Opinion
A160187
03-24-2021
THE PEOPLE, Plaintiff and Respondent, v. RICHARD VAUGHN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. SCN 157087, 1516019)
Defendant Richard Vaughn appeals from the trial court's order extending his involuntary commitment at Napa State Hospital (hospital) as an offender with a mental health disorder for one year, until May 2021. He contends insufficient evidence supports the recommitment, and the trial court erred by excluding his expert. Because we conclude the trial court erred by excluding the defense expert and that error was not harmless, we reverse the commitment order.
Penal Code section 2962 was amended in 2019 to replace "mentally disordered offender" with "an offender with a mental health disorder." (Pen. Code, § 2962, subd. (d)(3), as amended by Stats. 2019, ch. 649, § 1.)
I. BACKGROUND
In 1991, defendant struck and injured two women with a heavy cardboard mailing tube. Defendant served a two-year sentence and was released on parole. Shortly after his release, defendant initiated a physical altercation with two officers when he reported to the parole office. Officers found a small amount of marijuana and a hypodermic syringe on defendant. Defendant pled guilty to battery on a police officer and admitted a prior felony conviction, and he was sentenced to 32 months in prison. At the end of his term of imprisonment, the court designated defendant as an offender with a mental health disorder and ordered him committed. Since then, defendant's commitment has been extended annually by either stipulation or trial.
On October 21, 2019, the district attorney filed a petition to extend defendant's commitment, which was set to expire on May 5, 2020. In advance of trial, the district attorney filed a motion in limine to exclude defendant's expert. The district attorney argued defendant was required to complete expert discovery by the 15th day prior to trial pursuant to Code of Civil Procedure section 2024.030, and defendant had failed to do so. As a result, the district attorney requested the court exclude any testimony from defendant's expert. The trial court granted this motion and entirely excluded defendant's expert. It concluded civil discovery rules applied, and defendant failed to sufficiently justify the late discovery.
At trial, the district attorney offered testimony from Dr. Anita Sachdev, a psychiatrist at the hospital, and Dr. Richard Welker, a psychologist at the hospital. Defendant has been a patient of Dr. Sachdev for approximately five years and a patient of Dr. Welker for approximately four years. Both witnesses were qualified as experts and testified as to their assessment of defendant.
In sum, both doctors testified defendant suffered from schizophrenia, remained symptomatic, and posed a risk of danger to others. Dr. Sachdev testified defendant had not been engaged with his treatment by refusing to meet with her one-on-one, missing his last two treatment team meetings, skipping most group meetings, and refusing to engage with CONREP. She acknowledged defendant has cognitive difficulties and challenges with executive functioning, which may stem from a range of sources including his history of head injuries.
CONREP is a conditional release program.
Dr. Welker's testimony focused on the HCR-20 risk assessment, which formed the basis for concluding defendant posed a risk of danger to others. Dr. Welker testified the HRC-20 utilizes ten historical factors, five clinical factors, and five risk management factors that together incorporate past conduct, current adjustment, and future plans for mitigating risk. He explained the hospital does not use actuarial assessment tools, such as the violence risk assessment guide, because they are "static over time" and the hospital is trying to see if there are improvements and identify factors that should be addressed with treatment. Dr. Welker stated his belief that, with increased stress, defendant's schizophrenia would become worse and cause defendant to be at greater risk for violent behavior.
At the conclusion of the prosecution's case, defendant rested without offering any witnesses or evidence in his defense.
The jury found the allegations in the petition true, and the court extended defendant's commitment for another year, to May 2021. Defendant subsequently filed a timely notice of appeal.
II. DISCUSSION
Defendant contends the order excluding his expert deprived him of his right to put on a defense. Namely, defendant focuses on the evidence regarding his dangerousness to others. Defendant argues the state's experts provided speculative predictions regarding his dangerousness based on an unreliable assessment tool and outdated information, and the order excluding his expert undermined his ability to rebut such testimony.
Penal Code section 2972, subdivision (c) states "the court shall order the patient recommitted to the facility in which the patient was confined at the time the petition was filed" if the court or jury finds three factors are met: (1) "the patient has a severe mental health disorder"; (2) "the patient's severe mental health disorder is not in remission or cannot be kept in remission without treatment"; and (3) "by reason of the patient's severe mental health disorder, the patient represents a substantial danger of physical harm to others."
In response, the Attorney General concedes the court "had a statutory duty to exhaust all other sanctions before precluding the production of defense evidence," and acknowledges the court failed to do so. However, the Attorney General asserts such error was harmless beyond a reasonable doubt pursuant to Chapman v. California (1967) 386 U.S. 18 (Chapman).
Penal Code section 2972, subdivision (a)(1) provides, "the rules of criminal discovery, as well as civil discovery, shall be applicable" to petitions for recommitment. Penal Code section 1054.5, subdivision (c) states a "court may prohibit the testimony of a witness . . . only if all other sanctions have been exhausted." The court's failure to exhaust other sanctions prior to excluding defendant's expert is subject to a harmless error analysis under Chapman. (People v. Lawson (2005) 131 Cal.App.4th 1242, 1249, fn. 7 ["Preventing a defendant from putting on a defense . . . arguably rises to the level of constitutional error, which is ordinarily subject to the harmless beyond a reasonable doubt test of Chapman"]; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1755, 1759.) Such prejudice is demonstrated where the evidence against a defendant is "less than overwhelming" and the prosecutor's comments touch a " 'live nerve' " in the defendant's defense. (People v. Galloway (1979) 100 Cal.App.3d 551, 560.)
Here, the evidence against defendant that his mental health disorder represented a substantial danger of physical harm to others is less than overwhelming. The Attorney General argues the evidence demonstrates defendant is not in remission, suffers from multiple symptoms of schizophrenia, has refused to participate in treatment and prevention planning or accept CONREP support, and has a high risk of causing serious physical harm when he is experiencing psychiatric symptoms.
Full remission without any symptoms of schizophrenia is not necessary to demonstrate defendant is not a physical danger to others. Nor is his failure to participate in treatment, such as through prevention planning or group therapy, determinative. In People v. Johnson (2020) 55 Cal.App.5th 96 (Johnson), the district attorney sought to extend the commitment of a 69-year-old defendant who suffered from schizophrenia. (Id. at pp. 98-99.) Evidence was submitted at the commitment extension trial indicating the defendant had failed to meet with his case manager or participate in groups, did not believe he had a mental illness or needed medication, continued to suffer from delusions, and his schizophrenia was only in partial remission. (Id. at pp. 101-102.) The defendant's treating psychiatrist believed the defendant, if released to the community unsupervised, would not take his medication, decompensate, and have an episode of violence. (Id. at p. 102.) However, the record indicated the defendant was described as " 'a quiet gentleman,' " and the only instance of violence occurred prior to his commitment approximately 30 years ago. (Id. at pp. 103-104.) Following trial, the court ordered the defendant's commitment extended for one year, noting in relevant part that the defendant's lack of appreciation for his mental disorder and its impairment of his conduct made him a substantial danger of physical harm to others. (Id. at pp. 104-105.)
On appeal, the defendant "challenge[d] the court's finding 'that by reason of [his] severe mental health disorder, [the defendant] represents a substantial danger of physical harm to others.' " (Johnson, supra, 55 Cal.App.5th at p. 107.) Our colleagues in Division Two agreed and reversed the order. (Id. at p. 112.) In so holding, the court explained, "All of this evidence demonstrates that [the defendant] has schizophrenia that is only in partial remission; that he engaged in two violent acts before he was committed as an MDO [(mentally disordered offender)]; that without treatment, including his antipsychotic medication, he would likely decompensate; and that he might stop taking his medication if released. Missing from the trial court record, however, is any evidence that this would lead him to endanger others." (Id. at p. 109.)
While Johnson addressed whether substantial evidence supported the recommitment, we find it instructive as to whether there is sufficient evidence of defendant's dangerousness to find the trial court's exclusion of his expert harmless. While the Attorney General argues defendant's expert could not rebut Drs. Sachdev's and Welker's testimony that defendant did not follow his treatment plan or was not in full remission, such evidence does not—by itself—indicate defendant would pose a substantial danger of physical harm to others. Accordingly, the fact that defendant's schizophrenia is in partial remission, he still suffers from some symptoms, and he has not fully engaged in treatment is insufficient to demonstrate that the exclusion of defendant's expert was harmless.
The record also contains mixed evidence regarding defendant's level of aggression. The only serious examples of aggression identified by Drs. Sachdev and Welker were from or prior to the early 1990's. While Dr. Sachdev identified two physical alterations that occurred in 2018, those appeared to be minor incidents in which defendant was provoked by another patient, and both Drs. Sachdev and Welker acknowledged defendant had not been aggressive in the past 12 months. A progress report from 2019 did not indicate any concerns about violence, stating, " 'there has been improvement in his psychotic symptoms and he has not exhibited any aggressive behavior.' " Dr. Sachdev also agreed defendant is generally "a quiet man on the unit" and will respond appropriately when approached. Dr. Welker testified he had only assessed defendant three times since 2018, and noted he only conducts assessments yearly for individuals who do not have a high risk. Since the 2018 assessment, Dr. Welker testified the violent ideation factor improved because defendant "did not show any evidence of violent behavior." Dr. Welker also acknowledged reoffending rates for geriatric patients drop "drastically" after the age of 50. While there is certainly some evidence of aggression, we cannot consider it "overwhelming."
Finally, the Attorney General asserts releasing defendant into the community could result in destabilization of medication and increased access to drugs and alcohol, both of which would create a risk of increasing defendant's symptoms and level of aggression. However, Dr. Sachdev testified defendant voluntarily takes his medication. Dr. Welker noted defendant has recognized the importance of his medication, commenting that it " 'is working' " and " 'helps me get along with people.' " Likewise, while defendant's medical background indicates a history of drug and alcohol use prior to his placement at the hospital, such evidence is 26 years old. A recent report noted there has not been evidence of drug use " 'since his placement in a structured environment in this facility.' " In sum, none of the evidence cited by the Attorney General provides an overwhelming indication of defendant's dangerousness.
We also note the issue of whether defendant poses a "substantial danger of physical harm to others" to be a crucial element of the recommitment proceedings. Without such a finding, defendant would not be subject to recommitment under Penal Code section 2972, subdivision (c). In relevant part, defense counsel questioned the appropriateness and reliability of the HCR-20 assessment, which formed the basis for Drs. Sachdev's and Welker's conclusions that defendant posed a high risk for future aggression. In doing so, defense counsel elicited testimony from Dr. Welker that the HCR-20 result is ultimately based on clinical judgment, and Dr. Sachdev testified that clinical judgment is only as accurate as a flip of a coin. Defense counsel also sought to elicit testimony regarding the rates of reoffending for geriatric patients or actuarial studies on reoffending, but neither Dr. Sachdev nor Dr. Welker were able to provide meaningful testimony on those issues. A defense expert thus could have provided key testimony regarding these issues. And, such testimony could have impacted the jury's verdict as evidenced by the multiple questions posed by the jury regarding the physical harm element. Accordingly, the trial court's order excluding the defense expert was not harmless.
Because this error requires reversal of the jury verdict, we need not reach the question of whether substantial evidence supports the verdict. Likewise, we need not modify the erroneous expiration date on the trial court's order. --------
III. DISPOSITION
The March 9, 2020 order extending defendant Richard Vaughn's commitment is reversed.
MARGULIES, ACTING P. J. WE CONCUR: BANKE, J. SANCHEZ, J.