Filed 12/27/17 P. v. Hall CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
GREGORY LEROY HALL,
Defendant and Appellant.


A150246

(Napa County
Super. Ct. No. CR155086)


Gregory Leroy Hall appeals from a trial court order extending his state hospital commitment under Penal Code section 1026.5, subdivision (b), which governs the procedure for extending commitments for persons found not guilty by reason of insanity (NGI). He contends insufficient evidence supports the order, and that the trial court erred by admitting case-specific hearsay from an expert witness in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1986, the court found Hall NGI of attempted murder (§§ 664, 187) and committed him to a state hospital. In 2010—while hospitalized—Hall assaulted another patient; in 2012 the court found Hall NGI of assault with force likely to cause great bodily injury (former § 245, subd. (a)(1)) and committed him to a state hospital.
In May 2016, the prosecutor petitioned to extend Hall’s commitment for two years. At the outset of the bench trial, defense counsel moved to “exclude any case-specific hearsay by the expert[s] pursuant to . . . Sanchez” unless the information conveyed by the statement came within a hearsay exception or was “offered for some purpose other than the truth of the matter.” In response, the prosecutor argued the hospital records were “admissible as business records . . . kept in the normal course of business by staff at the State hospital.” The court agreed, noting expert witnesses may testify based on records prepared by hospital employees where those records fall within a hearsay exception. The court asked defense counsel to “make objections at the appropriate time if the Defense thinks that the proper foundation has not been laid to allow the testimony to come in under one of these exceptions.”
The prosecution offered the following evidence:
A. Dr. Alexander Zinchenko, Ph.D.
Zinchenko, a psychologist, has treated Hall since approximately 2013. Hall suffers from a severe mental disorder: schizoaffective disorder, bipolar type. Hall exhibits pronounced symptoms of that mental disorder, including “delusions, auditory hallucinations, flatness of affect, [and] poverty of speech.” Hall’s symptoms are managed with “vast medication treatment and psychotherapy.”
When asked to provide an example of the types of delusions Hall has had, Zinchenko described the 2010 assault, which was prompted by a conversation Hall overheard between another patient and his lawyer. Hall thought the patient wanted to obtain Hall’s “DNA from his feces” to frame Hall for a murder committed by a “group of bikers” in Las Vegas. When asked whether Hall had been involved in threatening or violent behavior since the 2010 assault, Zinchenko responded: “there were a couple of incidents back in the spring of this year [2016] where he . . . was overly demanding and screaming and banging at the nursing station . . . window. [He] wasn’t threatening their safety, but . . . [he] exhibited an intense affect and loud voice and screaming.” Zinchenko described Hall’s behavior as displays of “terrible aggression” directed at hospital staff members.
According to Zinchenko, the progress Hall was making was negatively impacted by his consistent denial of psychosis symptoms. Hall’s lack of insight into his diagnosis prevented him from “getting conscious control over his impulses.” A patient with insight into his mental illness has a better chance of voluntarily following a treatment plan. Hall has a history of substance abuse, including frequent alcohol use and occasional cocaine use. Substance abuse decreases impulse and behavior control. Though Hall’s substance abuse was “in remission” because of his commitment, he did not have a viable relapse prevention plan.
Zinchenko opined Hall presented “a moderate risk of dangerousness if in the hospital environment and [a] high risk of dangerousness if discharged in the community today.” According to Zinchenko, the “hospital provides patients with a very structured routine” and treatment environment which helps patients “contain their impulses . . . . The treatment itself is very structured, so patients really don’t have a chance to miss their delivery of medications or if they refuse and it becomes known to the treatment team, . . . it would require some sort of treatment intervention from the team. Very important . . . is food and shelter, that it’s hard to come by in the community.” Hall was “compliant with his medication” because of the hospital’s structure and routine. Zinchenko would be “very worried” if Hall were released into the community because he “would be without any means for housing, good jobs, or food,” which would be “asking for a disaster.”
B. Dr. Dennis Lin, M.D.
Lin is Hall’s treating psychiatrist. Lin met with Hall monthly and quarterly. Lin diagnosed Hall with schizoaffective disorder bipolar type and opined Hall suffers “symptoms of paranoia from time to time” despite being medicated. In a 2015 paranoid episode, Hall believed a staff member was following him, and got “quite upset.” In response, Lin increased Hall’s antipsychotic medication. Lin also described a 2016 incident when Hall “was yelling at . . . staff.” Lin spoke to Hall about the incident. Referring to a “report,” Lin explained “there was a dispute about a bucket of water” and Hall became “verbally aggressive towards the staff person.” According to the report, the staff member perceived Hall’s behavior as a verbal threat.
Because of the severity of Hall’s mental disorder, Hall is on “a complex regimen of medication.” Lin believed it would be “very difficult” for Hall to continue taking his medication in an unsupervised environment. If Hall stopped taking his medication, his symptoms would “recur . . . in terms of the more severe paranoia and delusion, and auditory hallucinations he used to experience . . . and then he could become potentially violent and dangerous.” Lin also opined Hall had insufficient insight into his mental illness. In a conversation Lin had with Hall one day before trial, Hall indicated he felt justified for assaulting the patient in 2010 because the patient was trying to frame him. Hall’s adherence to that persecutory delusion suggested he lacked insight into his mental illness.
Lin opined Hall would be “dangerous if he’s released into a community unsupervised.” Lin based this opinion on his “knowledge of [Hall] as a patient” and his “experience as a psychiatrist, having seen thousands of patients over the last many years.” Lin wanted to see Hall discharged from the hospital when he was ready. In August 2016, Hall had been denied admission to the outpatient conditional release program (CONREP) because evaluators determined he was not ready to be “safely released into the community” with outpatient treatment.
C. The Court’s Ruling
At the conclusion of the trial, the court granted the petition and extended Hall’s commitment until December 2018. The court explained: “Mr. Hall has been in the State hospital system for 30 years and despite that kind of controlled environment[,] six years ago in 2010[,] he did engage in a violent incident that resulted in the [former section] 245 (a)(1) charge to which he pled no contest.
“To Mr. Hall’s great credit he has had good performance in the State hospital since then. He has been medication compliant, there have been no further incidents of physical violence. There was an incident just this spring of verbal aggression towards the staff. There was no evidence as to what precipitated that, but it is concerning that even with the medications he did get into a verbally aggressive situation and staff felt threatened. To [his] credit, he is taking his medications voluntarily . . . . He has been cooperative, he’s been attending groups, he works in the kitchen. All of that is very positive.
“What the Court has to consider is what is the likelihood of this status continuing if Mr. Hall is released into the community unsupervised. And what I’ve heard described is a highly regimented environment in the State hospital where he is provided with his food, clothing and shelter. He is reminded of when he needs to take his medication, he is given each dosage of medications at the proper time. And the evidence further shows that the medications are crucial to his being able to control his behavior. [¶] And then the question is[,] is it likely that he will continue to—will he be able to continue that
medication regime unsupervised in the community without all of the support that he’s getting in the hospital. And this Court finds that it is very unlikely that at this stage in his treatment that he will be able to take the medications on his own without supervision. The Court finds that he needs an intensive program to monitor him in the community and without that support he is very likely to fail.
“And the Court thus finds that Mr. Hall is a person who by reason of mental disease, defect or disorder represents a substantial danger of physical harm to others if released into the community unsupervised.” The court encouraged Hall to attend group programs at the hospital so he could qualify for CONREP.
DISCUSSION
I.
Substantial Evidence Supports the Commitment Extension Order
Hall does not dispute he suffers from a “mental disease, defect, or disorder” within the meaning of section 1026.5, subdivision (b)(1). Instead, he claims the commitment order must be reversed because there is insufficient evidence he represented a substantial risk of physical harm to others, or that he had serious difficulty controlling his behavior.
A person committed to a state hospital after being found NGI may be kept in custody no longer than the maximum term of imprisonment for the underlying offense. (§ 1026.5, subd. (a)(1).) An NGI commitment may be extended beyond this period in two-year increments when the prosecution proves, beyond a reasonable doubt, that “by reason of a mental disease, defect, or disorder” the defendant “represents a substantial danger of physical harm to others” and that as a result of the mental disease, defect or disorder, the defendant had, “at the very least, serious difficulty controlling his potentially dangerous behavior.” (§ 1026.5, subd. (b)(1), (8); People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165.) We review an order extending “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. [Citation.] A single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of commitment.” (People v. Williams (2015) 242 Cal.App.4th 861, 872 (Williams); Zapisek, at p. 1165.)
Hall argues there is insufficient evidence he represents a substantial danger of physical harm to others because he has not “been physically violent since 2010.” We are not persuaded. Hall’s lack of recent violence in a controlled institutional setting does not establish he no longer represents a substantial danger to others when placed outside that controlled setting. (Williams, supra, 242 Cal.App.4th at pp. 874–875.) And “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.) Lin testified Hall “could become potentially violent,” and would be “dangerous if he’s released into a community unsupervised.” Zinchenko testified Hall presented “[a] high risk of dangerousness if discharged in the community today.” As stated above, a “single psychiatric opinion that a person is dangerous because of a mental disorder constitutes substantial evidence to justify the extension of commitment.” (Williams, at p. 872.)
Also unpersuasive is Hall’s contention there is insufficient evidence he has serious difficulty controlling his dangerous behavior. Hall continues to suffer from schizoaffective disorder, bipolar type and its attendant symptoms, even when medicated. The experts opined Hall would likely stop taking his medication outside of the state hospital setting. Without medication, Hall’s symptoms—severe paranoia, delusions, hallucinations—would reoccur and he “could become potentially violent and dangerous.” Zinchenko and Lin explained why they believed Hall’s behavior in the hospital’s structured environment was not indicative of how he would behave if unsupervised. Additionally, the experts opined Hall lacked insight into his mental illness, which—as Zinchenko explained—prevented him from “getting conscious control over his impulses.” Moreover, Hall has a history of substance abuse, which decreases impulse and behavior control, and no viable relapse prevention plan.
The expert testimony constitutes substantial evidence Hall has serious difficulty controlling his behavior. (See People v. Kendrid (2012) 205 Cal.App.4th 1360, 1370 [“ ‘there may be “considerable overlap between a . . . defective understanding or appreciation and . . . [an] ability to control . . . behavior” ’ ”]; Williams, supra, 242 Cal.App.4th at p. 875 [experts agreed “there was a strong possibility defendant would fail to control his behavior if released”].) Hall’s alternative view of the evidence is simply a request to “reweigh the evidence,” which we cannot do. (Williams, at p. 874.)
We conclude substantial evidence supports the order extending Hall’s commitment under section 1026.5. (Williams, supra, 242 Cal.App.4th at p. 873.)
II.
Any Assumed Sanchez Error Was Harmless
Hall claims the commitment order must be reversed because Zinchenko related inadmissible, case-specific hearsay in violation of Sanchez. Numerous cases have summarized the “ ‘paradigm shift’ ” articulated in Sanchez “ ‘regarding how out-of-court statements used as expert testimony basis evidence are treated under California hearsay law’ ” and we need not restate it here. (See Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1281 (K.W.); People v. Ochoa (2017) 7 Cal.App.5th 575, 583.) As relevant here, Sanchez bars an expert from relating “as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (People v. Lin (2017) 15 Cal.App.5th 984, 989.) The rule announced in Sanchez applies to proceedings under section 1026.5. (See People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 509, fn. 6.)
Hall complains Zinchenko related case-specific hearsay taken from Hall’s “ ‘chart’ concerning recent alleged acts of verbal aggression . . . toward hospital staff.” We agree that this portion of Zinchenko’s testimony is “problematic in light of Sanchez” because it was drawn from his review of Hall’s “medical and institutional records . . . as opposed to personal contacts with” Hall. (K.W., supra, 13 Cal.App.5th at p. 1285; see also People v. Dean (2009) 174 Cal.App.4th 186, 197 [expert testimony relating details of institutional records was hearsay].) This case-specific hearsay was “inadmissible under Sanchez absent independent proof, or establishment by a hearsay exception.” (K.W., at p. 1285.)
The Attorney General contends the case-specific hearsay related by Zinchenko was not inadmissible because it was drawn from medical records qualifying for admission under the business records exception to the hearsay rule (Evid. Code, § 1271). Hall does not argue otherwise. He does not contend the prosecution failed to satisfy the foundational requirements for the business records exception. Nor does Hall challenge the trial court’s ruling on the admissibility of the medical records. Instead, Hall claims the medical records were not marked as exhibits or offered into evidence, and contends an “expert may not relate hearsay case-specific facts drawn from medical records never offered or admitted into evidence.” We question whether Hall has preserved this issue for appellate review because trial counsel did not make this argument. Under Evidence Code section 353, a “ ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable.” (People v. Seijas (2005) 36 Cal.4th 291, 302.)
We need not decide this issue, however, because any arguable error in admitting Zinchenko’s testimony premised on the medical records was harmless. (K.W., supra, 13 Cal.App.5th at p. 1286.) Here—and as discussed in detail above—there was significant admissible evidence that Hall has a mental disorder that could not be controlled outside of a structured, regimented hospital setting, and that Hall represented a danger to others if released. As a result, it is not reasonably probable a result more favorable to Hall would have been reached had the court excluded the evidence. (Cf. People v. Jeffrey G., supra, 13 Cal.App.5th at p. 511.)
DISPOSITION
The order extending Hall’s commitment pursuant to section 1026.5 until December 2018 is affirmed.
 



_________________________
Jones, P. J.


We concur:


_________________________
Simons, J.


_________________________
Bruiniers, J.












A150246