P. v. Johnson

Filed 8/27/07 P. v. Johnson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. J. Michael Welch, Judge. Affirmed.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.

A jury found that the determination by the Board of Prison Terms that defendant met the criteria for being a Mentally Disordered Offender^[1](MDO) was true. Defendant here appeals from that finding, contending that certain items of evidence were improperly admitted, requiring reversal of the finding. We disagree and affirm the finding.

Defendant pled guilty in 2003 to making criminal threats and was granted probation. On January 6, 2005, she violated probation by committing an act of vandalism (breaking windows). She was in Los Angeles County Jail from January 7 to mid-April. On April 11, 2005, her probation was revoked and she was sentenced to prison for 16 months. She was in prison from late April until June 27, 2005. On June 24, 2005, the Board of Prison Terms adjudged her to be an MDO. After June 27, she was at Patton State Hospital.

Amongst the almost 550 pages of documents submitted to the jury are 6 pages which are the subject of this appeal. The first is a Department of Corrections Release Program Study form, dated 5/16/05, which states that defendant needs med[ication]s[,] but has refused to take them w[ith]in [the] last week.^[2] The second is a Department of Corrections interdisciplinary progress note, dated 6/8/05, which reports that defendant claimed some delusional system blamed on family and . . . social services (and perhaps a broader conspiracy). It goes on to state that there was a report that defendant was taking the drug Abilify^[3]but experiencing akathisia.^[4] The jury was never told what this later word meant. Following a portion that was redacted, the note goes on to state, able to explain her delusions . . . [a]nd says wants to take the Zypre[xa] then not take it. The third document are interdisciplinary notes from Patton, which state that on July 19, 2005, defendant ha[d] concerns regarding her safety because of threats from a peer and on July 21, 2005, that a peer had hit her and she wanted to know if she was safe there, but had been reassured that she was. The notes state that on July 22, 2005, defendant was asked to get ready for breakfast and she became angry, agitated and yelled, [F]uck you[,] threw her slippers and refused to calm down. Thereafter, she was medicated and given bed rest. The fourth document is a mental health progress note by a psychologist at Los Angeles County jail dated March 30, 2005. It states that defendant had hostile and combative signs on [her] door. Last week, she was extremely hostile, screaming[,] yelling throughout the day. [She h]as refused to take her psych[iatric] med[ication]s . . . [saying she] . . . belie[ved] that th[ey] were planting murderous thoughts . . . to kill and . . .  made [her] curse and say the word[], Nigger. [She was] EXTREMELY paranoid, rambled on about surveillance, and persecutory beliefs about the legal system and correctional staff, family members, etc. [She t]akes unrelated events, personalizes them and cites these innocuous stimuli as support for her delusional beliefs. The assessment was that defendant had [w]ell entrenched persecutory delusions that are not open to reinterpretation. TP^[5]disorganized, associations loose. S[p]eech rambling and very difficult to interrupt. Finally, a mental health progress note by a nurse at the jail states that on February 18, 2005, defendant was naked in a cell, screaming, talking and rambling. She refused to eat and threatened to hurt her jailers if she was taken to the hospital. She had wrapped a sheet around her neck the night before because she believed her jailers were trying to kill her and she wanted to help them do it. She believed her mental health clinicians were conspiring with her jailers and they had taken her hair and were trying to poison her, therefore she refused to eat. Her paranoid ideations were so severe that they were interfering with her ability to think rationally and she had lost touch with reality. She had one paranoid delusion after another and had no insight into her paranoia. She claimed that, in the past, her sister had tried to strangle her and her brother hit her in the face, causing scars. She was hyperverbal, rambling, loud,

with intense eye contact . . . [,] [i]rrational, illogical with severe paranoia . . . [f]loridly psychotic and may be responding to internal stimuli. [] [She h]as refused treatment in the past . . . and returned to her delusional content. She was placed in four point restraints and given a cocktail of psychiatric medications.

One of defendants own expert witnesses testified that she concluded that defendant had a severe mental disorder, specifically, long-standing delusional beliefs that others were conspiring against her, particularly her sister and the Department of Social Services. She added that in the Department of Corrections mental health records, defendant had mentioned those delusional beliefs on a fairly regular basis. She was commenting that people were conspiring against her, going to hurt her or harm her. []  . . . There were statements made to others that were documented in fairly vivid detail on a regular basis that showed me that she voiced delusional beliefs. [When I interviewed her, on June 15, 2005, s]he voiced those same delusional beliefs . . . , talking about her sister being evil and the Department of Social Services . . . taking her children away so that they could abuse them and hurt them She was still voicing delusions. Still paranoid. She added that defendant was delusional and agitated while in jail.

During cross examination of this expert, she was handed a copy of the March 30 2005 mental health progress note mentioned above and conceded that therein defendant had related that taking her psychiatric medications had given her command hallucinations to kill. The expert was given, for the first time during her testimony, defendants mental health records from L.A. County Jail. She concluded, primarily on . . . those . . . records that defendant was extremely psychotic during her incarceration. The expert changed her previous opinion and concluded that defendant met all the criteria for being an MDO. It was apparent that the February 18, 2005 mental health progress note, also mentioned above, was among the documents this expert was shown during her testimony. This expert noted that in defendants prison records, the latter still voiced a lot of the delusions and belief systems and at times was seen by others as agitated such that her severe mental illness was not in remission, but she was more subdued that she had been in jail, probably because she was taking medication during the former, but not the latter.^[6]

From the stand, defendant herself acknowledged being put in restraints while in jail and being agitated there and in prison because people were constantly threatening me, telling me that they were going to kill me. She denied saying she was going to kill someone while in jail but acknowledged telling a doctor there that Depakote made her angry and made her say things that were out of . . . character.

The three prosecution experts testified to defendants long history of delusional thinking, some of it based on defendants own statements to them. All three testified that they relied, in part, on defendants records at jail, prison and Patton in forming their conclusions about her status as an MDO. One of them specifically mentioned defendants attempt to hang herself with a sheet at jail because she thought her jailers were trying to kill her and that defendant had told a psychologist there that she did not take her psychiatric medications. Another reported that during her interview with defendant, the latter claimed that social services and her sister were conspiring against her and her children. This expert also mentioned defendants claim that her jailers were trying to poison her food and the breakfast incident in Patton. Defendants remaining expert witness, who was the only expert at trial who opined that defendant was not an MDO because she did not meet the last of the six criteria,^[7]testified that he relied on the jail, prison and Patton records in forming his conclusions. According to him, defendant had a severe mental illness, i.e., paranoid delusions. He also mentioned that defendant felt that she was being poisoned and people were watching her/doing things to harm her in jail and she continued to be paranoid at prison and Patton, despite being on psychiatric medication. He acknowledged her belief, while in jail, that the medications she was taking before being incarcerated were giving her murderous thoughts and, at times, she refused medication while there. He was also aware that defendant had been placed in restraints while in jail and that the breakfast incident had occurred while she was in Patton. As the trial court concluded when defendant unsuccessfully attempted at the end of trial to exclude the 6 documents at issue as hearsay,^[8]the experts testified they had relied on them. Defense counsel below conceded as much. The trial court concluded that the jury could consider the documents as to whoever corroborates or doesnt [corroborate] the experts opinion and their relevancy was that they give[] . . . the[] . . . [jury] an idea of what the worth of particular testimony was[.]^[9] The trial court also found that the foundation for the documents had been sufficiently stated by the Evidence Code Sections[.] Defendant had also objected that they were not admissible under the business records exception to the hearsay rule. (Evidence Code section 1271.)^[10] The prosecutor had urged that they were admissible both as business records and, under Evidence Code section 1280,^[11]as records by a public employee.

Defendant here contends that the first document in question from the Department of Corrections was not admissible as a business record because Evidence Code section 1271 requires its custodian of records to have testified at trial as to its identity and mode of preparation and she did not, although she provided this information in a sworn affidavit. However, defendant fails to assert how this document was not admissible as a record by a public employee. He also here objects to the fact that there is no way of knowing if the reporter of the statement that defendant was refusing to take her medications was making the statement based on her own personal knowledge or something that was told to her by someone else. However, the fact that all the experts testified that defendant had not taken her psychiatric medications, which, defendant herself admitted, rendered any error in admission of the record nonprejudicial.

The same is true of all the other documents in question. There was so much testimony, even by defendants own witnesses, on the matters addressed in the documents and such overwhelming proof that defendant met all the criteria of an MDO that any error in admitting these documents must be deemed nonprejudicial. The crucial question in this trial was whether defendant posed a substantial risk of harm to others due to her severe mental illness, as all the experts agreed that defendant had met all the other criteria for an MDO. On this issue, one of defendants experts voiced the lone dissenting opinion that she did not meet the criterion. Unlike the other defense expert, he did not believe that defendant posed a danger, even if every thing in the disputed documents was true. Moreover, most of the crucial information in the disputed documents related to this issue describe an act, condition or event, i.e., statements or actions by the defendant, all of which are admissible as records by a public employee. Contrary to defendants assertion, this was not a close case as to the existence of that criterion. It was not reasonably probable that this jury would have reached a different conclusion had the disputed documents not been admitted. Therefore, their admission can not justify reversal of the jurys finding.

Disposition

The finding is affirmed.

RAMIREZ

P.J.

We concur:

McKINSTER

J.

MILLER

J.

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^[1] As per Penal Code sections 2962 and 2966, subdivision (b) those criteria are: (1) The Petitioner had a severe mental disorder; and [] (2) The Petitioner committed a crime which involved force or violence and was sentenced to state prison as a result thereof; and [] (3) The severe mental disorder was one of the causes of or was an aggravating factor in the commission of the crime for which the Petitioner was sentenced to prison; and [] (4) The Petitioner had a severe mental disorder that is not in remission or cannot be kept in remission without treatment; and [] (5) The Petitioner had been in treatment for the severe mental disorder for 90 days or more within the year prior to the Petitioners parole or release; and [] (6) By reason of the severe mental disorder, the Peitioner represented a substantial danger of physical harm to others.

^[2] We address only those portions of the documents that contain information that might possibly be prejudicial to defendant. Some of the documents in question also contained information that was favorable to her.

^[3] A prosecution expert testified that Abilify is an antipsychotic.

^[4] Akathisia is the [i]nability to sit down because the thought of doing so causes severe anxiety. (Tabers Cyclopedic Medical Dict., A-14 (12th ed. 1973).)

^[5] This was not defined for the jury, although common sense suggests it stands for thought process.

^[6] She noted that several of [defendants jail] records said she was refusing medication. There was only one such reference in the disputed documents admitted at trial.

^[7] See footnote 1, ante.

^[8] We note that defendant is not claiming that the contents of the documents should not have been revealed during direct examination. (See People v. Campos (1995) 32 Cal.App.4th 304, 308.)

^[9] We do not agree with the Peoples contention that the trial court admitted the documents for the non hearsay purpose of weighing the experts opinions. The documents were admitted for the truth of the matters asserted therein, otherwise they would have been useless in assisting the jury in determining whether they corroborated the experts opinions. The Peoples reliance on People v. Garderly (1996) 14 Cal.4th 605 to support their position is misplaced. Garderly held, Expert testimony may . . . be premised on material that is not admitted into evidence as long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. . . .  []  . . .  And because Evidence Code section 802 allows an expert witness to state on direct examination the reasons for his opinion and the matter . . . upon which it is based, an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. . . .  []  . . . [However,] a witnesss on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into independent proof of any fact. (Id. at pp. 618-619.) In People v. Martinez (2001) 88 Cal.App.4th 465, which the People also cite, the trial court admitted documentary evidence of the defendants prior convictions for the nonhearsay purpose of revealing the bases for [the experts] opinions [that defendant was a sexually violent predator]. (Id. at p. 486.) The appellate court went on to conclude that even if the trial court erroneously considered the documentary evidence for the truth the error was harmless. (Ibid.)

People v. Campos, supra, 32 Cal.4th at page 309, held,  . . . [T]he trial court erred in admitting the nontestifying experts reports and appellants probation report into evidence. The documents are hearsay[.] [Footnote omitted.]

Had the trial court here ruled that the documents at issue were admissible for the nonhearsay purpose of revealing the bases for the experts opinions that would have been proper. However, the trial court ruled that the reports of the incidents could be used to either corroborate or contradict the experts opinions, which required the jury to determine if the incidents actually occurred, not that the experts relied on them. Moreover, if the trial court admitted these documents for a nonhearsay purpose, it would not needed to have considered whether they were admissible under the exception-to-the-hearsay-rule provisions of Evidence Code section 1271 and 1280.

The Peoples assertion that the jury instructions insured that the jury did not consider these documents for the truth also lacks merit. The jury was instructed that certain evidence was admitted for a limited purpose but these documents were not specified. The jury was also told that each of the experts, in reaching his or her opinion, relied on statements by the defendant, but the statements were to be considered only to evaluate the experts opinion and not for proof of the information in the statements. However, not all of the objectionable material in these documents comprised statements by the defendant.

^[10] Evidence Code section 1271 reads as follows: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [] (a) The writing was made in the regular course of a business; [] (b) the writing was made at or near the time of the act, condition, or event; [] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [] (d) the sources of information and method and time of preparation were such as to indicate its trustworthiness.

^[11] Evidence Code section 1280 reads as follows: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [] (a) The writing was made by and within the scope of duty of a public employee. [] (b) The writing was made at or near the time of the act, condition, or event. [] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.