P. v. Bailey

Filed 4/2/07 P. v. Bailey CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Marvin Bailey was convicted after court trial of elder or dependent adult abuse (Pen. Code, 368, subd. (b)(1)).[1] After denying defendants motion for new trial and/or for reduction of the offense to a misdemeanor, the court suspended imposition of sentence and placed defendant on probation for three years. In addition, the court ordered defendant to pay a court security fee of $20.

On appeal defendant contends that (1) there is insufficient evidence to support the conviction, (2) the court erroneously relied on evidence outside the record, (3) the court erroneously admitted hearsay statements by the victim, and (4) the courts imposition of the court security fee violated ex post facto principles and was an improper retroactive application of section 1465.8. We disagree with all of these contentions and will affirm the judgment.

BACKGROUND

Defendant was charged by information filed April 2, 2004, with one count of elder or dependent adult abuse ( 368, subd. (b)(1)). On July 11, 2005, the day set for trial, defendant waived his right to a jury trial on condition that, if found guilty, he would not be sentenced to state prison.

The Trial Evidence

Beginning in 1970, Ida Long,[2] who was born in 1916, lived with her husband Charles in a ranch house in the remote area of Lockwood in south Monterey County. Ida has two adopted children, Carolyn and Danny.[3] Defendant, who was born in 1945 and who was briefly married to Carolyn, moved into a trailer next to Ida and Charless ranch house around 1991. Charles died in 1995, and defendant stayed on as Idas caretaker. Defendant told Danny that he agreed to do household chores, to take Ida to medical appointments, and to make sure Ida took her medication, in exchange for room, board and spending money.

Ida has been on heart medication since the 1970s. In addition, Dr. Robert Hostetter, who has been Idas treating physician since 1995, diagnosed Ida as being diabetic in December 2000. Dr. Hostetter testified that, in addition to her diabetes, he has treated Ida for chronic obstructive pulmonary disease, chronic bronchitis, arteriosclerotic heart disease, congestive heart failure, hypertension, chronic renal failure, and recurring urinary tract infections. He saw Ida 10 times in 2000 and six times in 2001. The course of medication he prescribed for her continuing urinary incontinence did not seem to work. Although he referred her to a surgeon, she refused surgery. Dr. Hostetter also had to try several courses of treatment for an ulceration on Idas leg before it eventually healed.

The last time Dr. Hostetter saw Ida was on August 16, 2001, at which time he prescribed Zestrol for her hypertension, Amoryl for her diabetes, Vanoxin and Isurbil for her heart condition, Alipurinol for her gout, and Lasix and potassium for her heart disease. He had previously arranged for her to have home oxygen, which was administered with a nasal cannula. He generally prescribes no more than three months of any prescription. He gave Ida an appointment to return in six weeks, but she missed it. His office sent a letter regarding the missed appointment, but Ida did not reschedule. Because she was not taking her prescribed medications and not seeing a doctor, it was inevitable that Ida would develop complications from her medical conditions.

Carolyn lived in a mobile home near Idas ranch house beginning in 1995, and helped with the cooking and cleaning, until she moved to Redding in October 2001. One day, shortly before Carolyn moved to Redding, defendant told Carolyn to leave Idas house. Carolyn refused. Defendant told Ida, who was in bed, that if Carolyn did not leave he would. Ida started crying and told Carolyn that she needed to leave. Vincente Serate, who purchased some of Idas ranch property in 1998, testified that from the time he moved to the ranch until Carolyn left, he saw Carolyn drinking almost every day. Ida and Carolyn would not get along when Carolyn was drunk.

Around May 2001, Ida sold her house and 40 acres, and she and defendant moved into two trailers on her remaining 45 acres across the road from the house in an isolated, wooded area. Idas trailer was 10 by 40 and had a propane generator. Heat was provided by a vented wood stove in the middle of the trailer, but the trailer had no other cooking facilities. The trailers gravity-flow toilet and bathtub, which used hauled-in water, were attached to a septic tank. There were no electricity lines or telephone services, other than for cell phones, in the area, and neither Ida nor defendant had a cell phone.

Macario Venegas, who bought Idas ranch house, would thereafter see Ida about once a week when Ida took a walk with one of her dogs. Sometimes on the weekends Venegas would take Ida something he thought she could eat; defendant said that Ida was diabetic, so there were things she could not eat. The last time Venegas saw Ida was around December 26, 2002, when she was taking her walk.

Danny moved to Arizona in 2000, after which he visited Ida about three times a year. When Danny visited Ida in 2001 and 2002, Ida told him that she was having back pain. She also said that a leg infection was giving her a lot of trouble and that she had been to the doctor numerous times about it. She said that defendant told her that the doctor was prescribing medications that she did not need, that a good diet would be better for her, and that she would be in much better health if she just listened to him. In Dannys opinion, Ida thought that defendant knew more than the doctor did.

The last time Danny visited Ida at her trailer was in early October 2002. At that time, Ida was still able to get around. Danny told her then that the trailer was not a healthy place for her to live, that he had a guest house at his home in Arizona, that other family members were in Arizona, and that he would be happy to take care of her there. Ida refused; as long as defendant was there she did not want to leave her property. Ida refused to leave the property even to go out to eat with Danny.

After Carolyn moved to Redding, she visited Ida regularly. Ida told Carolyn that she was feeling good and was not going to take her medications any more. When Carolyn asked her why, Ida said that defendant said she did not need them and that they did not have the money to buy them. Carolyn then bought some antibiotics and other personal items for Ida. Carolyn visited Ida on January 6, 2003. On that day, there was no food in Idas trailer and both Ida and the trailer were very dirty. Ida was not wearing clean clothes and she did not have a place to bathe because her bathtub was filled with her used diapers. Carolyn had never before seen Idas trailer look like it did that day.

On January 6, 2003, Idas pharmacy called Dr. Hostetter regarding a request to refill a prescription for an antibiotic. Dr. Hostetter had not seen Ida for over a year and did not know why the request was made, so he denied the request.

Defendant took Ida to the emergency room of Mee Memorial Hospital in King City on January 9, 2003. Ida was critically ill: she was in atrial fibrillation; she had low blood pressure and oxygenation; her diabetes was out of control; she had a urinary tract infection; and, she complained of lower back pain that was later diagnosed as a compression fracture in the spine. At trial, Dr. Hostetter defined Idas critical medical condition as meaning potential death. Ida was admitted into the intensive care unit, where she remained for five days.

Based on Idas condition at the time of her admission to the hospital, the nursing department referred the matter to the hospital social worker, Sheila Snider, on January 11, 2003. Snider spoke to Ida and read her medical charts. Ida told Snider that she had a lot of back pain. She said that defendant was her caregiver and that she chose not to take her medication because she could not afford it. In Sniders opinion, Idas ability to make her own medical decisions was poor.

Carolyn learned of Idas hospitalization on January 14, 2003, five days after her admission. Carolyn went to Idas trailer to get some clothes for her and found the trailer to be even messier than it was before. The door to the trailer was open, cats and dogs were inside, and a lot of Idas furniture and personal belongings were missing. Defendant had sold the furniture and personal belongings to a neighbor. Defendant told Carolyn that Ida had told him that he could sell anything he wanted to because he did not have any money. Carolyn stayed in the area and visited Ida in the hospital every day for four months. Ida appeared to be cooperating with the medical staff and was eating well, but she was worried about defendant.

Snider reported Ida to Monterey County Adult Protective Services on January 16, 2003 as a case of suspected neglect or self-neglect. Social worker Lynette Brewster contacted Danny and Carolyn.Carolyn suggested to Brewster that defendant had been neglectful as Idas caregiver. Brewster visited Ida at the hospital on January 23, 2003. Ida was cooperative, but she was weak and complained of back pain. When asked why she was not taking her heart medication, Ida responded, Well, we cant afford it. When asked who was helping her, Ida said that she was living with defendant and that he had been with her for years.

Brewster visited Idas trailer the same day she spoke with Ida. Idas trailer had a wood stove but no kitchen appliances and no utilities. There was a couch and a wheelchair. The bed was unmade and appeared unused. The bathroom also appeared unused as there was no water in the toilet. All of the areas were very cluttered.

Defendants trailer was locked during Brewsters visit, so Brewster left her card. Defendant called Brewster and asked why she had been there. Brewster said that she was investigating neglect, and defendant said that he had not been neglectful. He told Brewster that he brought Ida food. Brewster asked defendant why Ida had been in such bad condition when she went to the hospital, why had she not been taking her medication. Defendant said that Ida had been doing very well, and did not like taking pills, so he had stopped her medication. He indicated that he had a native-American background and believed in other forms of healing.

After speaking with Ida, defendant, and health care workers, and after visiting Idas trailer, Brewster formed the opinion that Ida had been neglected to the point that her health was in danger.

Dr. Elizabeth Hidler, a psychologist, evaluated Ida on January 27, 2003 at the request of the hospital and Brewster. At the time of the evaluation, Ida was bedridden. Although she could answer questions, she did not know where she was, why she was in the hospital, or what medications she was on. She did not know that she had been diagnosed with a heart condition and denied ever needing heart medication. Dr. Hidler recommended that a guardian be appointed to make Idas medical decisions for her. Dr. Hidler also recommended that defendants visits be stopped or monitored because Ida was angry that Carolyn and Danny were blaming defendant for her lack of care.

On May 28, 2003, Monterey County Sheriff Detective Shaheen Jorgensen spoke with Ida at a nursing home. Ida was awake and alert. She complained of a leg problem and back pain, but she was not cognizant of her heart problems or her diabetes. She could not remember what medications she was supposed to be taking, but stated that she could not afford them. She was reluctant or unwilling to talk about where she got that information, her financial situation, or defendant. She did describe defendant as a friend who took care of her.

Detective Jorgensen spoke with defendant on June 18, 2003. Defendant described himself as Idas friend and caregiver. He said that he provided wood for her heat, hauled in water, cooked her meals, oversaw her medical appointments and medications, paid her bills, and drove her where she needed to go. He said he moved Ida from her house to the trailer because the house was cluttered and dirty, and he felt that she could not take care of herself there. Her trailer was more comfortable and he was able to provide her basic needs there. In compensation, he received his room, board, and spending money, and expected to receive her ranch property upon her death. Defendant indicated that Ida was receiving income of around $1,400 per month, and that he had no other source of income.

Defendant denied that he ever told Ida that they could not afford her medication. He denied that Ida had a heart condition, but knew that Ida was taking Lasix. Defendant stated that he had stopped Ida from taking Amoryl and another medication about six months before her hospitalization because she was complaining of blurred vision, and he believed that it was caused by the medication. He did not check with a doctor before stopping the medication. Defendant also stated that he had stopped Idas use of oxygen because she did not like having the hose up her nose. He admitted that he had not filled any prescriptions for Ida since August 2001, but said that she received a lot of medications directly from her doctors. Defendant also said that he was no longer taking her to see Dr. Hostetter. He said that Dr. Hostetter told defendant that Ida did not need bladder surgery because she was an old lady and was going to die, that defendant told this to Ida, and that Ida told defendant that she no longer wanted to see Dr. Hostetter. When Ida received a letter from Stanford Hospital regarding missed appointments for follow-up care, he gave the letter to Ida.

Defendant told Detective Jorgensen that up until January 3, 2003, Ida was fine. On January 3, 2003, Ida started to complain about back pain. Over the next few days, she became bedridden and unable to move due to the pain.

At the time of the October 2005 trial, Ida was in still in the nursing home. She was not able to care for herself, or to make her own medical decisions, but she was pain-free and doing well. In Sniders opinion, Ida was not physically capable of coming to court and would not necessarily understand the obligation to tell the truth under oath. The public guardian is now the conservator of Idas person and estate.

Defendant testified in his own defense. He considered Ida and Charles family. After Charles died, defendant took over the chores of cooking, laundry, yard work, hauling water, and shopping. He drove Ida where she needed to go, picked up her mail and medications, and paid her bills. He did not receive a salary for taking care of Ida and he had no other source of income. Ida noted once that he took better care of her than did Carolyn and Danny, and that she was going to leave her place to defendant. She made a will leaving him the place, but he found out after her January 2003 hospitalization that it was never dated or signed.

Defendant did not have any medical training, but he intended to keep Ida in good shape. He was aware that she had diabetes, and that she was taking medication for it, so he controlled her diet. He was aware that she had recurring urinary tract infections and that she was taking heart medications. At one point, Ida had an aneurysm that was treated with surgery at Stanford. He went with her to Stanford several times, and never tried to stop her from returning to Stanford. He never stopped Ida from going to the doctor and never told her that she could no longer afford to take her medication. When he asked Dr. Hostetter about Ida having bladder surgery, Dr. Hostetter said that it was not necessary because she was old and going to die anyway. Defendant told Ida what Dr. Hostetter said.

Ida had Medicare but no supplemental insurance. Defendant did not have durable power of attorney for health care for Ida, so he was not in a position to order her to see a doctor or to have a particular treatment. After her last visit to Dr. Hostetter Ida only continued to take Alpronyl and baby aspirin for her heart and Maalox for indigestion. Defendant told her to stop taking her other pills because they were causing side effects, and the package inserts and an old PDR stated that the medications were not supposed to be taken together. He did not check with the doctor before doing so. Although he had not filled Idas prescriptions for about 16 months before she went into the hospital, there were supplies of all her medications in Idas trailer and he let her make the decision as to which pills to take based on how she was feeling.

Ida had been experiencing back pain for two and one-half days before defendant took her to the emergency room. Ida did not want to go but defendant insisted because she was not getting better and she was not able to move around.

Verdict, Motion for New Trial, and Sentencing

On August 29, 2005, the court found defendant guilty of elder abuse as charged. On October 7, 2005, defendant filed a motion for new trial, contending that the court erred in allowing amendment of the information mid-trial to expand the dates of the alleged offense to conform to the proof at trial. Alternatively, defendant requested that the court declare the offense to be a misdemeanor. The probation report recommended that the court consider the offense a felony. The report further recommended that, if the court were to place defendant on probation, probation be for four years and that one of the conditions of probation be that defendant pay a $20 court security fee pursuant to section 1465.8, subdivision (a)(1). On October 11, 2005, the court denied the motion for new trial and denied defendants request to find the offense to be a misdemeanor. The court placed defendant on felony probation for three years with various terms and conditions, including that he serve 140 days in county jail and that he pay the recommended $20 court security fee.

DISCUSSION

1.Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to support a finding that he caused or permitted Idas health to be endangered. He concedes that he had care and custody of Ida, as that term is used in section 368, subdivision (b). Nevertheless, he argues that the evidence at trial did not show that Ida was incompetent to decide for herself whether or not she should visit a doctor or take her prescribed medications, or that defendant coerced or persuaded her into making those decisions. Defendant also argues that, even if the evidence was sufficient to show that he caused Ida to stop seeing a doctor and to stop taking her prescribed medications between August 2001 and January 2003, the prosecution failed to prove that this caused her health to be endangered to the point that she was placed at risk of great bodily injury or death.

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Mincey (1992) 2 Cal.4th 408, 432.)

As relevant here, section 368, subdivision (b)(1), provides: Any person who . . . having the care or custody of any elder or dependent adult, willfully causes or permits the person or health of the elder or dependent adult to be injured, or willfully causes or permits the elder or dependent adult to be placed in a situation in which his or her person or health is endangered, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years.

The charge of elder abuse in this case required the prosecution to prove that defendant acted willfully, that is, with a purpose or willingness to commit the act or make the omission in question. The word willfully does not require any intent to violate the law, or to injure another, or to acquire any advantage. (CALJIC No. 9.38; see also, CALCRIM No. 831 [Someone commits an act willfully when he or she does it willingly or on purpose.].) In proving that defendant placed Ida in a situation in which her person or her health was endangered, it was not necessary for the prosecution to prove that actual bodily injury occurred. However, if great bodily injury did occur, the court could consider its nature and extent in connection with all the evidence in determining whether the situation was such that Idas person or health was likely to be endangered. (CALJIC No. 9.38.)

The evidence showed that defendant told Danny that he agreed to do household chores, to take Ida to medical appointments, and to make sure she took her medications in exchange for room, board and spending money. Defendant told Detective Jorgensen that he oversaw Idas medical appointments and medications. Defendant also told Detective Jorgensen that he stopped refilling Idas medications about 16 months prior to her hospitalization and stopped Ida from taking some of her prescribed medications about six months before her hospitalization. He said he that did this because he believed the medications were causing some side effects, but that he did not check with a doctor before doing so. Defendant also said that he stopped Idas use of her oxygen because she did not like it, and that he stopped taking Ida to see her treating physician, Dr. Hostetter, because of what defendant told her the doctor said. By his own testimony, defendant admitted that he was the one who drove Ida where she needed to go and picked up her medications, but he did not pick up any medications or take her to a doctor after August 2001. Defendant also admitted that he had no medical training, but he told Ida to stop taking some of her medications because they were causing side effects, and he did not check with a doctor before doing so. Dr. Hostetter testified that, because Ida was not taking her prescribed medications or seeing a doctor, it was inevitable that she would have complications from her medical conditions. When Ida was admitted into intensive care at the hospital, she was in critical condition due to complications from her medical conditions, with the possibility of death. This evidence is sufficient to support the trial courts determination that defendant, having the care and custody of Ida, willfully placed Ida in a situation in which she or her health was endangered.

2.Evidence Outside the Record

When it found defendant guilty, the trial court stated in part: It was certainly clear in 2000 and 2001 that [Ida] needed help in every aspect of her life. And that comes from not only the testimony of observers but from statements made by Mr. Bailey himself to the effect that [Ida] was losing it, she was she actually forgot about her leg injury at one point. She may not have been I take it that she was not the one who was prone to take medications, or fall under the dictates of physicians. She was resistant to that on her own. And she had done a good job of taking care of herself even before Mr. Bailey became her full and complete caregiver. But when he takes responsibility, he takes the responsibility. And theres just no way that I can see that anybody who bears the responsibility of care for an elderly person, lawfully treats her the way Mr. Bailey treated this old lady. Putting her in a trailer that has no water, that has no heat, has no food, no refrigeration, while his trailer does, is simply not adequate or equitable. You just you just cant get around the fact that thats not thats not adequate care.

And hes charged with knowledge of [Idas] medical condition, having been informed of it by her physician, by her children, and theres no way that you can justify a hiatus of a year and a half without a doctor visit to a chronic diabetic. There is no way you can justify not filling her prescriptions and not making sure that her prescriptions are up to date. Im not saying he could have made her take medications. It may it may be that that would have been that would have been a problem. My feeling is, based on the evidence, that Mr. Bailey had such influence over [Ida] that he could have gotten that done; he could have persuaded her to take her medications, but he just didnt do it. And nobody can say precisely what his motivations are, or were, or how much of this was cultural, how much was just pure neglect, but I think the operative word is indifference. Mr. Bailey had to have been aware that [Ida] was failing and slipping, and not in good health long before the crisis ensued on January 3rd that compelled him to take action to get her off of his hands and into the hospital. I think he did have feelings of admiration for her, but the way he treated her was charitably described as indifferent to her psychological and physical, medical, and pharmaceutical requirements.

Mr. Bailey is no fool. Hes able to manage the property deals and to understand how to get along in a very difficult environment that many other people couldnt survive in. And it just doesnt wash, that that he couldnt perceive the needs that that [Ida] had, and do a heck of a lot more than he did to keep her comfortable, to keep her ahead of the curve with respect to her diabetes. And the professionals from every angle who looked at the case, be it the social workers, the physicians, the psychological evaluators, sheriffs, are all of the opinion that he failed in in even the basic his basic obligations to be her caregiver. And so I I do find you guilty of elder abuse as charged.

Defendant contends that the above italicized portion of the trial courts statement indicates that the trial court, in rendering its verdict, explicitly relied on evidence that was not presented, and in doing so, violated [defendants] right under the due process clauses of both the state and federal constitutions to a reliable determination of his guilt. Specifically, defendant argues that there was no evidence that Ida was ever deprived of food, water or heat. Defendant also argues that the courts observation that [defendant] had to have been aware that Idas health was slipping . . . long before she went to the hospital was based entirely on speculation, and not on any evidence admitted at [defendants] trial. Lastly, defendant argues that,[w]ith one trivial exception, there were no . . . opinions offered by any witnesses at [defendants] trial that defendant failed in his basic obligations to be her caregiver.

In order for defendant to prevail on this issue, he must affirmatively show that error occurred in the court below. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As an aspect of the presumption that judicial duty is properly performed, we presume . . . that the court knows and applies the correct statutory and case law [citation] and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process. (Evid. Code, 664; [citations].) (People v. Coddington (2000) 23 Cal.4th 529, 644, overrule on another ground in Price v. Superior Court (2001) 25 Cal.4th 1069, fn.13.) Accordingly, we presume that the trial judge was aware that its ruling was to be based on the evidence before it, and reasonable inferences therefrom, and not on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5.)

Although Snider testified that it did not appear to her that Idas stove and toilet were working when Snider visited Idas trailer several days after Ida was hospitalized, there was other testimony that prior to Idas hospitalization her trailer had a working wood stove that was used for heat and that her bathroom facilities were used with hauled-in water. There was also testimony that defendant prepared Idas meals, so she did not need cooking facilities or refrigeration. However, Dr. Hostetter testified that, given Idas failure to take her medications and to see a doctor regularly, it was inevitable that Ida would suffer complications from her medical conditions. Defendant testified that Ida began complaining of medical problems as early as January 3, 2003. There was also testimony that on January 6, 2003, when Carolyn visited Ida, her health and her ability to care for herself were already failing. Both Ida and her trailer were filthy, her bathtub was not usable because it was filled with her used diapers, there was no food anywhere in her trailer, and Carolyn had never seen Idas trailer in that state before. Dr. Hostetter testified that Ida was in critical condition, with a potential for death, at the time she arrived at the emergency room on January 9, 2003; that Ida remained in intensive care for five days; and that Ida was still in need of daily skilled nursing care at the time of trial. In addition, while defendant testified that he allowed Ida to make her own medical decisions, Snider, a social worker, testified that Idas ability to make her own medical decisions was poor; Dr. Hidler, a psychologist, recommended that a guardian be appointed to make Idas medical decisions for her; and Brewster, a social worker, testified that she was of the opinion that Ida had been neglected to the point that her health was in danger.

As we stated above, substantial evidence supports the trial courts finding that defendant, as Idas caregiver, placed Ida in a situation that endangered her person and her health. The evidence presented, along with reasonable inferences from that evidence, amply supports the courts finding that Idas health and her ability to care for herself rapidly declined beginning no later than January 3, 2003. However, defendant did not seek medical treatment for Ida until January 9, 2003, six days later, and by then Ida was in critical condition with a potential for death. After reviewing the entire record we conclude that the courts remarks make it unmistakably clear that there was no improper consideration of evidence that was not presented, and that the evidence that was presented amply supports the courts finding that defendant failed in his basic obligations to be Idas caregiver.

3.Hearsay Testimony

Several witnesses testified about statements Ida made to them regarding defendant. There was testimony that Ida said that she stopped taking her medication because defendant said they could not afford it. There was also testimony that, after her hospitalization, Ida did not fully understand her medical situation. When defendant repeatedly objected to the admission of this testimony, the prosecutor told the court that the testimony was being offered as an exception to the hearsay rule under Evidence Code section 1250, and the court overruled defendants objections.

On appeal, defendant contends that this testimony was erroneously admitted, and that its admission violated his constitutional right to confront and cross-examine the witnesses against him. The Attorney General argues that the trial court stated that it admitted the testimony for this limited purpose, that the trial court did not abuse its discretion in doing so, and that this court must presume that the trial court complied with its obligation to follow the law.

Evidence Code section 1250, subdivision (a) provides that, [s]ubject to Section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of . . . mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [] (1) the evidence is offered to prove the declarants state of mind, emotion, or physical sensation at the time or at any other time when it is itself an issue in the action; or [] (2) the evidence is offered to prove or explain acts or conduct of the declarant. Evidence Code section 1252 provides that evidence of a statement is inadmissible if the statement was made under circumstances such as to indicate its lack of trustworthiness. (People v. Edwards (1991) 54 Cal.3d 787, 819.) The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion. [Citation.] A reviewing court may overturn the trial courts finding regarding trustworthiness only if there is an abuse of discretion. [Citations.] (Id. at pp. 819-820.) Similarly, we will not overturn the [trial] courts conclusion that hearsay evidence was admissible unless the court has abused its discretion. (In re Cindy L. (1997) 17 Cal.4th 15, 35.)

Viewed as an ordinary error of state law, a courts ruling allowing the erroneous admission of hearsay evidence despite due objection would ordinarily be tested under the familiar standard of People v. Watson (1956) 46 Cal.2d 818, 836: reversal would be justified only if it appeared, from a review of the record as a whole, that a result more favorable to defendant would probably have followed in the absence of the error. However, defendant argues that the admission of Idas out-of-court statements to Detective Jorgensen also violated defendants right under the federal and state Constitutions to confront adverse witnesses. (U.S. Const., amends. 6, 14; Cal. Const., art. I, 15; Crawford v. Washington (2004) 541 U.S. 36; see also, 686.) The erroneous admission of evidence in violation of the right to confront witnesses is tested by the more rigorous standard of Chapman v. California (1967) 386 U.S. 18, under which reversal is required unless we can say that, beyond a reasonable doubt, the result would not have been more favorable in the absence of the error. (See People v. Brown (2003) 31 Cal.4th 518, 538.)

Even if we assume arguendo that the trial court erred by admitting testimony regarding statements Ida made about not taking her medications and regarding her lack of awareness about her medical condition after her hospitalization, we would find any such error was harmless beyond a reasonable doubt. Throughout the trial there was testimony that Ida had several medical conditions that required prescription medications and monitoring, that defendant had not taken Ida to see her treating physician for over 16 months, and that Idas prescription medication had not been refilled for that period of time. Defendant admitted that he stopped Ida from taking some of her prescription medications. Defendant answered affirmatively when the prosecutor asked him if he told Ida not to take some of her drugs and if he made the decisions based on reading the PDR and package inserts. He also testified at one time I believe we had her on about 11 different drugs, and that of those 11 he got her down to probably about three or four. Thus, there was ample evidence, even without Idas statements, that she was not taking her prescription medications. In addition, defendant concedes that there was other properly admitted evidence concerning the extent to which defendant influenced Idas decisionmaking, and he recognizes that Idas statements were largely cumulative on this point. Defendant, as Idas caregiver, was entrusted to take Ida to see her doctor and to get her prescriptions refilled. When Ida was admitted to the hospital in January 2003, she was in critical condition and could have died. Given this record, we conclude that it is not reasonably probable defendant would have obtained a more favorable result had the trial court excluded testimony referencing Idas statements about her not taking her medications and about her lack of awareness of her medical condition. (People v. Watson, supra, 46 Cal.2d at p. 836.)

4.Court Security Fee

Defendant contends that the trial court erred in imposing a $20 court security fee under section 1465.8 because it violated the prohibition against ex post facto punishment.[4] Defendant separately contends that imposition of the fee was an improper retroactive application of the statute because the actions on which his conviction is based occurred before the effective date of the statute.

Section 1465.8, which applies a $20 court security fee to every conviction for a criminal offense in order [t]o ensure and maintain adequate funding for court security, (id., subd. (a)(1)), became effective on August 17, 2003. (Stats. 2003, ch. 159, 25, 27.) The offense in this case occurred between July 2001 and January 9, 2003; the court found defendant guilty of the offense on August 29, 2005; and the court imposed the court security fee on October 11, 2005.

In People v. Wallace (2004) 120 Cal.App.4th 867, at page 870 (Wallace), Division Five of the Second District concluded that consistent with the ex post fact clauses of the United States and California Constitutions, the section 1465.8, subdivision (a)(1) $20 court security fee, which was part of a budget trailer bill, may be imposed on defendants whose crimes were committed prior to its August 17, 2003, effective date. The court explained that section 1465.8 was included as part of fiscal legislation, passed to effectuate the 2003-2004 state budget. (Stats. 2003, ch. 159, 25; Wallace, supra, 120 Cal.App.4th at pp. 871-873.) Because the fee was minimal and was imposed on both criminal and specified civil actions, it was imposed for a nonpunitive purpose and was without punitive effect. (Wallace, supra, 120 Cal.App.4th at pp. 875-878.) We agree with this conclusion.

We must now determine whether application of section 1465.8 in this case gave the law retroactive effect. Defendants retroactivity argument is based on section 3, which provides: No part of [the Penal Code] is retroactive, unless expressly so declared. Thus, defendant argues, section 3 prohibits the retroactive application of section 1465.8 because section 1465.8 did not expressly make the court security fee provision retroactive.

It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) If the wording of the statute is unclear, the legislative history must clearly indicate that the Legislature intended the law to be retroactive in order for it to have retroactive application. (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 221-222.)

The text of section 1465.8 is silent on the question of retroactivity.[5] In addition, there is no indication in the legislative history of the section that retroactivity of the statute was ever considered. Section 1465.8 applies to every conviction for a criminal offense. Defendant argues that the Legislature contemplated collecting the fee only in connection with convictions for offenses occurring after the effective date of the statute. The Attorney General does not respond to defendants retroactivity argument. The appellate court in Wallace, the case on which the Attorney General relies, did not discuss the issue of retroactivity.

[T]he critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date. [Citations.] A law is not retroactive merely because some of the facts or conduct upon which its application depends came into existence prior to its enactment. [Citation.] (People v. Grant (1999) 20 Cal.4th 150, 157.) Here, the act of conviction triggered the application of the statute and the conviction occurred after the statutes effective date.

In addition, if a statute imposes a disability, not to punish, but to accomplish some other legitimate purpose, it will be considered nonpenal. (People v. McVickers (1992) 4 Cal.4th 81, 85.) The court in Wallace explained that the purpose and impact of section 1465.8 are not punitive, but are intended to promote and fund court security. (Wallace, supra, 120 Cal.App.4th at pp. 877-878.) Accordingly, we find no error in the imposition of the court security fee in this case.

DISPOSITION

The judgment is affirmed.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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Mcadams, J.

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duffy, J.

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[1]Further unspecified statutory references are to the Penal Code.

[2]As some of the witnesses are related and have the same last name as the victim, we will refer to them by their first names for purposes of clarity, and not due to any disrespect.

[3]Charles was Danny and Carolines biological grandfather and Ida was their step-grandmother.

[4]This issue is currently before our Supreme Court. (People v. Alford, review granted May 10, 2006, S142508; People v. Carmichael, review granted May 10, 2006, S141415.)

[5]In relevant part, section 1465.8 states: (a)(1) To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, . . . . [] (2) For purposes of this section, conviction includes the dismissal of a traffic violation on the condition that the defendant attend a court-ordered traffic violator school, . . . . [] (b) This fee shall be in addition to the state penalty assessed pursuant to Section 1464 and may not be included in the base fine to calculate the state penalty assessment . . . . [] (c) When bail is deposited for an offense to which this section applies, and for which a court appearance is not necessary, the person making the deposit shall also deposit a sufficient sum to include the fee prescribed by this section.