People v. Bona ( 2017 )

Filed 9/20/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B277751
(Super. Ct. No. 16PT-00428)
Plaintiff and Respondent, (San Luis Obispo County)
v.
THOMAS D. BONA,
Defendant and Appellant.
As a condition of his parole, Thomas D. Bona was
committed to the State Department of Hospitals for treatment as
a mentally disordered offender (MDO) (Pen. Code,1 § 2962). The
trial court ordered the commitment after it denied Bona’s petition
challenging the Board of Parole Hearings’ (BPH) determination
that he met the MDO criteria. (§ 2966, subd. (b), hereinafter
§ 2966(b).) Bona appeals, contending that (1) the court abused its
discretion in continuing the hearing on his petition beyond the
60-day period set forth in section 2966(b); and (2) his trial
1 All statutory references are to the Penal Code unless
stated otherwise.
attorney provided ineffective assistance of counsel by failing to
(a) seek writ review from the orders granting the continuances,
and (b) raise a Sanchez2 objection to case-specific hearsay expert
testimony offered at the hearing.
We conclude that the 60-day timeline set forth in section
2966(b) is directory rather than mandatory and that Bona was
not prejudiced by the continuance of his hearing a week beyond
that timeline. We also reject Bona’s claims of ineffective
assistance of counsel. His first claim is forfeited and in any event
fails for lack of prejudice. Although Sanchez applies in MDO
proceedings to the extent it clarifies the admissibility of expert
testimony under the Evidence Code, Bona fails to show that his
attorney could have had no legitimate tactical reason for
declining to make a Sanchez objection here. He also fails to show
it is reasonably probable that such an objection would have led to
a more favorable result. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Bona was convicted of elder abuse (§ 368, subd. (b)(1)) and
sentenced to four years in state prison. In February 2016, the
BPH determined that Bona met the MDO criteria and sustained
the requirement of treatment as a condition of his parole. Bona
petitioned for the appointment of counsel and a hearing
(§ 2966(b)) and waived his right to a jury.
Psychologist Meghan Brannick testified as the
prosecution’s expert at the hearing. Dr. Brannick interviewed
Bona, reviewed his medical records and legal history, and spoke
to his treating psychologist and psychiatrist. Based on this
information, Dr. Brannick concluded that Bona suffers from a
2 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
2
severe mental disorder, i.e., schizophrenia. His symptoms of the
disorder included auditory hallucinations, paranoia, delusional
and disorganized thought processes, depressed mood, flat affect,
sleep disturbance, and agitation.
Dr. Brannick opined that Bona’s schizophrenia was an
aggravating factor in his commitment offense, was not in
remission as of the date of the BPH hearing, and could not be
kept in remission without treatment. At the time of the offense,
Bona had a longstanding history of psychotic behavior and had
not taken his prescribed medications for about a month. Shortly
before the offense, he was heard talking to himself about killing;
after the offense, he could not recall what he had done. He
exhibited multiple psychotic symptoms during the months
preceding the BPH hearing and required an involuntary
medication order.
Dr. Brannick also opined that Bona represented a
substantial danger of physical harm to others by reason of his
mental disorder. The doctor noted Bona’s history of violent
behavior when he is symptomatic, a prior incident when he
discharged a firearm while he was not taking his medication, two
prison rules violations that were related to his mental disorder,
his lack of an acceptable discharge plan, and his lack of insight
into his disorder.
Chico Police Sergeant Scott Harris testified regarding the
facts of Bona’s commitment offense. On August 27, 2012,
Sergeant Harris responded to a report of an assault at a store.
The sergeant spoke with the victim, who had a laceration under
one of his eyes and a bruised nose. The victim subsequently
identified Bona as his assailant. Bona told Sergeant Harris that
3
he went to the store to buy a CD and that he recalled “punching”
a CD rather than a person.
DISCUSSION
Continuances
Over Bona’s objection, the trial court continued his MDO
hearing one day beyond the 60-day period set forth in section
2966(b).3 The court subsequently granted an additional six-day
continuance. The prosecutor purported to show good cause for
the continuances by offering that she needed the additional time
to present Sergeant Harris’s testimony regarding the facts of
Bona’s commitment offense, as contemplated in People v. Stevens
(2015) 62 Cal.4th 325 (Stevens).4 Bona contends that both
continuances were an abuse of discretion. In a supplemental
3 Section 2966(b) states in pertinent part: “A prisoner who
disagrees with the determination of the [BPH] that he or she
meets the criteria of Section 2962, may file in the superior court
. . . a petition for a hearing on whether he or she, as of the date of
the [BPH] hearing, met the criteria of Section 2962. The court
shall conduct a hearing on the petition within 60 calendar days
after the petition is filed, unless either time is waived by the
petitioner or his or her counsel, or good cause is shown[.]”
4 In Stevens, our Supreme Court held that “proof of a
qualifying conviction under the MDO Act is based on facts rather
than on defendant’s psychological condition, and thus does not
call for a mental health expert’s opinion testimony.” (Stevens,
supra, 62 Cal.4th at p. 336.) In light of this holding, the
prosecution must now offer eyewitness testimony or other
admissible documentary evidence to prove a commitment offense
involved the actual or implied force or violence, as contemplated
in section 2962, subdivisions (e)(2)(P) and (e)(2)(Q). (Ibid.)
4
brief, he further contends that his trial counsel provided
ineffective assistance by failing to seek writ relief from the
challenged continuances.
Bona’s ineffective assistance claim is forfeited because it
was not raised in the opening brief. (People v. Rangel (2016) 62
Cal.4th 1192, 1218-1219.) In any event, the claim lacks merit.
“When challenging a conviction on grounds of ineffective
assistance, the defendant must demonstrate counsel’s
inadequacy. To satisfy this burden, the defendant must first
show counsel’s performance was deficient, in that it fell below an
objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different. When examining an ineffective assistance claim,
a reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance.” (People v. Hung Thanh
Mai (2013) 57 Cal.4th 986, 1009 (Hung Thanh Mai).)
“[I]t is particularly difficult to prevail on an appellate claim
of ineffective assistance. On direct appeal, a conviction will be
reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus
proceeding. [Citations.]” (Hung Thanh Mai, supra, 57 Cal.4th at
p. 1009.)
5
Bona’s claim of ineffective assistance is based on the
premise that the standard of review would have been more
favorable to him—i.e., no showing of prejudice would have been
necessary—had counsel sought pretrial writ relief from the
challenged continuances. The case he offers as support for this
premise analogizes the “speedy trial” rights of a minor who is the
subject of a wardship petition under Welfare and Institutions
Code section 601 or 602 with a criminal defendant’s statutory
right to a speedy trial under section 1382. (In re Chuong D.
(2006) 135 Cal.App.4th 1303, 1309-1310 (Chuong D.)5
An analogy to section 1382 is inapt here. That section
states that a felony case “shall . . . be dismissed” when the
defendant has not been brought to trial within 60 days of
arraignment. (Id., subd. (a)(1)(2).) Because the statute provides
a penalty of dismissal for noncompliance, the 60-day timeline is
mandatory. Accordingly, a defendant seeking pretrial writ
5 The court in Chuong D. held that “[b]ecause Chuong
waited until after the jurisdictional hearing had been completed,
and the court found against him, before bringing his speedy trial
claim to the appellate court, he must affirmatively demonstrate
he was prejudiced by the delay. ‘Prejudice becomes an issue for a
statutory speedy trial claim only when the defendant waits until
after the judgment to obtain appellate review. “[O]nce a
defendant has been tried and convicted, the state Constitution
. . . forbids reversal for nonprejudicial error,” and so on appeal
from a judgment of conviction a defendant asserting a statutory
speedy trial claim must show that the delay caused prejudice,
even though the defendant would not be required to show
prejudice on pretrial appellate review.’ [Citations.]” (Chuong D.,
supra, 135 Cal.App.4th at p. 1311, quoting People v. Martinez
(2000) 22 Cal.4th 750, 769 (Martinez).)
6
review of an order denying a motion to dismiss under section
1382 need only demonstrate that the motion was erroneously
denied, i.e., no showing of prejudice is necessary. (See Martinez,
supra, 22 Cal.4th at p. 769; People v. Johnson (1980) 26 Cal.3d
557, 575.)
Section 2996(b), however, does not provide any penalty,
sanction, or other consequence for noncompliance with its 60-day
requirement. Accordingly, this timeline is merely directory. (See
People v. Williams (1999) 77 Cal.App.4th 436, 451 [section 2972,
subdivision (a)’s requirement that the trial on an MDO
recommitment petition “shall commence no later than 30
calendar days prior to the time the person would otherwise have
been released, unless the time is waived by the person or unless
good cause is shown” is directory rather than mandatory]; see
also People v. Tatum (2008) 161 Cal.App.4th 41, 57, disapproved
on another ground in People v. Lara (2010) 48 Cal.4th 216, 225,
fn. 26 [“[A]part from the requirement that a [recommitment]
petition be filed prior to the offender’s release date (§ 2972, subd.
(e)), the statutory time limits contained in the MDO Act are not
‘mandatory’ or ‘jurisdictional,’ but ‘directory’”].)
Because the 60-day timeline in section 2966(b) is directory
rather than mandatory, any violation of that timeline does not
render the proceeding invalid unless it amounts to a due process
violation. (People v. Tatum, supra, 161 Cal.App.4th at p. 57.)
The determination whether such a violation has occurred
“requires consideration of the facts and circumstances of the case
and a subsequent ‘balancing of any prejudicial effect of the delay
against the justification for the delay.’ [Citations.]” (Ibid.)
“Except where there has been an extended delay, prejudice will
not be presumed, and it will be incumbent upon the defendant to
7
demonstrate actual prejudice. [Citations.] If the defendant fails
to demonstrate prejudice, the court need not consider the reasons
for the delay. [Citations.]” (People v. Fernandez (1999) 70
Cal.App.4th 117, 131.) Because prejudice is an essential
component of Bona’s claim, he cannot demonstrate that counsel’s
failure to seek writ review constitutes ineffective assistance.
(Hung Thanh Mai, supra, 57 Cal.4th at p. 1009; see also
Martinez, supra, 22 Cal.4th at p. 769 [for constitutional speedy
trial claims that are not based on section 1382, “a demonstration
of prejudice is required whether the trial court determines the
issue before or after trial or verdict, and the standard of review
for a ruling on such a claim is the same whether appellate review
occurs before or after judgment”].)
Bona also fails to demonstrate that he suffered any
prejudice as a result of the challenged continuances. He asserts
that prejudice is “plain” because the prosecution would have been
unable to prove its case had the continuances been denied and
Bona “would not have been committed as an MDO.” This theory
of prejudice is legally unsound. “[T]he mere fact that evidence
sufficient to establish a prosecutor’s case was introduced against
the defendant only after his speedy trial rights were violated
could never be considered the requisite prejudice to justify
reversal of the judgment. Such a rule would nullify the
requirement of ‘prejudice’ as a separate element[.]” (Chuong D.,
supra, 135 Cal.App.4th at p. 1312.) To establish prejudice in this
context, Bona must show that the continuances impaired his
ability to present his defense “because, for instance, a witness has
become unavailable, evidence has disappeared, or the memory of
a potential witness has faded.” (People v. Lowe (2007) 40 Cal.4th
937, 946, fn. omitted.)
8
As the People correctly note, “[a]ppellant has not even tried
to establish that any of these considerations were present here.”
He cannot establish that he suffered any prejudice as a result of
the one-day continuance because he had previously waived time
to that date. Moreover, the combined continuances were
relatively brief and the hearing was completed well within his
initial one-year period of parole. Bona “does not claim surprise as
to the content of [Sergeant Harris’s] testimony, or suggest that
his ability to counter that evidence was somehow diminished
because of the additional brief delay in the hearing.” (Chuong D.,
supra, 135 Cal.App.4th at p. 1312, fn. omitted.) Because Bona
fails to demonstrate that he suffered prejudice due to the brief
delay in completing his hearing, his claim fails regardless of
whether there was good cause for the delay. (People v.
Fernandez, supra, 70 Cal.App.4th at p. 131.)
Sanchez
Bona contends his trial counsel provided ineffective
assistance by failing to object when Dr. Brannick testified to case-
specific hearsay. He asserts that this evidence was inadmissible
under Sanchez, supra, 63 Cal.4th 665, which was decided less
than two months prior to his trial. Bona claims “it is readily
apparent from the record in this case” that as of the date of his
trial Sanchez “had not yet worked its way down to the San Luis
Obispo Superior Court—at least in [MDO] cases.” Alternatively
assuming that his trial attorney was aware of Sanchez, Bona
asserts that counsel could have had “no valid tactical reasons for
failing to make at least some Sanchez objections.” We are not
persuaded.
In Sanchez, our Supreme Court held that “[w]hen any
expert relates to the jury case-specific out-of-court statements,
9
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay.”
(Sanchez, supra, 63 Cal.4th at p. 686.) Accordingly, the
statements must either be independently proven or fall under a
hearsay exception in order to be admissible. (Ibid.) “Case-
specific facts are those relating to the particular events and
participants alleged to have been involved in the case being
tried.” (Id. at p. 676.) When a prosecution expert in a criminal
case seeks to relate testimonial hearsay, as contemplated in
Crawford v. Washington (2004) 541 U.S. 36, there is a
confrontation clause violation unless (1) the declarant is
unavailable, or (2) the defendant either “had a prior opportunity
for cross-examination, or forfeited that right by wrongdoing.”
(Sanchez, at p. 686.)
Although Sanchez is a criminal case, it also applies to civil
cases—such as this one—to the extent it addresses the
admissibility of expert testimony under Evidence Code sections
801 and 802. (Sanchez, supra, 63 Cal.4th at p. 670; People v.
Burroughs (2016) 6 Cal.App.5th 378, 405.) Bona acknowledges
that Sanchez does not apply here 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;
People v. Nelson (2012) 209 Cal.App.4th 698, 712.)
Although parties in civil proceedings have a right to
confrontation under the due process clause, “[t]he Sixth
Amendment and due process confrontation rights are not
coextensive. [Citation.] Due process in a civil proceeding ‘is not
measured by the rights accorded a defendant in criminal
proceedings, but by the standard applicable to civil proceedings.’
10
[Citation.]” (People v. Nelson, supra, 209 Cal.App.4th at p. 712.)
In civil proceedings such as this one, “‘“[d]ue process requires
only that the procedure adopted comport with fundamental
principles of fairness and decency. The due process clause of the
Fourteenth Amendment does not guarantee to the citizen of a
state any particular form or method of procedure.”’ [Citation.]”
(Ibid.)
Bona asserts “that the sheer mass of the hearsay involved
in this case meant that his due process right to confront
witnesses was violated and the case should be analyzed
accordingly.” This assertion begs the question whether trial
counsel’s failure to object to the evidence amounts to
constitutionally ineffective assistance. As we have noted, “it is
particularly difficult to prevail on an appellate claim of ineffective
assistance.” (Hung Thanh Mai, supra, 57 Cal.4th at p. 1009,
italics omitted.) Deficient performance cannot be established on
direct appeal unless “(1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.”
(Ibid.) Bona must also overcome the “presumption [that] counsel
acted within the wide range of reasonable professional
assistance.” (Ibid.; see also People v. Castaneda (2011) 51 Cal.4th
1292, 1335 [“The decision whether to object to the admission of
evidence is ‘inherently tactical,’ and a failure to object will rarely
reflect deficient performance by counsel”]; People v. Riel (2000)
22 Cal.4th 1153, 1185 [“‘Generally, failure to object is a matter of
trial tactics as to which we will not exercise judicial hindsight[.]
A reviewing court will not second-guess trial counsel’s reasonable
tactical decisions’”].) Finally, he must show it is reasonably
11
probable that he would have achieved a more favorable result
had counsel raised a Sanchez objection. (Hung Thanh Mai, at p.
1009.)
Bona fails to establish either prong of his ineffective
assistance of counsel claim. He merely speculates that counsel
was unaware of the Sanchez decision.6 Moreover, on the record
before us, there is no basis to conclude that counsel could have
had no legitimate tactical reason for failing to raise a Sanchez
objection to Dr. Brannick’s testimony. The People posit that
“counsel strategically chose only to challenge the sufficiency of
the evidence as to whether [Bona] suffered a qualifying
conviction. In support of this argument, counsel utilized the
prosecution’s evidence to show that the criterion was not met
because the evidence did not establish that [Bona] caused the
injuries the victim suffered.” Defense counsel also exploited one
6 Appellate counsel requests that we take judicial notice of
three other pending MDO appeals in which he is also counsel of
record. He offers that “these cases were litigated by three
different defense attorneys, two different deputy district
attorneys, and three different trial judges. Yet, there was no
mention of Sanchez.” He claims “[t]he possibility that any one
trial attorney in any one case might have had no reason to make
a case-specific hearsay objection is small but, perhaps, not
nonexistent[,]” while “[t]he chance that there would be no
objections in the only four post-Sanchez . . . cases assigned to this
specific appellate attorney is pretty close to zero.” These
oddsmaker assertions are nothing more than speculation.
Accordingly, the request for judicial notice is denied.
12
of Dr. Brannick’s hearsay statements to Bona’s advantage during
cross-examination.7
Counsel may also have reasonably concluded that Dr.
Brannick’s testimony regarding the MDO criteria was less
damaging to Bona than the detailed account that would have
resulted had counsel raised Sanchez objections. Moreover, some
of the statements Bona identifies as inadmissible hearsay were
based at least in part upon Dr. Brannick’s personal observations
of Bona when she interviewed him, or upon information he
conveyed to her during that interview.8 In addition, one of the
doctor’s challenged statements—in which she conveyed Bona’s
statement to the police that he “had only punched a CD”—was
cumulative of other properly-admitted evidence. In light of these
considerations, there is no basis for us to conclude this is one of
7 In offering her opinion that Bona’s mental disorder
could not be kept in remission without treatment, Dr. Brannick
offered among other things that Bona had been subject to an
involuntary medication order while he was in prison. During
cross-examination, defense counsel elicited the doctor’s testimony
that the medication order had expired well before Bona’s BPH
hearing and that he had thereafter voluntarily taken his
medication. Counsel also elicited testimony that Dr. Brannick
had interviewed Bona only once and conducted the interview over
a month after his BPH hearing.
8 For example, Bona contends counsel should have objected
to Dr. Brannick’s testimony that he had not been taking his
medication for approximately one month prior to his commitment
offense. Dr. Brannick made clear, however, that this statement
was based upon “[Bona’s] consistent report, noted in other
evaluations and based on his interview with me[.]”
13
those “rare” cases in which counsel’s failure to object amounts to
constitutionally deficient performance. (Hung Thanh Mai, supra,
57 Cal.4th at p. 1009; People v. Castaneda, supra, 51 Cal.4th at p.
1335; People v. Riel, supra, 22 Cal.4th at p. 1185.)
Bona also fails to demonstrate the requisite prejudice. In
purporting to make this showing, he offers that had counsel
objected “the state would not have been able to prove its case—at
least not with the evidence available at this trial.” He goes on to
acknowledge that if counsel had raised a Sanchez objection “there
might have been a way that the government could have
presented some of the inadmissible case-specific hearsay in an
admissible fashion.” Indeed, exclusion of the challenged evidence
would not have precluded Dr. Brannick from stating the opinions
upon which that evidence was based. As Sanchez makes clear,
“[a]ny expert may still rely on hearsay in forming an opinion, and
may tell the [trier of fact] in general terms that he did so.”
(Sanchez, supra, 63 Cal.4th at p. 685.)9 It is also clear from Dr.
Brannick’s testimony that most of her opinions were based at
least in part on her observations of Bona and the information
9 Bona cites People v. Wright (2016) 4 Cal.App.5th 537, for
the proposition that expert opinion testimony is not substantial
evidence unless it is supported by evidence in the record. But Dr.
Brannick had evidentiary support for her opinions. She
interviewed Bona, reviewed his records and conferred with his
treating doctors. Our Supreme Court has recently reiterated that
an expert testifying on the relevant MDO criteria “may rely on
hearsay documents that are ‘of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject
to which his testimony relates.’ (Evid. Code, § 801, subd. (b).)”
(Stevens, supra, 62 Cal.4th at p. 336.)
14
directly conveyed to her. Because it is not reasonably probable
that a Sanchez objection would have led to a more favorable
result, Bona’s claim of ineffective assistance of counsel fails.
(Hung Thanh Mai, supra, 57 Cal.4th at p. 1009.)
DISPOSITION
The judgment (MDO commitment order) is affirmed.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
15
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
_______________________________________
Rudy Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven E. Mercer, Acting Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.