Opinion
F069658
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. SABRINA STEPHAN, Defendant and Appellant.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Madera Super. Ct. Nos. MCR031700 & MMH00215)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Sabrina Stephan, a state prison inmate, was charged with committing a battery on a nonconfined person (Pen. Code, §4501.5). In 2009, appellant pleaded guilty to the charged offense, and also pleaded not guilty by reason of insanity and submitted the matter on experts' reports, which stated she suffered from schizophrenia and delusions.
According to the transcript in this case, appellant is also known as Aunhellica Valinzuela.
All further statutory citations are to the Penal Code unless otherwise indicated.
The court accepted her guilty plea to the charged offense, reviewed the reports, and found she was not guilty by reason of insanity. The court committed appellant to Patton State Hospital (Patton) for the maximum term of four years for the violation of section 4501.5.
As we will discuss below, a person committed to a state hospital after being found not guilty by reason of insanity may be kept in custody no longer than the maximum term of commitment. (§ 1026.5, subd. (a)(1).) Such a person is subject to an extension of his or her commitment if "the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1).) Section 1026.5, subdivision (b)(1) has been interpreted as requiring proof that a person under commitment has serious difficulty controlling dangerous behavior. (In re Howard N. (2005) 35 Cal.4th 117, 132-135 (Howard N.); People v. Zapisek (2007) 147 Cal.App.4th 1151, 1159-1160; People v. Galindo (2006) 142 Cal.App.4th 531, 536-539; People v. Bowers (2006) 145 Cal.App.4th 870, 878 (Bowers).)
Upon the People filing a petition for extension of commitment, the person named in the petition has a right to be represented by counsel and to a jury trial. If the allegations of the petition are found true by the finder of fact, the person will be recommitted for an additional period of two years from the date of termination of the previous commitment. (People v. Zapisek, supra, 147 Cal.App.4th at p. 1159.)
Whether the People have proved the allegations of the petition is a question of fact for the court or jury, to be resolved with the assistance of expert testimony. (People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 204-205, 215; Bowers, supra, 145 Cal.App.4th at pp. 878-879.) Appellate review is based upon the substantial evidence test. A single psychiatric opinion that an individual is dangerous because of a mental disorder constitutes substantial evidence to support an extension of the defendant's commitment under section 1026.5. (Bowers, supra, 145 Cal.App.4th at pp. 878-879; People v. Zapisek, supra, 147 Cal.App.4th at p. 1165.)
As applied to appellant, the People filed a petition in 2012 to extend appellant's commitment for two years pursuant to section 1026.5, subdivision (b), and alleged appellant posed a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. Appellant waived her right to a jury trial and her appearance, and submitted the matter on an expert's report. The court found the petition true and extended appellant's commitment for two years to 2014.
The instant appeal is based on the People's second petition to extend appellant's commitment, which was filed in 2014, and again alleged appellant posed a substantial danger of physical harm to others by reason of a mental disease, defect, or disorder. Appellant requested a contested hearing before a jury.
At the hearing, the People introduced the testimony of two members of appellant's treatment team from Patton: a psychologist and a licensed clinical social worker. Appellant did not testify or call any witnesses. The jury found the petition's allegations true, and the court extended appellant's commitment for another two years, to July 28, 2016.
On appeal, appellant contends that at the 2014 contested hearing, the court improperly permitted the licensed clinical social worker to testify as an expert on appellant's mental health condition and whether she posed a substantial danger of physical harm. Appellant argues the court's error was prejudicial because the social worker's expert testimony was inadmissible and improperly bolstered the alleged "weak" testimony provided by the treating psychologist. Appellant further argues that when the social worker's expert testimony is set aside, the psychologist's testimony is insufficient to support the jury's finding on the petition.
As we will explain, the instant appeal is moot. Nevertheless, we find that the court's decision to allow the social worker to testify as an expert was not prejudicial, and the jury's finding is supported by substantial evidence.
PROCEDURAL HISTORY
Criminal Complaint
On or about January 28, 2008, appellant was an inmate at the Central California Women's Facility in Chowchilla. Appellant was removed from her cell and taken to an examination room for a mental health evaluation because she was crying, showing signs of acute emotional distress, paranoid, and suffering auditory and visual hallucinations that her children were being tortured. While in the examination room, she spit upon a prison nurse.
According to the experts' reports in this case, appellant was in prison because she stabbed a man at a homeless shelter, and she was convicted of assault with a deadly weapon.
Appellant had three children but had not seen or had contact with them for several years. The record implies that another family member had custody of the children.
Based on this incident, a complaint was filed in the Superior Court of Madera County on April 25, 2008, alleging that appellant, a person confined in state prison, committed a battery on a nonconfined person (§ 4501.5). Section 1368 Competency Proceedings
During pretrial proceedings in 2008, the court declared a doubt as to appellant's competency, suspended criminal proceedings, and appointed experts to examine her.
On or about July 29, 2008, the court found appellant was not competent to stand trial based on the experts' reports that she was bipolar, and she suffered psychotic symptoms, and auditory and paranoid hallucinations. The court ordered her committed to Patton until she was restored to competency.
On January 30, 2009, the court found appellant was competent based on the report from Patton's medical director, and reinstated criminal proceedings. The court granted appellant's motion to reappoint the same experts to conduct examinations in anticipation of a plea of not guilty by reason of insanity. Plea and Sanity Proceedings
On March 24, 2009, the court conducted a plea hearing. Defendant pleaded guilty to the charged offense, and not guilty by reason of insanity. The court advised appellant of her constitutional rights, and she waived her rights and pleaded guilty to battery on a nonconfined person in violation of section 4501.5.
Thereafter, defense counsel submitted the sanity plea on the experts' reports, which stated that appellant suffered from schizoaffective disorder, had auditory and visual hallucinations, was not lucid or orientated, did not remember what happened, and was not taking her medication at the time of the offense.
The court reviewed the reports and found appellant not guilty by reason of insanity.
On or about April 23, 2009, the court committed appellant to Patton for the aggravated term of four years for the underlying offense.
Appellant's release date was set for July 28, 2012.
FIRST PETITION TO EXTEND COMMITMENT
On January 12, 2012, the district attorney filed a petition in anticipation of appellant's scheduled release, and requested to extend her commitment for two years pursuant to section 1026.5, subdivision (b). The petition alleged appellant presented a substantial danger of physical harm to others due to a mental disease, defect, or disorder.
Hearing on the petition
On April 19, 2012, the court held a hearing on the petition; appellant waived her appearance and a jury trial.
The parties submitted the matter on a report from Patton, which stated that appellant suffered from schizoaffective disorder, bipolar type, and substance abuse dependence. She continued to suffer from auditory and visual hallucinations, paranoia, and severe anger problems; and she did not meet the criteria for outpatient status.
The court relied on this report and granted the People's petition and extended appellant's commitment for two years, to July 28, 2014.
Appellant did not seek appellate review of the court's commitment order.
SECOND PETITION TO EXTEND COMMITMENT
The instant appeal is based on the proceedings that began on January 8, 2014, when the district attorney filed another petition in anticipation of appellant's release date, and again requested to extend her commitment for two more years pursuant to section 1026.5, subdivision (b). The petition alleged appellant continued to present a substantial danger of physical harm to others due to a mental disease, defect, or disorder.
Appellant requested a contested hearing before a jury.
On June 17, 2014, the jury trial began; appellant was present with her attorney. The prosecution called two witnesses who worked at Patton and were part of appellant's treatment team: Dr. Sherri Curtis, a psychologist, and Ms. Lisa Logan, a licensed clinical social worker (LCSW). Defendant did not testify and did not call any witnesses.
We now turn to the hearing testimony that was introduced to the jury. Dr. Curtis's Hearing Testimony
Dr. Curtis, a psychologist at Patton, testified that Patton was the largest forensic maximum security hospital in the country, with over 1,500 patients in three compounds. It has barbed wire fences, hospital police, and multiple daily head counts. The patients are supervised almost all of the time, and they are checked in their rooms every 30 minutes. Most such facilities do not have Patton's level of supervision. Dr. Curtis testified that a patient will be more dangerous outside of Patton because that person will not have the same level of supervision and have access to illegal substances, decline to take prescribed medication, and act violently.
Dr. Curtis was a psychologist for Patton's 50-person female unit. Dr. Curtis had 25 patients on her caseload, including appellant. Dr. Curtis explained she was part of a multidisciplinary team that also included Ms. Logan (a social worker), plus a rehabilitation therapist, psychiatric technicians, nurses, and a psychiatrist. Dr. Curtis provided individual and group therapy for the patients and prepared progress reports for the court.
Dr. Curtis prepared a report on appellant in December 2013, reviewed her records and interviewed her as part of the process, and testified about her mental health condition. Dr. Curtis testified that based on her training and review of research studies, a person's past behavior is the best predictor of future behavior.
Dr. Curtis testified appellant was diagnosed with schizoaffective disorder, bipolar type.
"[S]he has ... auditory hallucinations where she has perceptual experiences of actually hearing things ... that other people don't hear. So voices, typically. She sees things that other people don't see, like demons ... or visions that are very disturbing to her.
"She also has confused and disjointed thinking at times ... like, I'd be talking to her and she will start talking about something else that is very loosely connected, and I'm sort of, like, looking for the thread of it. But it makes sense to her at the time. So it's sort of disjointed thinking.
"Also, just - she has sort of a poverty of speech at times, where it's hard for her to sort of spontaneously talk about things, just very blunt, short-terse comments. That's what we call a negative symptom. That's sort of like lingo terms, but that's also a symptom of the illness.
"It's also difficult for her to sort of find pleasure when she has depression .... So that's the psychotic part of the Schizoaffective, similar to what you find in schizophrenia.
"Now, the affective part is the mood disorder. So superimposed on ... the psychotic symptoms is a great disturbance in mood for ... most of the time that the person is ill, they have severe mood symptoms. And she [is] bipolar, which means we have ... a lot of [symptoms] in her case of depression. But we also have some symptoms of like a manic-type mood disturbance. So irritability in her case, a lot of irritability, some racing thoughts, but also severe depression, hopelessness, sadness, tearfulness, those kinds of things. And that has been with her predominatingly while she's been ill."
Dr. Curtis testified that a person's self-harming behavior "can speak to the level of extreme measures the person would take when their mental state is so compromised." Appellant had talked to Dr. Curtis about suicidal thoughts or tendencies, and there was a record of appellant engaging in self-harming behavior in the past. There were instances when appellant was very upset and agitated, and feeling very sad and tearful. She would go to the staff and ask for "as-needed medication" on those occasions.
"[I]n her case, in particular, she will have thoughts of wanting to die, but really not wanting to hurt herself, but more like just wishing she'd never wake up. So she really struggles with a kind of hopelessness and just wanting it to be over because life is so hard."
In these circumstances, appellant was so distressed "that she would actually consider taking her own life to relieve that distress," and in those moments, she had a hard time controlling her behavior.
Dr. Curtis testified appellant had anger problems and an "under the surface irritability at all times where she is sort of terse, snapping," and staring during an interview. When asked about the staring, "she'll say it's because I'm agitated."
Appellant had told Dr. Curtis about hearing voices, but she had also denied having hallucinations. Dr. Curtis had seen appellant act as if she was responding to the hallucinations. The unit staff had also observed appellant having auditory or visual hallucinations.
Appellant occasionally interacted with peers but primarily stayed alone and by herself in her bed. Such behavior was a side effect of schizoaffective disorder and depression.
Appellant also suffered paranoid delusions, which are "fixed beliefs that are not amenable to change, even though the reality might say differently or might challenge it. They're ... held on to very fast. Paranoid is when someone is very fearful; they feel like someone's after them, just an intense amount of fear is involved with paranoia." Appellant believed that people were torturing and raping her children. She also believed that she had been taken to and left with Osama bin Laden.
Appellant told Dr. Curtis that she had used methamphetamine, marijuana, alcohol, and cocaine since she was 16 years old, and it had been a problem for most of her adult life. It was common for people with mental illness to self-medicate.
Dr. Curtis had attempted to talk with appellant about how she ended up at Patton, but appellant spoke "in very short answers so it's difficult," and Dr. Curtis had to instead rely on her record. According to those records, appellant stabbed a man at a homeless shelter in 2004. Appellant told Dr. Curtis that she was homeless at the time; she was using beer and cocaine; and she had been asked to leave the shelter. Appellant gave two stories about the stabbing. In one version, appellant said she became irritated with the man and stabbed him. In another version, appellant said she stabbed the man because he came onto her.
In 2007, appellant committed a rule infraction for spitting while in custody.
In 2008, appellant spat on a nurse while she was in custody; this conduct was the basis for the criminal charge in this case. Appellant said that she spat on the nurse because the nurse did not listen to her and she was irritated. Appellant said that she was hearing voices at the time - her children were crying and screaming, and she believed they were being tortured and murdered.
In 2009, appellant was committed to Patton as a result of this case.
In January 2014, appellant spit at a Patton staff member, pushed and cussed that person, called that person a name, and took a fighting stance. Appellant was escorted to a "psyche room" and given an "as-needed" (PRN) medication for agitation and anxiety. When Dr. Curtis interviewed appellant about the incident, appellant said that "she just felt like hitting people." This incident was likely related to her poor coping skills because she was unable to verbalize her feelings to the staff.
Dr. Curtis testified appellant was compliant with her medications because she was in a supervised setting, but she was not stable. There had been several changes in her medications because she had reported "a lot of symptoms over the past several months. And so she's not stable on her medications yet. And so we haven't sort of found a good formula that she's happy with and that is working for her."
Appellant was "sort of superficially compliant" with her treatment. While she took her medication, she sporadically attended treatment groups and did not interact with the participants. Sometimes appellant was irritable, and it was hard for her to sit in interviews because she was very terse and wanted to cut it short so she could lay down. She had not been attending the substance abuse program, but the staff rallied around her and "really encouraged her to do it." Appellant attended and "showed up enough to get a completion certificate." However, her completion of one course did not mean that she was ready to be discharged.
Appellant sporadically attended the aftercare program, which supports the participants in their sobriety. She usually attended the first hour of the program, but not the second hour.
Dr. Curtis testified about the factors supporting referral for outpatient treatment.
"[The outpatient team] looks for the patients to have a good understanding of their mental illness, including signs and symptoms, when things get worse, how to manage them, what their medications are, what the medications are for ... and also anything that would impact that mental illness, such as substance abuse, how that impacts their mental illness, makes it worse or why it's there. Triggers around their substance abuse and how to manage that. [¶] They also look for rule adherence, because when we're considering placing them in a less restrictive facility, being able to follow the rules, take their medications, manage their illness and their substance abuse is really important. [¶] We also look for no acts of violence for a substantial period of time and psychiatric stability."
Dr. Curtis explained the staff wants patients to develop coping skills, which include the ability to handle distress without immediate medication. Some people listen to music, write in their journals, pace the hallways, walk and burn off some of the agitation.
Dr. Curtis explained that appellant had "limited coping skills on her own. She does listen to music and watch television and she sleeps. Sleeping is a big escape for her. When she's experiencing memories or flashbacks or anything like that, she will want to go to sleep. [¶] The other primary coping skill is asking for medication when she's really distressed."
Dr. Curtis testified that when appellant became very anxious and agitated, she frequently asked for as-needed medications from the staff. These medications included Ativan and Haldol, which were antipsychotic and anti-anxiety drugs. Such a request is not considered a coping skill since these medications are not available outside the hospital. The staff would redirect appellant to instead use her coping skills. She would try, but she would return to the staff, and demand and receive the medication to deal with her distress.
"[Appellant] needs to learn to be able to handle her distress. When she's [hearing] voices, when ... she has an increase in her psychiatric symptoms, such as voices or visions, a lot of depression, learning what works for her to help alleviate that distress, either through talking to someone or pacing, journaling."
If she failed to develop coping skills and was in the community, she would be in a lot of distress because she cries, she gets agitated, and she demands medication.
Appellant's team regularly reviewed her case for possible outpatient treatment, and provided feedback on how much progress she was making. Appellant planned to live with her mother and other family members if she was released.
Dr. Curtis testified, however, that appellant had not indicated any understanding about how her symptoms impact her life, or how to manage them. Appellant was unable to identify her own, individualized triggers for anger or her substance abuse, and did not have any insight into her mental illness. Dr. Curtis testified appellant could not manage her mental illness without having "insight and a deep understanding of herself and how her illness manifests itself in herself ...." Appellant did not understand the connections between her emotional life, and stressful things that trigger her desire for illegal substances or her mental illness symptoms.
Appellant had children and wanted to contact them when she was released. However, appellant had not been in contact with her children for seven years. Appellant said she lost her children in court because of her drug use. Appellant's statements about her children was an example of how she lacked insight into the reality of the situation since they had been adopted and she would not be permanently reunited with them.
Appellant had a low-to-moderate rating for suicide because of her past attempts, and suicidal ideations and hopelessness.
Dr. Curtis listed appellant as a "moderate" risk for her dangerousness to other people if she was released into the community, "if all things remained the same, and she was on this medication at this level," based on "her history of violence, coupled with uncontrolled serious symptoms of her mental illness, and also ... she has acted sort of impulsively when she's been really irritable." Appellant "still has a lot of symptoms of her psychosis and instability ... in terms of psychiatric symptoms, irritability, and then impulsively acting on [her] irritability ... and her history of violence in the past, it bumps her up in terms more of a moderate risk in being dangerous to other people."
Dr. Curtis testified to her opinion that appellant posed a substantial danger of physical harm to others without the structure and intervention of a 24-hour facility, because "her severe psychiatric symptoms are not controlled; that she has little understanding about them and how they impact her ... and how they've impacted her in the past in terms of dangerous behavior. [¶] Also, I don't think she has a good understanding of her substance abuse history, the triggers for that and how to stay away from it so that they don't impact her psychiatrically. [¶] I also don't think she has good insight overall into her emotional life and how her emotions also weigh on her and ... sort of exasperate [sic] her psychiatric symptoms."
Dr. Curtis testified appellant had serious difficulty controlling her dangerous behavior, based on her "uncontrolled psychiatric symptoms, her impulsive acting out when she's irritable ... those are major things. And then her lack of insight. So she has very few coping skills when ... the symptoms come up. She has a very few coping skills that she's developed to deal with them."
Dr. Curtis testified that appellant's mental disease, defect, or disorder caused her to be a threat to others.
"[S]he has stated in the past and in her record, that at the time of these acts of aggression, she was experiencing auditory hallucinations, was under the belief that her children were being raped and murdered; that she's very, very irritable at times, feels like hitting people, hits and spits on people because she is irritated. So that level of irritability, that level of psychosis, I think, directly led her to act violently."
Dr. Curtis was asked to explain how appellant could be listed as low or moderate risk, but pose a substantial risk of harm to others in the community. Dr. Curtis explained that when appellant was in the community, she was using drugs, having very serious symptoms, and not psychiatrically stable. She was still having some of those symptoms in a controlled setting, and she was not responding to treatment.
"[W]hy I think she's a substantial danger if she's released to the community, and why I don't think she's ready yet is because her psychiatric symptoms ... in the most controlled setting are not stable. She has great irritability that she's had acting out; she doesn't understand her substance abuse clearly enough to ... be able to articulate and to come up with a plan to avoid situations for using. So that's why I think she's a substantial danger. She doesn't have the insight into her own self-awareness about why these things are going on with her, how it manifests, for herself to handle it in the community. So without that structure, without that intervention of the 24-hour facility, I think she's a substantial danger [of] physical harm to others."
Cross-examination
On cross-examination, Dr. Curtis testified she was not aware that appellant was rated as a low risk of danger to others in progress reports filed in March and September 2010, and March, September, and December 2011. Dr. Curtis was aware that appellant was rated at low risk in a report prepared in March 2012. Dr. Curtis explained she did not prepare the prior reports, and the recent reports are updated based on the patient's psychiatric status at the time.
Dr. Curtis testified that appellant's condition "sort of waxes and wanes, so it comes and it goes.... And so if she's more symptomatic, she would probably be deemed a higher risk." Dr. Curtis testified that in March 2013, appellant had more mental illness symptoms, suicidal ideations, and psychiatric instability. In November 2013, appellant told Dr. Curtis that she believed people had tortured and raped her children. In the past, appellant had said she heard her children being tortured.
Dr. Curtis testified that appellant had not committed any known acts of dangerous or criminal behavior since her admission to Patton in August 2008, except for spitting at and cursing a staff member in January 2014. While appellant had suicidal ideations, she had not attempted to kill herself while at Patton.
Dr. Curtis conceded that during her time at Patton, appellant had at least four psychiatrics, psychologists, and social workers, but her treatment was failing.
"Q. ... In your opinion, what's the likelihood that you're going to be able to do anything to help her?
"A. I am hoping that she - that we can sort of help motivate her, as we did with her substance abuse program, to get more involved in her treatment again. And that the medication can help control her symptoms better so that she cannot be so much in distress."
Appellant was taking her prescribed medications but they were not alleviating her symptoms. "[W]hen she's on higher doses, the symptoms have been reduced, but then she's also been very sedated. So we are trying to find a balance to help relieve the serious symptoms so that reduces her distress but not sedate her so much so she can still be involved in her life." Appellant's team regularly met to assess the impact of her medications and make appropriate adjustments. Dr. Curtis explained that mental illness is not homogeneous, and the impact of medication is not the same for everyone. Appellant had reported that the medications had helped her with some symptoms but had not controlled all of her symptoms. Ms. Logan's Testimony
The People's second witness was Ms. Logan, an LCSW who was part of appellant's treatment team at Patton. As we will discuss in issue II, post, appellant objected to Ms. Logan testifying as an expert, and argued that an LCSW could not testify about psychiatric and medical issues. The court overruled appellant's objections and permitted Ms. Logan to testify as an expert. Ms. Logan also testified based on her personal knowledge and interactions with appellant. We will review the entirety of Ms. Logan's testimony before the jury.
Ms. Logan testified that she was a licensed clinical social worker and part of appellant's treatment team at Patton. Ms. Logan testified that appellant had attended approximately 70 percent of Ms. Logan's group sessions, but she did not participate. When appellant did not attend her group sessions, Ms. Logan checked in with her as needed.
Ms. Logan concurred with Dr. Curtis's opinion that appellant suffered from schizoaffective disorder, bipolar type. She also concurred with Dr. Curtis's opinion about appellant's history and symptoms.
Ms. Logan testified that she talked with appellant about her substance abuse problem. Appellant said that when she was outside the hospital, she had used methamphetamine, rock cocaine, crack cocaine, alcohol, and marijuana.
Ms. Logan had talked with appellant about her plans to continue treatment if she was released. Ms. Logan also talked to the outpatient team and appellant's mother. Appellant told Ms. Logan that she did not want to enter the conditional release program as an outpatient, but did not say why.
Ms. Logan testified that there are several factors to determine if a patient was ready for outpatient treatment, including whether the person was engaged in and benefiting from treatment, and learned how to manage their symptoms. There was a heavy emphasis on learning coping skills since most patients would not be free of all symptoms.
Ms. Logan testified she had reviewed appellant's records, and testified about the January 2014 incident, when appellant told a staff member to leave her alone and used a racial slur. Based on the chart notes, Ms. Logan testified that appellant had used racial slurs in the past because of her delusions that her child was being tortured.
Ms. Logan testified appellant's symptoms were not completely controlled by medications, and she needed to learn and practice new coping skills to help manage the remaining distress. Appellant needed to develop anger management skills to manage distressing voices, such as using earplugs, listening to music, or doing a reality check with someone they trust. Appellant had not engaged with her treatment team to learn such skills.
Ms. Logan had personally worked with appellant on preparing a wellness action plan to help manage her symptoms, stressors, and warnings signs of crisis. Appellant completed the plan but she did not effectively use it, and instead used emergency medication to manage her stress.
Defense counsel asked Ms. Logan if she had reviewed appellant's chart as to how often she had asked for emergency medication to deal with stress. Ms. Logan testified that based on her review of appellant's records, appellant made four requests for emergency medication in January 2014; none in February 2014; and two requests in March 2014. Defense counsel also asked Ms. Logan to review appellant's chart and testify about her current medications. Ms. Logan testified that as of September 2013, appellant's regular medications were Geodon and Depakote; her emergency medications were Ativan and additional dosages of Geodon as a sleep aid.
On appeal, appellant renews her argument that the court should not have qualified Ms. Logan to testify as an expert, and it should have prevented her from relying on hearsay in appellant's records when she testified at the hearing. Based on this argument, Ms. Logan's testimony about appellant's medication, based on her review of chart notes and not her personal knowledge, would fall within appellant's trial and appellate objections.
Ms. Logan interviewed appellant in preparation for a March 2014 report, and testified about appellant's conduct and statements during that interview. Appellant had poor eye contact, appeared sleepy, gave very short answers, and appeared guarded. Appellant said she had heard auditory hallucinations about two weeks earlier, and described them as distressing sounds, usually regarding children. She had been depressed, which was usually related to missing her children. When the staff attempted to address these problems, appellant would not speak or engage, and instead ask to lie down. Appellant did not have any insight into her substance abuse problem, and did not understand how drugs affected her. However, she understood that the voices would return if she stopped taking her prescription medication.
Ms. Logan testified she asked appellant if she realized her disorder caused her to be violent in the past. Appellant replied that it did not impact her behavior. While appellant understood that her symptoms would get worse if she stopped taking her prescribed medication, she lacked insight and the ability to cope with warning signs and triggers of her symptoms before she experienced a crisis.
Ms. Logan testified to her opinion that appellant posed a substantial risk of physical harm to others as a result of her mental illness. Appellant did not demonstrate any insight into her mental illness or her substance abuse; how to manage these issues; or how her drug use impacted her mental health and her life.
Ms. Logan also testified that in her opinion, appellant had serious difficulty in controlling her behavior as a result of her mental illness. Ms. Logan's opinion was based on her personal observations and interviews with appellant, along with reviewing her records. Appellant required "emergency medication" when under stress, and was unable to apply what she had learned to manage her behavior in current or future situations.
Defense counsel asked Ms. Logan why appellant was elevated from low to moderate risk. Ms. Logan testified appellant had increased symptoms of depression and hallucinations related to her children. The Jury's Finding and the Court's Order
On June 19, 2014, the jury found true the allegations in the petition, that appellant currently posed a substantial danger of physical harm to others as a result of a mental disease, defect, or disorder.
The court extended appellant's commitment for another two years, to July 28, 2016.
On March 3, 2015, appellant's counsel advised the superior court that it made a mistake when it calculated appellant's potential release date, and it should have been set at July 26, 2016. On March 18, 2015, the superior court advised counsel that July 28, 2016, was the correct date.
On June 25, 2014, appellant filed a timely notice of appeal.
DISCUSSION
I. Mootness
On June 19, 2014, the jury found true the allegations in the petition, that appellant currently posed a substantial danger of physical harm to others as a result of a mental disease, defect, or disorder. The court extended appellant's commitment for another two years, to July 28, 2016.
We asked the parties to file supplemental letter briefs as to appellant's current status; whether the People had filed another petition for commitment in anticipation of appellant's scheduled release date of July 28, 2016; what was the outcome of any such petition; and whether the instant appeal had been rendered moot if a subsequent petition was granted or appellant was released.
Appellant's attorney has advised this court of the following circumstances. On or about January 27, 2016, the People filed another petition for commitment of appellant pursuant to section 1026.5. On April 4, 2016, Patton State Hospital filed a report with the superior court as to appellant's status and progress.
This court granted the Attorney General's office an extension of time to address whether or not the instant appeal is moot.
On May 20, 2016, appellant waived her right to a trial on the petition. On the same day, the superior court granted the petition and extended appellant's commitment for another two years, to July 28, 2018. Appellant has not filed an appeal from that order.
Given this background, appellant asserts the instant appeal is not moot because this court should address the disputed issue of whether Ms. Logan was qualified to testify as an expert at the 2014 hearing. Appellant argues that the resolution of this issue could affect a future commitment hearing; the issue is capable of recurring but evading review; and she is entitled to resolution of the issue even though her appeal was being heard after a subsequent commitment order.
A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321.) However, the court has discretion to address issues on the merits, despite their mootness, where issues are of continuing public importance and capable of repetition yet evading review. (People v. Barrett (2012) 54 Cal.4th 1081, 1092-1093, fn. 7; People v. Gregerson, supra, 202 Cal.App.4th at p. 321; People v. Wilkinson (2010) 185 Cal.App.4th 543, 547.)
In this appeal, appellant challenges the 2014 commitment order which expired on July 28, 2016. Appellant contends that order must be reversed because the court abused its discretion when it permitted Ms. Logan to testify as an expert, and the jury's findings are not supported by substantial evidence.
The 2014 commitment order, however, expired on July 28, 2016, and appellant is currently committed pursuant to a new order which extended her commitment to July 28, 2018; she has not appealed that new commitment order. This appeal is therefore moot.
Even if we were to agree with appellant's contentions as to the 2014 commitment order, we could not grant appellant any effective relief since the 2014 commitment order has expired, and she has not filed an appeal of the court's 2016 commitment order. In addition, the narrow issue raised on appeal is specific to the now-expired commitment order and cannot be fairly described as an issue of continuing public importance, particularly since there is no indication that the superior court imposed the 2016 commitment order based on a report from Ms. Logan or another social worker, and appellant did not file an appeal of the 2016 order.
In the absence of grounds supporting an exception to the mootness doctrine, we believe this appeal should be dismissed. Notwithstanding this determination, however, our review of the record indicates that to the extent the court erroneously allowed Ms. Logan to testify as an expert, any error was not prejudicial, and the jury's findings are supported by substantial evidence.
II. Ms. Logan's Testimony as an Expert
Appellant raises two separate but related issues: (1) the court abused its discretion when it permitted Ms. Logan to testify as an expert, and the error was prejudicial; and (2) setting aside Ms. Logan's "expert" testimony, the jury's finding in this case is not supported by substantial evidence because Dr. Curtis's expert testimony was weak, speculative, and failed to address the contested issues raised by the petition.
We begin with appellant's first contention, that the court abused its discretion when it allowed Ms. Logan, an LCSW, to testify as an expert as to whether appellant presented a substantial danger of physical harm to others because her testimony was outside the scope of her professional license. Appellant argues that a social worker is not qualified to diagnose a subject's mental illness, and predict the impact of that illness on the subject's future behavior, in a section 1026.5 commitment hearing.
In support of this argument, appellant cites to the state licensing requirements for LCSWs, and argues the statutory scheme does not permit a social worker to diagnose or predict mental disorders, a social worker who performs such activities engages in the unlawful practice of medicine, and that conduct is punishable by a fine and/or imprisonment. Appellant thus concludes that while psychiatrists and psychologists have "the licensure to testify as experts on the central issue of a person's current mental condition and future danger of physical harm to others as a result of his or her mental condition [citation], a social worker does not have the licensure to do so," and Ms. Logan was not qualify to testify as an expert at the hearing or rely on hearsay within appellant's records to testify.
Appellant argues the court's evidentiary ruling was prejudicial. Appellant concedes that Dr. Curtis, a psychologist, also testified as an expert and was properly qualified to address appellant's mental health condition. However, appellant asserts it is reasonably probable that a result more favorable to her would have been reached in the absence of Ms. Logan's testimony because Dr. Curtis's testimony was allegedly "weak," it was "amplified" by Ms. Logan's "equally weak testimony," and Ms. Logan's testimony thus created for the jury "a sense that the case against [appellant] was stronger than it actually was."
A. Background
Appellant's counsel objected to Ms. Logan testifying as an expert witness. The court conducted an evidentiary hearing outside the jury's presence as to whether Ms. Logan could testify as an expert.
At the evidentiary hearing, Ms. Logan testified she had a bachelor's degree in psychology and a master's degree in social welfare. She started working at Patton as an intern in 2002. She became a clinical social worker, and she was hired in a full-time position at Patton in 2003. She became a licensed clinical social worker in 2006 after passing the state licensing examinations. She had prepared more than 100 reports in her career.
Ms. Logan testified there were statutory regulations as to what she could do as a licensed clinical social worker. She could perform a "pretty broad range" of functions, such as individual group therapy, risk assessments, crisis intervention, and case management of resources to help clients. She could not prescribe medication. She could diagnose mental diseases and place those findings in a chart, but her findings would not supersede a psychiatrist's opinion. However, she regularly provided diagnostic input as part of her duties on a patient's team.
Ms. Logan testified she had not testified as an expert in any case involving a commitment order pursuant to section 1026.5. However, she had testified as an expert in an unrelated mentally disordered offender (MDO) case in Madera County, about that subject's dangerousness and mental illness, the type of treatment the subject received, the subject's drug use, and how "they all played together in the offense. This particular person had been [revoked from conditional release], and we talked about what led to her relocation and ... how it speaks to her being back out in the community." Ms. Logan testified there were similarities between MDO and NGI reports, which required Ms. Logan to evaluate whether the subject suffered from a mental disease and determine the subject's dangerousness.
Ms. Logan testified she had prepared a report about appellant for this hearing. Her reports were reviewed by the team psychiatrist, sent to one of Ms. Logan's immediate supervisors, and then sent to the medical director for approval.
The parties' arguments
Defense counsel argued that Ms. Logan could not testify as an expert because a LCSW was not legally authorized to make psychiatric diagnoses or give expert testimony, based on the licensing provisions and definitions in the Business and Professions Code for social workers, psychiatrists, and physicians. Counsel argued that these statutory definitions limited social workers to performing nonmedical psychotherapy, whereas only a medical expert could only predict a subject's behavior. Counsel further argued that since Ms. Logan was not qualified to testify as an expert, she could not rely on hearsay within appellant's records as the basis for any of her hearing testimony, and could only testify to her personal knowledge.
The prosecutor replied that the statutory licensing requirements were silent as to whether a particular licensee could testify as an expert, and the statutory scheme did not prohibit social workers from testifying as experts.
The court's ruling
The court stated that Ms. Logan had "the skill, training, and expertise in some respects" to testify as an expert, but it was concerned about whether that would extend "beyond her training and experience."
"So if we get into medical issues, if you get into diagnoses, if you get into prognosis, if you get into areas that are uniquely within the purview of a
medical doctor or psychologist, that's where there's going to be problems, and that's what I'm concerned with. Certainly a licensed clinical social worker possesses training and experience that would be helpful to the jurors. And I think that if I were to limit that and say, well, Ms. Logan can only testify as to things that she's perceived, I think that would be unreasonably restrictive. But I wanted to be careful and want to make sure that you understand that she cannot extend into areas of diagnosis, prognosis, or of protocol or areas of a medical nature."
The court held Ms. Logan could testify as an expert as follows:
"It's within Ms. Logan's training and experience, it's part of her job to observe a person's - for whom she's proferring treatment and form opinions based on her observations. That's within her skill, training, and experience and that will be permitted to be presented to the jury.
"As far as medications, prescribing medications, the effect of medications on a person, I think that extends beyond her training and experience. [¶] ... [¶] So Ms. Logan has sufficient expertise, training, and experience to testify as to conclusions that she's reached based on her observations of [appellant]...."
The prosecutor asked if Ms. Logan could testify based on notes in appellant's file. The court replied that Ms. Logan was "an expert as far as that goes, and so an expert can rely on hearsay in forming her opinion," as long as it did not extend into "the prescribing of medications or a particular diagnosis." The court stated Ms. Logan could rely on hearsay evidence to form the conclusion that appellant posed a substantial danger to others.
Appellant's counsel again objected and argued that Ms. Logan was not qualified to testify to the ultimate issue about whether appellant posed a substantial danger since she lacked a medical license. The court replied that Ms. Logan testified it was "part of her job to draft ... reports" in which she gave her opinion about whether patients posed "a substantial danger of harm to others. So she can testify as to that as an expert."
When Ms. Logan testified before the jury, appellant's counsel made numerous objections to her opinions and conclusions. The court allowed appellant's counsel to voir dire Ms. Logan before the jury, and testify that she was not a medical doctor. The court overruled appellant's further objections based on its rulings at the evidentiary hearing.
B. Analysis
"Evidence Code section 720 provides that a person may testify as an expert 'if he [or she] has special knowledge, skill, experience, training, or education sufficient to qualify him,' [citation] which 'may be shown by any otherwise admissible evidence, including his own testimony.' [Citation.] The trial court's determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)
The erroneous admission of expert testimony only warrants reversal 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 (1956) 46 Cal.2d 818, 836; People v. Prieto (2003) 30 Cal.4th 226, 247.)
We decline to address appellant's contentions as to whether the court abused its discretion when it found that Ms. Logan, as a licensed clinical social worker, could testify as an expert in this case. Assuming, without deciding, the court abused its discretion when it permitted Ms. Logan to testify as an expert, we find any error is not prejudicial and it is not reasonably probable that the jury in this case would have reached a result more favorable to appellant in the absence of Ms. Logan's testimony as an expert.
While we decline to address this issue on the merits, we note that "it cannot be said as a matter of law that an individual is not qualified to give a medical opinion just because that person is not a licensed physician. [Citation.] Because of the dramatic growth of diverse interdisciplinary studies in recent times, often individuals of different nonphysician professions are called upon to give medical opinions or at least opinions involving some medical expertise. (People v. Rance (1980) 106 Cal.App.3d 245, 255 ... (nurse); People v. Young (1970) 12 Cal.App.3d 878, 881 ... (laboratory technician); People v. Chatfield (1969) 272 Cal.App.2d 141, 148 ... (physicist).)" (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1142.) --------
Contrary to appellant's contentions, we find that Dr. Curtis's testimony was extremely strong and probative of the disputed issues raised in the People's petition, such that any erroneous introduction of Ms. Logan's testimony as an expert, before the jury, was not prejudicial under any circumstances. Dr. Curtis did not rely on speculation or appellant's past history to reach her conclusions. Instead, she explained that while appellant was compliant with her medication, she failed to attend individual or group therapy, she had only completed one course after her treatment team motivated her to do so, and she had sporadically attended the aftercare program. Appellant admitted that she continued to suffer from deeply disturbing auditory and visual hallucinations. She had failed to develop or use coping skills to deal with these situations, and instead demanded emergency antipsychotic and antianxiety drugs. Dr. Curtis testified that such demands were not considered appropriate coping skills for release, since these medications were not available outside Patton.
Dr. Curtis further testified that appellant had not shown any understanding about how her symptoms impacted her life or her substance abuse problems. She was unable to identify her own triggers for anger, and did not have any insight into her mental illness. She continued to downplay and dismiss her prior acts of violence that led to her criminal convictions, or understand how her mental illness may have triggered her conduct in those situations. She intended to contact her children upon her release, but failed to acknowledge that her children had been adopted because of her drug use and she would not be reunited with them.
Appellant continued to express suicidal ideations but had not attempted suicide while at Patton. She had not engaged in any acts of violence, but there was an incident in January 2014, when she spat and cursed a staff member, pushed that person, and took a fighting stance. When Dr. Curtis interviewed appellant about the incident, appellant said she just felt like hitting people. Dr. Curtis testified this was another example of appellant's poor coping skills.
Dr. Curtis testified that appellant was not stable even though she was in a supervised setting, and she had reported "a lot of symptoms over the past several months." Appellant "still has a lot of symptoms of her psychosis and instability ... in terms of psychiatric symptoms, irritability, and then impulsively acting on [her] irritability ... and her history of violence in the past, it bumps her up in terms more of a moderate risk in being dangerous to other people."
Based on this evidence, Dr. Curtis testified to her opinion that appellant posed a substantial danger of physical harm to others without the structure and intervention of a 24-hour facility, because "her severe psychiatric symptoms are not controlled; that she has little understanding about them and how they impact her ... and how they've impacted her in the past in terms of dangerous behavior. [¶] Also, I don't think she has a good understanding of her substance abuse history, the triggers for that and how to stay away from it so that they don't impact her psychiatrically. [¶] I also don't think she has good insight overall into her emotional life and how her emotions also weigh on her and ... sort of exasperate [sic] her psychiatric symptoms."
Dr. Curtis further testified appellant had serious difficulty controlling her dangerous behavior, based on her "uncontrolled psychiatric symptoms, her impulsive acting out when she's irritable ... those are the major things. And then her lack of insight. So she has very few coping skills when ... the symptoms come up."
Dr. Curtis testified that appellant's mental disease, defect, or disorder caused her to be a threat to others.
"[S]he has stated in the past and in her record, that at the time of these acts of aggression, she was experiencing auditory hallucinations, was under the belief that her children were being raped and murdered; that she's very, very irritable at times, feels like hitting people, hits and spits on people because she is irritated. So that level of irritability, that level of psychosis, I think, directly led her to act violently."
Dr. Curtis concluded that appellant was a substantial danger if released to the community because her psychiatric symptoms "in the most controlled setting are not stable. She has great irritability that she's had acting out; she doesn't understand her substance abuse clearly enough to ... be able to articulate and to come up with a plan to avoid situations for using. So that's why I think she's a substantial danger. She doesn't have the insight into her own self-awareness about why these things are going on with her, how it manifests, for herself to handle it in the community. So without that structure, without that intervention of the 24-hour facility, I think she's a substantial danger [of] physical harm to others."
Ms. Logan's testimony as an expert essentially mirrored that of Dr. Curtis. She concurred with Dr. Curtis's opinions about appellant's diagnosis, failure to develop coping skills, demand for emergency medication, and continued delusions. Ms. Logan also testified about appellant's behavior, based on her own personal knowledge and interactions with appellant.
We thus conclude that even if the court erroneously permitted Ms. Logan to testify as an expert, the introduction of her testimony before the jury was not prejudicial given the breadth and scope of Dr. Curtis's admissible expert testimony. We further note that appellant did not introduce any evidence to contradict Dr. Curtis's opinions and conclusions.
In light of Dr. Curtis's testimony, there is no reasonable possibility that a result more favorable to appellant would have occurred even if the entirety of Ms. Logan's testimony had been excluded. According, we find no reversible error. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Prieto, supra, 30 Cal.4th at p. 247.)
III. The Jury's Findings are Supported by Substantial Evidence
As a separate matter, appellant argues the jury's findings are not supported by substantial evidence when Ms. Logan's "expert" testimony is set aside and only her testimony as a lay witness is considered. Appellant asserts Dr. Curtis's testimony was speculative, she improperly relied on appellant's prior behavioral history, and she did not offer any evidence about why appellant's current condition could lead to future danger to others. Appellant complains that while Dr. Curtis testified about appellant's suicidal ideations and alleged dangerousness to others, her opinions were undermined by the fact that appellant had never attempted suicide or engaged in any violent or criminal behavior while at Patton, aside from being irritable and spitting at a staff member in January 2014.
As explained above, "[u]nder section 1026.5, subdivision (b)(1), '[a] person may be committed beyond the term prescribed by subdivision (a) only under the procedure set forth in this subdivision and only if the person has been committed under Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others.' The last element also requires proof that the person has serious difficulty controlling his dangerous behavior. [Citations.]" (People v. Williams (2015) 242 Cal.App.4th 861, 872 (Williams).)
"[W]hether any alleged mental disease, defect, or disorder causes a person to represent a substantial danger of physical harm to others is 'a not a question of law, but rather one for the trier of fact to be resolved with the assistance of expert testimony.' [Citation]" (Williams, supra, 242 Cal.App.4th at p. 872.)
"We review an order to extend commitment under section 1026.5 by applying the substantial evidence test, examining the entire record in the light most favorable to the order to determine whether a rational trier of fact could have found the requirements of the statute satisfied beyond a reasonable doubt. [Citation.] A single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of commitment. [Citation.]" (Williams, supra, 242 Cal.App.4th at p. 872.)
The requisite inability to control behavior " 'will not be demonstrable with mathematical precision. It is enough to say that there must be proof of serious difficulty in controlling behavior.' [Citation.]" (People v. Zapisek, supra, 147 Cal.App.4th at p. 1161.) Expert testimony is considered substantial evidence if it is supported by " 'relevant probative' " facts, rather than " 'guesswork, surmise, or conjecture.' " (Id. at p. 1168.) However, we do not reweigh the evidence or reevaluate the credibility of witnesses, and "[i]f the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Appellant asserts Dr. Curtis's testimony was not supported by any evidence because appellant did not engage in any violent or suicidal behavior since her commitment. We disagree. Dr. Curtis's expert testimony, as extensively addressed above, provides substantial evidence to support the jury's findings in this case. We need not repeat our analysis from issue II, post, except to conclude that the evidence supported the jury's verdict based on Dr. Curtis's opinion that, despite treatment and medication, appellant was still unable, and even unwilling, to cope with the symptoms and behaviors associated with her mental illness which had previously resulted in her dangerous behavior.
DISPOSITION
The appeal is dismissed.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.