Opinion
A150197
11-14-2017
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ROLLINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 163798)
Christopher Rollins appeals from an order, following a bench trial, sustaining a petition to extend his commitment as a mentally disordered offender (MDO). He contends that the trial court erred when it failed to obtain his personal waiver of a jury trial before commencing trial and obtained the waiver midtrial without a proper advisement of his right to a jury, and in admitting a hospital report containing substantial hearsay evidence. We conclude there were errors in both respects but that neither requires reversal of the court's order.
Background
Following the service of a prison sentence for grand theft from the person, appellant was originally certified as an MDO in April 1998. His commitment was first extended in March 2002, following a jury trial, and numerous times thereafter following trial waivers and stipulations to the extensions. In 2014 he was released from the hospital under the Conditional Release Program (CONREP) but was returned to the hospital after a few months when his symptoms worsened and he became threatening to staff and displayed "hypomanic or mood instability."
The order was affirmed by this court. (Jan. 28, 2003, A098220 [nonpub. opn.].)
On February 1, 2016, the instant petition was filed pursuant to Penal Code section 2970 to further extend appellant's commitment. The same day, trial counsel was appointed. Appellant was not present at that time or at any of the several hearings that preceded the start of trial in November. At a hearing on February 29, 2016, counsel advised the court that appellant wanted a trial but that he did not know if he demanded a jury. At hearings in May and August counsel and the court discussed setting the matter for a jury trial, and on August 26 counsel advised the court that appellant requested a jury trial. However, on October 20, 2016, counsel advised the court that appellant was then requesting a court trial, and the matter was set for trial on November 16.
All statutory references are to the Penal Code unless otherwise indicated.
When the case was called on November 16, 2016, with appellant present, the court asked whether both sides were ready to proceed, both counsel responded affirmatively, and the court asked the prosecutor to call his first witness, which he did. Two witnesses then testified for the prosecution—Dr. Farah Pathan and Dr. Jennifer Paulson—and both were cross-examined by appellant's attorney. The People then rested and counsel advised the court that appellant wished to testify. The court asked appellant to come forward and the following colloquy occurred: "The court: . . . I know that you wanted to have a trial before this court. Do we have to put that on the record that he waived that jury trial, or has it been done? [¶] [Appellant's counsel]: I don't know that we do. But that was the representation. [¶] The court: Mr. Rollins, you waived the jury? [¶] [Appellant]: Yes, I waive the jury. It's a long time and too much money." Appellant was then sworn and the trial proceeded.
Dr. Pathan, who was appellant's former psychiatrist, and Dr. Paulson, his then-current psychologist, both testified that appellant had "schizoaffective disorder, bipolar type," a severe mental disorder that involved schizophrenia, hallucinations, "auditory visual tactile paranoid suspiciousness," "super imposed moods," depression and mania. Appellant was not in remission because he currently exhibited paranoid delusions, suspiciousness, mood liability, and disorganized thinking. At times he was aggressive and both doctors believed that he presented a danger of physical harm to others. Both pointed out that appellant had recently failed to complete a written relapse prevention plan, which is required before a patient may be sent to the discharge unit. Both doctors based their opinions on their personal observations and a review of appellant's medical records. During Dr. Pathan's testimony, over appellant's objection the court received, for the purpose of evaluating her opinion and not for the truth of the matters stated, a five-page document entitled "Assessment/Conferences/Evaluations/Reports" that was prepared by hospital staff to support the request for renewal of appellant's commitment. With the same understanding of its limited purpose, the court also permitted Dr. Pathan to refer to and partially describe aggressive incidents included in the report.
Appellant testified and acknowledged that he had a mental disorder, schizoaffective bipolar, but stated he understood the need for medication and would follow his doctor's orders whether or not he was in the hospital. If released he planned to stay with his mother until he received supplemental security income, and then planned to stay with a friend with whom he had previously been in CONREP. Both appellant's mother and the friend testified in support of appellant's ability to safely leave the hospital.
At the conclusion of the hearing, the court explained its decision. "First and foremost, it's good to see the mother and friends here. These are very difficult decisions to make and particularly in this area of law. [¶] . . . [T]he court also is very fortunate to have Mr. Rollins testify and to talk about what he's trying to gain and what he's trying to do. However, at this time I've heard the evidence, I've heard the witnesses who were called in who provided their opinions. The court at this time finds that the People's extension for petition [sic] to be true beyond a reasonable doubt, that Mr. Rollins does suffer from severe mental disorder and that his severe mental disorder is not in remission without treatment based on testimony of both physicians in this case: the doctor and the psychologist. And it can't be kept in remission without the treatment, and as the psychologist said, under a secured environment that he's currently in, if I'm not mistaken. And by reason of the severe mental disorder, the patient represents a substantial danger of physical harm to others. Therefore the defendant's commitment to the state hospital is extended by one year . . . ."
Appellant has timely appealed.
Discussion
1. Reversal is not required by the court's failure to properly obtain appellant's waiver of a jury trial.
Section 2972, subdivision (a) provides that in a hearing on a petition under section 2970, "The court shall advise the person of his or her right to be represented by an attorney and of the right to a jury trial." In People v. Blackburn (2015) 61 Cal.4th 1113, 1116, our Supreme Court concluded the trial court "must advise the MDO defendant personally of his or her right to a jury trial and, before holding a bench trial, must obtain a personal waiver of that right from the defendant" unless there is substantial evidence that the defendant lacks the capacity to make a knowing and voluntary waiver.
It is readily apparent that the trial court in this case failed to comply with these requirements in at least two respects. Although confirming with the defendant personally that he waived a jury, the court did so midtrial, after the People had presented its case and rested, and not before the start of trial as it should have done. Secondly, the court failed to make the necessary advisements on the record and ensure that appellant's waiver was knowing and voluntary. Indeed, counsel argues that appellant's response to the court, that jury trial takes "a long time and too much money" should have prompted the court to inquire whether appellant understood that he would not bear the costs of a jury trial and that his waiver was not based on any misunderstandings.
Despite these deficiencies, we do not believe that appellant was prejudiced or that a reversal is required. While the Supreme Court has recognized that "[t]he failure to obtain a valid jury trial waiver defies ordinary harmless error analysis" (People v. Blackburn, supra, 61 Cal.4th at p. 1134), and that "the total deprivation of a jury trial without a valid waiver in an MDO commitment proceeding requires automatic reversal," (id. at p. 1135) there was no such "total deprivation" here. Although defendant did not personally confirm his waiver before the start of trial, he did in fact personally confirm his waiver while the proceedings were in progress. And while the court did not take the necessary steps to confirm his waiver was knowingly made, as it should have done, that omission was not necessarily fatal. In People v. Blackburn the Supreme Court also held: "a trial court's failure to properly advise an MDO defendant of the right to a jury trial does not by itself warrant automatic reversal. Instead, a trial court's acceptance of a defendant's personal waiver without an express advisement may be deemed harmless if the record affirmatively shows, based on the totality of the circumstances, that the defendant's waiver was knowing and voluntary." (Id. at p. 1136.)
Under the circumstances of this case, it is apparent that appellant's waiver was both knowing and voluntary. When asked by the court, he immediately and without hesitation responded that he waived a jury. This was consistent with the prior reports from his attorney that he had first indicated his desire for a jury trial, then changed his mind, certainly indicating awareness of his right to a jury. While it is not entirely clear whose costs appellant was referring to when he responded that jury trial involves "too much money," his apparent concern was the additional time required for a jury trial. Moreover, defendant had previously had his commitment extended in a jury trial and several times thereafter had signed written waivers confirming that he had been advised by his appointed counsel that he had "the right to a court trial or a jury trial to determine whether my commitment should be extended." Unlike the facts in the recent case of People v. Blancett (2017) 15 Cal.App.5th 1200, the record here indicates that appellant waived his right to a jury trial knowingly and voluntarily.
In People v. Blancett, the Court of Appeal held that the trial court's failure to properly advise the defendant of his "right to, and the attributes of a jury trial prior to accepting his jury trial waiver" (15 Cal.App.5th at p. 1204) required reversal of the defendant's commitment. However, that "was Blancett's initial MDO commitment and the record does not suggest that Blancett was familiar with MDO proceedings or that he was aware that he was entitled to jury trial." (Id. at p. 1206.) "In view of the trial court's stark colloquy, the lack of evidence that Blancett discussed his jury trial right and waiver with counsel, Blancett's inexperience with the criminal justice system, and Blancett's lack of familiarity with MDO proceedings" the appellate court concluded that his waiver was not knowing and intelligent. (Id. at pp. 1206-1207.)
2. The admission of hearsay contrary to an intervening Supreme Court decision was harmless and does not require reversal.
During the direct examination of Dr. Pathan, the doctor referred to and read from the "Assessment/Conferences/Evaluations/Reports" prepared by hospital staff to support the request for renewal of appellant's commitment. The testimony included descriptions of particular acts of violence. Counsel objected to the testimony as hearsay but appeared to withdraw the objection when the court indicated the testimony would not be considered for the truth of the matters stated but only for the purpose of evaluating the basis for the doctor's opinion. Ultimately the report itself, which also included the opinion of other doctors that appellant "has a severe mental disorder . . . [that] is not in remission as evidenced by signs and symptoms of severe mental disorder not controlled by either medications or psychosocial support," was admitted with the same understanding that the court was "not taking the statements for the truth of the matter asserted."
Although the court's rulings were consistent with prior interpretations of California law as of the time of trial, the Supreme Court's subsequent decision in People v. Sanchez (2016) 63 Cal.4th 665 changed that understanding. The court ruled: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause [under the Sixth Amendment to the federal Constitution] violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (63 Cal.4th at p. 686, fn. omitted.)
Under the ruling in Sanchez it is clear that the trial court erred in admitting, assertedly not for the truth of the statements, Dr. Patham's testimony of case-specific facts concerning appellant's prior incidents of violence, and the non-contemporaneous report prepared for the purpose of litigation relating such facts. We reject several of the arguments made by the Attorney General in defense of the trial court's ruling—that the statements were based on admissible hearsay, and that defendant forfeited the error by withdrawing his objection—but we do agree that the error was harmless under any standard.
While Dr. Patham did read some specifics from the pre-litigation report, she made clear in her testimony that her opinion concerning appellant's mental condition was based on her personal observations of appellant as his treating psychiatrist from November 2015 to August 2016 and her interview of appellant days before trial, and on her review of appellant's contemporaneous hospital records that reflected his prior acts of violence. Dr. Patham's opinions were confirmed by the testimony of Dr. Paulson, appellant's then-current psychologist, who made no reference to the pre-litigation report. Both doctors agreed that appellant's mental disorder was not in remission because he currently exhibited paranoid delusions, suspiciousness, mood liability, and disorganized thinking, and that appellant had failed to complete his relapse prevention plan, which in itself is "grounds for a finding that he cannot be kept in remission without treatment." (People v. Beeson (2002) 99 Cal.App.4th 1393, 1400.) Indeed the evidence was that appellant himself acknowledged his continuing paranoia. Moreover, appellant called no expert who disagreed with the opinions of the People's two experts. Their opinions that if not hospitalized appellant would still present a substantial danger to others was uncontradicted. There can be little doubt that exclusion of the evidence rendered inadmissible by Sanchez would not have affected the outcome of the proceedings.
Although the pre-litigation report does contain similar opinions of other doctors, the court made clear that it was not relying on any such opinions. --------
Disposition
The order extending appellant's commitment for one year is affirmed.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.