Opinion
F080212
01-20-2022
THE PEOPLE, Plaintiff and Respondent, v. RONALD PETALOS, Defendant and Appellant.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF168406. Gary L. Paden, Judge.
Richard M. Oberto, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Ronald Petalos appeals from the trial court's October 29, 2019, order extending his civil commitment at Atascadero State Hospital (ASH) pursuant to Penal Code section 1026.5. He contends the commitment extension order must be reversed because (1) the trial court failed to ensure that defendant knowingly, intelligently and voluntarily waived his right to a jury trial; (2) the testifying medical expert, Dr. Kodzic, relayed case-specific hearsay in offering her opinions, which violated state and federal law as articulated in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); and (3) because the hearsay Dr. Kodzic relied upon in forming her opinions was not proven true through other admissible evidence, her resulting opinions were not sufficient to support the recommitment order.
All further statutory references are to the Penal Code unless otherwise indicated.
For the reasons set forth below, we conclude the totality of the circumstances establish defendant's waiver of his jury trial right was valid. The error in admitting case-specific hearsay through Dr. Kodzic was not prejudicial; her expert opinion was otherwise based on her own personal observations and interviews of defendant and constituted substantial evidence to support the recommitment order. As such, we affirm.
We note the October 2019 recommitment order has likely expired pursuant to section 1026.5, subdivision (b)(8), and Tulare Superior Court online records reflect a recommitment petition has been filed and a trial setting conference is currently set for February 23, 2022.
BACKGROUND
On April 9, 2019, the People filed a petition to extend defendant's not guilty by reason of insanity (NGI) commitment for two years under section 1026.5, subdivision (b). The petition alleged defendant had originally been found NGI in May 2009 for failing to register as a sex offender under section 290, former subdivision (a)(1)(A), a requirement that had been imposed following a felony conviction in October 1998 for violation of section 288, subdivision (a), lewd or lascivious acts with a child under the age of 14 years. Defendant had been committed to ASH on August 13, 2009. His commitment had been extended by petition on August 8, 2015, and again on September 7, 2017.
A bench trial on the 2019 recommitment petition was held on October 29, 2019. Pursuant to Sanchez, defense counsel presented a motion in limine seeking to exclude the expert from relaying hearsay from the documents she relied upon in reaching her opinions. The prosecutor argued its physician expert witness would be testifying about some things she had reviewed in documents, rather than from her personal knowledge, but that those items would not be offered for the truth of the matter asserted. The court stated, "That's what I'm going to accept it as. The record will note [defense counsel's] continuing Sanchez objection to all items relied on by the doctor that she did not personally observe or take." (Italics added.)
In presenting its case, the prosecution called only one witness: Dr. Anna Kodzic, a forensic psychologist at ASH who has been working at the hospital since 2010. For five of those years, she has worked as a forensic evaluator there. She has known defendant "for quite awhile." She first met him in 2012, when she ran the hospital's mentor project, which connected lower functioning hospital patients with higher functioning patients; she was never, however, his treating psychologist.
She evaluated defendant by interviews conducted on May 17, 2019, December 4, 2018, and December 7, 2017. Each interview ran only one-half hour in length and were cut short. During two of the interviews, defendant became agitated and wanted to stop the interview. On the third occasion, defendant became more confused than usual and was "sort of spinning himself in a circle and repeating himself .…"
Dr. Kodzic prepared a report on February 22, 2019, of her findings and opinions with regard to defendant's mental disorders. In completing that report, she reviewed defendant's psychiatric treatment records as well as forensic reports completed since May 14, 2014; she did not have older, archived forensic reports on hand to review.
Dr. Kodzic opined defendant suffered from schizoaffective disorder, bipolar type; pedophilic disorder; nonexclusive intellectual deficit disorder, mild; and substance abuse of alcohol, cannabis, and inhalants. Her opinion was based on her review of records, her interaction with defendant's treatment team, and her personal evaluations and observations of defendant.
Based on her personal experience and review of defendant's records, she opined that defendant posed a substantial danger of physical harm to others. She testified all the same risk factors that were present during the NGI crime were still relevant. Dr. Kodzic explained that defendant was released from ASH in 2005, but failed to register as a sex offender and was rearrested and held to be NGI. Essentially, very little had changed since 2006. During her interviews with defendant, he was irritable; and he frequently can be grouchy and threatening with staff members or peers. She had never personally witnessed any evidence of physical aggression, but there were reports in his records that he had been physically aggressive with staff members in the past. It had been some time since he had been physically aggressive, but he continued to be verbally aggressive.
Based on hospital records, she noted defendant had three instances of physical aggression toward staff and four acts of verbal aggression. In 2014, the last time defendant had been noted to be physically aggressive, defendant had attempted to strike a shift lead and missed; defendant was placed in restraints because he could not calm himself and was unable to maintain safe behavior.
On September 7, 2015, records reflected defendant punched a wall; on September 11, 2015, he threatened to kill a staff member when he was subjected to a routine, weekly room search. He was placed in restraints after that latter episode. In 2018, defendant made another threat to kill anyone who searched his room, but he was in a group setting at that time-there was no search of his room occurring; his threat was the product of internal stimuli. Then in April 2019, defendant threatened to burn down the house of a staff member.
Also, based on his pedophilia diagnosis, Dr. Kodzic opined defendant posed a risk of physical harm to children in an unsupervised setting. Dr. Kodzic considered defendant at high risk of reoffending. She explained that pedophilia is not curable, it is managed by behavior techniques. However, defendant had not completed the sex offender treatment program, and they had no idea what his behavior would be like without the controlled environment of the hospital where no children are present. The sex offender treatment program requires participants to interact in a logical manner. Defendant, however, has never achieved psychiatric stability in order to do that. Although previously enrolled in that program, his presence was disruptive and he was disorganized, paranoid, and distracting to other members of the group. He was taken out of the group with the recommendation to bring him back if or when he stabilizes. Dr. Kodzic believed his inability to complete the sex offender treatment is also a manifestation of his lack of insight into his conditions.
Defendant's medication regimen included multiple antipsychotic mediations, but Dr. Kodzic was never able to have a meaningful discussion with him about his willingness to take medication or his understanding of its importance to control his behavior. During interviews, she had been unable to elicit from him a logical exchange or linear ideas. While he is intellectually capable of such thought, he is disorganized and ornery and he is unable to participate logically. For example, he could not understand why he was talking to her during their interviews. Defendant had repeatedly complained he was taking too many pills, although he could not explain why he thought he was taking too many pills, and he exhibited confusion about what the pills do; nevertheless, he had been compliant with his medication in 2019. Based on her personal interactions with defendant, she expressed fair certainty he would not continue to take his medication voluntarily in a noninstitutional setting.
Defendant has accused his treatment team of trying to kill him on several occasions, and he has been under a delusion for some time that his psychologist is assaulting and trying to kill him. Every time he would see this psychologist, he would greet that person as, "hi, killer."
During the time she has known defendant, Dr. Kodzic has not seen any evidence that he has gained adaptive abilities to control his dangerous and sexually deviant behaviors. He has repeatedly demonstrated overarching symptoms of psychosis despite medication. His baseline function was not optimal to begin with, given his schizophrenia, but it has dropped down even further. In Dr. Kodzic's opinion, defendant may be able to develop adaptive behaviors necessary to function outside an institutional setting even in light of his intellectual disorder, but it would require getting his psychosis under control.
On cross-examination, Dr. Kodzic was provided an opportunity to review treating psychiatrist Dr. Parvizi's most recent continuing care plan created in July 2019 just before defendant left ASH. That report indicated defendant had good insight into his mental illness in 2009, and he was rated as a low risk of violence or of behavior dangerous to others within an institutional setting. Dr. Kodzic indicated she did not necessarily agree with these assessments.
Dr. Kodzic conceded that during her evaluations of defendant, he had never been physically aggressive or made threats toward her, although he had been rude and yelled at her. While Dr. Kodzic believed defendant has a history of arson based on her review of records, she had no information about that history, and he has made no arson attempts while in the hospital. Dr. Kodzic pointed out, however, ASH's controlled environment would not be conducive to an arson attempt because patients have no access to anything that can cause fire.
Dr. Kodzic acknowledged it had been five years since defendant had demonstrated any physical aggression toward staff or other patients, even though he has made statements or threats toward others when irritated. In Dr. Kodzic's experience, though, defendant's threats and lashing out stem from anger that comes with a potential for harm. In her view, defendant is housed on a "really understanding unit." She believed they took his threats to kill people "in stride," but that not everyone would be that understanding. She also pointed out defendant has been on the same unit for quite a while, and his peers were accustomed to his behavior. "When he can be quite agitated, people sort of give him space and give him medication and kind of leave him alone. That is external control. That isn't internal control."
Dr. Kodzic conceded defendant has at times acknowledged his schizophrenia and the need for medication. However, she explained that defendant's mere acknowledgment of his condition and the need for medication was not particularly persuasive to her. Her interviews with defendant revealed his lack of insight into both his condition and his need for medication because when she asked him follow-up questions, things would unravel. As an example, Dr. Kodzic noted her last evaluation with defendant in May 2019. She testified she had asked him why he was in the hospital, and he acknowledged it was because of schizophrenia; but when he was asked what that meant, he did not know. When she asked him if he really suffered from schizophrenia, he told her "they made it up." When she asked why they made it up, he did not know, but he thought cops did not like him. To Dr. Kodzic, this did not demonstrate a true understanding of his mental illness.
She recalled her conversation with him about his medication was similar. He acknowledged he took medication for schizophrenia, but he did not know what he took or what would happen without the medication. Dr. Kodzic explained this did not reflect any understanding of his need for medication. And if he truly thought the medication was necessary, he would not accuse staff members of trying to poison him when they gave him medication-which she explained happened frequently. She could not state exactly what the frequency was because she was not on his unit all of the time.
Dr. Kodzic acknowledged defendant did participate in groups and his attendance was in the 70-80 percent range, but Dr. Kodzic felt this was because he was in the mentor program and his higher attendance was likely attributable to the use of a peer mentor; although, she could not quantify what his attendance would be without a mentor. Dr. Kodzic acknowledged defendant has not acted with any physical violence in any of his groups for the last four or five years, but he has had verbal outbursts. She also acknowledged defendant had made it to level five of five in a substance abuse program.
Dr. Kodzic clarified that defendant's intellectual functioning deficits did not preclude his ability to complete the sex offender training program-it was his thought disorganization that precluded him from the sex offender training program. He did not participate in a way that made sense, and when the topic of sexual offending was brought up, he just became irritable and there was no real point in pursuing it.
On redirect examination, Dr. Kodzic explained that defendant does not have a relapse prevention plan that would have benefit outside the institutional setting. It is a way for patients to demonstrate they have an understanding of their problematic behavior and they will avoid that behavior. The fact that he does not have a relapse prevention plan is an indication he is not ready to be released. It speaks to his lack of understanding his various diagnoses and how to deal with them. Dr. Kodzic pointed to a conversation she had with defendant about his substance abuse issues. When she asked him about his drug use, he denied any substance abuse. Then, he went on to say that people who smoke weed get in car accidents and die; they take pills and it's their own fault; so, he does not do drugs. This, Dr. Kodzic emphasized, was not a relapse prevention plan.
After the close of evidence, the court acknowledged defendant's progress in curtailing his physical aggression, but wanted defendant to make more progress before releasing him from commitment. The court concluded that beyond a reasonable doubt defendant continued to present a danger or substantial danger of physical harm to others if released into the community due to a mental disease, defect, or disorder, and extended defendant's commitment for another two years.
DISCUSSION
I. Waiver of Jury Trial Right
Defendant argues he did not give a valid waiver of his jury trial right because it was not knowing and intelligent. He asserts the court failed to inquire whether he understood the basics of a jury trial in an NGI extension proceeding, and the record does not demonstrate he otherwise understood the nature of his jury trial right or the consequences of waiving it.
A. Background
At two different pretrial hearings, counsel for defendant indicated he was waiving his right to a jury trial. The first hearing occurred on August 12, 2019, where the assigned public defender stated she had the opportunity to speak with defendant, and he was going to waive his right to a jury trial and have a bench trial. Although present at this hearing, defendant did not address the court personally. At a second hearing on October 25, 2019, a different attorney represented defendant and again indicated defendant planned to waive his right to a jury trial. The court then conducted a brief colloquy in accepting defendant's waiver:
"[DEFENSE COUNSEL]: We are ready to confirm. I do want to- I'm not sure if it's been on the record. [Defendant] is waiving a jury trial.
"THE COURT: Okay. I believe we have discussed it. I wanted to confirm it. [¶] [Defendant], you have the right to have
"THE DEFENDANT: I can't hear, I can't hear.
"THE COURT: Do you understand you have the right to have a jury trial in this case? Is that a yes?
"THE DEFENDANT: Yeah.
"THE COURT: I need words; okay? Yes?
"THE DEFENDANT: Yes.
"THE COURT: Is it okay if we have a court trial and not a jury trial instead? You have a right to a jury trial. You give up that right?
"THE DEFENDANT: Yeah.
"THE COURT: So we're gonna have a court trial. We're not going to have a jury. I will be hearing your trial. Is that okay with you?
"THE DEFENDANT: Yeah.
"THE COURT: So we have a waiver of that. We are going to start on the 29th at 1:30.
"[PROSECUTOR]: Yes.
"[DEFENSE COUNSEL]: Yes."
B. Totality of the Circumstances Establish a Knowing, Intelligent Waiver
1. Legal Background
Pursuant to section 1026.5, a defendant in an extended commitment proceeding has a right to a jury trial and must be advised of that right by the trial court upon the filing of an extended commitment petition. (§ 1026.5, subd. (b)(3).) Section 1026.5, subdivision (b)(3), requires the court to advise the person named in the petition of the right to be represented by an attorney and of the right to a jury trial. Section 1026.5, subdivision (b)(4), provides that the trial "shall be by jury unless waived by both the person and the prosecuting attorney." Section 1026.5, subdivision (b)(7), entitles an NGI defendant to the rights guaranteed under the federal and state Constitutions for criminal proceedings during civil commitment proceedings under section 1026.5.
In People v. Tran (2015) 61 Cal.4th 1160 (Tran), the California Supreme Court held that the trial court must personally advise the defendant in a section 1026.5 proceeding of the right to a jury trial and must elicit any waiver of that right on the record, unless there is substantial evidence that the defendant lacks capacity to make a knowing and voluntary waiver, in which case the waiver decision shifts to counsel. (Tran, supra, at pp. 1166-1169.)
Our high court has explained a court may not accept a waiver of jury trial unless that waiver is "knowing and intelligent, that is, '"'made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, '"' as well as voluntary '"'in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.'"'" (People v. Collins (2001) 26 Cal.4th 297, 305; accord, People v. Daniels (2017) 3 Cal.5th 961, 990 (lead opn. of Cuéllar, J.).) "[W]hether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case." (Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 278; accord, People v. Sivongxxay (2017) 3 Cal.5th 151, 166 (Sivongxxay).) A jury waiver is valid "'"if the record affirmatively shows that it is voluntary and intelligent under the circumstances."'" (People v. Daniels, supra, at p. 991 (lead opn. of Cuéllar, J.); accord, id. at p. 1018 (conc. & dis. opn. of Corrigan, J.).)
Recently, our high court provided "general guidance to help ensure that a defendant's jury trial waiver is knowing and intelligent, and to facilitate the resolution of a challenge to a jury waiver on appeal." (Sivongxxay, supra, 3 Cal.5th at p. 169.) While its guidance was "not intended to limit trial courts to a narrow or rigid colloquy," going forward the court recommended "that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will decide his or her guilt or innocence. We also recommend that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails. A trial judge may do so in any number of ways-among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived. Ultimately, a court must consider the defendant's individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently." (Id. at pp. 169-170.) Since Sivongxxay, the high court has reiterated this guidance was not meant to state a specific requirement or rigid formula for a trial court to ascertain whether a waiver is knowing and intelligent. (People v. Daniels, supra, 3 Cal.5th at pp. 992-993 (lead opn. of Cuéllar, J.) ["We continue to eschew any rigid rubric for trial courts to follow in order to decide whether to accept a defendant's relinquishment of this right."]; accord, id. at p. 1011 (conc. & dis. opn. of Corrigan, J.).)
In reviewing the circumstances presented in Sivongxxay, the high court held the jury trial waiver at issue was knowing and intelligent. The trial court had advised the defendant he had a right to a jury trial, that the jury consists of 12 people from the community, he would have the right to participate in the selection of the jury, and that waiver of the right to a jury would mean the judge alone would determine his guilt or innocence and any resulting punishment. (Sivongxxay, supra, 3 Cal.5th at p. 167.) The high court also pointed out that the defendant had prior experience with the criminal justice system because he had pleaded guilty to two prior offenses, and in connection with one guilty plea he had signed a waiver stating he fully understood his right to a jury trial. The court concluded that, "[v]iewed holistically, the circumstances surrounding defendant's jury waiver demonstrate that it was knowing and intelligent." (Id. at p. 168.) The court rejected the defendant's argument the waiver was deficient because the trial court had not explained the jury had to be impartial and render a unanimous verdict. (Ibid.)
In People v. Blancett (2017) 15 Cal.App.5th 1200 (Blancett), decided after Sivongxxay, the appellate court concluded a defendant in a mentally disordered offender (MDO) recommitment hearing was not sufficiently advised of his right to a jury trial and that he did not knowingly and intelligently waive that right. (Id. at p. 1202.) The defendant's attorney represented to the trial court that the defendant was "'okay'" with having the judge, rather than a jury, decide the case; the trial court then inquired of the defendant whether he was "'okay'" with having a judge decide his case and not a jury, to which the defendant responded affirmatively. (Id. at p. 1203.)
On appeal, the court concluded this was an insufficient advisement of the right to a jury trial, as required under section 2966, subdivision (b), and People v. Blackburn (2015) 61 Cal.4th 1113, 1116 (Blackburn). (Blancett, supra, 15 Cal.App.5th at p. 1205.) Moreover, the record did not demonstrate the defendant's jury trial waiver was made with full awareness of the right being abandoned and the consequences of that decision. (Id. at p. 1206.) The appellate court reasoned the trial court had not explained significant attributes of a jury trial, no inquiry was made whether the defendant had sufficient opportunity to discuss the decision with his counsel, who had been appointed by the court only moments before the defendant entered his waiver, whether his attorney explained the differences between a bench and jury trial, or whether the defendant had any questions about the waiver. (Ibid.) Additionally, the defendant had no prior experience with this type of proceeding, so the record did not establish he knew he had the right to a jury trial. (Ibid.)
Blackburn and Tran were companion cases in which the California Supreme Court considered a defendant's jury trial right and a waiver thereof in the context of statutory MDO and NGI civil commitment proceedings, respectively. (Blackburn, supra, 61 Cal.4th at p. 1116 [considering the right to a jury trial under § 2972 proceeding]; Tran, supra, 61 Cal.4th at pp. 1162-1163 [considering jury trial right under § 1026.5 proceeding].)
Similarly in People v. Jones (2018) 26 Cal.App.5th 420 (Jones), which was a criminal case, the court concluded the record did not affirmatively show the defendant's jury trial waiver was knowing and intelligent under the totality of the circumstances. (Id. at p. 437.) The court observed that, like Blancett, the trial court had not advised the defendant she had a right to a jury trial; instead, the court asked her only whether she understood her right to a jury trial, to which she responded she did. (Jones, supra, at p. 435.) While the trial court advised the defendant that it, sitting alone, would decide the case, the appellate court concluded this did not establish the defendant actually understood the nature of the jury trial right. (Id. at p. 436.) The trial court did not advise her what a jury trial entailed, it did not inquire of her whether she understood the right, had discussed it with her attorney, or had any questions. (Ibid.) While the record showed the defendant had some discussion with her attorney before the waiver was taken, nothing indicated that discussion included the nature of a jury trial. (Id. at p. 435.) Moreover, nothing in the record suggested the defendant had experience with the criminal justice system. (Id. at p. 437.) Under the totality of the circumstances, the record did not affirmatively show a knowing and intelligent waiver of the jury trial right. (Ibid.)
2. Analysis
As an initial matter, defendant does not contend the trial court failed to advise him that he had a right to a jury trial or that the waiver was not expressly, personally and voluntarily given-his argument is centered on the knowing and intelligent nature of that waiver. Contrary to the People's suggestion, nothing in Tran implies a jury trial waiver in the NGI recommitment context may be anything less than knowing and intelligent. As the People acknowledge, section 1026.5, subdivision (b)(7), entitles an NGI defendant to the rights guaranteed under the federal and state Constitutions for criminal proceedings.
"In California, an effective waiver of the right to a jury trial requires that a defendant's waiver be express, voluntary, knowing and intelligent." (People v. Daniels, supra, 3 Cal.5th at p. 1003 (lead opn. of Cuéllar, J.), citing People v. Collins, supra, 26 Cal.4th at p. 305.) "[A] knowing and intelligent jury waiver requires an appreciation of the nature of the jury trial right and the consequences of forgoing this right." (Sivongxxay, supra, 3 Cal.5th at p. 171; see United States v. Ruiz (2002) 536 U.S. 622, 629 ["[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances-even though the defendant may not know the specific detailed consequences of invoking it."].) The failure to obtain a knowing and intelligent waiver falls within the limited class of errors that are reversible per se. (Tran, supra, 61 Cal.4th at p. 1169 [accepting an invalid jury trial waiver results "in a complete denial of the defendant's right to a jury trial," and, thus. "automatically requires reversal"].)
To assess the validity of defendant's waiver here and whether it was knowingly and intelligently given, we independently consider the totality of the circumstances. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1660.) Similar to Jones and Blancett, the trial court here did not canvass defendant during the waiver colloquy to establish the extent of his knowledge about his jury trial right, but it did advise defendant he had the right to a jury trial, and indicated that if there was no jury, the judge would hear the case. Defendant correctly points out the trial court was aware at the time of this waiver that defendant had a mild intellectual development disorder and other mental conditions. We agree that a more robust colloquy following the guidance in Sivongxxay was especially desirable in these circumstances, yet the trial court's failure to do so does not itself invalidate the waiver. (Sivongxxay, supra, 3 Cal.5th at p. 169.) Looking beyond this colloquy to the totality of the circumstances, as we must, a holistic examination of the record establishes the right was knowingly and intelligently relinquished.
We trust that in future proceedings, the trial court will adhere to the extended guidance the Supreme Court has provided on the recommended scope and depth of a jury trial waiver colloquy.
We also note that neither defense counsel nor the trial court indicated defendant lacked capacity to enter a jury trial waiver. Further, defendant did interrupt the court's very first question to him about his waiver to indicate he could not hear. While this does not show defendant understood his jury trial right, it does suggest defendant was following the proceedings and was unafraid to address the court about the problem he was having.
Defendant was represented by counsel at two pretrial hearings in April and October 2019. In April 2019, counsel indicated she had spoken to defendant and he was willing to waive his jury trial right-from the context of the statement, she had discussed the jury trial right with defendant. In October 2019, counsel also stated defendant was willing to waive his right to trial. Unlike Blancett, where the defendant's counsel was appointed minutes before the waiver was accepted and there was no record of any opportunity to discuss the waiver right with the defendant, defendant here had ample opportunity to discuss the issue with his counsel and every indication was that he did so. (Blancett, supra, 15 Cal.App.5th at p. 1206 [noting the court appointed counsel "moments before [the defendant] entered his waiver" with no evidence of prior discussion].)
Unlike Blancett, the record indicates, particularly in April 2019, defendant spoke with his counsel about his jury trial right before a waiver was accepted-although, like Jones, the record does not reflect what specific details were discussed. Yet, this case is distinguishable from Jones because defendant here has prior criminal and civil commitment proceeding experience. Specifically, in Jones, the defendant had never been involved in any type of criminal proceeding prior to waiving the jury trial right. (Jones, supra, 26 Cal.App.5th at p. 437.) Here, defendant suffered a criminal conviction in 1998, and while the record does not reflect whether the conviction was the result of a trial or a plea, a jury trial right applied and would have been invoked or waived.
Moreover, in May 2009, when defendant was found to be NGI, defendant was again represented by counsel who was duty-bound to advise defendant of his right to a jury trial; defendant waived his right to a trial for purposes of the guilt phase. (See People v. Pope (1979) 23 Cal.3d 412, 425 [observing a criminal defense attorney has a duty to advise his client of his rights], overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) During the hearing where defendant waived his right to a trial, defendant was asked whether he understood the maximum potential prison sentence calculation. He answered that he did not understand, and further information was provided to him. The very next issue the trial court took up was whether defendant understood the rights he was waiving by entering his plea-which the court indicated included his right to a trial-and defendant answered affirmatively that he did. As defendant had been willing to express his lack of understanding about the potential maximum sentence calculation, this suggests he would have questioned the waiver of his trial right if he had not understood it.
This was also not defendant's initial NGI recommitment proceeding-he was represented by counsel at two prior recommitment proceedings in 2015 and 2017. Neither of the hearings reflect a personal jury trial waiver, but they do indicate defendant had prior experience in commitment proceedings that necessarily involved a right to a jury trial, about which his counsel was obligated to advise him. At a hearing regarding the August 2015 recommitment petition, defendant did not appear, but his counsel represented he had talked with defendant and they had planned to set the matter for trial, but, after further discussions, defendant and his counsel had decided not to contest the recommitment petition.
When the trial court advised defendant twice in October 2019 that he had the right to a jury trial and asked him whether he understood that right, defendant's affirmative response came within the context of a 20-year history with both criminal and civil commitment proceedings that necessarily involved a jury trial right, which he waived on prior occasions. Moreover, in accepting defendant's waiver in October 2019, the trial court clarified that without a jury, they would have a court trial, which meant the judge would be hearing the trial. The court again asked defendant whether this was "okay," and defendant answered it was.
Considering all of these circumstances holistically, the record affirmatively demonstrates defendant understood the nature of his right to a jury trial and the consequences of waiving that right. Defendant was represented by counsel at two pretrial hearings in 2019 where the jury trial waiver was discussed, counsel had an affirmative obligation to inform defendant of his jury trial right, and the record indicates counsel had an opportunity to discuss the waiver decision with defendant and did so. While the record does not reflect the nature of the conversation with his counsel about his jury trial waiver, defendant had prior experience with criminal and civil commitment proceedings while represented by counsel that all involved the right to a jury trial, which he had previously waived on several occasions. Defendant twice affirmed with the trial court in 2019 that he knew he had the right to a jury trial, and he acknowledged the alternative was a court trial where the judge would hear the case. In light of these circumstances, we conclude the jury trial waiver was knowing and intelligent.
II. Case-specific Hearsay Was Harmless and Did Not Undercut the Value of Dr. Kodzic's Opinions
Defendant contends the trial court impermissibly allowed the prosecution's expert, Dr. Kodzic, to relay case-specific testimonial hearsay during her testimony, violative of both defendant's constitutional right to confrontation and state law. The People dispute any error was of constitutional dimension or caused any resulting prejudice. The People also assert any claim of a Fifth Amendment due process violation was forfeited.
A. Case-specific Hearsay Was Not Prejudicial
Under section 1026.5, subdivision (b)(1), the prosecutor was required to establish defendant suffers from a mental disorder or disorders and, by reason of those disorders, represents a substantial danger of physical harm to others. (§ 1026.5, subd. (b)(1).) To prove defendant represents a substantial danger of physical harm to others, the People were required to show that he has serious difficulty controlling his potentially dangerous behavior. (See People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 [§ 1026.5 commitment requires substantial evidence the defendant has serious difficulty controlling potentially dangerous behavior].) Here, the prosecutor sought to make this showing through Dr. Kodzic's expert testimony.
In Sanchez, the California Supreme Court held that an expert may not testify to "case-specific facts" that are outside the expert's personal knowledge because "those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be properly admitted through an applicable hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted.) In so holding, the court disapproved the long-standing paradigm that an expert may testify about case-specific hearsay to show the basis of his or her opinion. (Id. at p. 679.) While an expert "may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so," the expert may not "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.) Although Sanchez was a criminal case involving a gang expert, the hearsay rule announced in Sanchez applies to proceedings under section 1026.5. (See People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 509, fn. 6.)
Here, Dr. Kodzic was permitted to testify about the contents of records she reviewed, including details about defendant's prior acts of aggression and threats against staff, and facts related to defendant's 2006 NGI offense and 1998 conviction. None of the documents that Dr. Kodzic reviewed and testified about were admitted at trial. At one point in the trial, the prosecutor argued Dr. Kodzic's testimony about facts detailed in these documents was not being admitted for the truth of those facts, but to establish the foundation for the expert's opinion. The court agreed and permitted Dr. Kodzic to continue testifying about several case-specific facts she gleaned from various hospital treatment records and prior forensic reports, which she treated and related as true.
As defendant correctly asserts, this is precisely what Sanchez prohibits. (Sanchez, supra, 63 Cal.4th at p. 682 ["When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth."].)
The People concede some of Dr. Kodzic's testimony about these records was hearsay. Nevertheless, the People contend the admission of this hearsay did not violate defendant's due process right to confrontation, and it was harmless error under state law.
Defendant argues the admission of this hearsay violated his constitutional right to confrontation because it was testimonial-most of the documents, but especially the prior forensic reports, were created primarily for use in court. Defendant contends the California Supreme Court has recognized a right to confront witnesses under the Fifth Amendment due process clause, as articulated in People v. Otto (2001) 26 Cal.4th 200, 214 (Otto). Defendant impliedly asserts the contours of the Fifth Amendment confrontation right under the due process clause are shaped by the jurisprudence interpreting the Sixth Amendment's confrontation clause-i.e., admission of testimonial hearsay, as that concept is articulated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny, implicates the right to confrontation.
We dispense with a detailed analysis of the contours of a confrontation right under the Fifth Amendment, whether that right is shaped and governed by the jurisprudence interpreting the Sixth Amendment's confrontation clause, and its application here. Even assuming the admission of hearsay implicated defendant's constitutional rights in the manner he asserts, and further assuming this argument was not forfeited below for failure to object on a Fifth Amendment ground, the erroneous admission of hearsay in Dr. Kodzic's testimony was harmless under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) (before federal constitutional error can be held harmless, court must be able to declare a belief that it was harmless beyond reasonable doubt).
Dr. Kodzic relayed hearsay from treatment records, including defendant's prior acts of aggression while hospitalized; verbal threats defendant had made toward the staff, including one in 2019; limited details about the nature of defendant's NGI offense from 2006; limited details about defendant's 1998 conviction; and of an arson history. Nevertheless, even absent any of the hearsay testimony, we can confidently conclude beyond a reasonable doubt the outcome of the hearing would have been the same.
Absent any hearsay testimony, Dr. Kodzic's opinions remained well supported. Dr. Kodzic was entitled to rely on hearsay in forming her opinion, and she was entitled to tell the factfinder in general terms that she did so. (Sanchez, supra, 63 Cal.4th at p. 686 ["There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception."].) While she testified that she had reviewed defendant's psychiatric treatment records and forensic reports, Dr. Kodzic's opinions were not formed singularly from these records. Dr. Kodzic explained she had been working at the hospital for nine years, had known defendant for seven of those years, and had conducted three interviews with defendant in 2017, 2018, and 2019. Dr. Kodzic drew on her personal observations of defendant to articulate findings and current behaviors she found clinically significant, she explained how those findings supported her opinion that defendant's mental disorders currently posed a substantial danger of physical harm to others and that defendant had serious difficulty in controlling his dangerous behavior.
Based on her record review and her interviews with defendant, she diagnosed him with four separate conditions: (1) schizophrenia disorder-bipolar type; (2) pedophilia; (3) mild intellectual deficit disorder; and (4) substance abuse disorder. One aspect of defendant's behavior resulting from these mental disorders, which she believed posed a substantial danger of physical harm, was defendant's history of physical aggression and continued verbal threats against staff.
To support that opinion, Dr. Kodzic testified about several acts of physical aggression and verbal threats defendant had made toward hospital staff. The acts of physical aggression Dr. Kodzic detailed from the treatment records, however, were several years old. That hearsay testimony suggested defendant's aggression had improved, and it inured to his benefit. In fact, the trial court commended him on his progress in this area. From her personal observations, she felt that aggression control was more likely attributable to the particularly understanding unit where he was housed at the hospital-when he became angry and agitated, they gave him space, medication, and they left him alone. From her perspective, this was external control of his behavior-not an internal adaptive skill. More importantly, though, defendant's physical aggression, and to the extent the continuing instances of verbal threats Dr. Kodzic noted were symptomatic of that aggression, was only one aspect of the risk of danger his behaviors pose to others.
Dr. Kodzic explained defendant's pedophilia, an uncurable condition, posed a substantial danger to others-specifically children-that could be controlled only through adaptive behavior techniques of which defendant had not demonstrated any acquisition. She noted his psychosis particularly interfered with his abilities in this regard because it prevented him from linear and logical thinking. Dr. Kodzic pointed out that, in her interviews with defendant, he was so disorganized and ornery he could not participate in the conversation logically-she had to cut each interview short for this reason. He also could not understand why she was interviewing him, even after she explained why she was talking to him. She opined he would not be able to complete the hospital sex offender treatment program until these psychosis symptoms and his disorganized thinking were addressed. Moreover, he had no relapse prevention plan for any of the behaviors caused by his mental conditions, which indicated to her he was not prepared for release to a non-hospital setting.
Complicating this, she felt defendant lacked insight into his schizophrenia and the need for medication. She explained that while he could acknowledge his schizophrenia diagnosis and that he took medication for it, when she probed with more questions, his answers revealed he did not really believe he was schizophrenic or that medication was helpful. She pointed to one interaction she had with defendant where she asked him what his schizophrenia diagnosis meant, but he did not know. He thought "they" had made it up because the "[c]ops" did not like him. She opined it would be unlikely he would be compliant with his medication outside the hospital setting.
While Dr. Kodzic briefly discussed hearsay related to defendant's 2006 NGI offense-the failure to register as a sex offender-and that it demonstrated a historical lack of insight into his pedophilia, that failure to register occurred 13 years before, and it was not the basis for her opinion he currently posed a substantial danger of harm to others based on his pedophilia.
Without any recitation of hearsay, Dr. Kodzic's interview observations supported her opinion defendant's schizophrenia was not currently well controlled, even with medication; his resulting psychosis symptoms interfered with logical and linear thinking to the degree she had to cut her interviews short; through personal observations, she believed that his aggression issue were addressed through external controls exerted by the understanding hospital unit where he was housed, not primarily through internal control of his own; his ability to complete a sex offender treatment program hinged on better control of the psychosis symptoms, which he had not attained; his pedophilia presented a substantial danger of physical harm to others, and without proper training or adaptive behavior techniques, he would have difficulty controlling that behavior outside a hospital setting; he had no relapse prevention plan for any of his behaviors resulting from his mental disorders, which alone indicated to her he was not prepared for release; he had little to no current insight or understanding of his conditions or the need for medication; and he was unlikely to be compliant with medication outside the hospital setting.
Dr. Kodzic's opinions were supported by her interviews and her personal observations of defendant; she explained the findings she drew from those personal observations and the clinical significance she assigned to them to support her ultimate opinions. In the absence of the hearsay testimony, Dr. Kodzic's opinions remained well supported and comprised a highly compelling basis to support the recommitment order. Even under the stricter harmless error standard articulated by Chapman, beyond a reasonable doubt, the admission of case-specific hearsay about defendant's historical behavior and treatment did not affect the outcome.
B. Dr. Kodzic's Opinions Constituted Substantial Evidence
For these same reasons, we are unpersuaded by defendant's interrelated claim that Dr. Kodzic's opinions do not constitute substantial evidence because the underlying case-specific facts she relied upon were never independently proven. Even in the absence of the hearsay testimony-which the substantial evidence review standard does not preclude us from considering-her opinions were well supported by her own personal observations and interviews of defendant and constituted substantial evidence to support the recommitment order under section 1026.5, subdivision (b). (People v. Zapisek, supra, 147 Cal.App.4th at p. 1159 [sufficiency of evidence to support a § 1026.5 commitment extension is assessed under the same sufficiency of evidence standard to review of judgment of conviction].)
DISPOSITION
The court's October 29, 2019, recommitment order is affirmed.
WE CONCUR: LEVY, Acting P. J., POOCHIGIAN, J.