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People v. Wilkerson

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Nov 22, 2019
No. D075370 (Cal. Ct. App. Nov. 22, 2019)

Opinion

D075370

11-22-2019

THE PEOPLE, Plaintiff and Respondent, v. GREGORY ALLEN WILKERSON, Defendant and Appellant.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD107053) APPEAL from an order of the Superior Court of San Diego County, Esteban Hernandez, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman, and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

The Mentally Disordered Offender (MDO) Act (the Act, Pen. Code, § 2960 et seq.) "permits the government to civilly commit for mental health treatment certain classes of state prisoners during and after parole." (In re Qawi (2004) 32 Cal.4th 1, 23 (Qawi).) In 2005, Wilkerson was adjudicated an MDO and committed for treatment to the Department of State Hospitals. He appeals from an order, issued following a bench trial, sustaining a petition to extend his commitment as an MDO for one year. (§§ 2970, subd. (b), 2972.) He argues that the trial court erred in permitting three instances of case-specific hearsay evidence during the testimony of one of the prosecution's experts in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We agree that some of the challenged testimony constituted hearsay, but we find the error harmless and affirm the order.

Further statutory references are to the Penal Code unless otherwise stated.

FACTUAL BACKGROUND

In 1995, Wilkerson pleaded guilty to committing a lewd and lascivious act with a child under the age of 14. (§ 288, subd. (a).) He was committed to the Department of Corrections for 12 years. In 2005, he was admitted to Atascadero State Hospital (Atascadero) as an MDO. Wilkerson's MDO commitment has been extended 11 times and he has remained in continuous custody since his guilty plea.

At trial on the instant petition to extend Wilkerson's commitment, the court heard testimony from Dr. Rappaport, a forensic psychiatrist, and Dr. Stotland, a clinical and forensic psychologist. Both doctors conducted an MDO evaluation of Wilkerson which included reviewing records and interviewing Wilkerson. Both doctors opined that Wilkerson met the criteria for an MDO and that his civil commitment should be extended.

Dr. Rappaport diagnosed Wilkerson with pedophilia and schizophrenia or schizoaffective disorder and opined that the schizophrenia or schizoaffective disorder was not in full remission. Due to this disorder, Dr. Rappaport opined that Wilkerson presented a "substantial danger of physical harm to others" because Wilkerson's "schizophrenic thinking or his psychotic thoughts can overwhelm him so that he acts out in a way that could harm other people." Dr. Rappaport believed that Wilkerson had " 'fair' " insight into his schizophrenia or schizoaffective disorder because he has "been dealing with it for 15, 20 years. He's learned a lot, but I don't think he has the full insight."

Dr. Stotland diagnosed Wilkerson with pedophilia and schizoaffective disorder and opined that the schizoaffective disorder was in partial remission. Although acknowledging it was a "harder call because [Wilkerson's] not been in a situation where he can" engage in pedophilia, Dr. Stotland opined that the pedophilia was "probably still an active diagnosis" based on the way Wilkerson responded to psychological testing and his failure to complete sex offender treatment. Wilkerson told Dr. Stotland that he was hospitalized "because of bad choices," and when asked about the details of the underlying offense he denied his guilt and minimized his actions. Dr. Stotland opined that Wilkerson "has a tendency to deny responsibility and wants to escape from consequences of his actions." Dr. Stotland believed that Wilkerson presented a substantial danger of physical harm as a result of his mental disorders based on Wilkerson's minimization, a significant factor for predicting dangerousness, and lack of insight. He concluded Wilkerson had a "problem coping with anger," and described Wilkerson's insight as " 'fair' because he has enough insight to get along most of the time, but it's 'poor' because he does not seem to understand his involvement in antisocial behavior, and it's also poor because he keeps getting into trouble, and he doesn't need to do that. If he had good insight, he would realize that all I have to do is behave myself, and I'm out of here, so the insight is definitely lacking." Dr. Stotland also noted that Wilkerson was "unable to really describe his relapse-prevention plans" and was not committed to sex offender treatment.

Dr. Stotland testified: "[Wilkerson] said, 'They say I licked a little girl 12 or 13,' " but "his son was a witness, and his son said it didn't happen." Dr. Stotland concluded, "basically, this is—he's denying that he did this. He said, 'I pled guilty in court because my wife wanted me to.' " Wilkerson also said he had been drinking and using methamphetamine at the time of the underlying offense, and he said he did not remember the incident during another point in the interview. After Dr. Stotland allowed Wilkerson to look through some hospital records, Wilkerson said the hospital staff was lying about him. "At that point, he became angry, and he said that his hospitalization is not treatment, but it's punishment and that he would rather be in prison because there's better food there and better privileges."

DISCUSSION

I.

MDO Law

"An MDO proceeding is civil, rather than criminal, in nature." (People v. Fisher (2009) 172 Cal.App.4th 1006, 1013.) The Act "requires that offenders who have been convicted of violent crimes related to their mental disorders, and who continue to pose a danger to society, receive mental health treatment during and after the termination of their parole until their mental disorder can be kept in remission. [Citation.] . . . [T]he purpose of the [statutory] scheme is to provide MDO's with treatment while at the same time protecting the general public from the danger to society posed by an offender with a mental disorder." (Qawi, supra, 32 Cal.4th at p. 9.) Unless extended, the commitment is for one year. (§ 2972, subds. (c), (e).)

To extend an MDO commitment, the People must prove beyond a reasonable doubt that (1) the patient has a severe mental disorder; (2) the disorder is not in remission and cannot be kept in remission without treatment; and (3) by reason of that mental disorder, the patient represents a substantial danger of physical harm to others. (§§ 2970, 2972, subds. (c) & (e).) While the statute provides definitions for certain terms, "[t]he term 'substantial danger of physical harm to others' is not defined." (Qawi, supra, 32 Cal.4th at p. 23.) "In context, it appears to mean a prediction of future dangerousness by mental health professionals." (Id. at p. 24.) A single opinion by a psychiatric expert concluding that a person currently is dangerous due to a severe mental disorder may constitute substantial evidence to support the extension of a commitment. (People v. Zapisek (2007) 147 Cal.App.4th 1151, 1165 (Zapisek).)

II.

Additional Background

The prosecutor asked Dr. Rappaport a series of questions requiring "yes or no answers" regarding the Atascadero records that he reviewed. Dr. Rappaport testified that he relied on the Atascadero records he reviewed in reaching his opinions, and that the records contained criminal history, mental health diagnoses by other healthcare professionals, and Wilkerson's current mental state and medications. The prosecutor then asked:

"Q. Do the records reflect—again, just yes or no—any incidents of threats or violence by Mr. Wilkerson?

"[DEFENSE COUNSEL]: Objection. Hearsay. Assumes facts not in evidence that these incidents did occur.

"THE [COURT]: Overruled.

"BY [THE PROSECUTOR]: [¶] Q. Just answer yes or no. Don't tell me the facts of them?

"A. Yes.

"Q. Did you rely on those?

"A. Yes.

"Q. Is there any evidence in the record indicating the extent to which Mr. Wilkerson has any insight into his mental disorder?

"A. Yes.

"[DEFENSE COUNSEL]: Objection, Your Honor. Hearsay.
"THE COURT: Overruled.

"BY [THE PROSECUTOR]: [¶] Q. Without telling you their opinion.

"A. There is, yes.

"Q. Just that they discussed it.

"A. The answer was yes.

"Q. Do you rely on their discussion on it?

"A. Yes."

Later, the prosecutor asked Dr. Rappaport if Wilkerson said anything during the interview that he considered to be relevant to his opinions other than what he had already testified about. Dr. Rappaport responded:

"A. Well, the big question was, is he dangerous, and I think he acted in a way that made me feel he was dangerous. And the reports that I read indicate that he's not in a constant state of dangerousness, but he's at times dangerous.

"[DEFENSE COUNSEL]: Objection. Hearsay regarding what the contents of the report indicate. Move to strike.

"THE COURT: Overruled.

"BY [THE PROSECUTOR]: [¶] Q. Did you rely on those reports, as well as your interview, in reaching your opinions about dangerousness?

"A. I relied a lot on the reports to tell me how he's been doing over time."

III.

Analysis

Wilkerson argues that the trial court erred in overruling his three hearsay objections, violating his right to due process, because Dr. Rappaport testified about "information gleaned from reports and records which were not presented in court with proper foundation or were themselves based upon inadmissible hearsay." He claims that the error requires reversal of his commitment order because it was prejudicial under both the federal constitutional standard described in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) and the more lenient state law standard described in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). The People assert that Dr. Rappaport properly relied upon hearsay statements in the record to form his opinions and that Dr. Rappaport's testimony about the extent of Wilkerson's insight was not hearsay. Finally, the People argue that even assuming the trial court erred, the error was harmless because the other evidence, the admissibility of which Wilkerson does not challenge, amply supports the court's finding of dangerousness.

" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] . . . Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subds. (a), (b).) 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 (Campos).)

Under prior law, experts could testify about out-of-court statements upon which they relied in forming their opinions even if the statements were otherwise inadmissible under the hearsay rule. (See, e.g., People v. Bell (2007) 40 Cal.4th 582, 608, overruled in Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) Case law held that such evidence was not offered for its truth, but to identify the foundational basis for the expert's testimony. (See, e.g., People v. Gardeley (1996) 14 Cal.4th 605, 618-620, overruled in Sanchez, at p. 686, fn. 13.)

In Sanchez, supra, 63 Cal.4th 665 the California Supreme Court determined that a trier of fact must necessarily "consider expert basis testimony for its truth in order to evaluate the expert's opinion," which in turn implicates the hearsay rule. (Id. at p. 684.) Accordingly, an expert witness may tell the trier of fact "in general terms" that he or she is relying on hearsay in forming an opinion, but 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 pp. 685-686, italics omitted; Evid. Code, §§ 801, 802.)

"Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." (Sanchez, supra, 63 Cal.4th at p. 676.) As our Supreme Court explained, "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." (Id. at p. 686.) "Thus, in regard to case-specific hearsay, Sanchez 'jettisoned' the former 'not-admitted-for-its-truth' rationale underlying the admission of expert basis testimony, and occasioned a 'paradigm shift' in the law." (People v. Iraheta (2017) 14 Cal.App.5th 1228, 1246.)

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

Sanchez applies in MDO proceedings to the extent it clarifies the admissibility of expert testimony under the Evidence Code. (People v. Bona (2017) 15 Cal.App.5th 511, 520; see People v. Burroughs (2016) 6 Cal.App.5th 378, 405, fn. 6 (Burroughs) [Sanchez applies to civil proceedings under the Sexually Violent Predators Act].) We apply the abuse of discretion standard of review to a trial court's ruling on the admissibility of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 723.) An abuse of discretion occurs when its ruling " ' "fall[s] 'outside the bounds of reason.' " ' " (People v. Kopatz (2015) 61 Cal.4th 62, 85.) "As a general rule, the erroneous admission of hearsay evidence will not result in a reversal unless it is reasonably probable the defendant would have received a more favorable result had the evidence not been admitted." (People v. Landau (2016) 246 Cal.App.4th 850, 866.)

Based on this framework, we address each of Wilkerson's contentions in turn.

The prosecutor asked Dr. Rappaport whether Wilkerson's records reflected any incidents of threats or violence by Wilkerson and whether he relied on this information. Over defense counsel's hearsay objection, Dr. Rappaport responded affirmatively to both questions. While not detailed, Dr. Rappaport's affirmative responses related case-specific facts—incidents of threats or violence—that he did not personally witness. These responses were inadmissible because the case-specific facts regarding Wilkerson's behavior were relayed as true to the trier of fact in order to explain the bases for Dr. Rappaport's opinion. (Sanchez, supra, 63 Cal.4th at p. 684.) While the hearsay related by Dr. Rappaport came from Atascadero records that could qualify for admission under the business records exception to the hearsay rule (Evid. Code, § 1271), the People did not attempt to establish a proper business records foundation for any of the documents reviewed or relied upon by Dr. Rappaport, and none of the documents was offered or admitted in evidence. (People v. Yates (2018) 25 Cal.App.5th 474, 486 ["Hospital records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception."].)

Over another hearsay objection, Dr. Rappaport testified that he relied on evidence in the record indicating the extent to which Wilkerson had insight into his mental disorder. Dr. Rappaport did not testify what the records said regarding Wilkerson's insight and Wilkerson has not identified any specific out-of-court statements he contends Dr. Rappaport relayed to the trier of fact through his affirmative response. This general testimony is not hearsay. Nonetheless, even assuming this testimony qualified as hearsay, as discussed post, the assumed error would be harmless on this record.

Although Wilkerson argues that Dr. Rappaport's response relayed that he "was perceived to have no insight into his mental disorder," this argument is not supported by the record. (Italics added.)

Finally, the prosecutor asked Dr. Rappaport whether Wilkerson said anything during the interview relevant to the opinions that Dr. Rappaport had formed. Dr. Rappaport responded that Wilkerson "acted in a way that made me feel he was dangerous" and the reports he read indicated that Wilkerson was "not in a constant state of dangerousness, but he's at times dangerous." The trial court overruled defense counsel's hearsay objection.

The first part of Dr. Rappaport's answer is not hearsay because it is a personal observation. (Evid. Code, § 801, subd. (b).) The second part of Dr. Rappaport's response that the reports he read indicated that Wilkerson "was not in a constant state of dangerousness, but he's at times dangerous" qualifies as hearsay because it relayed the observations of individuals, not subject to cross-examination, for the truth of those observations regarding Wilkerson's dangerousness.

Under Sanchez, supra, 63 Cal.4th 665, two of the three challenged statements (or portions thereof) qualify as hearsay. "We evaluate prejudice resulting from the allowance of expert testimony in violation of Sanchez under the standard of People v. Watson (1956) 46 Cal.2d 818, which requires reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510.) The Watson standard applies "even where the expert's testimony included multiple statements that were inadmissible under Sanchez." (People v. Flint (2018) 22 Cal.App.5th 983, 1003-1004 (Flint).)

Wilkerson has not demonstrated that reversal is required here based on the improper admission of case-specific hearsay in violation of Sanchez. There was ample other admissible evidence to support the trial court's determination that Wilkerson posed a substantial future danger. (People v. Nelson (2012) 209 Cal.App.4th 698, 711-713 [finding any error in admitting state hospital interdisciplinary notes in MDO proceeding harmless under both Watson and Chapman standards "because there was other competent evidence of [defendant's] continued violence"]; cf. Burroughs, supra, 6 Cal.App.5th at p. 412 [finding error prejudicial where experts "related a significant amount of hearsay to the jury," which "permeated the entirety of appellant's trial"].) The portions of Dr. Rappaport's testimony which were based on his own observations support the court's order. Based on his interview of Wilkerson, Dr. Rappaport diagnosed him as suffering from schizophrenia and noted that "people who are schizophrenic sometimes become violent." Dr. Rappaport testified that in describing the underlying crime, Wilkerson became "very angry" and "very strongly animated, very emotional." Dr. Rappaport stated that Wilkerson "looked frightening" and looked like he "could lose control" if he had not been handcuffed during the interview. Dr. Rappaport formed the opinion that Wilkerson was dangerous based on Wilkerson's own actions. He explained that, if Wilkerson was not "in a controlled situation in that cell we met in, and he wasn't handcuffed, I wouldn't want to be alone with him under different circumstances because I think he can really get himself riled up thinking about how he feels about certain things." This testimony, describing Dr. Rappaport's personal observations and experience with Wilkerson, constituted overwhelming admissible evidence of Wilkerson's dangerousness. (Sanchez, supra, 63 Cal.4th at p. 675 [experts may testify "to matters within their own personal knowledge"].)

Wilkerson's admissions also support the trial court's dangerousness finding. With respect to the underlying commitment offense, he claimed that he does not "recall the event or know why it happened"; he characterized what he has learned from sex offender therapy as "[t]here are other things in life besides sex"; he stated he has "learned coping strategies" but some things are triggers, including "nudity," people "talking back to him," and "hurting people"; and although "he tries to be a nice guy," it "makes him mad" when people do "weird things," and "[h]e strikes them, but he's trying to slow down." These statements—which demonstrate Wilkerson's lack of insight, unwillingness to accept responsibility, and ongoing dangerousness—were admissible under the hearsay exception for a party admission under Evidence Code section 1220. (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.)

Dr. Stotland's testimony also amply supports the court's order. (See People v. Vega-Robles (2017) 9 Cal.App.5th 382, 414 [admission of expert testimony based on inadmissible hearsay was harmless error, given "the plethora of admissible evidence" on defendant's gang affiliation and leadership status]; Campos, supra, 32 Cal.App.4th at pp. 308-309 [expert's "conclusional references" to inadmissible hearsay evidence were not prejudicial where the "remainder of that uncontradicted expert testimony easily supports the jury's determination that appellant met the MDO criteria"].) As detailed ante, Dr. Stotland explained that Wilkerson denied his guilt relating to the underlying commitment offense, minimized his culpability, lacked insight, wanted to "escape from consequences of his actions," lacked the necessary commitment to receive treatment as a sex offender, and had problems coping with anger. As the trier of fact, the trial court was entitled to make its finding on the basis of a single witness's testimony. (Zapisek, supra, 147 Cal.App.4th at p. 1165.) Dr. Stotland's testimony was therefore sufficient to support the court's order of commitment, irrespective of the portions of Dr. Rappaport's testimony that were inadmissible under Sanchez.

In summary, we conclude that had the challenged testimony been excluded, there is no reasonable probability the trial court would have returned a verdict more favorable to Wilkerson. (Watson, supra, 46 Cal.2d at p. 836.)

Sanchez does not apply to the extent it addresses a criminal defendant's rights under the state and federal confrontation clauses because those rights are not implicated in MDO proceedings. (People v. Otto (2001) 26 Cal.4th 200, 214; Nelson, supra, 209 Cal.App.4th at p. 712.) Wilkerson acknowledges this fact but nonetheless contends his due process rights were violated and the error was prejudicial under Chapman. We disagree. The evidence just discussed regarding Wilkerson's lack of insight, understanding, or acceptance of his mental illness, provided overwhelming support for the court's order. (See People v. Sumahit (2005) 128 Cal.App.4th 347, 354 ["[D]efendant's refusal to undergo treatment constitutes potent evidence that he is not prepared to control his untreated dangerousness by voluntary means."]; accord People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 929.) Moreover, the expert testimony from both Dr. Rappaport and Dr. Stotland was uncontradicted. Wilkerson did not offer any witnesses on his behalf. No expert witness opined that he was not suffering from a mental illness, his mental illness was in remission, or that he did not represent a substantial danger of physical harm to others. (§§ 2970, 2972, subds. (c) & (e).) The three hearsay statements were also relatively brief and largely duplicated other testimony which was not objectionable. (Flint, supra, 22 Cal.App.5th at pp. 1004-1005.) Even applying the Chapman standard, the court's erroneous admission of three hearsay statements was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)

DISPOSITION

The order of commitment is affirmed.

GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.


Summaries of

People v. Wilkerson

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Nov 22, 2019
No. D075370 (Cal. Ct. App. Nov. 22, 2019)
Case details for

People v. Wilkerson

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GREGORY ALLEN WILKERSON…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Nov 22, 2019

Citations

No. D075370 (Cal. Ct. App. Nov. 22, 2019)