Opinion
E064815
03-10-2017
THE PEOPLE, Plaintiff and Respondent, v. LINDA BELIN, Defendant and Appellant.
Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lise Jacobson, Randall D. Einhorn and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FELJS1405424) OPINION APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama. Affirmed. Michelle D. Pena, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Lise Jacobson, Randall D. Einhorn and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Linda Belin appeals from the trial court's judgment affirming her continued involuntary treatment at Patton State Hospital (Patton) as a mentally disordered offender (MDO) pursuant to Penal Code section 2970. Defendant makes the following claims on appeal:
All further statutory references are to the Penal Code unless otherwise indicated.
1. The People did not provide sufficient evidence to prove she represented a substantial danger of physical harm to others due to a severe mental disorder as required in the MDO law.
2. The phrase "substantial danger of physical harm" in sections 2962 and 2970 is unconstitutionally vague.
3. The trial court erroneously allowed the expert witness to describe otherwise inadmissible and prejudicial hearsay evidence in violation of her due process right to a fair trial.
4. The California Supreme Court's recent case of People v. Sanchez (2016) 63 Cal.4th 655 (Sanchez) which clarified the admission of expert testimony in gang cases pursuant to Evidence Code sections 801 and 802, renders much of the expert testimony in this case inadmissible hearsay.
The trial court correctly determined, based on properly admitted evidence, that defendant continued to suffer from a severe mental disorder that was not in remission, and presented a substantial danger of physical harm to others warranting her continued commitment to Patton.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On May 26, 2006, defendant was sentenced to five years in state prison by the Los Angeles County Superior Court for a conviction of arson of an inhabited structure (§ 451, subd. (b)). On May 22, 2013, the Board of Parole Hearings (BPH) determined that defendant was a MDO within the meaning of section 2962 and she was housed at Patton. On November 21, 2013, the court reaffirmed the special condition of parole pursuant to section 2962. It again reaffirmed the finding that the condition was not in remission on November 25, 2014.
Defendant filed a petition pursuant to section 2966, subdivision (c) asking for counsel to be appointed and that a hearing be held in the San Bernardino Superior Court to dispute the November 25, 2014, finding. A bench trial was held on October 26, 2015. The trial court issued its order on October 27, 2015, finding that (1) defendant suffered from a severe mental disorder as defined by section 2962, subdivision (a); (2) the mental condition was not in remission; and (3) defendant represented a substantial danger of physical harm to others. She was ordered to remain committed to Patton for a period of one year.
The People do not contend the appeal is moot.
B. FACTUAL HISTORY OF HEARING
Dr. Steven Galarza was a staff psychiatrist at Patton and had been on staff for 10 years. Defendant had been one of his patients since April 4, 2014. They met formally each month for 20 to 30 minutes but he also would check on her throughout the month, at least once each week for 10 to 15 minutes. Galarza wrote a report regarding defendant for the dates of October 2013 to October 2014 for the section 2966, subdivision (c) extension of her commitment. In order to prepare the report, he interviewed her for 30 to 40 minutes. In addition, in preparation for writing the report, Galarza reviewed defendant's current medical chart, which included nursing notes, psychologist notes, and licensed social worker notes. Galarza also reviewed her legal chart, which included information about her arrest and committing offense. Galarza reviewed prior psychological evaluations, probation reports and police reports on the committing offense.
Defendant's counsel stipulated that Galarza was an expert on mentally disordered offenders.
Defendant's underlying offense was arson of an inhabited structure. Galarza diagnosed defendant with Schizoaffective Disorder as that term is used in the Diagnostic and Statistical Manual V Revision. Galarza explained that Schizoaffective Disorder grossly impairs most areas of the patient's functioning, including behavior, speech, and the ability to function in a social setting. It was characterized by delusions, hallucinations, and an inability to distinguish between reality and the hallucinations. Her major symptom was paranoid delusions. Defendant believed the staff at Patton could communicate with her telepathically and could harm her. She felt the staff was trying to insert messages into her brain. Defendant believed her children were being abused, raped and tortured at Patton. Defendant frequently asked to speak with the police and FBI to find her children.
Defendant claimed to hear her children crying and would attempt to look for them in cabinets, other patient's rooms and would advise the hospital police officer that she heard her kids yelling and crying. This happened throughout the day. Defendant believed her children were in the basement of the hospital and insisted she would see them. Most of her hallucinations pertained to her children. According to records reviewed by Galarza, she had suffered from the symptoms for over 20 years.
Galarza indicated defendant was a poor historian. Galarza indicated that her symptoms of Schizoaffective Disorder were persistent, chronic and highly visible on an average day. Galarza indicated that his and her discussions of her mental health were usually brief, because each time he brought up the subject, she would attempt to terminate the interview. She had accused him of plotting against her, she had called him a Nazi and an abuser. This type of reaction was consistent with her paranoia.
At the time of the report, defendant was prescribed Olanzapine, which was approved to treat Schizophrenia Schizoaffective Disorder, and Saphris which was approved to treat Schizophrenia.
In Galarza's medical opinion, defendant had a treatment resistant psychotic disorder. He continued to try to find a medication that would help her. Galarza wanted to try giving defendant another drug called Clozaril. However, he was unable to prescribe it to her prior to the BPH hearing on October 5, 2014, because she refused to have her blood drawn. The medication could not be prescribed without a weekly blood test. Defendant believed that they were poisoning her when they took her blood. She had serious medical issues but refused to allow blood draws. It was his opinion she refused these blood draws because of her paranoia.
It was Galarza's medical opinion that defendant's severe mental disorder was not in remission. She continued to have active psychotic symptoms and impairment of function. She had ongoing delusions and hallucinations. She refused to explore her past or mental illness because she was suspicious she was being set up. She could not be in remission without treatment.
Galarza also noted that defendant was taking very effective antipsychotic medications which only minimally decreased her symptoms. Moreover, this was combined with all the therapy and treatments at Patton. Defendant did not have any insight into her mental illness. Galarza indicated that by not acknowledging her mental illness, it was likely she would stop treatment if released.
Galarza was of the opinion that defendant would be a substantial danger to others if she was released. Galarza stated, "In my review of the records, when she committed her committing offense, she was grossly psychotic. In my view, she continues displaying very similar symptoms. She still has severe delusions, hallucinations. She's also had periods of violence while incarcerated prior to her arrival at Patton."
Galarza considered defendant's lack of insight as relevant in determining defendant was a substantial danger based on her committing offense and her reported instances of violence in jail related to her mental health. He again stated, "She continues displaying severe psychotic symptoms, and she has near zero awareness of those symptoms. I think in the future, if she stopped taking her medications, didn't continue treatment, her risk would increase." Moreover, she had no insight into the controlling offense as she refused to talk to Galarza about the offense. She would not say why she committed the offense or what her feelings were during the offense. Galarza was asked how that impacted whether she was a substantial danger. He responded, "It shows that she's paranoid, and I'm uncertain if she would be willing to continue treatment, whether she would be violent or not, because she's so paranoid about it that she shuts down."
Galarza noted that defendant was HIV positive and it was imperative that she have blood tests done to check her condition but she refused because she thought they were trying to poison her. Galarza would try to get her to do the blood work but she would refuse.
Galarza admitted defendant was compliant with taking her medication; she knew it was a criteria for being released and it helped her sleep.
Galarza admitted defendant had not engaged in any physical acts of violence while at Patton.
Galarza was also asked about studies regarding future risk of violence. Galarza responded that he spent time with his patients and talking about their thoughts about their future. It helped with the ability to gauge future violence. Galarza agreed just having a one-hour clinical interview with a patient would be like having a coin toss for future acts of violence, but he had more interaction with defendant.
As a female and being 49 years old, Galarza admitted defendant had less risk of a violent offense. Galarza believed that the majority of forensic studies supported defendant was at risk for acts of violence. Further, he felt defendant setting fire to her apartment was an act of violence. It was unknown who was above or below her. She was unwilling to share why she did what she did.
The People also presented Exhibit Nos. 1, 2 and 3 to Galarza, which were the records of violations in prison. One was dated July 9, 2009, and reported that defendant hit another inmate with her fist. Galarza reviewed Exhibit No. 2 which was a rules violation on October 2, 2011. It was the first time Galarza had seen the record. It stated that defendant was punching her peer, which was relevant to his opinion about her substantial dangerousness because it showed she was aggressive.
These exhibits and Exhibit No. 4 were kept by the trial court but not admitted into evidence.
Galarza was also shown Exhibit No. 3, which Galarza conveyed that it said defendant punched a peer on April 12, 2010. It was the first time Galarza had seen the record.
Galarza was then shown Exhibit No. 4 which was the police report for two incidents, one for the underlying offense, and the other an offense near the time of the underlying offense. Galarza stated the facts in the police report that defendant yelled "dead mother fuckers" at a 15-year-old individual, while rushing at him or her. This showed she was very ill at the time. Further, the report of the arson showed she also said "some dead mother fuckers."
Defendant testified. She knew she was diagnosed as Schizophrenic Bipolar. She took several medications to treat this. She would continue to take her medication when she got out because she was told her illness would progress if she did not take the medication.
Defendant did not like what was happening at Patton. She believed that Patton was a threat to her safety. She kept to herself so she did not have to get involved with what was happening at Patton.
Defendant was asked about her children. She responded, "My kids are going through there. There's a conspiracy and a cover up, what's happened at Patton and my situation with my children, so yes." Defendant claimed Galarza lied when he testified. She also stated, "Nothing can be done about the situation. I've been treated at Patton for this—and this telepathic communication I'm going through."
Defendant insisted Patton stressed her out, which caused her Schizophrenic symptoms. She again said the staff spoke with her telepathically. She also stated, "It's just I'm very schizophrenic, hearing voices." She liked the medication she took because it helped her sleep.
Defendant continued to state that everyone at Patton spoke with her telepathically. She insisted she was the "victim there." Defendant did not want to talk about her children being held hostage at Patton because "it's going to keep me as a patient at Patton. This the truth of the matter, my children are there held. Every day I'm being threatened by the staff. Everyone, they threaten me, my children. I go past the hall, hear my children down the hall being—they being suffering, nothing I can do about it."
Defendant felt that having her blood drawn was a way to harass her. She had not yet been diagnosed as Schizophrenic when she lit her apartment on fire; she was in a "mental state of mind" when she committed the offense. She denied she heard voices before going into prison. She had fights in prison but claimed they were all self-defense.
Defendant was asked if she accepted her diagnosis. She responded, "It's only in my life, like, I'm schizophrenic. People everywhere, anywhere, wherever I go, people are communicating to me, and I don't understand why. I'm the victim of it. I don't even know these people . . . [¶] . . . [¶] . . . and they're after my children."
Defendant's counsel then asked if she knew where her children were located and that he had advised her of their location. She responded, "Yes. I know they're at Patton State Hospital." She then stated, "Judge, you can't do anything about it? Come home. I just can't be investigated at Patton and get my kids out of Patton?" She also stated, "and I have to be tucked into a civil commitment. My God, I have to live there with my children being tortured." She then denied when confronted that her children lived in Los Angeles, that she would not speak about it again but it was a cover up. She then said, "And the police—the police are criminals, and it's what my children are going through."
The trial court read its decision into the record. It first found that the evidence established beyond a reasonable doubt that she suffered from a severe mental disorder. This was supported by Galarza's testimony and the testimony of defendant, which confirmed that she suffered from paranoid delusions. Additionally, it had been shown beyond a reasonable doubt that she still suffered from this mental disorder and it was not in remission. Despite taking medication, she still suffered from paranoid delusions and hallucinations.
As for whether she was a substantial danger of physical harm to others, the trial court noted that Galarza personally saw defendant weekly and monthly. When Galarza tried to speak with defendant regarding her mental illness, she shut down and refused to discuss it. She would not participate in group therapy. Moreover, the medication taken by defendant had little or no effect on her mental illness. Galarza testified defendant had little or no insight into her mental illness. She needed to develop tools that would allow her to speak to her doctor about her illness.
The trial court also looked to defendant's testimony in court that she had delusions about her children being at Patton and that she was receiving telepathic communication. The trial court concluded, "Coupled with these factors, Dr. Galarza opined that, in light of her history involving the likely psychiatric episode during the commitment offense of arson of an inhabited structure, as well as her history and custody involving physical altercations, some of which may be mutual combat, that at the time of the Board of Parole Hearings date, [defendant], due to her severe mental disorder, she represents a substantial danger of physical harm to others. This Court believes that criterion three is also proven beyond a reasonable doubt."
DISCUSSION
A. SUFFICIENT EVIDENCE OF SUBSTANTIAL DANGER OF PHYSICAL HARM TO OTHERS
Defendant contends there was insufficient evidence for the third of the three factors the People were required to establish for defendant to be continued as a MDO. Specifically, the evidence did not establish she represented a "substantial danger of physical harm to others" should she be released from Patton.
"In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all the evidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding." (People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)
"The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment . . . until their mental disorder can be kept in remission." (In re Qawi (2004) 32 Cal.4th 1, 9; People v. J.S. (2014) 229 Cal.App.4th 163, 169.) "[T]he purpose of the scheme is to provide MDO's with treatment while at the same time protecting the general public from the danger to society posed by an offender with a mental disorder." (Qawi, at p. 9.)
"The MDO Act provides for treatment of certified MDOs at three stages of commitment: as a condition of parole, in conjunction with the extension of parole, and following release from parole. Section 2962 governs the first of the three commitment phases, setting forth the six criteria necessary to establish MDO status; these criteria must be present at the time of the State Department of Mental Health's and Department of Correction and Rehabilitation's determination that an offender, as a condition of parole, must be treated by the State Department of Mental Health. The first three criteria outlined in section 2962 . . . require proof that an offender suffers from a severe mental disorder, that the illness is not or cannot be kept in remission, and that the offender poses a risk of danger to others. [Citation.] The latter three criteria outlined in section 2962—that the offender's severe mental disorder was a cause or aggravating factor in the commission of the underlying crime, that the offender was treated for at least 90 days preceding his or her release, and that the underlying crime was a violent crime as enumerated in section 2962, subdivision (e)—are considered 'static' or 'foundational' factors in that they 'concern past events that once established, are incapable of change.'" (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061-1062, disapproved on other grounds in People v. Harris (2013) 51 Cal.4th 1211.)
"Section 2972 sets forth the procedures for the hearing of a petition for continued MDO treatment. 'The court shall conduct a hearing on the petition. . . ,' and the prisoner has the right to a jury trial. [Citation.] 'The standard of proof under this section shall be proof beyond a reasonable doubt. . . .' [Citation.] The People are represented by the district attorney, and the prisoner has the right to representation by the public defender. [Citation.] The court shall continue commitment for one year if the trier of fact finds that 'the patient has a severe mental disorder, that the patient's severe mental disorder is not in remission or cannot be kept in remission without treatment, and that by reason of his or her severe mental disorder, the patient represents a substantial danger of physical harm to others.'" (People v. Gregerson (2011) 202 Cal.App.4th 306, 314.)
A single opinion by a psychiatric expert that a person currently is dangerous due to a severe mental disorder can constitute substantial evidence to support extension of a commitment. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 [§ 1026.5 commitment].) A trial court is "entitled to rely" on the expert testimony that a defendant continues "to act inappropriately based on delusions." (Id. at p. 1168.)
Galarza was defendant's treating physician at Patton. He had observed her first hand since April 2014 and the BPH hearing was in October 2014. He reviewed all of her medical history and met with her weekly and monthly. He stated he had diagnosed her with Schizoaffective Disorder, which grossly impaired her functioning. She was unable to distinguish between reality and delusions. He also noted she believed that her children were being raped and tortured at Patton. She had called the police and entered other patient's rooms.
Additionally Galarza noted that she was unwilling to participate in her treatment because she did not want to discuss her mental illness. She had called him a Nazi and accused him of plotting against her. Medication that he prescribed did not seem to help with her symptoms, and she could not be given other medication because she refused to have blood drawn, fearing she was being poisoned.
Galarza opined that defendant was a substantial danger to others because when committing her offense, she was suffering from some sort of psychotic episode. She continued to have severe delusions and hallucinations. He also relied on his review of records that showed her involvement in violent acts while in prison. Moreover, due to her lack of insight, it was Galarza's expert opinion that defendant would likely discontinue taking her medication upon release, increasing the risk that she could harm others. Her lack of insight also posed a risk to her stability in the future and the chance of being involved in acts of violence.
The trial court specifically noted in its decision that Galarza personally saw defendant weekly and monthly. When Galarza tried to speak with defendant regarding her mental illness, she shut down and refused to discuss it. She would not participate in group therapy. Moreover, the medication taken by defendant had little or no effect on her mental illness. The trial court reasonably relied upon Galarza's expert testimony.
In addition, the trial court properly relied upon its own observations of defendant in court. It referred to her testimony in court that she had delusions about her children being at Patton and that she was receiving telepathic communications. The trial court could reasonably conclude that defendant corroborated the testimony of Galarza and confirmed she was hearing voices and could not control them; she feared for the safety of her children, who she insisted were at Patton; and that she had no insight into her mental illness. These actions by defendant showed she was unpredictable and could harm others if released.
Defendant relies on numerous studies that she claims show that the opinions of psychiatrists are no more accurate in predicting future dangerousness than the common citizen. Although defendant's counsel mentioned these studies during cross-examination of Galarza, these studies were not introduced below. Moreover, Galarza did not agree with the studies, and felt that weekly and monthly interaction with defendant was a more accurate predictor. No evidence was introduced in the trial court regarding the unreliability of the methods used by Galarza and cannot be argued for the first time on appeal. Moreover, defendant has provided no case law to support that the testimony of a treating psychiatrist who renders an expert opinion as to a patient is insufficient unless accompanied by actuarial predications.
Defendant complains that the evidence of her future dangerousness was based entirely on the testimony of a single psychiatrist. We note that defendant gives absolutely no credence to the determination by Galarza that defendant presented a substantial danger of physical harm to others. However, defendant never questioned that Galarza was an expert. Galarza was defendant's treating psychiatrist; he was not a doctor who only evaluated defendant for a one-time report on her condition. He had been a psychiatrist at Patton for over 10 years. He had observed defendant's behavior and interacted with her for six months. The trial court could reasonably rely upon Galarza's expert opinion as to defendant's condition. Moreover, defendant gives no weight to the fact the trial court observed defendant's behavior in court. The trial court properly relied upon its observations in making its determination.
Substantial evidence supports the trial court's determination that defendant should remain committed to Patton.
B. CONSTITUTIONALLY VAGUE
Defendant contends, as she did in the trial court, that the terms "substantial danger" and "substantial harm" as used in sections 2962 and 2970 are unconstitutionally vague. She contends, "It violates the essence of due process to allow for a vague term to be used arbitrarily, on a case-by-case basis."
"Due process requires fair notice of what conduct is prohibited. A statute must be definite enough to provide a standard of conduct for its citizens and guidance for the police to avoid arbitrary and discriminatory enforcement. [Citations.] 'Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that [her] contemplated conduct is proscribed.' [Citation.] [¶] . . . A statute is not vague if . . . any reasonable and practical construction can be given to its language. Reasonable certainty is all that is required." (People v. Townsend (1998) 62 Cal.App.4th 1390, 1400-1401.) Sections 2962 and 2970 do not suffer from unconstitutional vagueness.
In People v. Martin (1980) 107 Cal.App.3d 714, the court addressed the defendant's argument that then Welfare and Institutions Code section 6316.2 was unconstitutionally vague. It provided that a person could be recommitted under that section if he "'suffers from a mental disease, defect, or disorder, and as a result of such mental disease, defect, or disorder, is predisposed to the commission of sexual offenses to such an extent that he presents a serious threat of substantial harm to the health and safety of others.'" (Martin, at p. 724.) The defendant argued that the term "substantial harm" was unconstitutionally vague. The appellate court rejected the claim, finding, "'Substantial harm' reasonably conveys serious rather than trivial, harm to other persons." (Ibid.)
In People v. Kirk (1975) 49 Cal.App.3d 765, 769, in assessing the terms "dangerousness" as used in Welfare and Institutions Code section 6300, the court concluded that dangerousness was not vague.
Welfare and Institutions Code section 6300 provided, "'As used in this article, "mentally disordered sex offender" means any person who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.'" (People v. Kirk, supra, 49 Cal.App.3d at p. 768.)
The California Supreme Court found in In re Qawi, supra, 32 Cal.4th 1 that the term "substantial danger of physical harm to others' is not defined; however, it also stated, "[i]n context, it appears to mean a prediction of future dangerousness by mental health professionals." (Id. at pp. 23-24.) Defendant has failed to establish that the term "substantial danger of physical harm to others" is unconstitutionally vague.
Defendant relies exclusively on Johnson v. U.S. (2015) 576 U.S. ___ [135 S.Ct. 2551, 2561, 192 L.Ed.2d 569].) "The Johnson court held that the portion of the Armed Career Criminal Act of 1984 (18 U.S.C. § 924(e)(2)(B)) defining 'violent felony' as 'any felony that "involves conduct that presents a serious potential risk of physical injury to another"' is unconstitutionally vague. [Citation.] The court identified two features rendering the provision vague. First, 'the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined "ordinary case" of a crime, not to real-world facts or statutory elements.' [Citation.] Second, 'the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise "serious potential risk" standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction.'" (People v. White (2016) 3 Cal.App.5th 433, 454 (White).)
In White, the defendant contended that the term "sexually violent criminal behavior" as used in the Sexually Violent Predator Act was vague on its face, arguing that judges and juries would be free to determine ad hoc what constitutes sexually violent criminal behavior. (White, supra, 3 Cal.App.5th at p. 453.) The defendant relied upon Johnson. (White, at p. 454.) The court distinguished Johnson, finding "That portion of the SVPA requiring evidence that a defendant is likely to engage in sexually violent criminal behavior suffers from neither of the defects identified in Johnson. There is no uncertainty regarding the risk involved in sexually violent criminal behavior. Under the SVPA, 'a person is "likely [to] engage in sexually violent criminal behavior" if at trial the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody. . . .' [Citation.] The required factual determination lacks the uncertainty deemed fatal to the statute in Johnson. Conduct that is violent and sexual is well-defined in the Penal Code, and as noted above, includes the form of sexual battery engaged in by defendant. The SVPA is not vague in regard to the likely behavior of the defendant—it must be predatory, sexual, and violent. These terms have common meanings that require no further definition and fall far short of unconstitutional vagueness." (White, at p. 455.)
This case also differs from Johnson. The determination of substantial danger of physical harm to others is not determined in the "abstract." Rather, an expert, in this case a treating psychiatrist, makes a determination of substantial danger of physical harm to others. Moreover, other courts have determined that the terms "substantial harm" and "danger" are not vague. The terms "substantial," "danger" and "physical harm" "have common meanings that require no further definition and fall far short of unconstitutional vagueness." (White, supra, 3 Cal.App.4th at p. 455.) We reject defendant's constitutional challenge.
C. HEARSAY
Defendant in her opening brief argued the trial court erred in admitting Galarza's testimony that was inadmissible hearsay including details of the events surrounding the original offense, an incident of violence occurring just prior to the original offense and the physical altercations in prison. After the opening brief was filed, the California Supreme Court filed its opinion in Sanchez, supra, 63 Cal.4th 665 in which the California Supreme Court clarified the proper application of Evidence Code sections 801 and 802 relating to the scope of expert testimony. Defendant filed a supplemental brief arguing there were 18 instances where hearsay evidence was admitted that further supported her claim that the admission of inadmissible hearsay in this case was prejudicial and requires reversals of the MDO finding. She insists without this case-specific testimony the prosecution would not have had a sufficient case to prove beyond a reasonable doubt that she met the criteria required to continue her commitment as an MDO.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to the hearing, defendant's counsel addressed potential hearsay problems. The trial court noted pursuant to Evidence Code sections 801 and 802, an expert could rely upon potentially inadmissible statements in forming his or her opinion. However, the expert could not state the opinions of other experts because those experts would not be available for questioning. Any reports or records would have to come in under an exception.
During the testimony of Galarza, defendant's counsel raised numerous hearsay objections. Defendant objected to the testimony that her records showed a history of alcohol and substance abuse. Defendant also objected to Galarza's recitation of some of the facts of the five violations she received in prison, including that one of the incidents involved aggression because of her psychotic symptoms. Defendant objected to the four exhibits offered by the People, which were never admitted.
2. ANALYSIS
"'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible "except as provided by law." (Evid. Code, § 1200, subd. (b).) "An expert's opinion is admissible only with respect to a subject 'that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.'" (People v. Baker (2012) 204 Cal.App.4th 1234, 1245; Evid. Code, § 801, subd. (a).)
After defendant's trial, the California Supreme Court issued its opinion in Sanchez. That case involved the testimony of a gang expert used to support a finding that a crime was committed for the benefit of or at the direction of a criminal street gang, within the meaning of section 186.22. The expert relied upon contacts with the defendant reported by other officers, field identification cards that were filled out by other officers and police reports prepared by other officers. This evidence was not admitted through any other witnesses. The gang expert testified regarding the details of the other officers' reports and the field identification cards and relied on those statements in reaching his opinion that the defendant was a gang member and committed the crime for the benefit of the gang. (Sanchez, supra, 63 Cal.4th at pp. 671-673.)
The Sanchez court clarified what an expert could testify about under Evidence code section 802. "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which his opinion rests." (Sanchez, supra, 63 Cal.4th at pp. 685-686.) It continued, "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
Evidence Code section 802 provides, "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion."
The court then adopted the following rule: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.)
The California Supreme Court provided several examples to help illustrate the proper admission of expert testimony as follows: "(1) That 15 feet of skid marks were measured at an auto accident scene would be case-specific information. Those facts could be established, for example, through the testimony of a person who measured the marks. How automobile skid marks are left on pavement and the fact that a given equation can be used to estimate speed based on those marks would be background information an expert could provide. That the car leaving those marks had been traveling at 80 miles per hour when the brakes were applied would be the proper subject of an expert opinion. [¶] (2) That hemorrhaging in the eyes was noted during the autopsy of a suspected homicide victim would be a case-specific fact. The fact might be established, among other ways, by the testimony of the autopsy surgeon or other witnesses who saw the hemorrhaging, or by authenticated photographs depicting it. What circumstances might cause such hemorrhaging would be background information an expert could provide. The conclusion to be drawn from the presence of the hemorrhaging would be the legitimate subject for expert opinion. [¶] (3) That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang. [¶] (4) That an adult party to a lawsuit suffered a serious head injury at age four would be a case-specific fact. The fact could be established, inter alia, by a witness who saw the injury sustained, by a doctor who treated it, or by diagnostic medical records. How such an injury might be caused, or its potential long-term effects, would be background information an expert might provide. That the party was still suffering from the effects of the injury and its manifestations would be the proper subject of the expert's opinion." (Sanchez, supra, 63 Cal.4th at p. 677.)
Here, we need not address whether defendant waived the admission of any case-specific fact testimony based on a failure to object in the trial court, as argued by the People, or determine whether each of the 18 statements by Galarza raised by defendant on appeal were in fact inadmissible hearsay, because, guided by the rule in Sanchez, the evidence that was properly admitted in this case supported Galarza's opinion that defendant was a MDO.
We also conclude that Sanchez is applicable to this case even though decided after the trial in this matter. As noted in Sanchez, the court was merely "clarifying" the rules regarding Evidence Code sections 801 and 802 which had been distorted in cases such as People v. Gardeley (1996) 14 Cal.4th 605. (Sanchez, supra, 63 Cal.4th at p. 670.) Moreover, in Sanchez, the California Supreme Court reversed the true findings on the gang allegations even though the law at the time of the trial was that expressed in Gardeley. (Sanchez, at pp. 698-700.) Sanchez also was recently applied to a case involving a petition to commit a sex offender as a sexually violent predator. (See People v. Burroughs (2016) 6 Cal.App.5th 378.)
The improper admission of hearsay may constitute state law statutory error. Improper admission of testimonial hearsay implicates constitutional rights and is therefore subject to a harmless beyond a reasonable doubt standard. (Sanchez, supra, 63 Cal.4th at p. 698.) We need only determine whether non-hearsay and non-testimonial evidence supported the trial court's determination that defendant continued to suffer from a severe mental disorder that was not in remission, and that caused her to be a substantial danger to others should she be released.
Initially, section 2970, which provides for recommitment, "does not exist in a statutory vacuum. It is part of a progressive scheme. . . . [Citation.] If the People's burden is met as to all six criteria at the initial proceedings, and extensions of the commitment are later sought, the static criteria do not have to be reestablished." (People v. Crivello (2011) 200 Cal.App.4th 612, 617.) Here, as noted above, the static criteria included that defendant suffered from a severe mental disorder that was a cause or aggravating factor in the commission of the underlying crime and the underlying crime was a violent crime. (Lopez v. Superior Court, supra, 50 Cal.4th at p. 1062.) Defendant never challenged her initial commitment and as such could not challenge that her mental illness was a cause or aggravating factor in committing the arson. (Id. at p. 1065.) The trial could consider that her mental illness was a cause of her committing the violent crime of arson.
Additionally, Galarza could testify to those facts that were based on his own personal knowledge and investigation, and was not subject to exclusion on hearsay grounds. Moreover, Galarza was entitled to rely upon hearsay in forming his opinion. As such, his determination that defendant had been violent in prison was based on his review of defendant's prison records. Although his testimony regarding the specifics of those violations was arguably hearsay, his review of the records and his opinion based on those records that her mental illness caused her to be aggressive was properly admitted. He could express his opinion she was still a substantial danger, despite the details of the violations being hearsay.
Moreover, Galarza interacted with defendant for six months. He was her treating psychiatrist and prescribed her medication, so he was keenly aware of the viability of the medication. Moreover, she made delusional comments directly to him that he was Nazi, that he was an abuser and was plotting to get her. He also personally experienced her refusal to discuss her mental illness and her lack of insight into her mental illness.
Finally, defendant herself confirmed much of the testimony given by Galarza. She expressed in the trial court that she suffered from delusions. She believed her children were being held at Patton and were being tortured. She was receiving telepathic conversations and could not control the voices. She asked the trial court to help her get her children out of Patton.
We have no doubt the above observations made by Galarza during his treatment of defendant at Patton, and defendant's own admissions about her mental health, are proper independent support for Galarza's opinion defendant continued to suffer from a mental disorder that was not in remission and that she posed a substantial risk of danger to others, and the introduction of any additional hearsay on the same point was harmless.
DISPOSITION
The recommitment order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.