Opinion
A165683
08-01-2023
Conservatorship of the Person of C.R. v. C.R., Objector and Appellant. PUBLIC GUARDIAN OF CONTRA COSTA COUNTY, Petitioner and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. MSP22-00153)
STEWART, P.J.
C.R. appeals from an order of conservatorship under the Lanterman-Petris-Short Act. He contends the order must be reversed due to prejudice from the trial court's erroneous admission of statements in his medical records that do not properly come within the business records exception to the hearsay rule. We affirm.
BACKGROUND
I.
The Petition
On January 27, 2022, the Director of the Contra Costa County Health Services Department (Public Guardian) filed a petition for appointment as temporary conservator and conservator of the person for C.R. (Welf. &Inst. Code, §§ 5350, 5352, 5352.1), who was alleged to be "[g]ravely disabled as a result of mental disorder and unwilling to accept, or incapable of accepting, treatment voluntarily." The supporting declaration of a psychiatrist at Heritage Oaks Hospital (Heritage Oaks) stated that he had determined C.R. was gravely disabled and lacked capacity to refuse to consent to treatment, attested to the need for immediate establishment of a temporary conservatorship and provided a summary of reasons for these conclusions. The court appointed the Public Guardian temporary conservator pending a hearing on the petition.
At the time the petition was filed, C.R. had been at Heritage Oaks since December 31, 2021; according to the medical records in the record, he remained there until at least March 10, 2022. He was admitted to the Contra Costa Regional Medical Center (CCRMC) on April 5, 2022, and remained there during the trial.
The record does not indicate a date of discharge from Heritage Oaks; March 10, 2022, is the most recent entry relating to that hospitalization. In addition to the records from the April 5, 2022 CCRMC admission and December 31, 2021 Heritage Oaks admission, the evidence at trial included records from CCRMC for a period from February 9 to March 2, 2021.
II.
The Trial
A. Non-Expert Testimony
C.R.'s mother, Ms. R., testified that C.R. first came under the care of a psychologist or psychiatrist in 1997, when he was 17 and a half years old. The last time she had seen him on medication was in about 2017, when he was in a residential program. At that time, he was able to live in an apartment and attend college classes.
C.R.'s mother has the same initials as C.R.; we refer to her as Ms. R. to avoid confusion.
C.R. called his parents "maybe twice weekly." For the past two and a half to three years, he had said he was not on medication. He told Ms. R. he was concerned that "people were surveilling him," had "placed items underneath the floorboards of where he lived" and were "trying to find out where he was and what he was doing." He said he believed the County "had done something to his cellphone so that they could track him and know what he was doing," and the camera and bottom of his cellphone were "obscured with a substance." When he visited the family, he would close himself off in a room and "not want to interact very much with the family." Ms. R. testified that "[u]sually he starts screaming with a member of the family"; he would have "what we hope would be a conversation, but it ends up that he escalates it to screaming." Ms. R. also overheard an "inappropriate" conversation C.R. had with his 14-year-old niece about "subject matter involving adult relationships." In February 2021, C.R. told Ms. R. he had not paid rent since July 1, 2019, and was concerned about eviction, and he showed her an eviction notice. When Ms. R. saw C.R. at her home in November 2021, he was 20 to 30 pounds lighter than he was at trial, was "very dirty" and was wearing "very ragged clothing."
Ms. R. had most recently spoken with C.R. about medication within the last two weeks. He "did not seem to think that it was what he wanted" and felt he "[knew] what to do better than the medication that the doctors have prescribed." C.R. talked about other substances he sought for relief, including alcohol and non-psychiatric drugs, saying "they [were] the only things that bring him any amount of joy into his life or any feeling of happiness." C.R. told Ms. R. that he did not like his doctor at Heritage Oaks. She had heard him say he did not like other doctors at facilities many times; he saw them as "harming him rather than helping him."
Mike Sisler, an alcohol and drug counselor with the county Assisted Outpatient Treatment (AOT) program, met C.R. in October 2017. Between then and 2019, C.R. was engaged with the program "off and on," met with the doctor "occasionally" and met with Sisler "pretty much weekly."
In December 2019, C.R. told Sisler that the apartment he was living in was infested with bugs, the facility was not being maintained and he was not going to pay rent until things were changed. Sisler offered AOT's advocacy services but C.R. refused. In November 2020, Sisler went to C.R.'s apartment to try to meet with him. Sisler noticed a sheet of plywood on the window and, when he knocked on the door, heard the sound of something being moved before the door opened about two feet and C.R. told him he was trespassing and should go away. Sisler tried again in February 2021; when he knocked on the door, he heard the sound of glass breaking and C.R. said," 'Fuck off. Go away. I already told you.'" Sisler had not assisted C.R. in obtaining this apartment; C.R. had been living there since before he enrolled in AOT. Sisler had been inside "[m]aybe two" times.
Sisler met with C.R. in March 2021 in a "hospital setting." C.R. said he was willing to work with the team and meet with the doctor. Ten days later, C.R. told Sisler he did not want to meet with the doctor anymore. He said he did not want to meet with Sisler in the community, which is how the program generally operates, and would prefer to come to the office, but he did not come on the date they scheduled. Sisler tried to set up other meetings about 20 times but had not been able to successfully meet with C.R. since March 2021. C.R. had refused to meet with the doctor since March 2021.
B. Expert Testimony
Dr. Michael Levin testified as an expert in psychiatry and evaluation for grave disability. He had tried to interview C.R. twice but C.R. had not been willing to meet with him: First, Levin had arranged a Zoom meeting through a social worker at the CCRMC, but C.R. appeared only to say he did not want to meet with Levin; then, on the day Levin planned to go to the hospital to meet with C.R., he called ahead and was told C.R. was not willing to meet with him. Levin reviewed the record of C.R.'s hospitalization at Heritage Oaks, records for his current stay at the CCRMC, the conservator's notes, and certain documents with handwriting on them that he was given, and he spoke with C.R.'s treating psychiatrist at the CCRMC, C.R.'s mother and the social worker on C.R.'s unit.
Based on this information, Levin diagnosed C.R. with schizoaffective disorder, a major mental illness that combines a thought disorder component and an instability of emotions component. Symptoms of the thought disorder portion can include difficulty assessing reality, fixed delusions, nonlinear, idiosyncratic or disorganized thoughts, and auditory and visual hallucinations that interfere with thought processes. These are called "positive" symptoms. The affective component may involve irritability, mood swings, suicide attempts, flat or blunted affect and diminished capacity to interact with other people. Symptoms like lack of motivation, apathy and blunted affect are called "negative" symptoms.
Schizoaffective disorder is a chronic condition and, with repeated episodes, often people will become more ill and more difficult to treat. The main treatment is antipsychotic medication; social interventions, hospitalization to provide structure and control and group therapy are often helpful. C.R. was currently prescribed the antipsychotic medication Seroquel, which addresses positive symptoms like hallucinations but at C.R.'s dose can also affect mood.
1. Records-based testimony
Levin was shown entries in C.R.'s medical records, most of which he testified were important to his evaluation. This testimony began with records from the CCRMC for an admission from February 9 to February 11, 2021.
An intake note from February 9, 2021, stated: "Arrives in no restraints, is flip and tangential on the gurney mostly repeating that he needs [to] pee, often in a fake Boston accent 'I have to take a wicked piss' .... Agrees to oral Seroquel and [A]tivan then after I leave jump of[f] gurney and begins throwing the trash can talking about pedophiles. Is muttering to self and talking to self and tells me to f-ck myself a few times when I ask about rec[e]nt psych care, substance use and housing."
Levin testified that the fact C.R. was in a psychiatric emergency room indicated "some acute level of symptoms." "[T]angential" refers to thought processes, responding in a "peripheral way" rather than "being specific or directed" in response to the question asked. Speaking in a fake accent in a psychiatric emergency room could be considered socially inappropriate behavior in that it is not "responsive to the seriousness" of the situation. C.R. started out calm, accepting medicine, then suddenly "jumps off the gurney, is reactive, starts to throw things." Talking about pedophiles was a "loose association" and talking to himself "often refers to somebody who is having internal stimuli, auditory hallucinations," and starts responding to them. Telling the doctor to "go fuck himself" is "symptomatic" and "not what normal people would do." Levin testified that in an evaluation for grave disability, resistance to or agitation with a treating doctor "goes to show the ability to cooperate with somebody who is trying to help you," "has to do with either misperceiving the situation, paranoia" and is "a bad prognostic sign." A note indicating C.R. had eight prior encounters with psychiatric emergency services "implies a level of acuteness" and "time span of the illness."
A "Psychiatric Discharge Summary" indicated that C.R. was discharged from the emergency room to the inpatient unit on February 11, 2021, then discharged on March 2, 2021. A psychiatrist related that when she attempted to meet with C.R. early in the morning, prior to a hearing, C.R. "immediately began yelling and cursing at" her, walked away and slammed the door, then at the hearing "again began yelling w/ profanity for no clear reason and then sat calmly for the judge. He was very distracted and made odd jokes and awkward laughter. Focused on needing to leave to repair a window and accused AOT for harassing him." C.R. denied needing medication, then stated he would take Seroquel and trusted the psychiatrist, and he "flipped [her] off during [the] hearing." Levin testified that the conduct described was consistent with "disregulated, lack of control behavior."
Turning to the records for Heritage Oaks, Levin was asked about a nurse's summary dated December 31, 2021, indicating C.R. was noncompliant with medication, told staff to "fuck off" multiple times as they tried to administer medication, was isolating himself and was observed mumbling to himself. This "rather recent" note indicated a "lack of cooperation with treatment" as well as internal "preoccupation related to auditory hallucinations."
A note from January 1, 2022, stated that C.R. was "hyperactive and appears to be manic sometimes," which Levin testified "implies some affective activation." The note further indicated that C.R. was "internally pre- occupied" but "denie[d] any auditory and visual hallucinations," then that he was "RIS," meaning "responding to internal stimuli." Levin testified that C.R.'s denial of hallucinations "doesn't mean he is not having" them and the note was "saying that he is quite symptomatic at that point.
A nurse's summary from January 9, 2022, noting that C.R.'s mood was "depressed and sad with the flat affect" was a contrast to the earlier note referencing hyperactivity and mania, reflecting fluctuation of mood.
A nurse's summary for January 15, 2022, stated that C.R. was "impulsive, irritable and hostile at times," his thought process was "disorganized," he was "verbally aggressive with peers and staff," had been calling 911 and "makes random phone calls, does not engage in meaningful conversation." Levin testified that this note reflected symptoms of disorganization, irritability and being aggressive and, as to the lack of engagement in meaningful conversation, "you can't deal with any insight or some kind of therapeutic intervention if he is not approachable."
A nurse' summary from January 16, 2022, stating that C.R. was disorganized in his thought process and refused medication because he believes he does not need it, "implies a lack of understanding or lack of insight." Levin explained that people with schizoaffective disorder often have a symptom called anosognosia, meaning a "diminished capacity or denial of one's illness," which interferes with cooperation and compliance with treatment. The note related that C.R. was "repeatedly slapping his face and appear[ed] to be responding to internal stimuli," which Levin testified could be a reaction to hearing a voice telling him he was a bad person and "certainly implies" a lack of emotional control and unusual behavior.
A January 21, 2022 psychiatric progress note stating that the day before C.R. had been "banging angrily on the window, trying to break it, and required emergency meds" reflected an acute lack of emotional control requiring intervention. The note also said C.R. was refusing all medication, which showed lack of compliance and cooperation with treatment.
A nurse's summary for the next day stated that C.R. "presents with severe psychotic symptoms, in spite of patient's attempt to minimize symptoms. Patient has bizarre behavior, gesturing, pressured speech and nonsensical statements. Patient responds to internal stimuli and is severely paranoid, but denies auditory or visual hallucinations." Levin explained that "psychotic symptoms" would include responding to internal stimuli, bizarre behavior and nonsensical statements. "Pressured speech" is rapid and "usually you can tell there's intensity behind it"; it happens when someone is in an "activated agitated state."
The summary related that C.R. refused to take lithium, saying it affected his stomach and made him feel "like fresh asphalt on the road" and he was not taking it because his current psychiatrist was "making sexual advances towards" him. Levin testified that C.R.'s lack of compliance with treatment was important and that while he could understand C.R. justifying his refusal due to side effects of the medicine, the "idea he is saying he is . . . doing it because of his psychiatrist's behavior toward him . . . doesn't make sense to me." Levin commented that lithium is a mood stabilizer that research has shown to be helpful in "making it less likely that people actually [commit] suicide."
A nurse's summary dated January 23, 2022, reported that C.R. was "hyperverbal" and "hyperactive" and lunged at a staff member, grabbed her neck and throat and attempted to push her to the ground. Levin testified that assaultive behavior is a symptom meaning C.R. was "emotionally out of control and inappropriate." This is "part of the . . . whole presentation of somebody with [a] serious psychiatric problem" and therefore something considered in evaluating whether a person is gravely disabled. A January 24, 2022 psychiatric progress note stated, "Speech was sparse and limited to saying 'F off'" to the psychiatrist that day. Levin testified that the sparse speech was in contrast to the description of C.R. as "hyperverbal" the day before while the fact that C.R. was "still irritable" and "telling people to fuck off" was consistent with "where he was the day before."
According to a psychiatric progress note for January 25, 2022, staff told the psychiatrist that when C.R. was in the hallway he" 'fakes it like he has no symptoms'" but "when they look into his room unannounced, he is standing and loudly talking to himself and is very, very paranoid and delusional." This was important to Levin's evaluation because it shows "he can make an effort to appear like he has it together at times." The note related that after C.R. was told he was not being discharged, he followed the psychiatrist down the hall "somewhat too close for comfort and kept iterating, 'so I will be discharged, so I will be discharged,'" and had to be removed from the nurses' station by staff. Levin testified that this indicated C.R.'s mood was "labile" and he was "irritable and aggressive," which was "part of his psychiatric illness." These symptoms are important in evaluating grave disability, especially with respect to shelter, because that kind of behavior, in "another alternative living setting would be intolerable. He is not going to be able to be managed to get along with other people if he is assaultive or aggressive."
A January 26, 2022 nurse's summary stated C.R. was "disorganized," made a "paranoid statement regarding his psychiatrist being 'Hitler,'" and was "loudly demanding needs to be met. 'Get me those gram crackers! You're just like them. I won't apologi[z]e!'" Levin testified this "sound[ed] like loose associations."
A January 27, 2022 psychiatric progress note stated that while talking with the psychiatrist, C.R. began to "demand that he have a trial regarding his conservatorship," became "very angry" and "made an assaultive attack towards [the psychiatrist] which had to be prevented by the nursing staff." Levin testified that the "lack of emotional control, inappropriate behavior towards others, assaultive and dangerous behavior" reflected in this note was important with regard to C.R.'s ability to live in the community.
Levin testified that a January 31, 2022 psychiatrist's note relating C.R. having said he was unhappy because he had to talk to the psychiatrist and he hated the psychiatrist showed C.R. was having difficulty establishing a comfortable relationship with a treating psychiatrist who was trying to help him, which was important for Levin's evaluation because working with a psychiatrist was necessary for getting psychiatric medication.
According to a nurse's 24-hour summary for February 1, 2022, C.R. was "tangential" and "hyperverbal," "joking in hallway and holding comb to his face like a mustache, laughing loudly and pretending to skate down hallway," and had "poor insight into manic behaviors." Levin testified that the behavior described was "inappropriate or manic," which was "one of the affective component[s] of his illness." "Insight" relates to "being aware of one's situation," which could be a "specific psychiatric symptom" and "has to do with cooperation compliance which also is important in terms of prognosis. People who don't have much insight about their illness are less likely to cooperate." Insight is considered in the grave disability analysis.
On February 4, 2022, while going through paperwork for the conservatorship with his psychiatrist, C.R. "pointed to a paragraph and said 'here is another reason I'm being kidnapped'" and "was quite paranoid that this is what the actual situation was." Levin testified, "It sounds like his reality testing is sufficiently interfered with at that point, that he is not understanding the circumstance of why he is there." Similarly, a social worker noted that when she met with C.R. on February 8, 2022, he "became agitated and [made] statements that he is being held against his will and that his being here is human traffic[k]ing," then walked away to his room "mumbling."
On March 7, 2022, C.R. was described as "still disorganized, delusional, internally preoccupied and making nonsensical statement[s]." Two days later, his "[t]hought process [was] disorganized" and he "exhibit[ed] paranoia and suspiciousness when a staff member came to the unit to take patient pictures." These notes indicated to Levin that six weeks before trial, C.R. was "still having acute prominent psychiatric symptoms." A psychiatric progress note on March 9 saying C.R. "continues to like to sleep most of the day," indicated to Levin that C.R. was "isolative and not engaged with other people."
Returning to the CCRMC records, entries for C.R.'s current admission stated he had "minimal engagement during interviews" on April 7 through 9, 2022. He spoke with the psychiatrist for the first time on April 10, at which time he was "[f]ully conversational." When asked why he was at the hospital, C.R. said," 'it is a long story, I prefer not to talk about.'" He was "laughing inappropriately at times" and was described as "isolative and guarded." Levin testified these notes indicated that C.R. "continues to be symptomatic and also not fully engaged with explaining or even having understanding as to why he is in this hospital at this point."
2. Additional testimony
Levin was also questioned about a three-page legal document that C.R.'s mother testified he had left for her in July 2021, throughout which printed words had been crossed out and replaced with others written in C.R.'s handwriting. For example, on the first page, the printed words," 'I am a Licensed Marriage Family Therapist'" were altered to read," 'I'm a licensed Cat and Bitch Walker.'" Levin testified this indicated to him that C.R. was angry or upset, "calling somebody names." In the phrase "Mental Health Clinical Specialist," "Mental Health" was crossed out and replaced with "Don't Give a Fuck" and under "Contra Costa County Health Services Department" was written "CoCo Puffs Bitch." Levin testified, "[i]t sounds as if he is definitely not willing to cooperate." He saw" 'Coco Puffs'" as a "loose association" and "disrespectful."
In response to hypothetical questions, Levin testified that someone believing that "people were surveilling them and placing items under the floorboard of their apartment to surveil them," or believing the county "did something to their cellphone" and covering the camera and speaker of the phone, would be examples of paranoid ideas or delusions. Paranoid ideation and delusions are a symptom of schizoaffective disorder and can affect a person's ability to get food, clothing and shelter and function in society. A person struggling to interact with family members when visiting and screaming and isolating him or herself in another room implies "dysfunction or distrust with the family." Isolating oneself can be a symptom of schizoaffective disorder. A person saying he or she knew better than doctors what to do about medications would relate to the person's reality testing and ability to comply with treatment, which relates to prognosis, as would a person saying he or she saw doctors as harming rather than helping them.
Based on his review of C.R.'s records and discussions with C.R.'s treating psychiatrist, mother and social worker, Levin believed C.R. has minimal insight into his disorder, as reflected in "the way he refuses medicine, the way he talks about his relationship to his [treating] providers, just in general his ability to cooperate with his care, his psychiatric care." Levin believed that it was unlikely C.R. would be consistent and compliant with treatment over a long period of time if he was released, which would put him at serious risk of decompensating. In Levin's opinion, C.R.'s mental health disorder affected his ability to provide for his basic needs of food, clothing and shelter: The fact that he displayed erratic behavior, had limited insight, was still in an acute psychiatric facility and remained "less than cooperative with his treatment team" indicated to Levin that C.R. was "in need of ongoing care and ongoing control." Levin opined that C.R. was "quite severely gravely disabled."
C. Conclusion of the Trial
On April 28, the jury found C.R. gravely disabled. On May 3, the court filed its order appointing the Public Guardian conservator of the person for a one-year period commencing April 28, 2022. The court found that C.R. lacked capacity to refuse or consent to treatment related specifically to his being gravely disabled, including psychotropic medications, and that it was in his best interest that the conservator have the right to require him to receive such treatment.
This appeal followed.
DISCUSSION
C.R. contends the trial court erroneously admitted entries in his medical records that relate opinions, which are not admissible under the business records exception to the hearsay rule, as well as entries describing acts, conditions and events that were not witnessed by the author of the records, which constitute inadmissible multilevel hearsay. The error in admitting this evidence was prejudicial, C.R. maintains, because the medical records were the sole basis for Levin's testimony that C.R. was gravely disabled as a result of a mental illness.
I.
Background
One of C.R.'s motions in limine sought redactions of the medical records contained in the Public Guardian's exhibits 3 and 4 for content C.R. argued was inadmissible on grounds of inadequate foundation, inadmissible hearsay and/or relevance. C.R.'s principal objections were to entries relating "facility goals, recommendations or conclusions" and "events not directly observed by the author." C.R.'s proposed redactions included the majority of the contents of the medical records.
Based on its review of the records and C.R.'s arguments, the trial court overruled most of the objections to "intra-facility communications" under the authority of Conservatorship of S.A. (2018) 25 Cal.App.5th 438 (S.A.), which held that a conservatee's medical records, redacted for "conclusions, opinions, and remote or immaterial matters" she identified, were admissible under the business records exception to the hearsay rule. (Id. at pp. 442, 447.) The trial court concluded the intra-facility entries were reliable business records. The court also largely rejected C.R.'s contention that certain entries were inadmissible diagnoses and opinions. The court agreed with C.R.'s counsel as to redaction of a few entries and suggested some redactions of content it had noticed in reviewing the records but otherwise allowed the records to be discussed and provided to the jury.
II.
Governing Principles
Where specified conditions are met, the business records exception to the hearsay rule allows admission of a writing "made as a record of an act, condition, or event" "in the regular course of a business" to prove the act, condition or event. (Evid. Code, § 1271.) Medical records may be admissible under the business records exception "to prove the acts, conditions, and events recorded therein." (S.A., supra, 25 Cal.App.5th at p. 447; § 1271.)
Further statutory references will be to the Evidence Code unless otherwise specified.
"The business records exception requires a foundational showing that (1) the writing was made in the regular course of business; (2) at or near the time of the act, condition, or event; (3) the custodian or other qualified witness testifies to its identity and mode of preparation; and (4) the sources of information and mode and method and time of preparation indicate trustworthiness." (S.A., supra, 25 Cal.App.5th at p. 447; § 1271.) "The trial court has wide discretion to determine whether there is a sufficient foundation to qualify evidence as a business record; we will overturn its decision to admit such records only upon a clear showing of abuse." (S.A., at p. 447.)
"The key to establishing the admissibility of a document made in the regular course of business is proof that the person who wrote the information or provided it had knowledge of the facts from personal observation." (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322.) "Only that portion of the record is admissible which states facts which would be admissible had the person who made the record been called as a witness and had been examined in court; that is, only that portion of the record, made by one who could qualify as a perceptive witness to the matter recorded, is admissible." (People v. Salcido (1966) 246 Cal.App.2d 450, 462.) Where a record contains statements of others, those statements cannot be admitted for their truth unless there is an applicable hearsay exception for each level of hearsay. (People v. Sanchez (2016) 63 Cal.4th 665, 674-675 (Sanchez).)
Nevertheless, entries in medical records may be admissible despite not expressly stating they were made by the person who directly observed the matter recorded. S.A., in rejecting the conservatee's arguments that the medical records were inadmissible hearsay and an expert witness improperly testified to case-specific facts in the records that were not otherwise proven, explained: "S.A. argues that not every entry expressly states that the person who recorded it was the direct observer. She points, for example, to an entry that begins 'Per staff . . .' and questions whether the writer witnessed the events. But the trial court considered these arguments, reviewed the records, and found the [facility] records were 'clearly the reports of persons and staff, licensed psychiatric technicians, . . . who are reporting [S.A.'s] observed conduct' and the board and care facility records were 'obviously the observations . . . of the people in the psychiatric program.'" (S.A., supra, 25 Cal.App.5th at p. 448.)
Psychiatric records have been distinguished from other hospital records on the basis that they "tend to be opinions, rather than the record 'of an act, condition or event' which is admissible under Evidence Code section 1271" and a "psychiatric diagnosis is often merely the reasoning or thought process of the psychiatrist rendering the opinion, and as such cannot be deemed to be the record 'of an act, condition or event.'" (People v. Young (1987) 189 Cal.App.3d 891, 912 (Young); People v. Reyes (1974) 12 Cal.3d 486, 503 (Reyes).) Reyes commented on the distinction between such a psychiatric diagnosis and one based on straightforward observation:"' "It is true that some diagnoses are a statement of a fact or condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen[,] but this is not true where the diagnosis is but the reasoning of the person making it arrived at from the consideration of many different factors." '" (Ibid.)
With respect to expert testimony based upon medical records, "[a]n expert witness may rely on hearsay in forming an opinion, and may tell the jury 'in general terms' that she did so, but may not 'relate as true casespecific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.'" (S.A., supra, 25 Cal.App.5th at p. 448, quoting People v. Sanchez, supra, 63 Cal.4th at pp. 685-686.) Sanchez applies to conservatorship proceedings. (S.A., at p. 448; Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1284.)
III.
Analysis
C.R.'s opening brief goes through 43 pages of medical records, pointing to each instance of content he views as inadmissible because it does not record an "act, condition, or event" and/or does not show it was recorded "at or near the time of" the act, condition or event by a person who personally observed the act, condition or event. (§ 1271.) The vast majority of C.R.'s objections are the entries he views as expressing opinions rather than the facts from which an opinion or conclusion might be drawn. For example, C.R. argues that an entry describing him as "responding to internal stimuli" is an inadmissible opinion whereas an entry stating C.R. was seen talking out loud in an empty room would have been admissible and a permissible basis for Levin to testify that the observation indicated C.R. was responding to internal stimuli. C.R. also challenges entries relating information that may have been provided to the recorder by another person and entries that appear to describe C.R.'s conduct or appearance over a period of time rather than on a specific identified occasion.
We have reviewed the records and C.R.'s exhaustive discussion of them and, although we will not exhaustively discuss each entry he challenges, we are convinced the trial court's denial of proposed redactions was not an abuse of discretion.
A. The Trial Court Did Not Abuse Its Discretion.
Unsurprisingly, C.R.'s hospital records are replete with references to matters such as his behavior, appearance, mood and thought processes. Some of these are narratives, such as a nurse's summary or psychiatrist's progress notes; others are checked boxes on forms completed by staff.
For example, a form used by registered nurses includes an "RN Assessment" section listing descriptive terms with boxes to be checked under each of a number of categories: "Confused" or "Alert" are options under the category "Cognition"; "Disorganized," "Delusional," "Appropriate" and "Hallucinations" are options under "Thought Content"; "Isolative," "Hostile" and "Impulsive" are among the choices under "Interaction." Similarly, on a form documenting social workers' one-on-one meetings with patients, a section called "Patient's Mental Status/Presentation" lists options including "Euthymic," "Happy," "Anxious," "Depressed," "Irritable" and "Labile" under the category "Mood"; "Auditory," "Auditory Command," "Olfactory," "Tactile," "Visual" and "Delusions" under the category "Psychosis"; and so on.
C.R. contends almost all of these descriptions are opinions and therefore inadmissible under the business records exception to the hearsay rule. On this basis he challenges the trial court's refusal to redact references to comments or checked boxes indicating he was psychotic, delusional, confused, threatening, agitated, out of control, paranoid, irritable, angry, aggressive, assaultive, impulsive, internally preoccupied, hyperverbal, hyperactive, isolative, or guarded, and reticent to speak with the psychiatrist; characterizing his insight and/or judgment as fair, impaired, limited or lacking, his memory as impaired, his affect as flat, angry, constricted or variable, his mood as expansive, euthymic, depressed, or labile, his thought processes as disorganized or tangential, and his impulse control as poor; and stating he was responding to internal stimuli or showed "bizarre behavior, gesturing, pressured speech and nonsensical statements."
C.R.'s position appears to be that the only entries in psychiatric medical records admissible under the business records exception are those relating specific actions taken and words spoken, not general descriptions of the acts or statements-"he hit me repeatedly" or "he said he would hit me" would be admissible but "he was assaultive" or he "was threatening" would not. One entry that C.R. sees as a "very clear example" of the difference between admissible and inadmissible evidence is a psychiatric progress note stating that while going through paperwork for the conservatorship, C.R. "pointed to a paragraph and said 'here is another reason I'm being kidnapped' and he was quite paranoid that this is what the actual situation was." C.R. views the portion describing him pointing to the paragraph and relating what he said as potentially admissible evidence of paranoia but the subsequent portion, saying he "was quite paranoid that this is what the actual situation was," as inadmissible opinion.
The trial court stated that it had reviewed the "purported diagnoses and opinions that [C.R.] argues are . . . similar to those identified in People v. Reyes . . . and [did] not believe that the indicated statements are such diagnoses and opinions." We agree. In the context of medical records from a psychiatric facility, the words and phrases C.R. points to as inadmissible opinions are descriptions of observable psychiatric symptoms recorded for purposes of diagnosis and treatment, not in themselves evaluations or conclusions based on"' "reasoning . . . arrived at from the consideration of many different factors." '" (Reyes, supra, 12 Cal.3d at p. 503.) At trial, Levin explained the meaning of the terms used in the records to describe C.R.'s appearance and behavior and how the described symptoms supported the diagnosis he gave C.R. and his conclusion that C.R. was gravely disabled. Thus, in the example above, the psychiatrist's note used the term "paranoid"-in essence, a term of art with an understood meaning in the field-to describe what the psychiatrist observed about C.R.'s mental state. Levin then drew conclusions from the observed behavior, testifying that this record indicated C.R.'s "reality testing [was] sufficiently interfered with at that point, that he is not understanding the circumstance of why he [was] there." In short, while a psychiatric diagnosis "tend[s] to be [an] opinion[]" based on "the reasoning or thought process of the psychiatrist rendering" it (Young, supra, 189 Cal.App.3d at p. 912; Reyes, supra, 12 Cal.3d at p. 503), an observable psychiatric symptom is an "act, condition or event" within the meaning of section 1271.
In his reply brief, C.R. compares the wording of section 1271 with that of its federal equivalent to emphasize that opinions and diagnoses are not admissible under section 1271. Under the federal hearsay exception for "Records of a Regularly Conducted Activity," a "record of an act, event, condition, opinion, or diagnosis" is admissible if specified conditions are met. (Fed. Rules Evid., rule 803(6).) C.R. argues that the fact California has not chosen to add "opinion" or "diagnosis" to the records admissible under section 1271 demonstrates they are not admissible and, therefore, the trial court erred in admitting hearsay evidence of opinions "simply because they were not 'diagnoses' or reflected the existence of conditions." Putting aside the fact that raising an argument based on federal law in the reply brief deprived the Public Guardian of an opportunity to respond, C.R.'s comparison of California and federal law does not change our conclusion. We agree that opinions and diagnoses are not admissible under section 1271. (Young, supra, 189 Cal.App.3d at p. 912; Reyes, supra, 12 Cal.3d at p. 503.) We disagree that most of the descriptions of C.R.'s behavior and appearance reflected in the medical records are opinions.
C.R. also argues that some of the entries in the medical records are inadmissible because (aside from or in addition to relating opinions) they record matters not directly observed by the recorder. For example, one psychiatric progress note states, "Staff reports that he is still disorganized, delusional, and isolative," thus relating information received from another source. Similarly, another progress note relates "staff" reporting that C.R." 'fakes it like he has no symptoms'" when he is in the hallway but "when they look into his room unannounced, he is standing and loudly talking to himself and is very, very paranoid and delusional." Another note states that C.R. "continues to exhibit aggressive behaviors at times, the most recent being two days prior to this dictation when he pushed a staff member down to the floor," without clarifying whether the author of the note personally observed the incident.
C.R.'s contention that entries such as these should have been redacted as inadmissible multiple hearsay was rejected by S.A., supra, 25 Cal.App.5th at page 448. As earlier described, in rejecting a challenge to entries in medical records that did not expressly state the person who recorded it was the direct observer, the example S.A. discussed was an entry beginning with" 'Per staff ....'" (Ibid.) S.A. upheld the trial court's determination that the records were" 'clearly the reports of persons and staff, licensed psychiatric technicians, . . . who are reporting [S.A.'s] observed conduct' and the board and care facility records were 'obviously the observations . . . of the people in the psychiatric program.'" (Ibid.) So, here, C.R..'s medical records were trustworthy precisely because they document the observations of staff whose job was to record such observations, which were relied upon in the course of the facility's day-to-day business of assessing and treating psychiatric patients.
C.R.'s challenges to various entries that do not clearly refer to a specific observed incident are also unpersuasive. C.R. repeatedly asserts that a given entry might be admissible if limited to a specified instance rather than an undefined time period. For example, C.R. argues that a psychiatric progress note stating he "is refusing" his prescribed medication would be admissible if it referred to a specific instance but instead "appears to be a historical note covering an unknown period of time." Similarly, regarding a note relating staff reports to the psychiatrist that when they look into C.R.'s room unannounced he "is standing and loudly talking to himself," C.R. argues that while a note describing a specific instance of this occurring would be admissible, the "general statement covering [his] behavior over an unknown period of time" is not.
This argument largely considers each entry in isolation, ignoring context. For example, the progress notes in the records indicate they are prepared almost daily; there are eight such notes between January 19 and January 31. Each states the patient "was seen and examined," the chart reviewed and the case discussed with staff, with the exception of one saying the patient "refused to meet with the doctor today for examination, but I reviewed nursing notes and Social Service's evaluation on his current behavior." A statement in one of these notes that the patient "is refusing" medication necessarily refers to a contemporaneous period; it is simply not reasonable to read them otherwise. The same is true with respect to C.R.'s objection to comments about staff observations of C.R. in his room: The psychiatrist was relating what staff told him they observed on or around the date of the note (in this instance, January 25, 2022).
Another example is C.R.'s objection to a note from January 27, 2022, that includes a reference to him yelling. C.R. argues that while yelling is an "act, condition, or event," there is no indication the report was referring to recent yelling. But the note is on a "Seclusion/Restraint Order" documenting medication C.R. was given because he posed an "Imminent Danger to Others"; the reference to yelling is part of a description of "specific behaviors" underlying the imminent danger determination and thus obviously a recent reference.
The several restraint orders included in the records are each followed by a form called "Post Intervention Face to Face Evaluation" that states it is to be completed within one hour of initiation of the intervention and, according to the recorded dates and times on the forms, were in fact filled out within the required time. C.R. argues it is not clear that a note on a postintervention form dated January 20, 2022, was written at or near the time of the event. Although the note appears to describe currently observed behavior-"patient was out of control, yelling, screaming, verbal threatening the staff and banging on nursing station"-it appears as the response in a section of the form asking, "Based on system review, behavior assessment, review of recent lab results, medical history, medication regime, drug history, are there any factors contributing to the patient's violent or self-destructive behavior?" C.R. argues that this question "calls for a systemic review and suggests that [the response] is a description of historic events which make the entire entry inadmissible." It is clear from the wording of the note, however, that it is describing the incident leading to the intervention, especially as it is virtually identical to the wording used where the form asks for a description of "any abnormal findings from Mental Status/Behavorial Assessment" as well as on the restraint order form for the incident.
A January 27, 2022 note in the section of the post-intervention form calling for factors contributing to the patient's behavior might more easily be seen as referring to incidents other than the one being documented, as it states that C.R. "has multiple aggressive episodes, posturing and threatening to attack staff and his attending psychiatrist." To the extent the admissibility of this note would be undermined if it is understood as referring to past incidents as well as the current one, however, it could not have been prejudicial because additional specific incidents are reported in records from the preceding days. A January 23, 2022 restraint order, for example, describes C.R. "punching walls and doors, destroying property," and a January 20, 2022 order describes him "threatening staff, yelling, screaming and banging on nursing station."
The record confirms that the trial court carefully reviewed the medical records, C.R.'s proposed redactions and his written and oral arguments in support. Overall, the court's rejection of C.R.'s characterization of terms describing psychiatric symptoms as opinions or diagnoses, and his view of intra-facility communications as inadmissible multiple hearsay, are supported by the case law we have discussed.
B. C.R. Has Not Demonstrated Any Insufficiently Redacted Entries Were Prejudicial.
Finally, to the extent any of C.R.'s challenges to specific entries might have merit, he has not demonstrated he was prejudiced by any failure to redact his medical records. C.R. does not attempt to address the prejudicial effect of any particular entry. Rather, he argues he was prejudiced by the admission of the medical records because they were the sole basis for Levin's testimony that C.R. was gravely disabled as the result of a mental illness. In C.R.'s view, Levin relied on inadmissible opinions in the records to reach the conclusions he stated in his testimony, such as relying on a record entry expressing the "opinion" that C.R. was responding to internal stimuli as a basis for concluding C.R. suffered from schizoaffective disorder. Since he sees the records as replete with inadmissible opinions, C.R. maintains Levin's testimony was "fundamentally flawed" and "infected with Levin's understanding of the opinions expressed by other people." Indeed, C.R. argues Levin's expert testimony was nothing more than speculation because it was not supported by admissible evidence. (Rodenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651 [expert testimony that is speculative is not substantial evidence].)
As we have explained, overall, the medical record entries C.R. views as inadmissible opinions are descriptive terms for observable psychiatric symptoms. The psychiatric symptoms reported in C.R.'s medical records, recorded by trained professionals whose job was to contemporaneously record observations relevant to C.R.'s assessment and treatment, were admissible under section 1271 and a valid basis for Levin's expert testimony. (S.A., supra, 25 Cal.App.5th at p. 448; Sanchez, supra, 63 Cal.4th at pp. 685-686.) An expert witness is permitted to relate out of court statements that are "proven by competent evidence or are covered by a hearsay exception." (Sanchez, at p. 686.)
We will not go so far as to say none of C.R.'s objections to specific entries were well founded. For instance, C.R. points to two entries that we agree express opinions: statements in psychiatric notes for January 28 and 31, 2022, stating that C.R.'s "condition is not expected to improve without medication" and that his "aggression and anger and impulse control" are "not expected to ameliorate as he refuses medication and is in denial regarding his conservatorship." Levin was not asked about these entries and the jury's attention was not otherwise directed toward them. In light of the great weight of admissible evidence in the medical records concerning C.R.'s psychiatric symptoms, Levin's testimony about the significance of these symptoms and medication as the primary treatment for C.R.'s mental health condition and C.R.'s mother's testimony about his condition when on and off medication, any error in failing to redact these references to the treating psychiatrist's expectations could not have been prejudicial.
C.R. also points to a few entries that are phrased in a manner that could be seen as reflecting an opinion, such as the psychiatrist's notes that C.R. greeted him by saying" 'I don't want to talk to you,' which is typical for him" and, a week later, that he "would not speak with the psychiatrist as usual." C.R. sees the references to "typical" and "usual" conduct as inadmissible opinions of the notes' author, but they are not the sort of reasoned conclusion Reyes, supra, 12 Cal.3d at page 503, distinguished from observed acts, conditions and events that come within the business records exception. Rather, they are references to acts observed to be repeated instances of the same observed act. As multiple other records document C.R.'s refusal or expressed desire not to speak with his psychiatrist, the psychiatrist's description of this conduct as "typical" or "usual" could not have been prejudicial.
In sum, the trial court did not abuse its discretion in declining to further redact C.R.'s medical records. To the extent any records contained entries that should have been redacted, C.R. has identified none that could have resulted in prejudice.
C.R. contends that if any of his claims were not properly preserved, the failure to preserve them constituted ineffective assistance of counsel. As we have addressed his claims on the merits, it is not necessary for us to address his ineffective assistance of counsel argument.
DISPOSITION
The conservatorship order is affirmed.
We concur. RICHMAN, J., MILLER, J.