Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. CR52268. James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Patrick J. Hennessey, Jr., 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, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In December 1995, defendant Francisco Arroyo Gonzalez pleaded guilty to attempted second degree murder under Penal Code sections 664 and 187, and admitted having inflicted great bodily injury on the victim within the meaning of section 12022.7. He was sentenced to 12 years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On July 30, 2004, the People petitioned for continued involuntary treatment of defendant as a mentally disordered offender (MDO) under section 2970. On October 4, 2004, the trial court found that defendant was an MDO. Defendant was ordered detained at Atascadero State Hospital (Atascadero) for continued involuntary treatment and his commitment was extended to September 10, 2005.
On April 21, 2005, the People filed another petition under section 2970 to extend defendant’s involuntary treatment commitment. On January 18, 2006, a jury found true that defendant was an MDO and the trial court extended defendant’s commitment to Patton State Hospital (Patton) for a one-year period, until September 10, 2006.
Even though this appeal is technically moot because the one-year MDO commitment has expired, defendant may be subject to recertification as an MDO. Therefore, “[b]ecause the issue presented is of recurring importance and is likely to evade appellate review due to the time constraints of the MDO commitment, we address the merits.” (People v. Jenkins (1995) 35 Cal.App.4th 669, 672, fn. 2, citing People v. Gibson (1988) 204 Cal.App.3d 1425, 1429.)
Defendant appeals. For the reasons set forth below, we shall affirm the trial court’s extension of defendant’s commitment.
I
FACTUAL AND PROCEDURAL HISTORY
At the MDO hearing, Waheed Saeed, M.D., and Steven R. Jenkins, Ph.D., testified on behalf of the People.
Dr. Saeed testified that, for approximately four days a week for the past year and a half, he had been treating defendant for a long-standing diagnosis of a “schizoaffective disorder bipolar type,” which is a severe mental disorder with characteristics of both schizophrenia and manic depression. Symptoms of the disorder include paranoia, persecutory and/or grandiose delusions, auditory hallucinations, and disorganized thinking patterns, in conjunction with mood symptoms of either mania (e.g., rapid speech/thoughts, sleep/appetite disturbances) or depression (e.g., suicidal/hopeless feelings).
Dr. Saeed opined that defendant’s mental disorder was currently not in remission. As a basis for this conclusion, the doctor pointed to several instances during the previous eight months (January through September 2006) where defendant exhibited symptoms of paranoia, auditory hallucinations, and/or impaired thought processes. For example, on March 7, 2006, defendant was seen mumbling to himself, “talking back to the voices.” Moreover, on three occasions between May and September 2006, the last of which occurred just one week prior to Dr. Saeed testifying, defendant was unable to stay on track when conversing with Dr. Saeed, and provided vague and tangential responses to questions. Furthermore, on July 23, 2006, defendant was involved in a physical altercation with a fellow patient based on a paranoid ideation that he was being subjected to a homosexual attack.
Finally, Dr. Saeed opined that defendant represented a danger to others “based on his mental illness and current status.” The expert testified that his opinion was based on the findings rendered by Dr. Jenkins, along with his own observations as to defendant’s lack of insight into the extent of his mental illness, and defendant’s inability to use coping skills when faced with conflict or stress.
Dr. Jenkins was asked to evaluate whether defendant posed a substantial threat of physical harm to others by reasons of his severe mental illness, the third criterion for MDO commitment. In order to do so, Dr. Jenkins also had to determine whether defendant satisfied the first and second criteria under the MDO law—whether (1) defendant suffered from a severe mental disorder and (2) whether or not that mental disorder was in remission.
Dr. Jenkins testified that there was enough evidence to show that defendant had a severe mental disorder. He also stated that defendant’s severe mental disorder was not in remission. As a basis for his opinion, Dr. Jenkins examined defendant’s behavior and symptoms in the year preceding his evaluation (July 2005 through 2006) and the instant trial (September 2005 through 2006) as documented by psychiatric technicians, social workers, and psychiatrists. Within these records, Dr. Jenkins found evidence that defendant demonstrated or reported symptoms indicative of his psychotic disorder, including hallucinations, loose associations or difficulty thinking clearly, and disoriented or disorganized thought processes.
Dr. Jenkins opined that defendant presented a substantial danger of physical harm to others based on his severe mental disorder. Specifically, Dr. Jenkins found that defendant’s history evinced “a very clear pattern of violence” which: (1) is due to his mental illness; (2) “occurs most in periods when [defendant is] acutely hostile, irritable [or] agitated,” and (3) is driven by delusions of homosexual attack and auditory hallucinations that command defendant to “do what he has to do to protect himself.”
Defendant’s history, which Dr. Jenkins reviewed, included the following:
Defendant committed the underlying offense (commitment offense) a week after his release from a psychiatric hospital in 1993. Defendant awoke in the early morning hours and hallucinated that his brother was being held at a particular address and he should go there. When defendant arrived at the residence, but was denied entrance by the homeowners, he became enraged. He threatened to kill them, and yelled, “Why would you fuck your own brother?” After a police officer responded, defendant straddled the officer and delivered about 50 blows to the officer’s face.
While in jail, approximately two months after his arrest, defendant assaulted his cellmate. At the time of the assault, he was experiencing auditory hallucinations and was delusional, confused, and extremely hostile. Defendant’s prescribed medications included a mood stabilizer and an antipsychotic.
Defendant was sentenced to prison for the commitment offense in 1995. He came to the attention of the mental health staff when he appeared to be responding to internal stimuli and became increasingly agitated, hostile, and violent. He did not take his prescribed medication. His mental disorder became so severe and out of control, that in or about 1996 defendant was referred to Atascadero for evaluation and stabilization. Within three weeks of defendant’s admission, and while exhibiting symptoms of acute psychosis, defendant assaulted two male patients. He was eventually stabilized and returned to prison, where he continued to receive medication.
Between 1999 and 2004, defendant committed 12 incidents of violence in prison; 10 of these incidents were directly attributable to his mental illness. Moreover, during periods of parole during this same time frame, defendant committed other acts of violence in connection with his mental illness. For example, about seven months after being paroled in 2001, defendant assaulted his father and brother. His family reported that defendant had been acting strangely in the time leading up to the attacks. And while on parole and living in a board and care facility in or about 2003, defendant assaulted a male resident after exhibiting symptoms of a mental disorder.
Defendant was evaluated for mental health services upon his return to prison in 2003. At that time, he was psychotic, delusional, agitated, and hostile. He was eventually found to meet the criteria for an MDO commitment and he was transferred to Atascadero for the duration of his parole.
When defendant was admitted to Atascadero, he remained irritable and hostile. He went through medication adjustments and was transferred to Patton in January 2005. There, he assaulted a male patient a few weeks after his arrival. As of the date of trial, defendant’s next incident of violence occurred in July 2006.
II
ANALYSIS
A. The Jury’s MDO Finding Is Supported by Substantial Evidence
In two separate but related arguments, defendant contends that (1) the MDO-related opinions of Drs. Saeed and Jenkins, “in so far as they relied upon the incident of February 13, 2005, were based upon inadmissible hearsay and their opinions and findings must therefore be set aside” (hearsay evidence argument), and (2) absent the objectionable portion of the doctors’ testimony, the jury’s finding that defendant met the criteria for recommitment as an MDO is not supported by substantial evidence (substantial evidence argument).
1. Procedural history and legal background
Under the MDO law, to establish continued treatment of the parolee, the People must prove beyond a reasonable doubt that: (1) the parolee continued to have a severe mental disorder; (2) the mental disorder was not in remission or could not be kept in remission without treatment; and (3) by reason of the mental disorder, the parolee continued to represent a substantial danger of physical harm to others. (§§ 2962, subds. (a) & (d)(1), 2966, subd. (c), 2972, subd. (e); People v. Fernandez (1999) 70 Cal.App.4th 117, 126; People v. Superior Court (Myers) (1996) 50 Cal.App.4th 826, 837.)
The Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) does not permit the People unfettered discretion to seek an extension of a defendant’s involuntary treatment commitment. However, section 2970 authorizes the People to initiate recommitment proceedings only if, within 180 days prior to the termination of the current commitment period, the medical director of the state’s treating facility certifies in a written evaluation that a defendant’s severe mental disorder is not in remission or cannot be kept in remission without treatment. (§ 2970; People v. Marchman (2006) 145 Cal.App.4th 79, 87-89.)
Remission is defined as “a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support.” (§ 2962, subd. (a).)
In this case, on March 21, 2006, the medical director of Patton sent a letter to the People indicating that defendant qualified for extended commitment under section 2970 because, in relevant part, his severe mental disorder could not be kept in remission without treatment “as evidenced by the fact that during the past year the patient . . . was physically violent (except in self defense).” This letter was supported by an evaluation report signed by Dr. Saeed. In the report, Dr. Saeed referred to an event that occurred on February 13, 2005. He stated that on “February 13, 2005, [defendant] assaulted a peer and required the use of restraints in order to regain control of himself.”
Prior to trial in September 2006, defendant’s trial counsel unsuccessfully moved to dismiss the recommitment petition on the grounds that defendant’s last reported episode of violence had occurred more than a year earlier, and, accordingly, there was no evidence to support a finding that he currently could not be kept in remission without treatment.
Defendant’s trial counsel also sought to exclude inadmissible hearsay evidence. Counsel argued that, while an expert witness is permitted to rely upon hearsay in forming his opinions, the underlying out-of-court report, upon which the expert relies, “can’t just be used in rampant fashion to introduce detailed multiple-tiered hearsay information.” Defense counsel explained that MDO experts often testify about allegations arising from “statements made by other mental patients at the hospital,” but such statements may be unreliable, and thus inadmissible, due to the mental status of the complaining patient. Asked to address “specific examples in this case” that defense counsel believed were cause for concern, counsel mentioned the February 13, 2005, incident referred to in Dr. Saeed’s report. The trial court noted that experts could base their opinions on reliable hearsay and stated that, “with that guideline, we’ll see what develops.”
2. Hearsay evidence
As a preliminary matter, we note that we need not address defendant’s hearsay argument because neither doctor relied solely upon the February 13, 2005, incident in forming their opinion. In this case, each doctor opined that defendant had a severe mental disorder, which was not in remission, and supported these opinions with facts unrelated to defendant’s conduct on February 13, 2005.
We first address Dr. Saeed’s testimony. During the trial, Dr. Saeed stated that the February 13, 2005, incident was not the sole basis for concluding that defendant could not be kept in remission without continued treatment. The following colloquy occurred during recross by the prosecutor:
“[Prosecutor:] If this February 13th incident didn’t happen—let’s go back in time to the date of your report, January 26, 2005. You were asked the question, there was only one incident of violence, and it happened almost a year preceding the report. If that incident of violence [on February 13] had not occurred, would you have said that [defendant] could be kept in remission without treatment?
“[Dr. Saeed:] If we remove that incident
“[Prosecutor:] Yes.
“[Dr. Saeed:] —the factors are still there on stability. If you move to the July incident, suppose if he’s not in a hospital setting, what might be the worst outcome. There might be broken bones— [¶] . . . [¶]
“[Prosecution:] Just so I understand, the fact that [defendant] had an incident of violence in and of itself does not lead you to your conclusion that either he cannot be kept in remission?
“[Dr. Saeed:] Yeah. My opinion is he’s not in remission . . . .
“[Prosecutor:] . . . The determining factor for you isn’t only the violent act. It could be other factors that would make that determination that [defendant] can’t be kept in remission?
“[Dr. Saeed:] Yes.”
Based on the above, it is clear that Dr. Saeed’s opinion regarding defendant’s MDO status did not rely solely on the February 13, 2005, incident.
We now turn to Dr. Jenkins’s testimony. Again, we disagree with defendant that the February 13, 2005, incident provided “the prime reason that both doctors used in support of their opinion that [defendant] was not an appropriate candidate for release/parole.”
In addressing the third criterion for recommitment as an MDO (i.e., dangerousness if released), Dr. Jenkins testified that defendant’s history showed a “very clear” pattern of violence driven by his mental disorder. Dr. Jenkins recounted for the jury more than 20 incidents of violence defendant reportedly engaged while exhibiting symptoms of mental illness in custody, on parole, and during mental health commitments since 1992, as discussed in detail above.
Therefore, since the February 13, 2005, incident was one of almost two dozen assaultive situations considered by Dr. Jenkins, the doctor’s opinion regarding defendant’s MDO status did not rely solely on the February 13, 2005, incident.
Even if the two doctors relied on the February 13, 2005, incident, defendant’s argument fails because expert witnesses are allowed to rely on hearsay matter: An expert may generally base his opinion on any “matter,” personally known or made known to him, 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 . . . .” (Evid. Code, § 801, subd. (b); see also People v. Catlin (2001) 26 Cal.4th 81, 137; People v. Montiel (1993) 5 Cal.4th 877, 918.) “Psychiatrists, like other expert witnesses, are entitled to rely upon reliable hearsay, including the statements of the patient and other treating professionals, in forming their opinion concerning a patient’s mental state.” (People v. Campos (1995) 32 Cal.App.4th 304, 307-308, italics added.)
Here, defendant argues that the information regarding the February 13, 2005, incident is “clearly hearsay, conclusory in nature and do not set forth sufficient factual details to support an expert’s opinion.” We disagree.
Regarding the incident on February 13, 2005, Dr. Saeed stated the following in his report:
“On February 13, 2005, [defendant] assaulted a peer and required the use of restraints in order to regain control of himself. Staff notes state that he was arguing with a peer in the dayhall and then ‘clinched his fist and started throwing punches.’ Staff intervened because by then the two patients were on the floor. Even after the patients were separated, [defendant] continued to swing at his peer and to make verbal threats. The progress note mentioned that the peer reported to staff that [defendant] ‘said he would like to fuck him in the ass.’”
Contrary to defendant’s assessment of the evidence, the report provided a detailed factual summary of what had occurred on February 13, 2005, and was not conclusory. This type of hearsay evidence “may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . .” (Evid. Code, § 801, subd. (b); People v. Catlin, supra, 26 Cal.4th at p. 137; People v. Montiel, supra, 5 Cal.4th at p. 918.)
3. Substantial evidence
Next, we address defendant’s contention that there was no “sufficient credible evidence to sustain the jury’s finding [defendant] continued to be a mentally disordered offender.”
The same standard of review used in determining a claim of insufficiency of the evidence in a criminal matter also applies to appellate review of MDO proceedings. (People v. Miller (1994) 25 Cal.App.4th 913, 920.) In reviewing a claim of insufficient evidence, we view the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence, i.e., evidence that is reasonable, credible, and of solid value, to support the jury’s finding. (People v. Valdez (2001) 89 Cal.App.4th 1013, 1016; People v. Clark (2000) 82 Cal.App.4th 1072, 1082.)
a. First element
Defendant does not challenge that Drs. Saeed and Jenkins established the first element under the MDO law—that defendant suffers from a severe mental disorder.
b. Second element
As to the second element, the record clearly establishes that defendant’s severe mental disorder was not in remission. “[T]he word ‘remission’ is defined as ‘a finding that the overt signs and symptoms of the severe mental disorder are controlled either by psychotropic medication or psychosocial support.’ Also, a person that cannot be kept in remission without treatment includes situations where the person has been in remission for the past year, but also has exhibited unexcused physical violence, has threatened another with substantial physical harm, intentionally has caused property damage, or has failed to voluntarily follow his treatment plan. Therefore, under the last exception, by establishing that the defendant has failed to voluntarily follow his treatment plan, the People can show that defendant’s mental disorder cannot be kept in remission without treatment.” (People v. Beeson (2002) 99 Cal.App.4th 1393, 1399, fns. omitted; see also § 2962, subd. (a).)
In this case, both Drs. Saeed and Jenkins testified that defendant’s mental illness was not in remission. The record clearly shows that defendant was currently suffering from mental illness. During the eight months that preceded the MDO hearing, Dr. Saeed stated that defendant exhibited symptoms of paranoia, auditory hallucinations, and/or impaired thought processes. As provided in detail above, defendant was seen mumbling to himself, he was unable to engage in a coherent conversation with Dr. Saeed, and he was involved in a physical altercation with a fellow patient based on a paranoid ideation. Dr. Jenkins testified that defendant demonstrated or reported symptoms indicative of his psychotic disorder, including hallucinations, loose associations or difficulty thinking clearly, and disoriented or disorganized thought processes.
c. Third element
As to the final element, both Drs. Saeed and Jenkins testified that defendant posed a substantial risk of harm to others because of his severe mental disorder. Dr. Jenkins based his opinion on defendant’s history—provided in detail above—that evinced “a very clear pattern of violence.” Dr. Saeed based his opinion on the findings rendered by Dr. Jenkins, in addition to his own observations that defendant lacked insight into the extent of his mental illness and defendant was unable to use coping skills when faced with conflict or stress.
Viewing the record in the light most favorable to the judgment, as we must, we conclude that defendant’s MDO commitment was properly extended.
B. References to Defendant’s Prior MDO Commitments Were Not Prejudicial
Defendant contends that the commitment order must be reversed because of references to defendant’s prior MDO commitments. In this case, Dr. Jenkins mentioned a prior MDO finding and the prosecutor argued that the evidence must show that defendant still qualifies under the MDO statute. In support of his argument, defendant relies on People v. Munoz (2005) 129 Cal.App.4th 421 (Munoz).
1. Munoz
In Munoz, the court held it was reversible error in a sexually violent predator (SVP) case to admit evidence of the defendant’s prior SVP commitments for the purpose of showing his history. (Munoz, supra, 129 Cal.App.4th at p. 432.) The court did not hold that admission of previous commitments is reversible error in all cases. In fact, it acknowledged that “the fact of a prior SVP commitment has some relevance in determining whether a defendant has a currently diagnosed mental disorder . . . .” (Id. at p. 430.) The court also recognized that “[i]t may be impossible to avoid the jury’s learning that the defendant has already been committed as an SVP, e.g., it may be necessary for experts to discuss the defendant’s treatment and behavior while in the state hospital.” (Id. at p. 432.) The court held, however, that when evidence of prior commitments is admitted, “[n]othing must be done to suggest the defendant is required to prove he is no longer an SVP or to effectively lessen the state’s burden by establishing a datum of mental disorder and dangerousness.” (Ibid.)
The Munoz court noted that when the defendant testified he did not think he had met the SVP criteria at the time of a previous commitment, the prosecutor brought out on cross-examination that the defendant had not contested the opinions of the doctors in that proceeding that he did meet the criteria. Further, the trial court admitted into evidence a minute order noting that the defendant had waived his right to trial in the prior proceeding. (Munoz, supra, 129 Cal.App.4th 421, 427-428.) In his argument to the jury, the prosecutor then suggested that the defendant’s failure to contest the earlier SVP petition contradicted his current testimonythat he never had a mental condition qualifying him for SVP status. (Id. at p. 428.)
Based on the record, the Munoz court concluded reversible error had occurred: “The manner in which the prosecutor questioned witnesses, the evidence the trial court admitted, and the manner in which petitioner argued the case suggested that the issue was whether anything had changed since appellant’s prior SVP commitment.” (Munoz, supra, 129 Cal.App.4th at p. 432.)
2. Application of Munoz to this case
Nothing comparable to what happened in Munoz occurred in this case. Defendant did not testify and the fact that he had not contested most of the prior MDO petitions against him was not brought out. The court did not admit any documents referring to the prior commitments. Instead, Dr. Jenkins simply testified that defendant was transferred from prison to Atascadero, with a subsequent finding that defendant met the criteria as an MDO, as part of a chronological recount of defendant’s conduct, treatment, and mental health history. Additionally, except of the phrase “still qualifies,” the prosecutor’s closing argument gave no hint, implication, or suggestion that the jury was to compare defendant’s current mental status with a prior MDO finding. Further, the court expressly cautioned the jury as follows:
“You are instructed to disregard any argument or testimony that may have appeared to indicate that the decision regarding whether [defendant] has been proven to meet the criteria as a mentally disordered offender has already been made. You are the sole judges as to whether [defendant] has or has not been proven to meet the criteria as a mentally disordered offender.”
Finally, the prosecutor highlighted the instruction. In so doing, he vitiated any potential prejudice arising from his prior use of the word “still” when he informed the jury during closing argument as follows:
“What this instruction is talking about is, if you think you heard some evidence in this trial regarding whether or not an MDO evaluation was ever done, it doesn’t matter for you, ladies and gentlemen, what that determination was at some prior time. . . . It doesn’t matter whether or not [defendant] was ever found to be an MDO, not found to be an MDO, whatever it was in the past. It’s your determination.”
Thus, the jury was aware it could not find that defendant was currently an MDO based solely on the prior testimony.
For these reasons, the factor that led the court in Munoz to find reversible error—the danger that the prosecution’s emphasis on the defendant’s prior commitments would give the jury the impression that the defendant had to prove he was no longer an SVP—was not present here. Therefore, the facts of Munoz and the reasoning of the court do not support reversal in this case.
III
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., MILLER, J.