P. v. Fox

Filed 7/2/07 P. v. Fox CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6, of the Cal. Const.) Affirmed.

Chris Truax, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey Koch, Supervising Deputy Attorney General, and William M. Wood, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Chasity Fox appeals from a superior court order recommitting her to involuntary treatment as a mentally disordered offender pursuant to Penal Code section 2970 et seq.^[1] In an evidentiary hearing on the Peoples petition for continued involuntary treatment, defendant contends the trial court abused its discretion by allowing a psychiatrist, who was the sole testifying expert, to recount the details of a report by a non-testifying expert. Absent the alleged error, defendant believes the trial court would have concluded she is suitable for outpatient treatment.

Factual and Procedural History

On June 1, 1999, defendant pled guilty to assault with a deadly weapon in violation of section 245, subdivision (a)(1), and was sentenced to two years in state prison. The conviction arose out of an incident at a gas station. Apparently, defendant walked up to the victim asking for money for a cigarette, and when the victim declined the request defendant took the gas nozzle and began hitting the victim and pouring gasoline on her. Following her conviction, defendant was transferred from state prison to Patton State Hospital (Patton) pursuant to section 2684. There, she was found to meet the criteria as a mentally disordered offender. As a result, defendant has been at Patton since March 29, 2001.

Noting defendants involuntary treatment was scheduled to expire on March 27, 2006, the People filed a petition for continued involuntary treatment on January 11, 2006. On April 20-21, 2006, the trial court held an evidentiary hearing on the petition. Defendant testified during the hearing despite her counsels objections.

During the evidentiary hearing, the court also considered the testimony of Dr. Steven Galarza, M.D., a well-qualified and licensed psychiatrist. Dr. Galarza has been defendants primary treating psychiatrist since July 1, 2005. At the request of the court and pursuant to section 2972, Dr. Galarza prepared a mental health report dated August 15, 2005, addressing whether defendant continues to meet the criteria for civil commitment as a mentally disordered offender. A copy of the report was made part of the record on appeal. In preparing the report, Dr. Galarza relied on his own observations of defendant during direct treatment, and he also reviewed treatment notes by other staff members who are regularly involved in defendants treatment and care. He indicated he reviews staff treatment notes on a regular basis as part of his role of defendants treating psychiatrist.

According to Dr. Galarza, defendant has a long history of mental illness and has been diagnosed with chronic paranoid schizophrenia, alcohol dependence, and marijuana abuse. Dr. Galarza testified defendant frequently experiences hallucinations, including several voices talking to each other and commanding her to do things. She also shows marked disorganization in her ability to speak and to function in a safe way and displays marked aggression. In addition to other treatments and medications being administered for her mental and physical problems, defendant is regularly medicated for severe agitation.

Dr. Galarza opined defendant is not in remission of her condition as evidenced by continued delusions and hallucinations. In addition, Dr. Galarza testified based on specific treatment notes that defendant continues to be violent to peers and staff members. For example, the treatment notes for March 13, 2006 state defendant hit another patient in the back with a closed fist because she was not given a cigarette. Defendant is unable to clearly articulate an understanding of why she was incarcerated, why she is at Patton, or the meaning of mentally disordered defendant. In Dr. Galarzas opinion, defendant is a substantial danger to others because of her history of violence, continuing violence at Patton, and her inability to think in an organized manner.

Based on her testimony, the trial court concluded defendant has a substantial mental disorder. The trial court found defendants testimony and behavior in court corroborated Dr. Galarzas testimony and opinion that defendant is not in remission of her condition, is a danger to the public, and cannot be released. As a result, the trial court ordered defendant recommitted for a period of one year.

Discussion

Defendant acknowledges that testifying experts can rely on reports prepared by non-testifying experts to reach their conclusions. However, she argues testifying experts may not reveal the content of a non-testifying experts report on direct examination. Defendant contends the trial court erroneously allowed Dr. Galarza to quote at length from the CONREP Hospital Liaison Report (CONREP Report) to support his conclusion that defendant is unsuitable for outpatient treatment. Dr. Galarza quoted the CONREP report not only during his testimony but in his own report.^[2] A copy of the CONREP Report was not made a part of the record on appeal, but the parties do not dispute it was prepared by another expert or experts. Because it overruled her objection, defendant believes the trial court improperly considered the challenged testimony in reaching its conclusion. As a result, she would have us overturn the judgment and remand the matter for a new trial.

A mentally disordered offender can be recommitted if the court or jury finds beyond a reasonable doubt that the offender has a severe mental disorder which is not in remission or cannot be kept in remission without treatment, and that as a result, the offender represents a substantial danger of physical harm to others. ( 2972, subds. (a)&(c).) A person shall be released on outpatient status if the committing court finds that there is reasonable cause to believe that the committed person can be safely and effectively treated on an outpatient basis. ( 2972, subd. (d).) Here, defendant disputes the trial courts finding she cannot be released because she is a substantial danger to others and cannot be treated safely and effectively in a less restrictive setting.

A claim that expert opinion evidence improperly has been admitted is reviewed on appeal for abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.) On direct examination, an expert may explain the reasons for his opinions even if he relied on inadmissible hearsay in forming them. (Id. at p. 137.) [I]t is appropriate for a physician to base his or her opinion in part upon the opinion of another physician. (Ibid.) However, in a jury trial it generally is not appropriate for the testifying expert to recount the details of the other physicians report or expression of opinion. [Citations.] (Id. at p. 137.) If the experts explanation of the basis for his conclusion is too detailed, it can conflict with an accuseds interest in avoiding substantive use of unreliable hearsay. (Ibid.) As a result, the trial court must balance the defendants interest with the jurys need for information sufficient to evaluate an expert opinion. [Citation.] (Ibid.) In its discretion, the trial court can exclude evidence if its probative value is exceeded by potential prejudice, irrelevance, or unreliability. (Ibid.) To address the potential for prejudice, it is appropriate for the jury to be advised any such evidence is being received only for the purpose of indicating the basis for the witnesss opinion. (Id. at p. 138.)

In this case, defendant waived the right to a jury trial on the Peoples petition and was therefore tried before the court. A judge is presumed to know and follow the law. [Citation.] We must assume that the court in this case considered the testimony about the . . . contents [of the CONREP Report] solely for the proper purpose of assessing the expert[s] credibility, and not as independent proof of the facts contained therein. (People v. Martin (2005) 127 Cal.App.4th 970, 977.)

Here, the record strongly supports a presumption that the trial court knew and followed the law. Defendant has not presented anything to overcome the presumption. As defendant contends, Dr. Galarza did quote a portion of the CONREP Report dated July 5, 2005 in his own report and during his testimony on the issue of defendants suitability for outpatient treatment. The challenged testimony was elicited when the prosecutor asked Dr. Galarza whether he knew if defendant had been evaluated by an organization as to outpatient treatment. Defense counsel objected to Dr. Galarza attempting to render the professional opinions of some other person or expert as to [defendants] psychological condition. The trial court responded: I dont agree with that. Experts can depend on other experts. They cant just adopt their opinions, but they can rely on them. Thus, the trial court recognized the limited purpose for considering the challenged testimony. Nonetheless, it is apparent based on his report and testimony that Dr. Galarza reached his own independent conclusion. His opinions were supported not only by his own observations as defendants treating physician, but her medical records, which include Dr. Galarzas own treatment notes, plus the notes of other professionals who regularly took part in defendants care and treatment plan.

We are also unconvinced by defendants argument Dr. Galarza was not the most convincing of psychological experts and there was little else for the judge to rely on in making a determination defendant is not suitable for treatment in a less restrictive setting. Once again, we assume the trial court understood and followed the law in weighing and evaluating the credibility of all of the evidence presented. Defendant does not dispute the facts of the underlying criminal offense, the diagnosis of her mental condition, Dr. Galarzas qualifications to testify as her treating psychiatrist, the content of her medical records as summarized by Dr. Galarza in his report, or the substance of her own testimony. Our review of the record indicates all of the evidence presented supports and is consistent with the trial courts decision. Accordingly, we conclude there was no abuse of discretion.

We further reject defendants contention there was an abuse of discretion because the trial court did not make an express finding defendant cannot be treated in a less restrictive setting. A review of the record establishes the trial court made a specific finding defendant could not be released because she would be a danger to the public. This express finding was based not only on the evidence presented by Dr. Galarza but on defendants own testimony and her behavior in the courtroom.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.

^[2] In pertinent part, Dr. Galarzas report states as follows: Similarly, in the most recent [CONREP Report] (dated July 5, 2005), it is concluded that [defendant] is not currently suitable for treatment in the community, as psychiatrically she remains fragile and behaviorally she remains unpredictable. . . . she did not have any awareness of what is going on and any appreciation of what it would take for her to be ready for our program. Instead, she talked about unrealistic and delusional expectations such as being released into CONREP, selling her poems and art work (more than a thousand poems at $10.00 each and hoping to sell a billion of them).