Opinion
A148173
07-07-2017
THE PEOPLE, Plaintiff and Respondent, v. DONALD PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR6195)
Appellant Donald Phillips appeals from the trial court's order extending his civil commitment at Napa State Hospital under Penal Code section 1026.5 until April 30, 2018. Appellant first contends—and respondent agrees—that the court erred when it extended his commitment to April 30, rather than April 1, which was two years from the date his prior commitment extension was due to expire. He further contends the court improperly permitted three expert witnesses to testify to case-specific facts that were based on inadmissible hearsay; the court erred when it permitted a prosecution expert to testify about the procedure for early release from a state hospital; and the cumulative effect of these errors requires reversal. We shall modify the order extending appellant's commitment such that it will expire on April 1, 2018, but shall otherwise affirm the trial court's order extending appellant's commitment for two years.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
I. Procedural Background
On November 3, 2015, the Napa County District Attorney filed a petition under section 1026.5 to extend appellant's civil commitment at Napa State Hospital for two additional years.
On April 19, 2016, following a jury trial, the jury found that appellant "is a person who by reason of mental disease, defect, or disorder represents a substantial danger of physical harm to others, and has serious difficulty controlling his dangerous behavior."
On April 22, 2016, appellant filed a notice of appeal.
Although appellant filed his notice of appeal prematurely, before the court ordered his commitment extended, we will treat the notice as having been "filed immediately after the . . . making of the order." (Cal. Rules of Court, rule 8.308(c).)
On May 5, 2016, the court ordered appellant's commitment extended for two years.
II. Pre-Commitment Criminal History
These facts related to appellant's pre-commitment criminal history are taken in large part from our nonpublished opinions in People v. Phillips (July 24, 2013, A137036) and People v. Phillips (July 20, 2009, A121094).
The Commitment Offense
On May 5, 1985, appellant was housed at NSH, having been committed as a mentally disordered offender. Around 1:30 a.m., he was exercising in his room when a staff person told him to stop because it was disturbing his roommates. He was given the option of going to a quiet room to continue, but he instead responded, "You will have to kill me or I'll kill someone before I go to the side-room. " Appellant then went to his room and got a pencil, returned to the hallway, and advanced on the staff person using the pencil as a weapon. Another staff person entered and appellant was restrained. In the process, appellant stabbed a staff person with the pencil next to his eye and in the shoulder. As he was being restrained, he said, "You lived through it this time, you son of a bitch, but next time you won't." Appellant admitted that he had intended to kill the victim by stabbing him in the heart and kidney with the pencil.
In a subsequent interview, appellant explained that he felt the staff was harassing him and he was not being given the treatment he needed for his asthma, hypothyroidism, and insomnia. He reported feeling bad, having trouble sleeping, and not thinking clearly. He had wanted an inhaler for his asthma and thought the staff would not give it to him. He felt the staff was trying to kill him.
Appellant was charged with attempted murder and deemed incompetent to stand trial. Eventually, he was found not guilty by reason of insanity.
Prior Criminal History
Appellant's first crime was committed in 1968, when he was 21 years old. Having become homeless, he tried to rob a clothing store owner by luring him out of the store and then demanding money at gunpoint. The shop owner pulled out a gun and fired several shots over appellant's head, then ran back into the store. Appellant filled the door with bullets until it "fell off the hinges." He got no money, and he was not caught by the police. He returned the next day to the same store to attempt the robbery again, but this time he was arrested. Convicted of assault with a deadly weapon (§ 245, subd. (a)), he was sentenced to prison, where he was first prescribed antipsychotic medications. He served much of his time in the Department of Mental Health facility at Vacaville State Prison because of mental illness.
Appellant was paroled on July 24, 1973, and about three weeks later killed his roommate/lover. He testified at trial that the victim was "dominant" and "mean" and used to throw him against the wall. After one such incident, appellant stabbed him in the armpit with a butcher knife, then twisted the knife. Although appellant was responding to auditory command hallucinations at the time of the offense, he was convicted of murder (§ 187) and sentenced to prison, again spending most of his time in the Department of Mental Health at Vacaville State Prison.
Appellant was paroled on November 6, 1980, but 16 days later committed an unarmed robbery of a grocery store while wearing a Halloween mask, pretending his finger was a gun. He was sentenced to prison, but was hospitalized in 1984 under section 2960 et seq. It was during this hospitalization that appellant committed his most recent offense, for which he was committed under section 1026.
III. Evidence Presented at the Commitment Extension Trial
Three witnesses testified for the district attorney at appellant's commitment extension trial, which took place on April 18 and 19, 2016. Appellant was 69 years old at the time of trial.
Dr. Nathan Thuma, a psychiatrist at Napa State Hospital, testified as an expert in the diagnoses and treatment of the mentally ill and in risk assessments. Dr. Thuma had treated appellant for just under two years, from February 2014 until January 2016. He typically saw appellant three days a week, though not always formally. He described appellant as an active person, who liked to talk and be involved in activities.
In Dr. Thuma's opinion, appellant suffered from schizoaffective disorder, bipolar type. This diagnosis was based on the doctor's training, experience, and interactions with appellant, as well as appellant's records. Appellant had initially been diagnosed with schizophrenia at age 21. During the period in which Dr. Thuma treated appellant, he observed appellant display "an anger problem with fighting and a paranoia problem . . . about being persecuted." Also, based on his interactions with appellant, appellant did not believe he has a mental illness; this showed a lack of insight, which was very important. Appellant's understanding about his diagnosis went "back and forth a little bit. And sometimes he has in the past couple of years tentatively said that maybe he has a manic anger problem, but most of the time he's in denial."
Appellant's mental illness was long term and chronic. He was on two medications that helped control his symptoms, including Depakote for anger outbursts or mood swings and Abilify, and antipsychotic. Most of the time, appellant "look[ed] well treated" on his medications. However, Dr. Thuma knew from his interactions with appellant that he did not want to take his medications, and was very concerned about their side effects. In late 2014, appellant had requested that the court permit him to refuse to take his medication, which led to two court hearings. The court ultimately ruled that he must continue taking his medications. Dr. Thuma was not aware that appellant ever actually refused to take his medications.
During the period when Dr. Thuma was appellant's treating psychiatrist, appellant only sometimes went to the groups in which he was expected to participate. His attitude was "been there, done that." Dr. Thuma had read in appellant's records that he participated in 33 percent of his groups.
Based on his training and experience, his interactions with appellant, and review of his records, Dr. Thuma did not believe appellant would take his medications in the hospital environment if he were not required to do so. In fact, appellant had said "many, many times" that he wanted to go off of his medications. Dr. Thuma opined that if appellant stopped taking his medications, he would be at increased risk of paranoia and violence. However, Dr. Thuma believed appellant was a "low danger risk at the present time in the hospital." He based this opinion on the number of fights he had been in, i.e., "several, but nothing lethal."
Dr. Thuma believed appellant had been in two fights in the past two years. Dr. Thuma was not present the first fight, so could not describe it "very well." It took place around Thanksgiving 2014, when appellant "had a pretty quick and vicious fight with another male peer. And I think it may have had to do with who was going to be the dominant man in the unit, something like that." Appellant was older than the other person and "was beat up a little bit," while he thought the other person was injured "minimally." He did not know who started the fight. It was tense in the unit for a couple of weeks after the fight, but the two men ultimately became friends. There was another incident in January 2016, after Dr. Thuma was no longer treating appellant. From his review of the records, he understood that appellant "was hit by a peer, but he denied it. He was found on the ground. He was really mad." The two men were cursing at each other.
In Dr. Thuma's opinion, appellant "would be much more dangerous outside of the hospital." That opinion was based on prior violence; appellant had "a very violent background," which was an important consideration in the doctor's opinion. Most importantly, appellant had murdered someone while on parole, in an unsupervised setting. He was subsequently detained in the state hospital in 1985, because he tried to murder a psychiatric technician in the hospital with a pencil, "repeatedly stabbing him in the face." There were other examples of violent behavior, including the use of a pencil in the attempted murder of a custodial officer in prison some years ago.
Based on the materials Dr. Thuma had read and his interactions with appellant, Dr. Thuma did not think appellant was ready to be safely released from the state hospital system. For that opinion to change, appellant would have to be willing to work as an outpatient with the Conditional Release Program (CONREP), would have to recognize his crime and feel remorse, and would have to recognize his illness and accept the need for treatment with psychotropic medications. Dr. Thuma believed that appellant's mental health condition was currently partially controlled through medication.
On cross-examination, Dr. Thuma testified that appellant had been involved in ward government in his unit, and had repeatedly served as ward president, advocating for himself and other patients. Appellant's physical condition had deteriorated over the past 20 years, but his mental health had improved. He no longer had hallucinations and was involved in fewer instances of violence. He did, however, have a "paranoid problem" with the night staff nurse who shines a light on patients every half-hour while doing a head count during nightly rounds. The nurse is supposed to shine a light on the patients' chest, to make sure they are breathing. Appellant became angry at a certain night nurse who he accused of deliberately shining the light in his eyes. This had caused "two other major violent outbursts" that were not physical, but had been a big problem. Appellant had come to the nurse's station on two occasions, banged on the window and asked the nurse to come out and fight. The doctor acknowledged he was not present during these incidents, which occurred in 2015, and was not certain of what appellant had done during the second incident. Appellant had also successfully gotten the staff person transferred to another unit, which he had interpreted as getting the person fired. He then began talking about getting other staff people fired.
Dr. Eytan Bercovitch, appellant's treating psychologist, testified as an expert in forensic psychology, the diagnosis of mental illness, and risk assessments. In evaluating appellant for an extension of his commitment, Dr. Bercovitch was "constantly evaluating" him, and had done a specific forensic assessment of him in the last month or so. The doctor had also met with other staff on appellant's treatment team and had reviewed his history, his hospital records, his previous risk assessments, his arrest reports, and past court letters. In his review, Dr. Bercovitch focused on the more recent period of time, particularly the last year, because that was the most relevant period. In assessing appellant, he looked at his criminal history for violent crimes. Appellant had several such crimes in his history, including the commitment offense, which reports reflected occurred because he felt he was not receiving the medical care he should be receiving from the staff member he assaulted.
Dr. Bercovitch opined that appellant suffered from schizoaffective disorder. He showed thought disorder symptoms that included inflexibility, suspiciousness, paranoid thinking, and grandiose thinking. He also showed mood symptoms that included mood swings, very strong mood reactions, and acting impulsively on a mood. Appellant no longer had hallucinations due to his medication, but the "paranoia, or suspiciousness, not based on reality combined with strong emotions . . . can make you a volatile and even a dangerous person." Dr. Bercovitch explained that schizoaffective disorder is a chronic condition that goes through cycles, and people who are well medicated often show significant remission with only some residual symptoms. "But that means also that [if] they stop their medication, there can be a very sudden increase in symptoms." Appellant still suffered from a delusion about staff at the hospital conspiring against him, which was a delusion that had led to violence in the past.
Dr. Bercovitch had reviewed the serious incidents described in appellant's hospital records from the last year, and found incidents involving potential physical violence and verbal threats, including when appellant came to the nursing station, appearing very agitated and angry because he claimed a staff member had shined a light on him during the night, which he believed it was directed against him personally. He asked for the staff person to come out so he could confront the person. Later that day, a plastic knife was found in his pocket. There was no way to be certain of appellant's intent, but there was concern on the part of staff.
In January 2016, there was an incident in which appellant was found with another patient just after what appeared to be a scuffle or fight. Appellant was on the floor with an abrasion on his head and the other patient was standing, but neither would say what had happened. Also, in February, some contraband, including a piece of metal, was found in his room, which was a violation of hospital policy for safety reasons. There was another incident in 2014, but it was not clear if appellant was the victim or the aggressor.
There had also been other previous violent incidents, such as one in 2012, when appellant quarreled with another patient about money. When the staff attempted to separate them, appellant ignored the staff redirection, took a swing at the staff, and had to be placed in restraints. In February 2014, appellant assaulted another patient so violently that he had to be moved to a different unit. In November 2014, there was another incident in which appellant was in a fight with another patient, and afterwards said "he had an intent to kill the peer. He had a plan. He was going to get back." This was of particular concern because he had a history of carrying out threats.
Regarding appellant's insight, Dr. Bercovitch had found that he had some insight in that he agreed he had a mental illness, which may have played a part in past violence. However, at this point, his insight was not at a level where he could be managed in a less restricted setting. Regarding medication compliance, there had been many periods when appellant was not in agreement with the medications he received, and would have stopped taking them if it were his choice. Based on his prior experience and appellant's statements about his medications, Dr. Bercovitch did not have confidence that appellant would continue to take them on his own. If appellant were to stop taking his medications, "[h]e would have . . . a high risk of deterioration, an increase in symptoms, . . . a high risk of what we call decompensating," i.e. "having an outbreak of full psychotic symptoms . . . ." This would increase the danger he would pose "because in the past when he has been psychotic, he has been very dangerous."
Appellant had not been able to successfully stay in the community, either on parole or in CONREP. In 1992, he was released from the hospital for eight months and was in a highly structured CONREP program. But he was returned to the hospital in 1993, due to an increase in symptoms, most of which he had reported to CONREP. The decision to then keep him hospitalized rather than return him to the community once his symptoms had stabilized was based on "a history of difficulty between him and the supervision with [CONREP]."
In addition, appellant was not presently taking steps to help him progress toward discharge. He did not have a current relapse prevention plan, although he had recently asked Dr. Bercovitch for the form; he did not regularly attend his groups; and he was not working directly with people to prepare to become less dangerous in the community.
Dr. Bercovitch believed that appellant would present a danger to others if he were released to a less restrictive setting. Appellant had difficulty controlling his behavior in the hospital setting, which made it more likely that he would have even more problems in the community.
Shelly Stolesen, a staff psychologist at CONREP, testified at trial as an expert in risk assessments, diagnosis of mental illness, and evaluations for placement into a CONREP program. She explained that CONREP "is a community based outpatient treatment program for people that are deemed low enough risk to be released from the inpatient setting such as the State Hospital." Dr. Stolesen had met with appellant in CONREP liaison visits, most recently in February 2016, where she met with him to determine his readiness for community outpatient treatment. At such a meeting, she would have reviewed the interdisciplinary notes and chart, the risk assessments, the physician's progress notes, and any treatment plan staff had written.
Based on appellant's behavior in the hospital, Dr. Stolesen made a recommendation that he was not ready for a reduced level of care. That recommendation was based on learning, from his chart and discussions with staff, that he had been involved in a recent assault, in January or February 2016. He also had been found in possession of contraband, specifically an antenna for a radio he had; she did not know whether it was a weapon. CONREP liked to see six months to a year of "verbal, physical assault free." Dr. Stolesen also testified that she had read a February 2016 physician's treatment plan referring to an HCR-20 assessment from 2014, in which appellant was found to be at moderate risk of violence in the hospital, and indicating that appellant was still at moderate risk in 2016.
On cross-examination, Dr. Stolesen testified that she was not aware there was no information indicating appellant had started that fight.
Based on her meeting with appellant and her review of the relevant documents, Dr. Stolesen opined that appellant could not be safely placed in the CONREP outpatient program.
Appellant also testified at trial. He grew up in very abusive foster homes. He was arrested for robbery in 1968 and was paroled in 1973. In 1974, he stabbed and killed his abusive roommate with a butcher knife. He was found guilty and sentenced to prison. When a deputy sheriff came to transfer him from county jail to prison, appellant stabbed the deputy with a pencil in the chest, close to the heart, because he did not want to go back to prison. Then, in 1980, he was again paroled.
In 1982, appellant violated parole and was taken to the Department of Mental Health. While at the state hospital, he attacked a worker with a pencil because the worker would not give appellant his asthma medicine during an asthma attack. He was charged with a crime and found not guilty by reason of insanity. He was released to CONREP for outpatient treatment in 1992, but was returned to the hospital in 1993, after he asked for his asthma medicine. He never said that he was having symptoms or wanted to hurt anyone, although he was aware that he was capable of hurting someone.
In 2014, appellant was involved in a fight with another patient who had walked up and knocked him out of the way, saying, " 'Get out of my way, nigga.' " The patient hit appellant, and appellant hit him back, in the head. The patient went down and stayed there.
Around Thanksgiving in 2014, appellant was walking from the dining hall to his room when a patient jumped in front of him. Appellant said, " 'Excuse me,' " and pushed the patient to the side. A short time later, the patient came up to appellant, pushed him, hit him and knocked him down, and then ran off. The police came and appellant was very mad and upset. He became "scared" and "paranoid" about who had called the police. He also testified that "I'm the type of person if you hurt me once, I'm never going to let you do it again." He would walk away from a confrontation unless someone attacked him. In that situation, he would defend himself. In January 2016, the same patient who had knocked appellant down earlier attacked him again. Appellant had not touched the patient or said a word before the patient hit him and knocked him to the floor.
Appellant further testified that a staff person had had regularly shined a light in his face in the middle of the night for two years when, in January or February 2016, he went to the nurse's station and called out that he wanted to talk to the person who was doing it. He wanted to ask that person to stop shining the light and waking him up. Appellant also complained to various people and entities about the person.
As to the antenna that was said to be contraband, the problem was that there was some copper wire exposed on it, which is a safety hazard. It had nothing to do with it being a potential weapon.
Appellant had not gone to any of his groups at the hospital since he was removed as ward president, and would not return to any groups until a new social worker in his unit, who had taken over ward government, was fired. He wanted his attorney to subpoena the social worker so she "can interrogate him and make him tell the truth." Until appellant stopped attending groups, he was in groups for discharge planning and relapse prevention planning. He also had recently completed an anger management program, which helped him to avoid making mistakes he had made in the past. He had also taken academic classes.
Regarding medication, appellant did not believe his medications were going to make him behave. Instead, it was his own desire to do so, along with what he learned and the strategies he used. He believed that those tools were more effective than the medications. Nevertheless, appellant had always been compliant with taking his medications and would continue taking them if he were released from the hospital. He had gone to court because he wanted to stop taking his current medications, partly because he believed the Depakote caused him balance problems. "The Abilify and [Depakote] together to me is both nothing but a bunch of junk." But he would keep taking the medications outside of the hospital because he was afraid of having a chemical reaction if he stopped taking them, and because the doctors said he needed them. He also testified, however, "I don't want no medications. . . . I don't even like medicine." But he would take the medications if his doctors told him to do so.
If he were released from the hospital, appellant wanted to move to San Francisco. He would receive social security and Medi-Cal for his many physical problems, but he also wanted to go to school to learn work with electronics. He would also go to church, where he could get support. If anyone attacked him, appellant would call the police.
On cross-examination, appellant testified that he used to suffer from a mental illness, but not anymore. He never had symptoms that needed any medication. He did not believe the medications he currently took had any effect on him. He would continue to take the medications outside of the hospital, however, because he did not want to have any withdrawal symptoms.
DISCUSSION
I. Statutory Framework
Under section 1026.5, subdivision (a)(1), a person committed to a state hospital after being found not guilty of an offense by reason of insanity pursuant to section 1026 "may not be kept in actual custody longer than the maximum term of commitment." (§ 1026.5, subd. (a)(1).) However, under section 1026.5, subdivision (b)(1), a person may be committed beyond the term prescribed by subdivision (a) if the person "has been committed under Section 1026 for a felony and," after a trial, the trier of fact finds that the person "by reason of mental disease, defect, or disorder represents a substantial danger of physical harm to others." (§ 1026.5, subds. (b)(1) & (b)(3).) In that case, the person may be recommitted "for an additional period of two years from the date of termination of the previous commitment." (§ 1026.5, subd. (b)(8).) In making a finding of substantial danger of physical harm under subdivision (b)(3) of section 1026.5, there must also be proof that the person has " 'at the very least, serious difficulty controlling his potentially dangerous behavior.' [Citations.]" (People v. Sudar (2007) 158 Cal.App.4th 655, 662, citing In re Howard N. (2005) 35 Cal.4th 117, 127.)
II. Order Extending Appellant's Commitment Until April 30 , 2016
Appellant contends the court erred when it extended his commitment to April 30, 2018, rather than April 1, which was two years from the date his prior commitment extension was due to expire.
A. Trial Court Background
Appellant's commitment was set to expire on April 1, 2016, and commitment extension trial was originally set for March 7. At a March 2 hearing, the following discussion between the court and the attorneys took place regarding defense counsel's motion to continue the trial:
"[DEFENSE COUNSEL]: . . . My motion to continue addresses, there's been a new allegation of an incident that I think would weigh heavily on the upcoming trial, and neither counsel nor I have documentation of that incident from about three weeks ago. So I'm moving to continue and asking that it be continued to the 18th of April.
"THE COURT: Was there any objection?
"[DISTRICT ATTORNEY]: No, your Honor.
"[DEFENSE COUNSEL]: And we are willing to continue the current commitment to that week for the purpose of allowing this additional material to be discovered. I'm not sure that it will expire then, but that is the agreement otherwise.
"THE COURT: It expires April 31 [sic].
"[DEFENSE COUNSEL]: So then we would agree to extend it to—if I can confirm with my client?
"THE COURT: Okay . Because it may be beyond that, because I can't guarantee that we can get it out that day.
"[DEFENSE COUNSEL]: Your Honor, I've just discussed with [appellant] that option, and he is willing to agree that it could be extended to the end of April.
"THE COURT: Is that true?
"[APPELLANT]: (Nods head.)
"THE COURT: And the People are fine with that. What date were you asking? I'm sorry.
"[DEFENSE COUNSEL]: For the trial for the 18th of April.
"THE COURT: And that works for the People?
"[DISTRICT ATTORNEY]: That would be fine. I'm sorry, what date were we extending to?
"THE COURT: April 30th.
"[DISTRICT ATTORNEY]: Okay.
"THE COURT: And normally we try to have these 30 days before the extension, but because of the issue, everyone's fine with having the hearing closer than 30 days before.
"[DEFENSE COUNSEL]: Agreed.
"[DISTRICT ATTORNEY]: That's fine."
On May 5, 2016, after the jury had reached its verdict, the court extended appellant's commitment "from April 30, 2016 to April 30, 2018."
B. Legal Analysis
Section 1026.5, subdivision (b) "sets out the exclusive procedures under which a commitment may be extended." (People v. Lara (2010) 48 Cal.4th 216, 222 (Lara).) Under subdivision (b)(8) of that section, "[t]he defendant 'may not be kept in actual custody longer than two years unless another extension of commitment is obtained in accordance with the provisions of this subdivision.' [Citation.]" (Lara, at p. 222.)
In Lara, our Supreme Court did not specifically address the question whether a court may extend a commitment beyond two years from the date the original term was to expire. It did note, however, that although the trial court in that case held the commitment extension trial almost seven months after the defendant's original term of commitment expired, it nevertheless calculated the two-year commitment extension from the date the original term was to expire. (Lara, supra, 48 Cal.4th at p. 223.) The court explained that the defendant would have been entitled to release pending trial once his term expired, had he so moved, but, even so, the court retained jurisdiction to try the petition. (Ibid.)
Here, we agree with both parties that the record reflects the stated purpose of the continuance was to give the defense time to investigate a recent incident, with appellant waiving the right to release pending trial, which would now take place after the date his current commitment extension expired. There is no indication that counsel or the court contemplated—or that appellant agreed to—an extension for any other purpose. (Cf. Lara, supra, 48 Cal.4th at p. 223.)
Because the order extending appellant's commitment should have been for two years from the date his most recent commitment expired, i.e., April 1, 2016, we shall modify the period of commitment to terminate on April 1, 2018.
III. Admission of Inadmissible Hearsay in Experts' Testimony
Appellant contends the court improperly permitted three expert witnesses to testify to case-specific facts that were based on inadmissible hearsay.
Recently, in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court clarified the law on the proper scope of expert testimony, as follows: "When an 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." (Id. at p. 686, fn. omitted.) The court disapproved its prior decision in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) "to the extent it suggested an expert may properly testify regarding case-specific out-of-court statements without satisfying hearsay rules." (Sanchez, at p. 686, fn. 13.) The Sanchez court also made clear that its decision "does not affect the traditional latitude granted experts to describe background information and knowledge in the area of his expertise. Our conclusion restores the traditional distinction between an expert's testimony regarding background information and case-specific facts." (Id. at p. 685.)
Here, appellant argues that because Drs. Thuma, Bercovitch, and Stolesen all testified at trial to case-specific facts based on inadmissible hearsay in explaining their opinions, they violated the rule set forth in Sanchez. (See Sanchez, supra, 63 Cal.4th at p. 686.) He points to 29 instances in which the experts were permitted to testify to case-specific hearsay, to which no exception applied. Those instances include Dr. Thuma's testimony that appellant was diagnosed at age 21 with schizophrenia and had similar diagnoses since then; appellant had been taking two medications for his illness for a long time; appellant attended 33 percent of his treatment groups; appellant engaged in a "quick and vicious" physical fight with another patient in November 2014; in February 2015, appellant was found on the ground, very angry, after being hit by another patient; appellant had murdered his roommate while both were released on parole; appellant had tried to murder a psychiatric technician at Napa State Hospital by stabbing him in the face with a pencil; appellant had tried to murder a custodial officer by stabbing him with a pencil; after getting upset about a staff person repeatedly shining a light in his eyes during the night, appellant knocked on the nurse's station window and asked the staff member to come out and fight; appellant had filed complaints about that staff person and gotten him transferred to another unit; and appellant became upset about night rounds and had outbursts in January and September of 2015.
Appellant does not claim that any of the hearsay evidence in question was testimonial or that the purported error involved a confrontation clause violation. (See Sanchez, supra, 63 Cal.4th at p. 686; see also Crawford v. Washington (2004) 541 U.S. 36, 62, 68.)
Additional case-specific hearsay complained of by appellant includes Dr. Bercovitch's testimony that appellant felt justified in stabbing a psychiatric technician with a pencil in 1985; appellant had had a diagnosis of schizoaffective disorder for 48 years; appellant was in mental hospitals prior to his commitment offense; on September 6, 2015, appellant came to the nursing station, agitated and upset about the staff person shining a light on him during the night, believing it was intentional; also on September 6, appellant was found with a plastic knife in his pocket, along with other contraband; in November 2015, appellant threatened to have a staff person fired; in January 2016, appellant and another patient appeared to have a fight, although no one saw it; in February 2016, appellant was found with contraband in his room; appellant had been placed in restraints in the past; there were periods in the past when appellant refused to take his medication and/or when he was not in agreement with his medication; in 1993, appellant was returned to the hospital after eight months in the CONREP program due to his symptoms returning; appellant had a history of having difficulty under CONREP supervision because he was argumentative and tried to steer treatment in a way with which CONREP did not agree; in February 2014, appellant was moved to another unit after he violently assaulted another patient; in 2012, appellant argued with another patient over money, and when staff intervened, he swung at a staff person and had to be placed in restraints; and in November 2014, after appellant was in a fight with another patient, he said he had intended to kill the other patient.
Finally, appellant asserts that Dr. Stolesen testified to the following case-specific hearsay: appellant had a diagnosis of schizoaffective disorder; he was involved in a physical fight as recently as January 2016; and he was recently found with contraband related to wire and an antenna in his room.
Appellant acknowledges that his counsel did not object at trial to admission of any of this evidence on hearsay grounds, but argues that no such objection was required because it would have been futile. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 [no objection in trial court is required "if it would have been futile" where trial court would have been required to follow authority that was binding at time of trial].) Appellant notes that Sanchez had not yet been decided and, under Gardeley, courts permitted expert testimony on case-specific hearsay on the ground that it was not admitted for its truth. (See Sanchez, supra, 63 Cal.4th at p. 683, citing Gardeley, supra, 14 Cal.4th at pp. 619-620.)
Appellant also argues, in the alternative, that if we find he has failed to preserve this hearsay issue on appeal, counsel was ineffective for failing to object on that ground in the trial court. (See Strickland v. Washington (1984) 466 U.S. 668, 694, 697.)
Respondent asserts that appellant forfeited the issue, pointing out that nearly two years before appellant's trial, our Supreme Court had granted review in Sanchez, and a plurality of the United States Supreme Court had cast doubt on the principle that experts may testify to hearsay evidence if that testimony is not admitted for the truth. (See Williams v. Illinois (2012) 567 U.S. 50.) Therefore, according to respondent, "If appellant wanted to ensure a benefit from a potentially helpful ruling in Sanchez, he should have objected. He did not object, perhaps because he preferred to have the evidence come in indirectly through expert testimony rather than by the admission of more detailed documentary evidence."
We agree with appellant that, because, at the time of his trial, most courts were applying the law as stated in Gardeley, supra, 14 Cal.4th 605, any objection would likely have been futile. (Cf. People v. Meraz (2016) 6 Cal.App.5th 1162, 1170, fn. 7, review granted Mar. 22, 2017, S2399442 [declining to find forfeiture because any objection on confrontation clause grounds "would likely have been futile because the trial court was bound to follow pre-Sanchez decisions"].) Moreover, the Sanchez court explained it was clarifying the evidentiary rules (See Evid. Code, §§ 801 & 802) that had been distorted by prior case law, rather than changing the applicable law. Therefore, its stated rules are applicable here even though appellant's trial took place before Sanchez was decided. We will therefore address appellant's claim on the merits. (See Sanchez, supra, 63 Cal.4th at pp. 670, 686, fn. 13 [reversing true findings on gang allegations due to admission of expert testimony relating case-specific statements concerning defendant's gang membership, which "constituted inadmissible hearsay under California law," even though decisions at time of trial suggested an expert may testify regarding case-specific hearsay].)
We conclude the experts' testimony included case-specific hearsay, such as information from hospital and court records, none of which was admitted into evidence at trial. Under Sanchez, it was error to admit this testimony regarding case-specific facts. (Sanchez, supra, 63 Cal.4th at p. 686; see People v. Roa (2017) 11 Cal.App.5th 428, 452 [in sexually violent predator (SVP) commitment proceedings, trial court erred in admitting experts' testimony regarding case-specific facts they obtained from reports that had not been admitted into evidence].) We must therefore determine whether appellant was prejudiced, i.e., whether it is reasonably probable that, absent the inadmissible hearsay, the result would have been different. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Stamps (2016) 3 Cal.App.4th 988, 997 ["We review the erroneous admission of expert testimony under the state standard of prejudice"].)
Even without the case-specific hearsay, a great deal of non-hearsay evidence was admitted at trial that supported the jury's finding that appellant, "by reason of his mental disease, defect, or disorder represents a substantial danger of physical harm to others, and has serious difficulty controlling his dangerous behavior." (See § 1026.5, subd. (b)(3); see also People v. Sudar, supra, 158 Cal.App.4th at p. 662.) Two of the three experts had treated appellant on an ongoing basis, and much of their testimony involved their interactions with and observations of appellant. In addition, their ultimate opinions were properly based on their personal interactions with appellant, their training and experience, and their review of appellant's records. (See Sanchez, supra, 63 Cal.4th at pp. 685-686 [an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so"].)
For example, Dr. Thuma, who had been appellant's treating psychiatrist for almost two years, opined—based on his training, experience, interactions with appellant, and review of appellant's records—that appellant suffered from schizoaffective disorder. He had observed appellant display anger problems and paranoia. He testified, based on their interactions, that appellant did not believe he had a mental illness, which showed a lack of insight. During the time Dr. Thuma was treating appellant, appellant was not fully participating in his treatment groups. Appellant was currently taking two medications that partially controlled his symptoms. Dr. Thuma knew from his interactions with appellant that appellant did not want to take his medications and was concerned about their side effects.
Based on his training and experience, interactions with appellant, and review of appellant's records, Dr. Thuma did not believe appellant would take his medications in the hospital environment if he were not required to do so. While appellant was a "low danger risk" in the hospital, if he stopped taking his medications, Dr. Thuma believed he would be at increased risk of paranoia and violence. Finally, based on the review of appellant's records and interactions with appellant, Dr. Thuma opined that appellant was not ready to be safely released from the state hospital system.
Dr. Bercovitch, appellant's treating psychologist, testified that he was "constantly evaluating" and "assessing" appellant. He opined that appellant suffered from schizoaffective disorder, exhibiting thought disorder symptoms including inflexibility, suspiciousness, and paranoid and grandiose thinking. Appellant also showed mood symptoms including mood swings, strong mood reactions, and acting impulsively based on a mood. Dr. Bercovitch had found that appellant had some insight in that he agreed he had a mental illness, but his insight was not currently at a level where he could be managed in a less restricted setting.
Regarding medication compliance, based on his prior experience and appellant's statements about his medications, Dr. Bercovitch did not have confidence that appellant would keep taking his medications on his own. If appellant were to stop taking his medications, he would be at high risk for increased symptoms, deterioration, and decompensation, i.e., "of having an outbreak of full psychotic symptoms," which would increase the danger he would pose. Dr. Bercovitch also testified that appellant was not taking steps to progress toward discharge. For example, he did not have a current relapse prevention plan, he did not regularly attend his treatment groups, and was not working to become less dangerous in the community. Dr. Bercovitch opined that appellant would present a danger to others if he were released to a less restrictive setting.
Dr. Stolesen was not part of appellant's treatment team, but had met with him in February 2016, for a CONREP liaison visit to determine his readiness for community outpatient treatment. Based on her meeting with appellant and her review of various hospital records, Dr. Stolesen opined that appellant could not be safely placed in the CONREP outpatient program.
This evidence shows that both appellant's treating psychiatrist and treating psychologist had diagnosed him with schizoaffective disorder, which was partially controlled by medication, but which still manifested through thought disorder and mood symptoms. Both doctors believed—based both on their interactions with appellant and their review of his records—that appellant's insight into his mental illness was limited; that he did not want to take his medication; and that he would not take his medications outside of the hospital environment, which would increase the danger he would pose. (See People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370 [" 'there may be "considerable overlap between a . . . defective understanding or appreciation and . . . [an] ability to control . . . behavior" ' "]; People v. Bolden (1990) 217 Cal.App.3d 1591, 1601 [construing section 1026.5 to require a person "who has been absolved of criminal responsibility for a felony because of his mental illness and who has already demonstrated his dangerousness to persuade the trier of fact, by a preponderance of the evidence, that his medication is effective in controlling his behavior and he will, in a completely unsupervised environment, take his medication without fail"].) Both Dr. Thuma and Dr. Bercovitch opined that appellant could not currently be safely released to an outpatient setting. (See § 1026.5, subd. (b)(3).) Dr. Stolesen also opined, based on her meeting with appellant and review of his records, that appellant could not be safely placed in a CONREP outpatient program. (See ibid.)
Consideration of this evidence alone convinces us that appellant was not prejudiced by admission of the case-specific hearsay. (Cf., e.g., People v. Ochoa (2017) 7 Cal.App.5th 575, 589 [in criminal case, where defendant's conduct alone was sufficient to establish a pattern of conduct required to support an enhancement, it was not reasonably probable that he was prejudiced by expert's arguably inadmissible hearsay testimony]; compare People v. Roa, supra, 11 Cal.App.5th at pp. 434, 454-455 [finding prejudicial error in admitting expert testimony based on extensive case-specific hearsay in SVP commitment proceedings, where prosecution experts had not even interviewed defendant, but had relied solely on various reports not admitted into evidence in diagnosing him with a mental disorder and finding him likely to reoffend]; People v. Stamps, supra, 3 Cal.App.4th at pp. 997-998 [in criminal case, where expert testimony recounting case-specific hearsay was only evidence that pills actually contained controlled substances alleged in information, it was central to conviction on counts involving pills, and its admission was therefore prejudicial under state standard of error].)
In addition, the subsequent testimony of appellant further supports this finding of harmless error. Appellant's testimony confirmed much—though not all—of the case-specific hearsay to which the experts testified, particularly regarding past violence. His testimony also bolstered their non-hearsay testimony about his lack of insight, and the likelihood that he would not be medication compliant. For example, appellant testified that, in 1974, he stabbed and killed his abusive roommate with a butcher knife and, after he was convicted and sentenced, he stabbed a deputy in the chest with a pencil while being transferred from jail to prison. He also testified that in 1982, after he violated parole and was taken to the state hospital, he attacked a worker with a pencil, which led to his NGI [not guilty by reason of insanity] commitment. Then, after his release to CONREP in 1992, he was returned to the hospital. He did not hurt anyone while an outpatient, but testified, "I was worried. I was aware that I could and [was] capable of doing it, but I didn't do it."
Appellant also testified about various incidents in the hospital, including two incident in 2014, when he was involved in altercations with other patients; an incident in January 2016, when another patient knocked him to the floor; and the incident in early 2016, when he went to the nurse's station and called out that he wanted to talk to the person who was shining the light in his eyes at night. Appellant also explained that the antenna that was described as contraband was not a potential weapon, but instead was a safety hazard. He further testified that he was not presently attending any of his treatment groups.
Appellant testified that he no longer suffered from a mental illness, that he had never had symptoms that needed medication, and that none of his current medications had any effect on him. He believed that the Abilify and Depakote he took were "nothing but a bunch of junk."
In sum, in light of all of the evidence admitted at appellant's trial, it is not reasonably probable that the jury's verdict would have been more favorable to appellant absent the experts' testimony involving inadmissible case-specific hearsay. (See Watson, supra, 46 Cal.2d at p. 836; People v. Ochoa, supra, 7 Cal.App.5th at p. 589; see also People v. Kendrid, supra, 205 Cal.App.4th at p. 1370; People v. Bolden, supra, 217 Cal.App.3d at p. 1601.)
Appellant points out that the prosecutor discussed many of the case-specific facts to which the experts testified during closing argument. This does not, however, not alter our conclusion that, despite the improper testimony, there was a great deal of non-hearsay testimony by the experts and by appellant himself that makes it extremely unlikely that the result would have been different had the hearsay not been admitted. (See Watson, supra, 46 Cal.2d at p. 836.)
We also reject appellant's claim that even if we view the remaining, non-hearsay evidence "as more than enough to prove the government's case, subjecting appellant to a trial where the government presented large amounts of inadmissible evidence and trial counsel did nothing to resist that evidence constituted a miscarriage of justice under Article VI, section 13 of the California Constitution." (See Cal. Const., art. VI, § 13 ["No judgment shall be set aside, or new trial granted, in any cause, on the ground . . . of the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice"].) As the appellate court explained in People v. Rains (1999) 75 Cal.App.4th 1165, 1170, an SVP case, a miscarriage of justice occurs only when it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error. Here, we have already concluded there was no prejudice to appellant under the state standard of error. (See Watson, supra, 46 Cal.2d at p. 836.)
IV. Expert's Testimony About the Procedure for
Early Release from a State Hospital
Appellant contends the court erred when overruled defense counsel's relevance objection and permitted Dr. Bercovitch to testify about the procedure for early release from a state hospital for people committed under section 1026.5.
A. Trial Court Background
During his direct examination, Dr. Bercovitch testified that treatment providers at Napa State Hospital not only prepare evaluations of patients for commitment extensions, but also evaluate patients on an ongoing basis. For example, if he observed that someone was making significant progress in treatment, he would evaluate that person for possible discharge. The prosecutor subsequently asked whether there were ways for patients to be released from the hospital other than the commitment extension process. The court overruled defense counsel's relevance objection, and Dr. Bercovitch testified as follows:
"A patient can be released at any time under once [sic] extended. So, if a person was extended today, they could be released tomorrow. [¶] Extension just is a right for the commitment to continue until a person is considered safe to be in the community. It's not—you don't have to wait to the end of the commitment. [¶] In fact, in our hospital we specifically don't wait. If we feel someone is at the discharge ready level, we will write the, what we call the community outpatient therapy letter right then and there. We have to write it within a month in fact of determining within our own rules that they are meeting, they are no longer needing [sic] the terms for an extension."
B. Legal Analysis
According to appellant, Dr. Bercovitch's testimony reduced the prosecution's burden to prove that appellant, "by reason of mental disease, defect, or disorder represent[ed] a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(3).)
Appellant relies on People v. Allen (1973) 29 Cal.App.3d 932, 934 (Allen), in which the appellate court held that the trial court prejudicially erred when it allowed the prosecutor to state during closing argument that the jury should find the defendant was a mentally disordered sex offender (MDSO) so that he could get the treatment he needed, rather than being "sent to jail and thereafter com[ing] out the same person." The trial court also told the jury that if it determined the defendant was an MDSO, he would receive treatment and the criminal proceedings would remain suspended until he was "certified back from the hospital." (Id. at pp. 934-935.)
The court found applicable by analogy the principles in criminal cases "which prohibit comment or evidence on punishment or penalty to be considered by a jury on the issue of guilt . . . . [¶] Permitting the jury to consider the alleged speculative benefits of involuntary treatment is to allow them to believe they are doing the individual a favor by helping him solve his problem rather than punishing him criminally. The statements and remarks heard by the jury suggest that if appellant were found to be an [MDSO] he would receive treatment which would be beneficial and curative, and if he were not so found he would serve a jail sentence and again be turned loose on society. Aside from the evidence being irrelevant, the conclusions are misleading." (Allen, supra, 29 Cal.App.3d at p. 938.)
Appellant argues that, as in Allen, the jury in this case was improperly permitted to consider penalty. According to appellant, Dr. Bercovitch's testimony "reduced the seriousness of the decision the jury had to make" and relieved it "of the full burden of [its] decision" by implying that appellant would not necessarily have to wait two full years to be released from Napa State Hospital. Appellant also asserts that the testimony was misleading because Dr. Bercovitch's statement that if a person's commitment "was extended today, they could be released tomorrow" was simply not true.
Respondent disagrees, arguing that the court properly overruled counsel's relevance objection because Dr. Bercovitch's testimony was relevant to appellant's lack of progress in treatment, which was in turn relevant to whether his commitment should be extended for two years. (See § 1026.5, subd. (b)(3).) We need not definitively determine the admissibility of this evidence because, even assuming it was irrelevant, we would find its erroneous admission was harmless in the circumstances of this case. (See Watson, supra, 46 Cal.3d at p. 836; see also See People v. Rains (1999) 75 Cal.App.4th 1165, 1170-1171 (Rains).)
Regarding appellant's additional argument that this testimony was misleading, first, appellant did not object on that ground at trial. (See People v. Chism (2014) 58 Cal.4th 1266, 1292-1293.) Moreover, Dr. Bercovitch clarified his statement that a patient "could be released tomorrow" when he explained that a report would have to be written within a month of determining that a person no longer needed inpatient treatment.
In Rains, the appellate court found the trial court had erred in permitting the experts in an SVP trial to testify about the consequences of a jury's true finding on the question of whether a defendant was a sexually violent predator. (Id. at p. 1169.) The court nonetheless found the error harmless because the evidence that defendant was a sexually violent predator was undisputed, the challenged testimony was relatively brief and offered in response to a juror's expressed concern about the result of a true finding, the court had instructed the jury not to consider the question of punishment, and the defendant presented virtually no defense. (Id. at pp. 1170-1171; see also People v. Kipp (1986) 187 Cal.App.3d 748, 751-752 [finding harmless court's erroneous instruction during NGI commitment extension trial that defendants found to no longer be a danger to themselves or others would be released, given that prosecution's evidence that defendant "still suffered from severe mental disorders and was not yet ready for release from the hospital was consistent, overwhelming, essentially unrebutted, and even found support in [defendant's] own testimony"].)
In this case, as in Rains, the challenged testimony was brief and minimal compared to the extensive—and essentially undisputed—admissible evidence (see pt. III. ante), including expert opinion, showing that appellant had failed to progress in treatment to the point where he could be safely released from the hospital. (See Rains, supra, 75 Cal.App.4th at pp. 1170-1171; see also Kipp, supra, 187 Cal.App.3d at pp. 751-752.) Moreover, the court twice instructed the jury that it "must reach [its] verdict without any consideration of punishment" (CALCRIM Nos. 101 & 3550) and that the prosecution was "required to prove the allegations of the petition [were] true beyond a reasonable doubt." (CALCRIM No. 219; see Rains, supra, 75 Cal.App.4th at p. 1171.) Nor was the testimony comparable to the inflammatory statements and instructions in Allen, which insinuated that an extremely dangerous defendant would be released into the community and left unsupervised if the jury found that the prosecution had not proved its case. There was no such stoking of fear and emotion in this case.
We conclude it is extremely unlikely that Dr. Bercovitch's testimony that a patient who progresses sufficiently in treatment would be released in less than two years could have so swayed the jury that it would ignore the other evidence and the court's instructions and reach a verdict based on anything other than whether the prosecution had proven its case beyond a reasonable doubt. (Compare Allen, supra, 29 Cal.App.3d at pp. 934-935.)
Hence, even assuming the court should not have overruled counsel's objection to the challenged testimony because it involved the consequences of a true finding and was therefore irrelevant to the issue at hand, it is not reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (See Watson, supra, 46 Cal.3d at p. 836; Rains, supra, 75 Cal.App.4th at pp. 1170-1171.)
V. Cumulative Error
Appellant contends the cumulative effect of the errors in this case requires reversal. We have found that neither of the errors related to the admission of evidence was prejudicial. (See pts. III. & IV., ante.) Nor do we find that the cumulative effect of those errors calls into doubt the jury's verdict. (See, e.g., People v. Roberts (1992) 2 Cal.4th 271, 326; compare People v. Hill (1998) 17 Cal.4th 800, 845 [where "sheer number of instances of prosecutorial misconduct and other legal errors raise[d] the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone"].)
DISPOSITION
The order extending appellant's commitment is modified to expire on April 1, 2018. The trial court's order extending appellant's commitment for two years is otherwise affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.