Defendant essentially asserts the treatment was unfair, but fails to provide reasoning to give legal context to this assertion. Accordingly, we deem the issue to be waived. (Stanley, supra, 10 Cal.4th at p. 793 [if appellant does not provide legal argument, the court may treat the issue as waived].)
(3) Relevance
Defendant contends the trial court erred in sustaining the prosecutor's relevance objections to Su (1) giving an example of an extremely severe hallucination; (2) testifying about whether defendant was placed in Tarasoff restraints; and (3) testifying as to whether there is a consensus in the mental health community regarding the best method for assessing whether a person poses a danger to others.
Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425.
"The test of relevance is whether the evidence 'tends "logically, naturally, and by reasonable inference" to establish material facts . . . .'" (People v. Benavides (2005) 35 Cal.4th 69, 90 (Benavides).) We apply the abuse of discretion standard of review. (Waidla, supra, 22 Cal.4th at p. 717.)
Defendant contends the hallucination example was relevant because if defendant's "symptoms were less severe than other schizophrenics, it would support an argument that she was not dangerous." The issue to be decided was whether defendant represents a substantial danger of physical harm to others. (§ 2962, subd. (d)(1).) The hallucination example would not assist in proving defendant does not represent a danger to others because Su did not rate the severity of defendant's hallucinations, thus there were no means by which to make a comparison. Further, it would not be helpful for the jury to know defendant was perhaps suffering less severe hallucinations than others because the issue is not whether defendant is less dangerous than others or less ill than others. Since the evidence would not help to prove a material fact, we conclude the trial court's decision was within the bounds of reason.
Defendant contends the question about whether defendant was placed in restraints was relevant to proving defendant did not represent a danger to others. As explained ante, expert witnesses may testify about their opinions and the matters upon which their opinions are based. (Evid. Code, § 802.) The documentation upon which Su relied did not include information about Tarasoff restraints. Therefore, the trial court could reasonably conclude Su should not testify about Tarasoff restraints since it was not within the information upon which she based her opinion. Accordingly, we conclude the trial court did not err.
Defendant contends Su should have been permitted to testify about a consensus in the mental health community regarding the best method for assessing whether a person poses a danger to others, because Su testified about whether defendant represented a danger to others. The trial court sustained the objection on the grounds that the question went beyond the scope of Su's expert testimony, which was limited to the evaluation on December 17.
To the extent any error may have occurred regarding questions about a standardized methodology, such error was harmless. Hoehing, on cross-examination, testified about diagnosis, "risk of violation," the DSM, and determining the severity of an illness. Thus, defense counsel was able to question Hoehing about how mental health professionals arrive at their conclusions. As a result, any error in sustaining the objection during Su's testimony was harmless under either harmless error standard because the information was still available via Hoehing. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
(b) Dr. Hu
(1) Procedural History
Dr. Hu was the senior psychiatrist supervisor at the California Institution for Women, in Corona. As part of Hu's job, he responds to subpoenas by preparing documents. On direct examination by the prosecutor, Hu testified about the records that were used during defendant's trial, i.e., as a custodian of records. During cross-examination, defense counsel questioned Hu about medical treatment of mentally ill inmates. The following exchange occurred:
"[Prosecutor]: Your Honor, [defense counsel]—the Court has allowed [defense counsel] to delve pretty wide outside the scope. . . . For him to kick the door open and say he's talking about it, it's way beyond the scope and way beyond the purpose of him being called as a witness.
"[Defense Counsel]: I did say I was willing to make him my witness, which is perfectly acceptable.
"The Court: And you're going to inquire on the level of care, the level of care in the state prison system—right?
"[Defense Counsel]: Yes.
"The Court: —if you take him as your witness? Briefly, I'll allow you to do that."
As defense counsel questioned Hu, the following exchange occurred:
"[Defense Counsel]: [Y]ou might have someone who is self-medicating—say they have lithium in a facility. They didn't handle lithium, so they got, say, alcohol, and so they got alcohol instead. That kind of affects the same receptors, not all the same, but some of the same receptors; correct?
"[Prosecutor]: I'm going to object to the form of the question and leading.
"The Court: I'll sustain that.
"[Defense Counsel]: Now, the term 'self-medicating,' where does that come from?
"[Dr. Hu]: Self-medicating?
"[Defense Counsel]: Uh-huh.
"[Dr. Hu]: I don't know. I don't know the history of that term.
"[Defense Counsel]: But sometimes self-medicating—is it sometimes trying to ameliorate the effect of their mental illness by medication they can receive on the street?
"[Prosecutor]: Objection. Leading.
"The Court: I'll sustain it.
"[Defense Counsel]: No more questions at this time."
(2) Analysis
Defendant contends the trial court erred by sustaining the prosecutor's objections because it is permissible to ask leading questions during a cross-examination. Defendant contends she only took Hu as her own witness "for the limited purpose of asking questions about the level of care in the state prison system."
Except in special circumstances, where it is required by the interests of justice, "[a] leading question may not be asked of a witness on direct or redirect examination." (Evid. Code, § 767, subd. (a)(1).) We apply the abuse of discretion standard of review. (Waidla, supra, 22 Cal.4th at p. 717.)
During the prosecutor's direct examination, Hu was questioned as a custodian of records. At the time the prosecutor objected, defense counsel was questioning Hu about alcohol's affect on the human brain and the definition of self-medicating. Given that defense counsel was not questioning Hu about the documents he prepared, the trial court could reasonably conclude defense counsel was still treating Hu as a defense witness. (Evid. Code, § 761 [cross-examination is limited by the scope of the direct examination].) As a result, defense counsel was conducting a direct examination and leading questions were not permitted. (Evid. Code, § 767, subd. (a)(1).) Accordingly, we conclude the trial court did not abuse its discretion.
(c) Dr. Trompetter
(1) Argumentative Question
Defense counsel asked Trompetter, "Why is it—I always—you included—every time there's something negative to the evaluators or to my client, it's always believed, but ones—anything that helps my client is never believed?" The prosecutor objected to the question as being argumentative. The court sustained the objection.
Defendant contends the trial court erred by sustaining the objection because there are no means to question a witness about potential bias "without it sounding argumentative." Contrary to defendant's position, in order to establish bias, defense counsel could have asked Trompetter why he chose to reject the information that was favorable to defendant in a piece by piece manner, as opposed to creating a global accusation that comes across as argumentative. For example, defense counsel could have asked, "Why did you discredit X?" then "Why did you discredit Y?" then "Why did you discredit Z?" In sum, we conclude the trial court did not err.
(2) Relevance
Defense counsel asked Trompetter, "Now, can someone be in partial remission and not be dangerous?" The prosecutor objected on the basis of relevance. The trial court sustained the objection. Defendant contends the trial court erred by sustaining the objection because the question pertained to the relevant issue of dangerousness. Defendant cites no law in support of this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) [include citation to authority].) Thus, we deem the issue to be waived. (People v. Hardy (1992) 2 Cal.4th 86, 150 (Hardy) [failure to provide legal authority or legal argument waives the issue].) Nevertheless, for the sake of thoroughness, we will address the issue.
"The test of relevance is whether the evidence 'tends "logically, naturally, and by reasonable inference" to establish material facts . . . .'" (Benavides, supra, 35 Cal.4th at p. 90.) We apply the abuse of discretion standard of review. (Waidla, supra, 22 Cal.4th at p. 717.)
"Partial remission" is not relevant to an MDO analysis. The issue is whether the person has a severe mental disorder "that is not in remission or cannot be kept in remission without treatment." (§ 2962, subd. (a)(1).) Because defendant framed the dangerousness issue within the context of partial remission, the trial court could reasonably conclude such a line of questioning was irrelevant. Defendant combined a relevant issue with an irrelevant issue. While dangerousness may be relevant, partial remission is irrelevant. Accordingly, the trial court acted within the bounds of reason by sustaining the objection.
(d) Dr. Hoehing
(1) Procedural History
The following exchange occurred during defense counsel's cross-examination of Hoehing:
"[Defense Counsel]: Now—oh, could people with mental health issues become violent for reasons other than their mental health disease?
"[Prosecutor]: Objection. Relevance.
"[Defense Counsel]: He's opining [on] her dangerousness.
"The Court: [Prosecutor.]
"[Prosecutor]: The doctor gave the opinion that there's a connection between schizophrenia and her violation, past violent act. So that's—it's not—he didn't give an opinion as to other potential causes of other people, speaking of [defendant] in particular.
"The Court: I'll sustain the objection."
(2) Analysis
Defendant contends the trial court erred by sustaining the objection because "[t]he possibility of other explanations for [defendant's] violent behavior would be relevant evidence . . . ." Defendant cites no law in support of this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) [include citation to authority].) Thus, we deem the issue to be waived. (Hardy, supra, 2 Cal.4th at p. 150 [failure to provide legal authority or legal argument waives the issue].) Nevertheless, for the sake of thoroughness, we will address the issue.
The relevance rules have been cited ante, we do not repeat them here. The trial court properly sustained the objection because defense counsel did not ask if there were other causes for defendant's violent behavior, he asked if people with mental health issues might be violent for reasons other than their mental illness. The possible reasons for other people's violent behavior would not help decide an issue of material fact at defendant's trial. Thus, the question delved into an irrelevant issue. The trial court did not abuse its discretion.
(e) Dr. White
(1) Procedural History
During defense counsel's cross-examination of White, the following exchange occurred:
"[Defense Counsel]: One thing about subjective opinions, they aren't subject to—how do I say?—validation by empirical testing; correct?
"[Dr. White]: Correct.
"[Defense Counsel]: Now—so I take it you've never had a testing [sic] done to see how much—what your error rate is for your conclusions; correct?
"[Prosecutor]: Objection. Relevance.
"The Court: I'll sustain it.
"[Defense Counsel]: Accuracy of his opinions and conclusions would be relevant to determine
"The Court: I don't know if those test are even done. [Prosecutor.]
"[Prosecutor]: It's not—they aren't to my knowledge. They're not relevant. Counsel can bring in another expert to disagree, if he had one.
"[Defense Counsel]: Well
"[Prosecutor]: It's in the—his error rate is not tested, not been tested, not testable.
"[Defense Counsel]: Well, the idea that being a subjective opinion and the error rate is unknown. We don't know if it was 50 percent, 90 percent, 10 percent. That's something that should be explored, because we can't guarantee his—take his opinion as a given fact. We have to also
"The Court: Maybe I can ask. Are your opinions ever tested to see if they—things turn out the way you think they are going to turn out?
"[Dr. White]: No. Only with court cases and when I've testified and from my knowledge in MDO cases, my opinion has been supported.
"The Court: Okay.
"[Defense Counsel]: And you evaluated her report; correct?
"[Dr. White]: Correct.
"[Defense Counsel]: And what was the result of that evaluation?
"[Prosecutor]: Objection. Vague as to which crime, and what time period that that evaluation took place.
"[Defense Counsel]: When did you evaluate her for?
"[Prosecutor]: As to what crime, your Honor, but not to the point he was talking about today.
"The Court: Can you be more specific?
"[Defense Counsel]: Did you evaluate her in or around 2011?
"[Dr. White]: Yes.
"[Defense Counsel]: And being numerical display—I think it's 1 through 6 of how you felt—you opined as far as MDO criteria; correct?
"[Prosecutor]: Your Honor, this is not related to the crime that he's testifying to. So Counsel's trying to mix his evaluation of a prior crime with what he's assessed in a 2012 crime. It misstates what it is.
"[Defense Counsel]: He was stating his accuracy, if my memory serves, that maybe his accuracy—his prior conclusions don't match today, so I'm wondering about his accuracy.
"The Court: I'm afraid we're going to go down another road, so I'm going to sustain that objection. He's offering an opinion. That's subjective. I'm sure he's not God. I'm sure he's not batting a thousand. So move on to another area."
(2) Analysis
Defendant contends the trial court erred by sustaining the prosecutor's objection to defense counsel's question regarding White's prior evaluation of defendant.
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
The jury was tasked with determining whether defendant met the criteria of an MDO on January 27, 2014. Questioning White about an evaluation that occurred prior to the most recent evaluation for purposes of tracking his accuracy in a single patient's case would likely confuse the jury, especially since the prior offense also involved domestic violence (§ 273.5, subd. (a)). Further, in regard to probative value, defendant's condition in 2011 would not help the jury understand her condition in 2014. Additionally, if White's prior evaluation of defendant were incorrect, that does not mean his current evaluation is incorrect—one mistake would not necessarily make him unreliable. Accordingly, the trial court did not err.
(f) Johnson
(1) Charts
Defendant contends the trial court erred by sustaining the prosecutor's objection to defense counsel's questioning of Johnson about whether a prison inmate's refusal to take medication is normally included in the prisoner's chart. Defendant provides no record or legal citations in support of this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C) [provide record citations and citation to authority].) Thus, we deem the issue to be waived. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743 [failure to provide record citations waives the issue].)
On our own, we located the section of the record that defendant appears to be discussing. During defense counsel's cross-examination of Johnson, counsel asked whether defendant refused to take her medication while in prison. Johnson explained it was unclear whether defendant refused the medication. Counsel asked if that was something which is normally charted, the prosecutor objected, and the court sustained the objection.
Johnson worked at Patton State Hospital. Defense counsel was questioning Johnson about the procedures in a prison. The trial court could reasonably conclude Johnson should not answer questions about the procedures for a prison because Johnson did not work in a prison. Thus, the trial court did not abuse its discretion.
(2) Argumentative Question
(i) Procedural History
During defense counsel's cross-examination of Johnson, the following exchange occurred:
"[Dr. Johnson]: I only had the police reports that were made available to us by the Board of Parole.
"[Defense Counsel]: So the last one or the last two?
"[Dr. Johnson]: I'm sorry?
"[Defense Counsel]: You only had the last one and the last two; correct?
"[Dr. Johnson]: Last two of what?
"[Defense Counsel]: Police reports.
"[Dr. Johnson]: I'm not sure which police report—is the police report related to the controlling offense?
"[Defense Counsel]: So you had one?
"[Prosecutor]: Your Honor, it's argumentative. He said he doesn't remember how many reports he had.
"The Court: I'll sustain it."
(ii) Analysis
Defendant contends the trial court erred by sustaining the prosecutor's objection because counsel's question "does not, on its surface, appear argumentative." Defendant cites no law in support of this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) [include citation to authority].) Thus, we deem the issue to be waived. (Hardy, supra, 2 Cal.4th at p. 150 [failure to provide legal authority or legal argument waives the issue].) Nevertheless, for the sake of thoroughness, we will address the issue.
"The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment." (Evid. Code, § 765, subd. (a).) Johnson did not understand defense counsel's questions. Johnson asked defense counsel to what offense the police reports would be related, he asked "[I]s the police report related to the controlling offense[?]" Defense counsel did not answer the question, but again asked, "So you had one?" It was argumentative for counsel to repeat his question when Johnson expressed that he did not understand the subject matter of the question. Accordingly, the trial court's ruling was within the bounds of reason, i.e., the court did not abuse its discretion.
(3) Side Effects
(i) Procedural History
During the cross-examination of Johnson, the following exchange occurred:
"[Defense Counsel]: Now, do you know what medications my client was prescribed at the time of any of those crimes?
"[Dr. Johnson]: No, I don't.
"[Defense Counsel]: So different medication cases have different side effects; correct?
"[Dr. Johnson]: Correct.
"[Defense Counsel]: And so at the time she might have been on something that had a more severe side effect for her—correct?—than her present medication regime; correct?
"[Prosecutor]: It calls for speculation. He has no idea. It would be pure speculation.
"The Court: I'll sustain it."
(ii) Analysis
Defendant contends the trial court erred in sustaining the objection because "[i]t is fact" "that some antipsychotic medication have [sic] more severe side effects than the medications [defendant] was taking in the state hospital." Defendant cites no law in support of this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) [include citation to authority].) Thus, we deem the issue to be waived. (Hardy, supra, 2 Cal.4th at p. 150 [failure to provide legal authority or legal argument waives the issue].) Nevertheless, for the sake of thoroughness, we will address the issue.
"'If the inference of the existence or nonexistence of a disputed fact which is to be drawn from proffered evidence is based on speculation, conjecture, or surmise, the proffered evidence cannot be considered relevant evidence.'" (People v. Louie (1984) 158 Cal.App.3d Supp. 28, 47, italics omitted.) The trial court correctly sustained the objection because Johnson had no means of knowing if defendant was actually taking whatever medication may have been prescribed to her at the time of her offenses. Defense counsel asked Johnson if defendant "might have been on something that had a more severe side effect." There were no means by which Johnson could have known what defendant "was on." Even if Johnson knew what defendant had been prescribed, he could not have known if she was taking the medication. The trial court did not err.
(4) Actuarial Instruments
(i) Procedural History
Johnson testified that he did not use any actuarial instruments in his evaluation of defendant. Johnson said he had some training on how to use actuarial instruments and "learn[s] as [h]e go[es] along." Defense counsel asked if Johnson's opinion regarding defendant was subjective because actuarial instruments were not used in the evaluation. The prosecutor objected, and the trial court overruled the objection. Johnson explained that his opinion was based on "the data that's available," but asked what defense counsel meant by "subjective." The following exchange occurred:
"[Defense Counsel]: Well, it's my opinion—but I don't have a standard weight model in which to weigh the evidence. So someone like you might weigh one piece of evidence, like a hundred pounds, just for a number; another might give it 200 pounds. Another evaluator thinks it's not worth anything.
"[Prosecutor]: Again, argumentative. It's not relevant. It's how he evaluated the evidence. It's his assessment, not what somebody else would in comparison. It's not a trial of comparative analysis. I object to it.
"The Court: I'll sustain the objection.
"[Defense Counsel]: Now, actuarial instruments published for the mental health community to administer to the patient, are these—these are what's called validating instruments?
"[Prosecutor]: Objection. Relevance.
"The Court: I'll sustain it.
"[Defense Counsel]: Well, these instruments are—they study their effectiveness and accuracy; correct.
"[Prosecutor]: Objection. Again, relevance.
"The Court: Well, they weren't used here.
"[Defense Counsel]: Pardon?
"The Court: I'll have to sustain the objection on relevance grounds."
(ii) Analysis
Defendant contends the trial court erred in sustaining the objection because information about actuarial instruments was relevant to showing Johnson's opinion was subjective. Defendant cites no law in support of this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) [include citation to authority].) Thus, we deem the issue to be waived. (Hardy, supra, 2 Cal.4th at p. 150 [failure to provide legal authority or legal argument waives the issue].) However, for the sake of thoroughness, we address the issue.
"The test of relevance is whether the evidence 'tends "logically, naturally, and by reasonable inference" to establish material facts . . . .'" (Benavides, supra, 35 Cal.4th at p. 90.) We apply the abuse of discretion standard of review. (Waidla, supra, 22 Cal.4th at p. 717.)
The trial court could reasonably conclude that questioning Johnson about the details of what he did not use in evaluating defendant would not help establish a material fact. Rather, if defense counsel wanted to establish that Johnson's opinion was subjective, then counsel should have examined how Johnson did go about forming his opinion. Because counsel chose to examine the details of what did not happen in this case, the trial court could reasonably conclude the information would not assist in establishing an issue of material fact. Accordingly, we conclude the trial court did not abuse its discretion.
(5) Records and Return to Prison
Defendant contends the trial court erred by sustaining objections to questions regarding (1) whether the Department of State Hospitals kept records for the purpose of evaluating the accuracy of the evaluators' conclusions; and (2) whether patients who were overwhelmingly violent could be returned to prison from a state hospital. Defendant cites no law in support of these assertions. (Cal. Rules of Court, rule 8.204(a)(1)(B) [include citation to authority] She also fails to provide record citations in her Appellant's Opening Brief. We deem the issues to be waived. (Hardy, supra, 2 Cal.4th at p. 150 [failure to provide legal authority or legal argument waives the issue]; Miller v. Superior Court, supra, 101 Cal.App.4th at p. 743 [failure to provide record citations waives the issue].)
(6) Drug-Seeking
(i) Procedural History
During the cross-examination of Johnson, the following exchange occurred:
"[Defense Counsel]: Was she ever found in possession of drugs?
"[Dr. Johnson]: No, she was not.
"[Defense Counsel]: Was she ever found in possession of drug paraphernalia like [a] smoking pipe [or] anything like that?
"[Dr. Johnson]: While she was on the unit, no.
"[Defense Counsel]: Did she ever engage in drug-seeking behaviors while she was on your unit?
"[Dr. Johnson]: No.
"[Prosecutor]: Again
"[Defense Counsel]: Can you explain drug-seeking behaviors[?]
"[Prosecutor]: I'm going to object to relevance.
"The Court: I'll sustain that objection."
(ii) Analysis
Defendant contends the trial court erred by sustaining an objection to defense counsel asking Johnson to define the term "drug-seeking behaviors" after Johnson testified defendant did not display drug-seeking behaviors. Defendant cites no law in support of this assertion. (Cal. Rules of Court, rule 8.204(a)(1)(B) [include citation to authority].) Thus, we deem the issue to be waived. (Hardy, supra, 2 Cal.4th at p. 150 [failure to provide legal authority or legal argument waives the issue].) Nevertheless, for the sake of thoroughness, we will address the issue.
Defendant contends the definition of drug-seeking was relevant to showing defendant behaved appropriately while at Patton State Hospital. To the extent there was any error, such error was harmless. The evidence that defendant did not have drugs and drug paraphernalia in her possession would support a finding that defendant acted appropriately regarding illegal drugs while at the hospital. Further questioning about the details of drug-seeking behavior would not have enhanced the jury's understanding of whether defendant posed a danger or was in remission. The primary point, which was made, was that defendant was not abusing drugs while in Patton. Accordingly, under either standard of prejudice, we conclude any error was harmless. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)
(7) Conclusion
In conclusion, two possible errors the trial court made in ruling on the evidentiary objections were harmless. As to defendant's other contentions regarding rulings on evidentiary objections, we conclude the trial court did not err and/or that defendant waived the issues.
C. EXHIBITS
1. CONTENTION
Defendant contends the trial court erred by admitting Exhibit Nos. 10, 11, 12, 13, and 17. Defendant asserts portions of those five exhibits contained inadmissible hearsay.
2. LIST OF EXHIBITS
Exhibit No. 10 is an October 11, 2013, "Mental Health Evaluation" of defendant completed by Hoehing. Exhibit No. 11 is "Interdisciplinary Progress Notes" from a "Routine Initial Psychiatric Evaluation" of defendant dated October 16, 2013. Exhibit No. 12 is a February 26, 2011, "Rules Violation Report" concerning defendant. Exhibit No. 13 is a May 18, 2011, "Rules Violation Report" concerning defendant. Exhibit No. 17 is an "Inmate Profile" of defendant from the Department of Corrections and Rehabilitation.
3. EXHIBIT NO. 10
(a) Procedural History
Prior to trial, the prosecutor moved to introduce Hoehing's evaluation of defendant (Exhibit No. 10) under the official records exception to the hearsay rule. (Evid. Code, § 1280.) Defense counsel objected. Defense counsel asserted Hoehing relied on various sources of information when writing the evaluation report, so the report contained information about events that were not observed by Hoehing, and thus, could not qualify for the official records hearsay exception. The prosecutor asserted the underlying sources of information did not cause the document to be inadmissible because Hoehing could testify about the sources on direct examination. (Evid. Code, § 802.) The trial court ruled that Exhibit No. 10 met the threshold for being a business record, and said it was defense counsel's responsibility to cross-examine Hoehing as to the sources he used in forming his opinion.
(b) Analysis
Defendant contends the trial court erred by admitting portions of Exhibit No. 10 that included events or information not observed by Hoehing. Specifically, defendant contends the following portions of Exhibit No. 10 are troublesome: (1) the diagnoses of schizophrenia, paranoid type, and amphetamine dependence because those diagnoses are not acts, conditions, or events; and (2) notes regarding the medications defendant was taking.
We apply the abuse of discretion standard of review. (Waidla, supra, 22 Cal.4th at p. 717.) Evidence Code section 1280 provides, "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
As to the schizophrenia, paranoid type, diagnosis, Hoehing testified that during his interview with defendant she was turning around and hushing a person or people that she believed she heard behind her—there was no one behind her. Hoehing explained this was typical of a person having an auditory hallucination. Hoehing personally observed defendant's behavior, which led him to his diagnosis. Given that defendant was exhibiting symptoms of schizophrenia, and Hoehing personally observed that behavior, the trial court could reasonably conclude the diagnosis of schizophrenia falls within the categories of an act, condition, or event observed by Hoehing. Therefore, the trial court did not abuse its discretion.
In regard to the medications defendant was prescribed, Su and Johnson both testified as to the medications defendant was taking. "When hearsay is admitted from other sources, expert witnesses are 'not precluded from reiterating the same facts during their direct examinations.'" (People v. Nelson, supra, 209 Cal.App.4th at p. 708.) This goes more to the point that any error in including the medication was harmless under either standard because the jury was aware of defendant's medication information from the testimonies of Su and Johnson. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)
4. EXHIBIT NO. 11
Exhibit No. 11 is "Interdisciplinary Progress Notes" from a "Routine Initial Psychiatric Evaluation" of defendant dated October 16, 2013. Hoehing testified that the signature on the document belongs to Dr. Brar. Defendant concedes that, because Dr. Brar is presumably a government employee, "the document potentially fits within the hearsay exception." We infer defendant is referring to the official records exception (Evid. Code, § 1280), but defendant does not provide a citation to authority.
Defendant goes on to assert the document "contains information that does not fit within the exceptions including matters that Brar could not have personally observed or Brar's opinions which do not qualify as act[s], conditions, or events." Defendant does not specify what portion(s) of the document may be troublesome. Because defendant has not explained what portion of the document is allegedly problematic and why it should have been excluded, we deem the issue to be waived. (Stanley, supra, 10 Cal.4th at p. 793 [if appellant does not provide legal argument, the court may treat the issue as waived].)
5. EXHIBIT NO. 12
Exhibit No. 12 is a February 26, 2011, "Rules Violation Report" from a state prison. The report is written by Correctional Officer Reynolds. In the report, Reynolds explained that s/he "heard a loud bang coming from C-wing." Reynolds went to C-wing and saw defendant banging on "the front door window." Reynolds questioned the inmates about the incident. Inmate Gatson, referring to defendant, said, "'She's just a crazy bi[t]ch! She's always banging on the windows!'" Defendant proceeded to attack Gatson.
Defendant contends Gatson's statement was inadmissible. Gatson's statements were admissible not for the truth of the matter asserted, but for the effect they had on the listener because the statements are presumably what triggered defendant to physically attack Gatson. In other words, it was not Gatson's statement that was the relevant fact sought to be proved, it was defendant's reaction to the statement that was sought to be established as true. (People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [effect on the listener].)
Defendant contends another portion of Exhibit No. 12 was inadmissible, that portion reads, "The issues are not complex and [defendant's] TABE Score Reading Level is 5.4." Defendant is correct that the sentence at issue does not reflect an act, condition, or event. (Evid. Code, § 1280.) To the extent the trial court erred, we conclude the error was harmless. Defendant's reading level, assuming the jury was familiar with the TABE scale and understood the score, was not relevant to establishing a material fact. If defendant's reading level were high or low, it would not impact a finding as to whether she is an MDO. In other words, it was neutral information and therefore harmless. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)
Reynolds's conclusion that the issues were not complex is harmless because the statement is vague. Reynolds wrote, "[Defendant's] behavior is not considered bizarre, unusual or uncharacteristic; therefore, a Mental Health Assessment Request was not completed. The issues are not complex and [defendant]'s TABE Score Reading Level is 5.4; therefore, the SHO determined that [defendant] would not benefit from the services of a Staff Assistant." It is unclear what "issues" Reynolds found to be simple. It could be the rule violation case, it could be defendant's mental state, it could be something else. In context, the statement reads as though defendant is not mentally ill, and the matter can be easily resolved without any follow-up. Such a statement is favorable to defendant's MDO case, and therefore not prejudicial. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)
6. EXHIBIT NO. 13
Exhibit No. 13 is a May 18, 2011, "Rules Violation Report" from a state prison. The report was written by Correctional Sergeant Dawson. Dawson responded to a radio transmission concerning a fight. When Dawson arrived s/he saw defendant and Inmate Ship being escorted out of Room 1. Correctional Officer Brizendine told Dawson that defendant claimed to have been struck with a cup by Inmate Ship. Defendant said Ship was helping defendant clean her locker, and then Ship threw away some of defendant's property. Defendant became upset, struck Ship's face, and Ship hit defendant with a cup. Ship said defendant had spoiled food in her locker, Ship threw the food away, and defendant "'went crazy and hit [Ship] in the eye.'" Ship admitted defending herself by fighting back. Other inmates denied witnessing the fight. A cup was not found. Dawson could not substantiate the cup allegation. A medical evaluation reflected defendant had a one and a half inch cut on the side of her head, and Ship had a swollen eye and abrasions on her neck.
Defendant contends the trial court erred by admitting portions of Exhibit No. 13 because (1) "portions of it . . . consist of hearsay information repeated by another individual"; (2) Dawson "discounted" defendant's cup allegation; and (3) it appears Dawson did not witness defendant's and Ship's injuries. In regard to hearsay by another individual, it is unclear to what portion of the exhibit defendant is objecting—the statement by Ship, the statement by defendant, and/or the statement by Brizendine. Due to the lack of clarity and analysis, we deem the issue to be waived. (Stanley, supra, 10 Cal.4th at p. 793 [if appellant does not provide legal argument, the court may treat the issue as waived].)
As to Dawson "discounting" defendant's cup allegation, we disagree that Dawson did such. The report reflects Dawson had staff search for the cup but the cup could not be found and therefore Dawson could not "substantiate that [defendant] was battered with a cup." Dawson's statement reflects that s/he found defendant's version of the events to be sufficiently believable to have staff look for the cup. Moreover, Ship admitted defending herself against defendant by "'fight[ing] back,'" so it was reasonably possible that defendant was struck with a cup. The only issue was that the cup could not be found. Accordingly, we are not persuaded that an error occurred in regard to admitting evidence wherein defendant's version of the events was discounted.
In regard to the injuries, Dawson saw defendant and Ship being escorted out of the room. Thus, Dawson very well could have seen defendant's and Ship's injuries, but chose to be more precise in his/her description by citing to the medical evaluation. In other words, it can be said that Dawson saw the injuries, and therefore, we conclude the trial court did not abuse its discretion.
7. EXHIBIT NO. 17
Exhibit No. 17 is an "Inmate Profile" of defendant from the Department of Corrections and Rehabilitation. Defendant concedes the exhibit was relevant and admissible to show defendant received 90 days of treatment—at least 90 days of treatment is an element of finding a person to be an MDO (§ 2962, subd. (d)(1)). Penitentiary or state hospital records are admissible to prove a prisoner received 90 days or more of treatment. (§ 2981.)
Defendant contends the trial court erred by admitting the "Inmate Profile" because it includes information about defendant's "diagnosis, mental health, and pharmacy information." Defendant asserts these items were not acts, conditions, or events. (Evid. Code, § 1280.) Defendant is correct. Nevertheless, the document could have been properly admitted under Penal Code section 2981. The diagnosis and other information were pertinent to showing for what purpose(s) defendant received at least 90 days of treatment. Accordingly, we conclude the trial court did not err. (See People v. Rogers (2009) 46 Cal.4th 1136, 1162, fn. 14 [we affirm if the trial court's ruling is correct on any ground].)
D. CUMULATIVE ERROR
Defendant contends the trial court's evidentiary errors were cumulatively prejudicial. We have found four errors that were harmless: (1)(a) Su not being permitted to testify about a consensus in the mental health community regarding the best method for assessing whether a person poses a danger to others, (1)(b) it was harmless because Hoehing testified about how mental health professionals arrive at their conclusions; (2)(a) Johnson not being permitted to define the term "drug-seeking behaviors" after Johnson testified defendant did not display drug-seeking behaviors, (2)(b) it was harmless because defendant elicited evidence on the primary point, which was that defendant was not abusing drugs while in the hospital; (3)(a) admitting the portion of Exhibit No. 10 that included defendant's medication information; (3)(b) the error was harmless because Su and Johnson both testified as to the medications defendant was taking; and (4)(a) admitting the portion of Exhibit No. 12 that read, "The issues are not complex and [defendant's] TABE Score Reading Level is 5.4"; (4)(b) it was harmless because defendant's reading level is irrelevant and neutral information, and the portion about the simplicity of the issues is favorable to defendant or, at the very least, unclear.
"'[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) The errors we have found were independently harmless. When combined together they do not rise to the level of prejudicial error—defendant's trial was not error free, but it was fair. (Ibid. ["Defendant was entitled to a fair trial but not a perfect one"].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. KING
J.