Filed 9/12/17 P. v. Laing CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Lorenzo R. Balderrama, Judge. Affirmed.

Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Minh U. Le and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Christine Laing appeals from the trial court’s judgment ordering involuntary treatment at Patton State Hospital (Patton) as a mentally disordered offender (MDO) pursuant to Penal Code section 2962.[1] Defendant makes one claim on appeal: that her MDO commitment must be reversed because the statutorily required findings that her assault by means of force likely to cause great bodily injury conviction factually qualified as a MDO commitment offense, and that the crime was caused or aggravated by her severe mental health disorder, were based primarily on inadmissible hearsay testimony from the People’s medical experts in violation of People v. Stevens (2016) 62 Cal.4th 325 (Stevens).

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

On January 7, 2014, defendant entered a guilty plea in the Superior Court of Los Angeles County to one count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)). On August 18, 2014, she was sentenced to four years in state prison.

On December 29, 2015, the Board of Parole Hearings (BPH) determined defendant met the criteria of a MDO commitment pursuant to section 2962. On January 21, 2016, defendant filed a petition pursuant to section 2966, subdivision (b) contesting that determination.

Defendant waived her right to a jury trial. On April 18, 2016, the trial court found that defendant met the criteria of section 2962.

B. FACTUAL HISTORY

Defendant focuses on only two criteria under section 2962: (1) that her underlying offense was a MDO qualifying felony; and (2) her mental disorder was a cause or aggravating factor in the commission of the offense. As such, we will limit the factual background to testimony pertaining to those factors.

1. DR. NORTH

Dr. Christopher North was a licensed psychologist employed at Coalinga State Hospital. He had been involved in 500 to 1,000 MDO evaluations during his career. Dr. North interviewed defendant on September 23, 2015. Prior to the interview, he reviewed her medical record and central file from the California Department of Corrections and Rehabilitation (CDCR). Dr. North indicated that defendant was convicted of assault with a deadly weapon causing great bodily injury. North relied on the abstract of judgment for the information regarding the conviction. In addition, he reviewed the probation report prepared in the case.

Based on what Dr. North read in the probation report, he stated the underlying offense involved defendant getting into an altercation with another woman. Defendant stabbed the woman in the neck with a pair of scissors, causing a puncture wound to the women’s neck. Dr. North stated that a witness reported defendant was screaming incoherently prior to the assault. Dr. North was asked his opinion as a “layman” whether he thought defendant’s offense was a violent act; he responded that he did.

Dr. North also concluded defendant had a severe mental disorder. During Dr. North’s interview with defendant, she was defensive, paranoid and hyperverbal. She talked nonstop, with Dr. North barely able to speak. She denied she needed any help or had any problems. She was unwilling to take psychotropic medication. Her attempt to tell him what happened during the stabbing did not make sense. She had previously been diagnosed with Schizoaffective Disorder which involved disturbances both in perception and thought. Dr. North noted that defendant had paranoia and appeared to be suffering from hallucinations.

Dr. North explained that defendant previously received inpatient psychiatric treatment at Patton. She had a history of committing acts of violence followed by hospitalization. For the current offense, she was originally found incompetent to stand trial and was sent to Patton. She was held there for 60 days prior to entering her guilty plea.

On December 14, 2014, defendant was diagnosed with Schizoaffective Disorder in remission. In April 2015, defendant was observed by hospital staff to have moments of hearing voices; she displayed anxiety and paranoid thoughts and distractibility. On May 6, 2015, her psychologist observed pressured speech and limited insight, which was consistent with the diagnosis of Schizoaffective Disorder. Her treatment team also noted she displayed verbal and physical aggression. In Dr. North’s opinion, the interaction between the rage and paranoia made her dangerous. On June 2, 2015, defendant’s teacher at prison noted that she was hostile, assaultive, impulsive and exhibiting bizarre behavior.

Defendant told Dr. North that at the time of her offense on August 5, 2013, she was taking her medication. However, according to the police report, she was screaming incoherently immediately prior to stabbing the victim. In addition, she was admitted to Patton for being incompetent to stand trial. Further, she had told another doctor that she was not taking her medication at the time of the offense. This was strong support that her mental problems contributed to the offense.

Dr. North did not believe her Schizoaffective Disorder was in remission based on her pressured speech during their interview and her extreme paranoia. Further, she refused to take medication voluntarily. The medication was important to her treatment.

All of Dr. North’s opinions were based on the records he reviewed, his observations, and training and experience. Regular treatment was required to maintain symptom remission of Schizoaffective Disorder. The most effective treatment was medication. If defendant did not take medication, she was more likely to have active signs and symptoms of her Schizoaffective Disorder.

Dr. North had reviewed defendant’s rap sheet. Based on that review and the probation report, defendant had a history of violent crimes including a conviction for assault with a deadly weapon causing great bodily injury in 2000. She was convicted of battery on emergency personnel in 2005. In 2010, she was convicted of assault with a deadly weapon causing great bodily injury. This involved an assault on a correctional officer. Finally, the current MDO offense of assault by means likely to produce great bodily injury.

Based on Dr. North’s review of the records and his training and experience, it was his belief that defendant represented a substantial danger to others because of her Schizoaffective Disorder. Her lack of insight into her mental illness would make it difficult for her to control her behavior and seek treatment. Defendant had admitted to previous use of methamphetamines, which exacerbated the problem.

Based on Dr. North’s evaluation of defendant, and her records, he determined that she met all of the criteria of section 2962.

On cross-examination, Dr. North stated he believed both drugs and defendant’s mental illness contributed to the crime. He was shown the police report. Dr. North stated that the police report included statements by a witness that defendant was yelling loudly and the witness could not understand what she was saying. Dr. North admitted the police report did not include language that defendant was screaming “incoherently.”

Dr. North was asked, besides defendant speaking incoherently, if there was anything else that she did that showed the crime was caused by her mental illness and not her just being emotional. Dr. North referred to the fact she repeatedly “told us” that she suffers from rage. Her treatment team affirmed it was a problem and it was part of her Schizoaffective Disorder. Dr. North stated that even if defendant was emotional when she committed the crime, the severity of her reaction by stabbing the woman was also in part because of her Schizoaffective Disorder. Further, the fact that defendant was hospitalized many times after she was arrested for crimes showed her mental illness was prevalent when committing violent crimes.

2. DR. ROTH

Dr. Eric Roth was employed as a psychologist by the CDCR. He worked in the unit that evaluated MDOs. He interviewed defendant on September 3, 2015.[2] He looked at her CDCR mental health records, her criminal file, and records from Patton regarding her section 1370 regaining competency treatment.

Dr. Roth indicated that defendant was convicted of a violation of section 245, assault with force likely to cause great bodily injury. He stated that, according to the probation report, defendant stabbed the victim with a pair of scissors during a physical altercation. Dr. Roth also asked defendant about the crime. She told Dr. Roth that her boyfriend had robbed her by stealing her pin number for her welfare card and taking $400 off of her card. She also said that her boyfriend was having sex with a woman across the street. Defendant denied that she committed a violent crime. She claimed they charged her with using a deadly weapon. She said the scissors were not a deadly weapon but rather a tool. She claimed she used the “tool” to defend herself. She did admit using the pair of scissors against the victim but claimed it was in self-defense.

When Dr. Roth interviewed defendant, she appeared disheveled. She was hyperverbal. She was constantly excited and anxious during the interview. She appeared to responding to some type of internal stimuli. She was also paranoid. She displayed thought disorder.

Dr. Roth diagnosed her with Schizophrenia paranoid-type disorder. This was a severe mental disorder under section 2962. Dr. Roth explained that defendant had a history of committing violent offenses and recounted the history of her being found incompetent to stand trial and being in Patton in 2006, 2007, 2009, 2013 and for the current offense. During her incarceration for the instant offense, she received psychiatric treatment. Dr. Roth explained that Schizophrenia was a persistent mental illness.

Dr. Roth indicated that it was his opinion that defendant’s mental illness was an aggravating factor in the crime. He stated that during his interview with defendant, she said at the time she had committed the crime she was prescribed Zyprexa, which is an anti-psychotic medication. She told Dr. Roth she was not taking the medication when the crime occurred. She reported using methamphetamine prior to the commission of the crime. Dr. Roth concluded, “Her failure to take her medication and [to] use controlled substances would destabilize and exacerbate her mental illness around the time of the crime.” Further, a month after the crime, she was declared incompetent to stand trial and was sent to the state hospital for treatment. Dr. Roth concluded that the proximity of this finding to the offense gave credence to defendant’s self-report that she was suffering from symptoms at the time of the crime. The crime was impulsive. Dr. Roth concluded defendant’s symptoms compromised her impulse control and impaired her judgment, which contributed to the crime.

Dr. Roth later confirmed that defendant told him she was “using” the day of the crime. Dr. Roth opined that her using drugs was destabilizing. Dr. Roth believed, based on the records he reviewed, the interview, and his extensive training and experience, that defendant met all of the criteria of section 2962.

3. DR. JOHNSON

Dr. Stephane Johnson was a staff psychiatrist at Patton. He had been defendant’s treating psychiatrist at Patton. He performed the admitting evaluation on defendant. Dr. Johnson stated that defendant had exhibited symptoms of Schizophrenia while at Patton including thought process deficits. The medical records showed she had prominent symptoms of delusions and symptoms of hallucinations such as talking to herself. While in CDCR custody, she had been prescribed Abilify, which was to control psychotic symptoms, but she refused to take it. Defendant told Dr. Johnson she did not need the medication because she did not suffer from a mental illness. When defendant stopped taking medication while at Patton, she became more and more agitated. She became more hostile and aggressive as her symptoms got worse.

Defendant was called as a witness by the People; defendant agreed to testify. Defendant had been in custody at Patton for the prior seven months; before that she had been in CDCR custody.

Defendant contended she had been placed in prison for assaulting a woman who attacked her while she was walking on the street. She claimed she was walking and the woman and a man named Odell Blanton ran at her like they wanted to knock her down. Defendant knew Blanton but said he was just a friend. Defendant dropped her purse and ran. The woman hit defendant in the head several times. The woman and Blanton then disappeared. Defendant was able to retrieve her purse, which contained a pair of scissors.

Defendant crossed the street and was walking away when she ran into the woman again. The woman ran straight at her and punched her in the face with her fist. Defendant then hit her on the back of the head with the scissors. Blanton knocked defendant into the bushes and hit her in the stomach. Defendant threw the scissors.

Defendant told Dr. Roth that she was experiencing “symptoms” at the time of the crime, which she claimed was caused by starvation and because she had not slept in two weeks; she denied they were symptoms of mental illness. Defendant admitted she had a prescription for Abilify on August 5, 2013, but that she had not filled the order. She had not taken her medication for over one month prior to the crime.

Defendant was on parole at the time of the offense for assaulting a correctional officer. She acknowledged that after her arrest in this case, she was declared incompetent to stand trial and was sent to Patton for 30 days. She admitted that once she was declared competent, she entered a plea of guilty to felony assault by means likely to produce great bodily injury within the meaning of section 245, subdivision (a)(4).

Defendant admitted she suffered from a mental illness, which she identified as depression and paranoia. She did agree with the diagnosis that she had Schizoaffective Disorder because she could have mood swings—where she was manic and then depressed—and paranoia. She had taken the drug Geodon in the past and it had helped her. Defendant stated at trial she was taking Abilify and it was helping her.

Defendant admitted that when she got agitated her symptoms would come back. Defendant denied that her paranoia and depression was affecting her the day she used the scissors on the victim. She claimed they were coming after her to take her money. She admitted she had committed three violent crimes in the prior 15 years. She acknowledged they were related to her mental illness. She understood that drugs like methamphetamine could affect her mental illness. She admitted using methamphetamine since she was 19 years old; she was 42 years old at the time of trial.

DISCUSSION

Defendant contends that only hearsay evidence was submitted to support the two following factors under section 2962: (1) the offense was a qualifying crime (§ 2962, subd. (e)); and (2) that her mental illness was a contributing factor in the crime (§ 2962, subd. (b)).

A. ADDITIONAL FACTS

Defendant brought a motion in limine prior to trial to exclude any hearsay contained in police/probation reports and medical records. Defendant argued that because the probation and police reports were based on hearsay they were unreliable. During the hearing on the matter, the trial court stated that experts could rely on hearsay in reaching their opinions. The trial court indicated it would rely upon Evidence Code section 801 and 802 that the expert could rely on hearsay opinions. Further, the trial court believed that the content of the reports could be admitted as nonhearsay.

During Dr. North’s testimony, he was asked what crime defendant committed that led to the evaluation. Defendant’s counsel objected on hearsay, lack of foundation and lack of personal knowledge grounds; it was overruled. Defense counsel also objected on the grounds of Stevens, supra, 62 Cal.4th 325, as it was not a basis for expert opinion. The trial court responded, “Well, it’s a qualifying conviction. I’d like to hear what it is.”

Defense counsel also objected to the probation report shown to Dr. North during his testimony, as it was unreliable hearsay because it relied on the police report, which was also hearsay. The trial court overruled the objection stating that courts had been relying on probation reports for at least 33 years.

Dr. North opined that defendant’s crime was an offense involving force, violence and great bodily injury. Defendant’s counsel objected that this did not require expert opinion. The court responded, “Well, the Court will certainly do that, so it probably isn’t necessary. So I’ll sustain the objection to that degree.” The trial court stated that it felt stabbing someone in the neck was a violent offense.

Dr. Roth attempted to testify as to what crime defendant had committed; defendant’s counsel objected that it was hearsay as there was no need for an expert to testify about a conviction. The trial court overruled the objection but stated the qualifying crime could be provided by the criminal record. “She was convicted of PC 245 looks like (A) on my notes here, assault with force likely to produce GBI.” The prosecutor asked Dr. Roth to describe the facts of the crime by quoting the probation report. Defendant’s counsel again objected. He argued again that the probation report was not a reliable document and constituted hearsay.

The trial court noted that if the probation and police reports were not relied on during these evaluations, the evaluator would have to talk to the victim. The trial court noted “I don’t think that is what 2962 calls for.”

During discussion of the exhibits, defendant’s counsel objected to the admission of the probation report because it was hearsay. The People argued it was an official government record. The trial court excluded the probation report as there had been sufficient testimony about the circumstances of the instant offense. Defendant’s counsel also objected to the police report as it contained hearsay. The trial court did not receive it into evidence.

In closing, the prosecutor argued that defendant’s crime involved force and violence. Defendant admitted the violence and she was convicted of assault by means of force likely to cause great bodily injury. She admitted hitting the victim in the head with scissors. The prosecutor relied on the testimony of Drs. North and Roth that defendant’s mental illness was an aggravating factor in the underlying offense. Defendant told Dr. Roth that she was feeling symptoms of her mental illness the day of the crime. Dr. North testified that based on the circumstances of the offense, it was consistent with defendant’s mental illness being an aggravating factor. The prosecutor also pointed to the fact that after defendant committed her past violent offenses, she was declared incompetent and sent to Patton to regain her competence.

The trial court stated its ruling in court on April 18, 2016. It felt defendant’s mental illness could be treated but that she needed such treatment at Patton. The trial court commended defendant’s recent progress in taking her medications and being involved in treatment. It hoped within the year she could be released.

B. ANALYSIS

1. MDO ACT

“The Mentally Disordered Offender Act (MDO Act), enacted in 1985, requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment . . . until their mental disorder can be kept in remission.” (In re Qawi (2004) 32 Cal.4th 1, 9; People v. J.S. (2014) 229 Cal.App.4th 163, 169.) “[T]he purpose of the scheme is to provide MDO’s with treatment while at the same time protecting the general public from the danger to society posed by an offender with a mental disorder.” (Qawi, at p. 9.)

“The MDO Act provides for treatment of certified MDOs at three stages of commitment: as a condition of parole, in conjunction with the extension of parole, and following release from parole. Section 2962 governs the first of the three commitment phases, setting forth the six criteria necessary to establish MDO status; these criteria must be present at the time of the State Department of Mental Health’s and Department of Correction and Rehabilitation’s determination that an offender, as a condition of parole, must be treated by the State Department of Mental Health. The first three criteria outlined in section 2962 . . . require proof that an offender suffers from a severe mental disorder, that the illness is not or cannot be kept in remission, and that the offender poses a risk of danger to others. [Citation.] The latter three criteria outlined in section 2962—that the offender’s severe mental disorder was a cause or aggravating factor in the commission of the underlying crime, that the offender was treated for at least 90 days preceding his or her release, and that the underlying crime was a violent crime as enumerated in section 2962, subdivision (e)—are considered ‘static’ or ‘foundational’ factors in that they ‘concern past events that once established, are incapable of change.’ ” (Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1062, disapproved on other grounds by People v. Harrison (2013) 57 Cal.4th 1211, 1230, fn. 2.)

In Stevens, supra, 62 Cal.4th 325 and People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court addressed the testimony of experts and what constitutes inadmissible hearsay which is relevant to proving the factors in Penal Code section 2962. “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible “except as provided by law.” (Evid. Code, § 1200, subd. (b).) “An expert’s opinion is admissible only with respect to a subject ‘that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ ” (People v. Baker (2012) 204 Cal.App.4th 1234, 1245; Evid. Code, § 801, subd. (a).) Stevens specifically addressed the first issue: establishing that the offense was a qualifying offense under Penal Code section 2962, subdivision (e).

2. QUALIFYING OFFENSE

Civil commitment under the MDO Act requires that the underlying qualifying offense involve one of the offenses specified in section 2962, subdivision (e)(2)(A) through (O) or be a felony involving behavior described in subdivisions (e)(2)(P) or (Q). Assault is not listed. Section 2962, subdivision (e)(2)(P) states: “A crime not enumerated in subparagraphs (A) to (O), inclusive, in which the prisoner used force or violence, or caused serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243.” In addition, section 2962, subdivision (e)(2)(Q) provides: “A crime in which the perpetrator expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm in such a manner that a reasonable person would believe and expect that the force or violence would be used. For purposes of this subparagraph, substantial physical harm shall not require proof that the threatened act was likely to cause great or serious bodily injury.”

In Stevens, supra, 62 Cal.4th 325, the defendant was convicted of petty theft with a prior theft-related conviction. The BPH found he qualified under section 2962, subdivision (e)(2)(Q) because his crime involved an express or implied threat of force or violence. At the bench trial, a doctor testified that he felt the defendant’s mental illness was an aggravating factor in the commission of the crime. (Id. at p. 330.) The expert testified about the facts of the crime, including the threats of violence, from the probation report. The only documents admitted about the crime were the defendant’s rap sheet. (Ibid.) Defendant was committed as an MDO. (Id. at p. 331.)

Initially, in Stevens, the California Supreme Court recognized that some hearsay could be admitted. It found, “It is true that an MDO hearing contemplates expert opinion testimony on other factors, including whether the defendant’s severe mental disorder was one of the causes of or an aggravating factor in the commission of the crime. ([Pen. Code, ]§ 2962, subd. (b).) As to those factors, the expert may rely on hearsay documents that are ‘of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.’ (Evid. Code, § 801, subd. (b).) But proof of a qualifying conviction under the MDO Act is based on facts rather than on defendant’s psychological condition, and thus does not call for a mental health expert’s opinion testimony.” (Stevens, supra, 62 Cal.4th at p. 336.)[3]

In People v. Woods (2016) 3 Cal.App.5th 457, which was decided after Stevens, the court held that the defendant’s plea to the charge of resisting a police officer by the use of force or violence established the actual use of force or violence ground for commitment. In Woods, the prosecution presented documentary evidence in the form of the complaint filed and abstract of judgment. (Woods, at p. 459.) The appellate court found this was sufficient evidence that the defendant had suffered a qualifying conviction based on what he was charged with, and pleaded guilty to. (Id. at p. 461.) The court noted that the opinion in Stevens “did not contemplate a situation, like the present one, in which the People offered documentary evidence that the prisoner admitted his commitment offense involved the use of force or violence.” It continued, “The crime of resisting an executive officer in violation of section 69, as charged here, included the use of force or violence as an essential element. By pleading guilty, appellant admitted every element of the charged crime. [Citation] Because he admitted using force and violence, proof of the underlying facts was not essential to a finding that the crime involved the use of force or violence, as contemplated in subdivision (e)(2)(P) of section 2962.” (Woods, at pp. 461-462.)

Like Woods, here, the People introduced the complaint, which alleged defendant committed assault with a deadly weapon, to wit, scissors, pursuant to section 245, subdivision (a)(1). Defendant entered a guilty plea to violating section 245, subdivision (a)(4), assault by means likely to cause great bodily injury. Section 245, subdivision (a)(4) necessarily involves an assault upon a person and it must be by any means likely to cause great bodily injury. The abstract of judgment showed she was convicted of “ASSAULT/BODILY INJURY.” Here, the abstract of judgment, which stated defendant had been convicted of assault by means likely to produce great bodily injury, was admitted into evidence. Further, defendant herself admitted that she had hit the victim in the head with a pair of scissors. Although defendant claimed at the hearing that she stabbed the victim with the scissors in self-defense, she nonetheless had entered a guilty plea admitting all elements of the offense.

Here, the qualifying offense was proven by independent, documentary evidence and was not based solely on the doctors’ opinions that the offense qualified under section 2962, subdivision (e). As such, the evidence clearly established that defendant’s violation of section 245, subdivision (a)(4) was a qualifying offense and did not depend upon statements by Drs. North and Roth.

3. MENTAL ILLNESS CAUSE OR AGGRAVATING FACTOR

The second factor contested by defendant, that her mental illness was a cause or aggravating factor in the crime, involves hearsay admitted through Drs. North and Roth that was found in Sanchez, which was published after the trial, to be inadmissible hearsay. In Sanchez, supra, 63 Cal.4th 665, the California Supreme Court clarified the proper application of Evidence Code sections 801 and 802 relating to the scope of expert testimony.

Sanchez involved the testimony of a gang expert to support a finding that a crime was committed for the benefit of or at the direction of a criminal street gang within the meaning of section 186.22. The expert relied upon contacts with the defendant reported by other officers, field identification cards which were filled out by other officers and police reports prepared by other officers. This evidence was not admitted through any other witnesses. The gang expert testified regarding the details of the other officers’ reports and the field identification cards and relied on those statements in reaching his opinion that the defendant was a gang member and committed the crime for the benefit of the gang. (Sanchez, supra, 63 Cal.4th at pp. 671-673.)

The Sanchez court clarified what an expert could testify about under Evidence code section 802.[4] “Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. Because the jury must independently evaluate the probative value of an expert’s testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the ‘matter’ upon which his opinion rests.” (Sanchez, supra, 63 Cal.4th at pp. 685-686, italics in original.) It continued, “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, italics in original.)

The court then adopted the following rule: “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. It cannot logically be maintained that the statements are not being admitted for their truth. 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.)

The California Supreme Court provided several examples to help illustrate the proper admission of expert testimony as follows: “(1) That 15 feet of skid marks were measured at an auto accident scene would be case-specific information. Those facts could be established, for example, through the testimony of a person who measured the marks. How automobile skid marks are left on pavement and the fact that a given equation can be used to estimate speed based on those marks would be background information an expert could provide. That the car leaving those marks had been traveling at 80 miles per hour when the brakes were applied would be the proper subject of an expert opinion.

“(2) That hemorrhaging in the eyes was noted during the autopsy of a suspected homicide victim would be a case-specific fact. The fact might be established, among other ways, by the testimony of the autopsy surgeon or other witnesses who saw the hemorrhaging, or by authenticated photographs depicting it. What circumstances might cause such hemorrhaging would be background information an expert could provide. The conclusion to be drawn from the presence of the hemorrhaging would be the legitimate subject for expert opinion.

“(3) That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.

“(4) That an adult party to a lawsuit suffered a serious head injury at age four would be a case-specific fact. The fact could be established, inter alia, by a witness who saw the injury sustained, by a doctor who treated it, or by diagnostic medical records. How such an injury might be caused, or its potential long-term effects, would be background information an expert might provide. That the party was still suffering from the effects of the injury and its manifestations would be the proper subject of the expert's opinion.” (Sanchez, supra, 63 Cal.4th at p. 677.)

Defendant insists that the deciding factor in Drs. North and Roth determining under section 2962, subdivision (b) that defendant’s mental illness was the cause or an aggravating factor in her committing her crime, was the facts of the crime taken from the probation report. She insists that Drs. North and Roth both characterized the crime as being an unprovoked, hyperemotional, and out-of-control attack on a woman while screaming hysterically. She insists that no admissible evidence supported their opinions that the attack was caused or aggravated by her mental illness.

Here, the recitation of facts by Drs. North and Roth was substantially derived from the probation and police reports, which clearly was inadmissible based on Sanchez.[5] This included that defendant was screaming incoherently during the crime. Admission of these facts was error.

“Ordinarily, an improper admission of hearsay would constitute statutory error under the evidence code.” (Sanchez, supra, 63 Cal.4th at p. 685.) “To determine whether statutory error exists, we ask whether it is reasonably probable the verdict would have been more favorable to appellant absent the error.” (People v. Burroughs (2016) 6 Cal.App.5th 378, 412, citing to People v. Watson (1956) 46 Cal.2d 818, 836.) We need only determine whether non-hearsay and non-testimonial evidence supported the trial court’s determination that defendant’s mental illness caused or aggravated the crime.

The People point to the following evidence as properly admitted: (1) defendant testified about the facts of the crime and the plea showed it was an assault with scissors; (2) a minute order and defendant’s testimony that she was found incompetent to stand trial after the crime; and (3) she admitted to Dr. Roth that she was not taking her medication and was suffering from symptoms at the time of the crime.

The People are correct that this testimony was properly admitted. The doctors’ descriptions of the facts were proven by defendant’s own testimony and the plea. Again, although defendant claimed self-defense at the trial, she had pleaded guilty, thereby admitting all of the elements of assault with means likely to cause great bodily injury. In addition, a minute order showing defendant was found incompetent to stand trial for this crime was admitted. Finally, any admissions to Dr. Roth, including that she was not taking her medication at the time of the crime, was using methamphetamine, and suffering from symptoms, were admissible as a party admission. (Evid. Code, § 1220.)

In addition, evidence established that defendant suffered from symptoms of Schizophrenia and Schizoaffective Disorder. She did not deny that diagnosis. The evidence also supported that when defendant was off of her medication, she became more agitated and hostile. Defendant herself admitted to Dr. Roth that she was suffering symptoms around the time of the crime, although she blamed it on lack of sleep and hunger. She also admitted to using methamphetamine, which both Drs. North and Roth indicated would accentuate her symptoms.

Drs. North and Roth could testify to those facts that were based on their own personal knowledge and investigation and were not subject to exclusion on hearsay grounds, including their interviews of defendant. Further, independent evidence was presented from which it could reasonably be determined that defendant’s mental illness was at least an aggravating factor in her crime.

DISPOSITION

The commitment order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

FIELDS

J.