Opinion
A145382
12-23-2016
THE PEOPLE, Plaintiff and Respondent, v. JESSICA HALE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR900629)
Jessica Hale was found not guilty by reason of insanity of arson and child endangerment in 2004 and committed to a state hospital for a maximum nine-year term. In June 2015, following a jury trial, her commitment was extended by two years. Hale contends she received inadequate legal representation at the trial because her trial attorney failed to object to two expert witnesses' hearsay testimony about statements in her hospital records or request a limiting instruction on the use of those statements. We affirm.
BACKGROUND
Prosecution Case
Five months before it was set to expire, the prosecution petitioned the court to extend Hale's commitment for two years pursuant to Penal Code section 1026.5, subdivision (b). A jury trial was held over three days in May and June, 2015. Drs. Domingo Laguitan and Cheryline Mancusi testified for the prosecution. Hale testified on her own behalf and called expert witness Dr. John Podboy and her mother, Cynthia Hale.
Further statutory citations are to the Penal Code.
Dr. Laguitan is a staff psychiatrist at Napa State Hospital (Napa) who treated Hale during the eight or nine months preceding the trial. Dr. Laguitan opined that Hale, a schizophrenic with a history of exacerbating her symptoms through alcohol and methamphetamine abuse, would be a substantial risk of harm to others if released. Her illness primarily manifests as paranoid delusions, including a persistent belief that staff is hurting and trying to poison her with medications. Delusions of this type produce negative emotions such as fear, anxiety or anger, and are associated with an increased risk of danger to others. In addition, Hale has a history of failing to take her prescribed medications.
Hale experiences auditory "command" hallucinations, in which voices tell her to do things. She hears several different voices, including one she believes to be God and another, "Alvin," who is "not a good person." Both voices command her to do bad things. The crime that resulted in her commitment was triggered by one such hallucination, a command by God to burn down the house her children were in.
Hale left the house with the children after she set the fire. Although the children were attended and underclothed when police arrived, they were otherwise unarmed.
Hale was released to a structured outpatient setting in 2008, but was readmitted to Napa in July 2010 when her treatment provider determined she posed a risk to the community. She was next afforded outpatient treatment in November 2010, but again readmitted in May 2011 after presenting as paranoid and delusional and accusing a housemate of threatening her life.
Hale was next discharged to outpatient treatment in November 2011, but after two or three months she left the facility without permission, absconded to her mother's house and stopped taking her medications. Within a month she became acutely psychotic. Her delusions got worse and "she was locking herself in her room and talking to herself and making statements that other people want to harm her."
The entire time she was at Napa, Hale was housed in a "stabilization unit," a unit with the highest amount of supervision and structure. Her symptoms were "quite severe" when Dr. Laguitan first started treating her, necessitating continuous staff observation due to the potential threat she posed to herself and others. More recently Hale had begun to respond to changes in her medications, but she was still symptomatic and delusional.
Several incidents of Hale's verbally or physically aggressive behavior in 2014 bolstered Dr. Laguitan's opinion that she was not ready for release. On February 1, 2014, she was verbally aggressive to a member of the nursing staff who explained she was not free to leave her unit. On July 1 she threw a tray on the floor because she believed staff had tampered with her food. On July 4 she threw a cup of coffee at a male patient she thought had poisoned her, "because she was heard to shout, '[h]e poisoned me,' and . . . 'They were putting drugs in my drinks.' And then she also stated, 'Alvin keeps messing in my thoughts.' " On September 5 Hale punched a female patient and "made remarks such as . . . 'God asked me to attack her. She had the numbers 666 written on her forehead, and so I [attacked] her." On September 20 Hale stabbed her wrist repeatedly with a pen and told staff who intervened to " 'Get off me, I want to be with Jesus.' " Dr. Laguitan witnessed only the September 5 incident, and did not hear Hale's remarks to staff. His testimony about the other incidents was based on written reports and his conversations with staff.
Laguitan believed that Hale lacked a basic understanding of her illness. She still believed "Alvin" spoke through her and might follow his commands, even if dangerous. She recently told Dr. Laguitan that " 'Alvin is able to get into me by ways of a button in his eye. It is a device that was made in the Indian reservation that allows him to reside in me. I don't hear voices, but I speak what's on my—what's on their minds.' " She still responded to the voices in her head and had been observed yelling and talking to herself in recent months.
Hale was also treated by forensic psychologist Cheryline Mancusi. Like Dr. Laguitan, Dr. Mancusi opined that Hale would present a danger to others if she were released from the hospital "[s]pecifically [because of] her symptoms of paranoia, the delusions that she's had within the last year, the command auditory hallucinations within the past year. It was fairly evident to the team that Ms. Hale was very fearful, that she did believe . . . that the staff were harming her, that peers were harming her. And these beliefs were very real to her, and she had acted violently due to these beliefs and [had] displayed limited insight into her symptoms. So our concern is that if she were to experience these symptoms again in the recent future, that she might not recognize them as symptoms." Hale's symptoms increased her risk for violence, and her belief her medications were being poisoned increased the risk that she would stop taking them.
After Dr. Laguitan adjusted her medications Hale's symptoms improved dramatically, but Dr. Mancusi believed she would still be dangerous if released. On numerous occasions over the prior year Hale's psychotic symptoms intensified, necessitating additional medications and more frequent interactions with the clinical staff. She displayed severe paranoia, delusions, disorganized speech and behavior, agitation, and anxiety. She was "internally preoccupied, meaning that she was very engaged with her own internal processes and having a hard time engaging with external reality." She believed staff had poisoned her teabag. She was just beginning to understand that her delusions and hallucinations were not real.
Like Dr. Laguitan, Dr. Mancusi testified that Hale's history of methamphetamine and alcohol abuse increased the likelihood of a relapse if she were released without supervision. Her schizophrenia could be triggered by adjusting from a highly structured institutional setting to independent living, lack of an adequate support system, and financial concerns.
Defense Case
Forensic psychologist John Podboy formed his expert opinion based on two interviews and a number of phone conversations with Hale, a psychological test and questionnaire, and a review of her medical records and reports. He agreed with Drs. Mancusi and Laguitan that Hale showed recent improvement, but he opined that she could safely be released if she took her medications. Dr. Podboy "very much doubt[ed]" that Hale would commit another crime like the arson that resulted in her commitment, although "the prediction of human behavior is very difficult, and I don't have a crystal ball." In his view, Dr. Mancusi's testimony that Hale exhibited paranoia about her medications being poisoned was "pretty farfetched."
Dr. Podboy agreed with Hale's treating doctors that she suffers from schizophrenia, but he was optimistic that she would continue taking her medications if released because she would not want to destabilize and be hospitalized again. He also believed Hale would encounter more stressful "triggers" in the hospital than in an unsupervised environment.
Hale's mother, Cynthia Hale, believed Hale could safely be released. Hale would live near but not with her mother. Cynthia would help her find an apartment, get her medications, and set up appointments and SSI.
Hale testified she was remorseful about the arson. She denied telling the police that voices told her to set the fire. She heard evil voices during the crime and for two days after, but she could not make out what they were saying. The voices she hears do not command her. She last heard "Alvin" about eight months before trial, but he does not tell her to do anything. Hale knows that "Alvin" is not a real person.
Hale said she did not use drugs or alcohol while she was an outpatient. If she were released she would take her medications and go to AA meetings. In 2014 she threw a cup of coffee at another patient because he drugged it. She attacked another patient in September 2014 because the woman was "verbally bad" to her, and because she could not use the legal library. The patient she attacked "had 666 on her forehead. [¶] . . . [¶] I don't know, I can't say. Only the angel can say that."
Hale said another patient tried to drug her tea and that she kept the teabag in her room to prove it. She stabbed her wrist and said she wanted to be with Jesus because "the staff hurt me with a needle . . . [¶] . . . [¶] [T]hey injected medication into my arm."
Hale testified she had been stable and asymptomatic on her medications for over eight months.
DISCUSSION
Hale asserts her attorney's assistance was inadequate for failing to challenge the prosecution's expert testimony about her episodes of verbal or physical aggression in 2014. She contends defense counsel should have objected to this testimony as hearsay or sought a limiting instruction to prohibit the jury from using it as independent proof of her dangerousness. "To establish constitutionally inadequate representation, a defendant must demonstrate that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant. [Citations.]" (People v. Samayoa (1997) 15 Cal.4th 795, 845.) "If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel's performance was deficient." (People v. Kipp (1998) 18 Cal.4th 349, 366.)
At the time of the trial, People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley) prescribed the law governing expert witnesses' latitude to testify about out-of-court statements they relied on in forming their opinions. Gardeley held: "Expert testimony may . . . be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] For 'the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.' " (Gardeley at pp. 618-619.) But "[s]o long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] 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. . . . '[T]he result is often that the expert may testify to evidence even though it is inadmissible under the hearsay rule.' " (Id. at pp. 618-619, italics omitted, citations omitted.)
In June 2016, after this appeal was fully briefed, the Supreme Court jettisoned the Gardeley rule "because an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (People v. Sanchez (2016) 63 Cal.4th 665, 679 (Sanchez).) Now, under, Sanchez, "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." (Id. at p. 686.) But Gardeley was the law at the time of trial, and counsel's failure to anticipate the new Sanchez rule was not ineffective assistance. (See Green v. Johnson (5th Cir. 1997) 116 F.3d 1115, 1125; Alcorn v. Smith (6th Cir. 1986) 781 F.2d 58, 62.) --------
Hale suggests that People v. Campos (1995) 32 Cal.App.4th 304 (Campos) holds experts may not testify about incidents described in records they relied on to form their opinions, but it does not. In Campos, the court held an expert psychiatric witness could not testify that other psychiatric assessments on which she relied were consistent with her own opinion. The court explained: " '[D]octors can testify as to the basis for their opinion [citation], but this is not intended to be a channel by which testifying doctors can place the opinion of innumerable out-of-court doctors before the jury.' " (Id. at p. 308.) As division one of this court explained in People v. Bordelon (2008) 162 Cal.App.4th 1311, Campos was "concerned with preventing the introduction of multiple opinions, insulated from cross-examination, into evidence. Since this concern does not arise unless the expert is relying on other expert opinions, the reasoning of those cases is confined to that situation." (Id. at p.1326; see Mosesian v. Penwalt (1987) 191 Cal.App.3d 851, 863-864, disapproved on another point in People v. Ault (2004) 33 Cal.4th 1250, 1272 fn. 15.) The rule in Campos is inapplicable here because Hale challenges hearsay testimony about incident reports in her mental health records, not other expert opinions.
Accordingly, a hearsay objection to testimony about the incident reports would have been fruitless. And, while the trial court has discretion under Evidence Code section 352 to " 'exclude from the expert's testimony "any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value," ' " (People v. Bordelon, supra, 162 Cal.App.4th at p. 1325), this was not such a case. Nor can Hale establish prejudice. There was overwhelming, direct evidence that she continued to experience psychotic symptoms including delusions, paranoia, and command hallucinations, and that she had a history of going off her medications and decompensating outside of a hospital setting. On this record, exclusion of the hearsay evidence would not have resulted in a different verdict.
Hale alternatively asserts competent counsel would have asked the court to admonish the jurors to consider out-of-court statements relied upon by experts "only to evaluate the expert's opinion" and not "as proof that the information contained in the statement[s] is true." (CALCRIM No. 360.) Even here she cannot show that such an admonishment would have made a difference. As Justice Corrigan recognized in Sanchez, "[o]nce we recognize that the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion, hearsay and confrontation problems cannot be avoided by giving a limiting instruction that such testimony should not be considered for its truth. If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth. . . ." (Sanchez, supra, 63 Cal.4at p. 684, italics added.)
In any event, it is all but inconceivable that the jury would have returned a different verdict if given the limiting instruction. The doctors' extensive nonhearsay testimony coupled with Hale's own testimony provided an overwhelming evidentiary basis for the verdict. There is no suggestion in the record that the jurors placed undue weight on the hearsay reports in Hale's records. Moreover, defense counsel urged the jurors in closing argument not to believe what was written in them: "Keep in mind that these are incidents that the witnesses know of from reading reports, some of which were written years ago by who knows whom. And we don't know where those writers got that information and how many people potentially garbled it in translation so to speak. One thing is certain, the authors of these reports and the people quoted in them were not present in court to testify to these facts—alleged facts or be cross-examined about them; therefore, the reliability portion or factor of this third-and-[fourth]-hand information is seriously open to question." Accordingly, Hale's claim of ineffective legal assistance fails.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
McGuiness, P.J.
/s/_________
Jenkins, J.