Filed 6/30/17 P. v. Crooks CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM GRANT CROOKS,

Defendant and Appellant.
D071092



(Super. Ct. No. CR56642)

APPEAL from an order of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
William Grant Crooks, a person found not guilty by reason of insanity, appeals an order following a jury trial extending for two years his commitment to Patton State Hospital (Patton) pursuant to Penal Code section 1026.5, subdivision (b). Crooks contends (1) there was insufficient evidence to establish his mental illness resulted in serious volitional impairment or would cause him to be a current danger to others if released because the People's experts relied upon, and related to the jury, inadmissible hearsay evidence and (2) the court erred in responding to a jury question about the requirement that Crooks "now" poses a substantial danger. We conclude Crooks forfeited his evidentiary challenge by failing to object to the experts' opinions at the time they were rendered and we further conclude there was substantial evidence to support the jury's finding. We also conclude the court responded to the jury's inquiry with a proper statement of the law. We affirm the order.
BACKGROUND
A
Crooks experienced depression by the age of 13. He was hospitalized and treated for mental illness in the 1970's when he was 17 years old.
In 1981, Crooks was living in a Hare Krishna temple and he was not taking his medication. Crooks said he got kicked out of the temple community when his mother came to visit him because it was against the rules. He went with some "hippies" from the temple to a trailer. He had been drinking in Tijuana all night before the incident and he became paranoid. He believed his parents did not agree with his religion and he thought his parents and his friends were going to commit him to a hospital where he believed he would starve. He also believed the CIA and Secret Service were somehow involved. He went to another trailer where he attempted to commit suicide by slitting his wrists. He obtained a handgun by disarming the homeowner. Crooks attempted to shoot himself, but the gun malfunctioned. He then took a vehicle and tried to kill himself by intentionally driving into an intersection where he collided with another vehicle, killing the woman inside the vehicle.
B
Crooks was found not guilty by reason of insanity of the charges of vehicular manslaughter (see former § 192, subd. 3(a); Stats. 1945, ch. 1006, § 1, p. 1942); hit and run (Veh. Code, § 20001); and assault with a deadly weapon (§ 245, subd. (a)). He was committed to Patton from 1982 to 1984. He was placed in a conditional release program (ConRep) for two years, but when his symptoms returned, he went back to Patton for treatment. He was again released to ConRep from 1993 until 1999, but he decompensated and again returned to Patton. He was out of Patton again in six months. However, he left ConRep without leave for several years. He stopped taking his medication, began using marijuana, alcohol, and psychedelic drugs. When he made threatening phone calls to a ConRep social worker, he was taken into custody and returned to Patton.
After the maximum confinement based on the original charges and finding, the People obtained two-year extensions of commitment from September 1989 through the present. Crooks appeals the order of commitment following the most recent extension of commitment proceedings based on the People's petition filed in March 2016.
C
The People presented testimony from four expert witnesses: two psychologists assigned by the court to evaluate Crooks along with a psychiatrist and a psychologist who treated Crooks at Patton.
1
Court-appointed psychologist Nicole Friedman reviewed Crooks's records and met with Crooks for her evaluation. She familiarized herself with the facts of the underlying crime based upon the records and Crooks's account in his interview. She determined Crooks was experiencing delusions at the time of the crime in 1981. He was not taking medication at the time for mental illness. During the interview, Crooks took the incident seriously and appeared to have remorse that someone was harmed. However, he did not appear to understand that his mental illness played a role in the offense.
Dr. Friedman focused on the treatment Crooks received over the prior year to determine if his mental illness was stabilized. She noted he was taking an injectable antipsychotic medication once per month due to prior medication noncompliance. He refused an injection in March 2016, which was consistent with his history of on and off medication compliance. She also noted his attendance in group therapy dropped from 75 percent to 25 percent in recent months. He stated he cut back on group sessions because he felt he would be released when he came to court.
Dr. Friedman believed Crooks's withdrawal from treatment and from group therapy indicates he would not be compliant with self-care and he would not integrate well into the community if he were released into the community. Although Crooks said the judge would not care about group attendance, Dr. Friedman thought a reasonable person being considered for release would want to participate in treatment to show compliance and stability.
Crooks told Dr. Friedman he wanted to go to a treatment center for a period of time, but he then wanted to be homeless. Dr. Friedman expressed concern about this plan because homelessness would exacerbate his mental illness if he was unable to eat regularly or pay for medications.
Dr. Friedman diagnosed Crooks as having schizoaffective disorder, bipolar type, along with generalized anxiety disorder, narcissistic personality disorder, and substance abuse prior to being in the hospital. Dr. Friedman thought Crooks exhibited some delusions during the interview. He denied his disease and said there was a woman who worked with his attorney in the public defender's office who wanted to go out on the town with him, but it was confidential. Even if the woman was friendly to Crooks on the phone, Dr. Friedman thought he was inputting his own thoughts about what the relationship might be, leading to delusions. Delusions are concerning because the individual is not perceiving reality in terms of a social norm. Dr. Friedman expressed concern about romantic delusions leading to stalking behavior.
Crooks also had a fixed belief about an error in his prior medical records relating to statements he made at the time of the crime about the involvement of the CIA or the Secret Service. Dr. Friedman found this concerning because Crooks denied being delusional at the time of the crime. Failure to accept that delusional thinking was connected to behavior at the time of the crime indicates a concern about whether Crooks would have the understanding necessary to protect himself with proper self-care for his mental illness. In turn, this represents a concern about protecting others in the community.
The fact that Crooks refused medication within the prior year concerned Dr. Friedman. Crooks admitted that medications make him more clear-headed with less irritability, anxiety and worry. However, he refused medications in the past and is taking an injectable rather than voluntarily taking medication every day. According to the records, he does not believe he needs medication. Dr. Friedman did not have confidence he would take medication if he was released. When he refused his medication, his irritability and mood changes increased and his appearance became disheveled, indicating his ability to care for himself was diminished.
Failure to treat his chronic mental illness with medications would result in an uptick in his symptoms and prevent him from maintaining himself in a safe manner in the community. Dr. Friedman looked at Crooks's history of when he was released and when he was in ConRep. She noted he used caffeine, which exacerbated his symptoms. If untreated, she was concerned he would experience greater irritability and mood swings. If he were to use substances, as he did in the past, to self-medicate, he may have delusions and become unattached to reality. He might then act out based on delusions and create a dangerous scenario for himself and others. She noted his history of putting himself at risk of harm and killing another person when he was delusional.
Dr. Friedman noted Crooks had not been compliant with treatment in the prior year and he was irritable with his psychologist. Although Crooks was pleasant and maintained eye contact during the interview, she thought he had poor judgment and poor insight into his illness.
Dr. Friedman opined Crooks has a severe mental illness, which is not in remission. Because he is exhibiting signs and symptoms of mental illness, and because of his offense, it is her opinion he represents a substantial danger and harm to the community if he were released. Since Crooks does not have an interest in treating himself, she does not believe he would treat himself in an unsupervised environment. In her opinion, Crooks should be reevaluated for placement in ConRep.
2
Randy Stotland, Ph.D., another court-appointed psychologist who evaluated Crooks, reviewed Crooks's recent medical records, which refer back to other periods of time. Dr. Stotland interviewed Crooks about his medical history and treatment and did neuropsychological screening. Crooks told Dr. Stotland he intentionally got into a car accident and killed someone. Crooks became easily agitated during the interview.
Crooks admitted to drinking all night before the incident in 1981. He has not effectively participated in substance abuse treatment during his hospitalization and had no plan to address substance issues. This is a concern because alcohol is a trigger for violence, especially for someone with mental illness.
Crooks had unrealistic plans for release. He said he wanted to be a science teacher, but has not taken the GED and said he is not good in science.
In Dr. Stotland's opinion, Crooks should not be released because he represents a danger of physical harm to others. This opinion is based upon Crooks's mental illness, his history of violence which resulted in killing a woman, his failure to adequately or meaningfully participate in treatment, his failure on prior release attempts, and his lack of realistic plans for release.
3
Ramila Duwal, M.D., a psychiatrist who treated Crooks at Patton, diagnosed Crooks as having schizoaffective disorder, bipolar type. He has a mood disorder with symptoms of depression and bipolar. He also has a psychotic component where he is delusional. In addition, he has a general anxiety disorder and a history of substance abuse. Crooks consistently has insomnia, which can happen with people who have both depression and bipolar disorder. He is very intrusive and gets into other people's space. He does not have insight into his illness and is easily agitated. Crooks refused to talk to Dr. Duwal because Crooks does not feel he needs to be there.
Dr. Duwal recommended medication and group therapy to treat Crooks's illness. He takes an injection once per month because he is not compliant in taking mediation. Dr. Duwal would prefer to give him a mood stabilizer and a higher dose of antipsychotic medication, but Crooks consistently wants to be taken off of medications. The medication he takes only helps him a little because it is a lower dose. His symptoms would be more pronounced if he did not take the medication. Dr. Duwal explained group therapy helps patients learn about their mental illness, understand what is happening to them, and helps them become open to taking medication.
As with any illness, it is important for a patient to understand his or her illness to understand why he or she is taking medications. However, Crooks is not interested in learning about his illness and denies he has a mental disease. He says he is in remission and can take care of it with yoga and meditation. He denies he was mentally ill at the time of the offense in 1981.
Dr. Duwal explained the goal of the treatment plan is to help Crooks integrate his mental condition, his legal situation, and his upbringing so he understands his condition and can live independently. In individuals with mental illness, substance abuse makes their mental state worse and makes their prescription medications ineffective. Group therapy can help patients understand the effect of substances on their illness.
When Crooks returned to Patton after being out for a period of time, he was delusional, agitated and disorganized. When he is not medicated he becomes very disorganized, upset and angry. After he receives medication, he is more calm.
Crooks became very upset in 2015 when a staff member did a routine locker check. Crooks wanders around the unit and gets agitated if the staff want him to take medication. Individuals experiencing schizophrenia or schizoaffective disorder stop caring for themselves. He is not good at caring for himself with activities of daily living. He needs to be told to shave and bathe.
Crooks is intrusive and speaks out of turn during therapy sessions. He says he does not have a mental illness, "[i]t's all because of ego." He might say, "I'm not going to use. Substances [are] stupid." In terms of plans for the future, Crooks said he wants to be on a conservatorship in San Diego, live in Alpine, do yoga, and be a vegetarian.
According to Dr. Duwal, Crooks can be fearful, angry, intrusive, and agitated. He usually looks nervous and paces around. Dr. Duwal does not believe he is ready for ConRep. Generally, patients who are ready to be transferred to ConRep are patients who can talk about their illness, show compliance with medications, know what their triggers are, and are open to letting a doctor or support team know how they are feeling and what they need.
Dr. Duwal opined Crooks is dangerous and has the present potential for violence because he does not take his medication and he does not think he has a mental illness. He suffers from a severe mental illness, which is so real he is unable to understand that he has a mental illness. Duwal believes there is a high risk Crooks would reoffend if he was completely unsupervised.
Dr. Duwal agreed Crooks gets frustrated and says things, but he does not act on them. However, Patton is a very structured environment and Crooks cannot simply act out. Dr. Duwal opined it is important for Crooks to be in that kind of structured environment. Dr. Duwal did not have an opportunity to evaluate whether Crooks was currently delusional because Crooks refused to talk to Dr. Duwal.
4
Bruce Karp Ph.D., is a clinical psychologist who treated Crooks at Patton. Dr. Karp reviewed documents and medical records regarding Crooks's history. Dr. Karp opined Crooks is severely mentally ill. He has schizoaffective disorder, narcissistic personality disorder, and a strong history of substance abuse.
In discussing the possibility of Crooks relapsing with substance abuse outside of a structured environment, Dr. Karp stated Crooks used alcohol extensively when he was absent without leave from ConRep for a period of years. In 2004, he made drunken phone calls to ConRep in which he would make threatening statements. He has not used since he was readmitted, but he has not taken intensive substance abuse treatment or shown awareness of the impact of substance abuse on his condition. Dr. Karp believed it would be likely for him to relapse if he were not in a controlled environment.
Dr. Karp described Crooks as very "keyed up and on edge" and intrusive. He does not shower or does not use soap when he does shower. He gets angry easily and defensive if he is given feedback saying he is anything less than perfect.
Dr. Karp discussed the need for a patient to understand and manage mental illness like a chronic disease. Crooks stopped taking his medication in 2008 for about a year and became increasingly angry until he became violent with staff on several occasions in 2009. He also makes verbal threats and exhibits hostile behavior. Dr. Karp described a recent incident when Crooks became angry at a staff member who did a random locker search.
Dr. Karp described a pattern of increasing hostility. In a group session, Dr. Karp asked Crooks why he was trying to dominate the group by talking about Buddhist philosophy when Dr. Karp was trying to teach about mental health. Crooks finally said, "I'm not coming to your group anymore" and stormed out. When Crooks asked Dr. Karp about where he saw Crooks's clinical status and Dr. Karp tried to explain he had a mental illness he was not recognizing, Crooks became confrontational and angry. He said "You're all just … trying to keep me here, and I'm not going to talk to a psychologist. You're a big fool."
Crooks spends a substantial amount of time meditating, chanting, and pacing. Dr. Karp does not believe this activity is harmful, but is concerned it interferes with Crooks taking his medication or going to groups.
Crooks has not progressed in his treatment. He stopped going to group therapy, reducing his participation from about 70 percent to 30 percent. He is getting more confrontational and his insight has not improved.
Dr. Karp opined Crooks is likely to relapse with his mental illness because he has no insight, understanding, or acceptance of his mental illness. If he was out of a secure environment, he would likely quit his medications because he does not believe in them. If he relapsed with substance abuse, he would be more likely to relapse on his mental illness. Dr. Karp believed Crooks poses a physical danger to others outside of a structured environment because his mental illness is not under control outside of a structured environment.
5
Crooks presented three witnesses. A psychiatric technician from Patton, who worked in the medication room on a unit where Crooks resided for about a year, described Crooks as quiet when she gave him his medication. He meditated for long periods in his room or in the hall. He talked about his religion. She never saw Crooks behave in an aggressive or violent way toward other people. When Crooks did not take his medication, he became more manic and vocal. When asked if she would have safety concerns if Crooks was not at Patton, she stated "I don't think so." She admitted, however, she did not know anything about his medical history and she did not talk with Crooks about his plans if he was not at Patton.
A senior psychiatry technician also knew Crooks from working the nightshift. He did not observe any assaultive behavior by Crooks. He knew Crooks meditates and does yoga. He said it would help Crooks go to sleep. He believed Crooks should go to another program, but did not believe he was dangerous. This technician did not review Crooks's medical records or know anything about him other than his own observations.
A unit supervisor who had limited interaction with Crooks testified Crooks was generally cooperative and mild-mannered. The supervisor said he would feel comfortable interacting with Crooks outside of Patton. The supervisor had not seen Crooks's medical records and did not know anything about him prior to Crooks coming to the unit.
6
The jury found true the allegation Crooks's commitment should be extended pursuant to section 1026.5. The court extended his commitment for two years until August 7, 2018.
DISCUSSION
I
A defendant who is found not guilty by reason of insanity may be confined in a state hospital for no more time than "the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted," which the Legislature refers to as the "maximum term of commitment." (§ 1026.5, subd. (a)(1).) Prior to the completion of a term of commitment (whether a maximum term or any additional extended term), the commitment may be extended for two years upon a showing that, "by reason of a mental disease, defect, or disorder," the defendant "represents a substantial danger of physical harm to others." (§ 1026.5, subd. (b)(1); see § 1026.5, subd. (b)(4) & (8).) Establishing a substantial danger of physical harm to others "requires proof that the person has serious difficulty controlling his dangerous behavior." (People v. Williams (2015) 242 Cal.App.4th 861, 872 (Williams).) The factors required for an extended commitment must be proven beyond a reasonable doubt. (Ibid.; see § 1026.5, subd. (b)(7).)
The person may defend against the extension by proving by a preponderance of evidence that medication effectively controls his mental illness and he will take his medication without fail in a completely unsupervised environment. (People v. Bolden (1990) 217 Cal.App.3d 1591, 1602 (Bolden).)
"We review an order to extend commitment under section 1026.5 by applying the substantial evidence test, examining the entire record in the light most favorable to the order to determine whether a rational trier of fact could have found the requirements of the statute satisfied beyond a reasonable doubt." (Williams, supra, 242 Cal.App.4th at p. 872.)
II
Crooks contends there was insufficient evidence a mental illness would cause him to be a current danger to others if released because the People's experts relied upon hearsay, related case-specific hearsay evidence in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and there was insufficient evidence he poses a current danger because there is no evidence he was violent in the year prior to trial. We disagree.
A
We address the evidentiary issue first. The Supreme Court in Sanchez, supra, 63 Cal.4th 665 clarified the law regarding expert use of hearsay evidence in criminal cases, which involve the overlay of the confrontation clause of the Sixth Amendment. In such cases courts addressing admissibility of out-of-court statements must first engage in a traditional hearsay inquiry to determine if the statement is one made out of court, if it is offered to prove the truth of the facts asserted, and if it falls under a hearsay exception. In criminal cases, a second analysis is necessary to determine if there is a violation of the right to confrontation. "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay. … If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing." (Sanchez, supra, 63 Cal.4th at p. 686.) "[O]nly when a prosecution expert relies upon, and relates as true, a testimonial statement would the fact asserted as true have to be independently proven to satisfy the Sixth Amendment." (Id. at p. 685.)
In discussing state evidentiary rules for expert testimony, the court acknowledged Evidence Code section 801, subdivision (b), permits an expert to render an opinion " '[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Sanchez, supra, 63 Cal.4th at p. 678, italics added by Sanchez.) Additionally, Evidence Code section 802 permits an expert to state the reasons for his opinion. "[T]he reliability of the evidence is a key inquiry in whether expert testimony may be admitted." (Sanchez, at p. 678.) "Accordingly, in support of his opinion, an expert is entitled to explain to the jury the 'matter' upon which he relied, even if that matter would ordinarily be inadmissible." (Id. at p. 679.) The court also noted one recognized exception to California's hearsay rules barring disclosure of case-specific hearsay is for testimony concerning medical diagnoses. "[P]hysicians often rel[y] on patients' hearsay descriptions of their symptoms to form diagnoses." (Id. at p. 678.)
The Supreme Court concluded an expert may "rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Sanchez, supra, 63 Cal.4th at p. 685.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Id. at p. 676.)
In this case, Crooks complains the expert witnesses related hearsay evidence obtained from Crooks's records regarding (1) the details of the 1981 commitment offense, (2) phone calls made by Crooks when he was absent without leave from ConRep in the 1990's, and (3) assaultive conduct in 2009 with regard to Patton's staff. At the outset, we note these were background facts used to inform the experts' opinions about Crooks's present dangerousness. They supported the experts' opinions of how Crooks is likely to behave presently in an unsupervised environment given his lack of insight regarding his mental illness and his resistance to treatment. They were not used to establish an element of a crime sought to be proven at trial, such as evidence of gang involvement based upon prior police reports (Sanchez, supra, 63 Cal.4th at pp. 694–697) or details of uncharged prior offenses drawn from criminal records used to establish opinions regarding whether an individual is a sexually violent predator. (People v. Burroughs (2016) 6 Cal.App.5th 378, 404–407.) Nothing in the record suggests Crooks's medical records, or even transcriptions of his voice mail messages, were made primarily to memorialize facts related to past criminal activity to be used like trial testimony or in a formalized setting to constitute testimonial hearsay. (Sanchez, at p. 689.)
Even if the facts presented here could be considered testimonial hearsay statements, we conclude Crooks forfeited any appellate challenges to these statements because he did not object to this testimony on hearsay grounds when it was admitted. "[T]he failure to object to the admission of expert testimony or hearsay at trial forfeits an appellate claim that such evidence was improperly admitted." (People v. Stevens (2015) 62 Cal.4th 325, 333, citing Evid. Code, § 353, subd. (a).) " 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' " (People v. Partida (2005) 37 Cal.4th 428, 434.)
Crooks submitted a motion in limine to preclude hearsay testimony from experts. At the hearing, defense counsel agreed experts are able to rely on hearsay evidence to form their opinion. The court ruled the experts could testify to reliable facts and hearsay evidence, but could not offer conclusions or opinions from other individuals documented within various records. The court stated, however, the facts or hearsay evidence offered through the experts "might call for an objection depending on what you think is or is not reliable." Crooks's counsel agreed it was appropriate to handle the hearsay issues based on the testimony. However, during trial, Crooks's counsel did not object on hearsay grounds to the testimony he now complains was admitted.
1
Crooks did not object to testimony from Dr. Friedman or Dr. Stotland about the facts of the commitment offense based upon their review of the records. Crooks discussed the facts of the commitment offense with Dr. Friedman and Dr. Stotland during their evaluations, which would be admissible in any event. (Evid. Code, § 1220.)
2
The issue of Crooks's phone calls came up during Dr. Friedman's testimony after defense counsel inquired about Crooks's behavior when he was absent from ConRep. In response to Dr. Friedman's general statements that Crooks's symptoms increased when he was absent from ConRep, defense counsel asked Dr. Friedman to confirm there was no evidence in the records of violence during the time Crooks was absent from ConRep. On redirect, Dr. Friedman acknowledged there were references to threatening phone calls by Crooks during the time he was absent from ConRep even though there was no evidence of physical violence. Defense counsel did not object to testimony about the phone calls as hearsay, only to the characterization of the phone calls stating, "It's based off the conclusion of another person, not based on the content of the phone call." On further cross-examination, Dr. Friedman admitted she had not reviewed the phone calls and only knew someone else characterized them as threatening.
On cross-examination of Dr. Duwal, defense counsel asked about Dr. Duwal's review of Crooks's records regarding his behavior while he was at ConRep. Dr. Duwal said she remembered he made threats to a ConRep social worker after he left ConRep. When asked about the phone calls, Dr. Duwal stated, "I read the police report where he was going to 'carve her body.' That was—that's what stays in my mind. And to me, that's scary." Defense counsel did not object to the statement on hearsay grounds.
The issue of phone calls came up again during Dr. Karp's testimony as he described Crooks's history of treatment based upon his review of the records. Dr. Karp commented, Crooks made "very threatening phone calls to the ConRep social worker." Defense counsel again objected only to foundation of the characterization of the calls as "threatening," which the court overruled. Counsel did not object to Dr. Karp relating Crooks's history as documented in the medical records. Nor did counsel object to Dr. Karp's reliance on the phone calls to support his opinion Crooks would be likely to use substances again and relapse if he were released to an unstructured environment. Dr. Karp later testified he had read the transcripts of the phone calls in which Crooks told the social worker he was going to "stick you, and I'm going to stick the psychiatrist, and I'm going to stick you when you get in your car" and threatened to carve the therapist's face. Defense counsel did not object to this testimony as hearsay.
3
Dr. Karp discussed several incidents of violent behavior toward staff members in 2009 including spitting on a psychiatrist and hitting other staff members in the context of explaining the importance of taking medication to manage mental illness. He stated Crooks became increasingly angry after he stopped taking medication in 2008 resulting in these incidents. Defense counsel did not object to this testimony as unreliable hearsay.
Because defense counsel did not object on hearsay grounds to the statements now challenged on appeal, neither the court nor the prosecution had an opportunity to address applicable hearsay exceptions or to cure any defect. Therefore, we conclude these claims are forfeited. (People v. Stevens, supra, 62 Cal.4th at p. 333; People v. Partida, supra, 37 Cal.4th at p. 434.) We also conclude any constitutional challenge based upon the confrontation clause was similarly forfeited by the failure to object. (Sanchez, supra, 63 Cal.4th at p. 686.)
B
We conclude there was sufficient evidence to support the jury's finding of present dangerousness. " ' " ' "Whether a defendant 'by reason of a mental disease, defect, or disorder represents a substantial danger of physical harm to others' under section 1026.5 is a question of fact to be resolved with the assistance of expert testimony." ' " ' (People v. Kendrid, supra, 205 Cal.App.4th at p. 1370.) "A single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of commitment." (Williams, supra, 242 Cal.App.4th at p. 872; accord, People v. Bowers (2009) 169 Cal.App.4th 1442, 1450; People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.)
In this case, two court-appointed psychologists along with a treating psychiatrist and a treating psychologist opined Crooks represents a present substantial danger to others as a result of a mental disorder. The opinions of these experts were based upon their interviews or interaction with Crooks and his records along with their background, training, and experience.
The first court-appointed evaluator, Dr. Friedman, opined Crooks has a severe mental illness. She believes he represents a substantial danger to the community if he were to be released because he is currently exhibiting signs and symptoms of his mental illness and she does not believe he would treat himself in an unsupervised environment. The second court-appointed evaluator, Dr. Stotland, testified Crooks represents a danger of physical harm to others based upon Crooks's mental illness, his history, his failure to adequately or meaningfully participate in treatment, his failure on prior release attempts, and his lack of realistic plans for release.
Crooks's treating psychiatrist, Dr. Duwal, opined Crooks has a severe mental illness and the present potential for violence if he were completely unsupervised because he does not take his medication and he does not think he has a mental illness. Dr. Karp, Crooks's treating psychologist, testified Crooks poses a physical danger to others because his mental illness is not under control outside of a structured environment.
Crooks reargues the facts on appeal and his disagreement with the opinions of these experts. We will not reweigh the evidence. (People v. Bolin (1998) 18 Cal.4th 297, 333.) Contrary to Crooks's contention, it is clear from the record the experts did not simply base their opinions on his prior history. They based their opinions on Crooks's present mental condition, including his lack of engagement with treatment for his illness.
Crooks contends there was no evidence he engaged in violent behavior in recent years. However, "proof of a recent overt act is not constitutionally required to extend the commitment of a person found to be criminally insane." (People v. Overly (1985) 171 Cal.App.3d 203, 208.) Dr. Karp explained it does not matter whether a patient has hit anyone or become physically violent for a long period of time because that is only one of many factors psychologists consider in evaluating dangerousness. Factors such as insight, a patient's understanding of his or her illness, the seriousness with which the patient copes with the illness, and adherence to medication to help the patient cope with his or her illness are all part of the consideration. Dr. Karp opined Crooks has no insight, understanding, or acceptance of his mental illness. If he was out of a secure environment, he would likely stop taking his medications because he does not believe in them. A relapse of substance abuse would also contribute to a relapse of his mental illness. Crooks has not acted out recently because he has been in a structured setting taking at least some level of medication.
The experts did not change the burden of proof to require Crooks to establish he is safe. "The People are not required to prove the defendant ' "is completely unable to control his behavior." ' [Citations.] Instead, the defendant's 'impairment need only be serious, not absolute.' [Citation.] As the [United States Supreme Court has] explained, 'there may be "considerable overlap between a … defective understanding or appreciation and … [an] ability to control … behavior." ' " (People v. Kendrid, supra, 205 Cal.App.4th at p. 1370.)
The experts in this case agreed Crooks remains dangerous because he refuses to understand he has a mental illness and resists treating his illness with medications and therapy. As a result, there was sufficient evidence for a jury to conclude he would not take the necessary steps to care for his mental illness if he was in an unsupervised setting resulting in a return of his symptoms, which would endanger him and those around him. As Dr. Friedman stated, "[i]f he were taking medications, and if he was open to his treatment team and doctors and thought that he had a mental illness, the story would be different." As it is, however, he "has a potential of violence because he does not take his medication, and he does not think he has a mental illness."
III
Finally, Crooks contends the court erred when it responded to a jury question. The jury asked for a definition of the word "now" as used in the second element of CALCRIM No. 3453, stating "the People must prove beyond a reasonable doubt that: [¶] . . . [¶] 2. As a result of his mental disease, defect, or disorder, he now: [¶] a. Poses a substantial danger of physical harm to others; [and] [¶] b. Has serious difficulty in controlling his dangerous behavior."
The court responded as follows: "As to the second element, the word 'now' means at the present time. You are not being asked to decide the respondent's mental condition at any other time.
" 'At the present time' in this regard does not mean only under his current conditions of confinement and medication. It does not mean only in a controlled and supervised environment. The present time includes whether or not the respondent would pose a substantial danger were he not now in a supervised, controlled environment. The word 'pose' means does the respondent represent a substantial danger.
"It is up to you, as jurors, to determine the facts and in making that determination you may consider any factor(s) you feel affect(s) such determination, including whether the respondent is or is not in a supervised environment.
"In determining his current state of dangerousness, you may consider whether or not the respondent has the ability to control dangerous behavior, or whether he represents a substantial danger of physical harm to others, were he not currently hospitalized and in a supervised environment."
We conclude this is an accurate statement of the law. "[T]he jury must be able to appropriately consider whether, based upon his present condition, he poses such a danger if placed in an unsupervised environment." (Bolden, supra, 217 Cal.App.3d at p. 1605, italics omitted.)
DISPOSITION
The order extending Crooks's commitment is affirmed.


MCCONNELL, P. J.

WE CONCUR:



HALLER, J.



DATO, J.