Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 151063.
Marchiano, P.J.
In 1993, defendant Kim Viet Vu assaulted three people, including a police officer, with a razor cutter. He was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and sent to state prison. While serving his sentence he was transferred to a state mental hospital for treatment of a mental disorder. (Pen. Code, § 2684.) As he neared the end of his prison term he was involuntarily committed to the mental hospital for one year as a mentally disordered offender (MDO). (§ 2970.) His involuntary MDO commitment has been extended in one-year increments several times over the years. (§§ 2970, 2972, subd. (e).) He appeals from the latest court order extending his MDO commitment. He contends the trial court erred by allowing the People’s expert to “publish unreliable hearsay to the jury, ” and there was insufficient evidence to support the extension of his commitment. We disagree and affirm.
Subsequent statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
Defendant’s prior extension was due to expire November 20, 2009. On August 3, 2009, the People filed a petition for another one-year extension of the MDO commitment. The record is unclear, but somehow the commitment was extended because the People filed a subsequent petition on May 26, 2010, noting the commitment would expire November 20, 2010. The two petitions were consolidated for trial.
Under the MDO laws, the People were required to prove that defendant “has a severe mental disorder... [which] is not in remission or cannot be kept in remission without treatment, and that by reason of his... severe mental disorder [defendant] represents a substantial danger of physical harm to others....” (§ 2972, subd. (c); see § 2972, subd. (a).)
The matter came on for a jury trial June 10, 2010. The People’s expert, Dr. Morgan Kennedy, was a clinical psychologist at Napa State Hospital. Defendant was a patient in her unit and had been on her caseload since September 2009. In her expert opinion, defendant suffers from schizophrenia, a mental illness involving delusions, hallucinations, disorganized speech and thought patterns, and poverty of thought. His schizophrenia is not in remission and cannot be kept in remission without treatment.
Dr. Kennedy testified that defendant sometimes speaks incoherently, uses words that do not make sense, and makes very loose associations. She explained that it can be hard to follow his line of thinking. He has a flat affect. He is seen by staff to be mumbling and laughing to himself, suggesting he may be occupied by internal stimuli.
Defendant engages in bizarre behavior such as inserting small pieces of metal into his hand without explaining why. He is inconsistent about his need for medication, at times saying it helps him and at other times saying he has no mental disorder and does not need medication. He has very limited insight into his mental illness and the need for ongoing treatment should he be released.
Dr. Kennedy believed defendant was dangerous because he continues to believe he acted appropriately, and not as a result of mental illness, when he slashed his victims with a razor cutter. Defendant claims one of the victims had a gun and was actually a civilian in a police officer’s uniform. He believes his victims were trying to harm him. He has over time given varying explanations for his crimes. Sometimes he says he thought he was in danger, sometimes he denies the offenses, and sometimes he says he is not sure why he committed the offenses. Dr. Kennedy believes defendant’s delusions and hallucinations influenced his assaultive behavior. She noted that defendant currently denied having hallucinations.
In the course of her substantial and lengthy testimony, Dr. Kennedy testified about three complaints from fellow inmates of defendant. Two of them claimed defendant hit, pushed, or otherwise inappropriately touched them. A third, defendant’s roommate, claimed defendant behaved threateningly toward him and called him “stinky.”
Based on various factors, including her clinical experience, review of hospital records, and her interviews with defendant, Dr. Kennedy concluded that because of his mental disorder defendant represents a substantial danger of physical harm to others. She would adhere to that expert opinion even if she had not considered the inmate complaints.
The jury found that defendant continued to be an MDO and the trial court extended defendant’s commitment for another year, until November 20, 2011.
II. DISCUSSION
Defendant primarily contends that the trial court improperly allowed Dr. Kennedy to base her expert opinions on unreliable hearsay, i.e., the three inmate complaints. We conclude that any error would be harmless because of the independent bases for Dr. Kenney’s opinions.
Generally, an expert witness may testify as to the sources on which she bases her opinion. (Evid. Code, §§ 801, subd. (b), 802; People v. Cooper (2007) 148 Cal.App.4th 731, 746−747.) Such hearsay must be of a type reasonably relied on by experts in the field. (Evid. Code, § 801, subd. (b); People v. Gardeley (1996) 14 Cal.4th 605, 617−618 (Gardeley).) Any material forming the basis of an expert’s opinion must be reliable. (Gardeley, supra, at p. 618.)
Defendant argues the three inmate complaints were unreliable because they come from mental patients, some of whom were unidentified. But the question of the reports’ reliability is academic in light of the totality of Dr. Kennedy’s testimony. Dr. Kennedy based her expert opinions on various independent factors, including her interviews with defendant, and would have reached the same conclusion about defendant’s dangerousness without consideration of the inmate reports.
Defendant claims Dr. Kennedy testified on cross-examination that the reports were essentially the sole basis for her opinion on dangerousness. As we read the record, Dr. Kennedy simply was referring to the reports to show defendant’s institutional behavior had been violent. She was not testifying about defendant’s dangerousness if released. In any case, her other testimony about the bases for her opinion, independent of the inmate reports, is clear.
Defendant also claims there is insufficient evidence of dangerousness. Again, he premises his argument on the claim the three inmate reports are the sole basis of Dr. Kennedy’s opinion. The record shows substantial evidence to support the jury’s determination and the recommitment order.
III. DISPOSITION
The order extending defendant’s MDO commitment is affirmed.
We concur: Margulies, J., Dondero, J.