People v. Glass CA2/6 ( 2021 )

Filed 7/21/21 P. v. Glass CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B307104
(Super. Ct. No. 20PT-00369)
Plaintiff and Respondent, (San Luis Obispo County)
v.
DONOVAN GLASS,
Defendant and Appellant.
In People v Turner (2020) 10 Cal.5th 786, our Supreme
Court held that an expert may rely upon, quote and base their
opinion upon otherwise admissible documents. But the
documents must be offered and admitted in the proceeding. (Id.,
at pp. 823-824.) Turner explained: “Had the report been offered
and admitted under an exception, the words of the document
itself would have constituted admissible hearsay. [The expert’s]
recitation of the content of an unadmitted document remains
hearsay for which no exception was established. [The expert]
was allowed to present inadmissible hearsay as true and
supportive of her opinion. This was error under California’s
hearsay statutes.” (Id., at p. 823.) Such is the error in the
instant matter.
Donovan Glass appeals the trial court’s order recommitting
him for treatment as a mentally disordered offender (MDO).
(Pen. Code, § 2970 et seq.)1 Appellant contends the evidence is
insufficient to support the finding that appellant met the
recommitment criteria (§ 2972, subd. (c)). Although the People
presented expert opinion testimony supporting the criteria, the
court prejudicially erred by allowing the expert to repeatedly
convey case-specific hearsay in violation of People v. Sanchez
(2016) 63 Cal.4th 665 (Sanchez). Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was first committed as an MDO in 2018. On
May 5, 2020, the Board of Parole Hearings (BPH) found that
appellant met the requirements for recommitment under section
2962.
Appellant petitioned for a court hearing under section
2966, subdivision (c). The parties waived a jury. Dr. Roxanne
Rassti and appellant testified.
Dr. Rassti’s Testimony
Dr. Rassti, a forensic psychologist at Atascadero State
Hospital (ASH), is tasked with examining patients to determine if
they qualify as MDOs. The parties stipulated that Dr. Rassti is
an expert in psychology and is familiar with the MDO statutes.
1 All statutory references are to the Penal Code unless
otherwise stated.
2
Dr. Rassti had previously evaluated appellant. In
assessing his current psychological status, Dr. Rassti examined
police and sheriff’s reports concerning a February 2017 assault
and an October 2017 criminal threat, previous MDO evaluations
of appellant by other doctors and ASH records describing
appellant’s daily behavior and his “numerous” serious incident
reports. Dr. Rassti personally interviewed appellant and spoke
with his treating psychiatrist and psychologist.
When Dr. Rassti was asked to relay case-specific hearsay in
the ASH records, appellant raised a Sanchez objection, arguing
Dr. Rassti was not permitted to convey the underlying facts of
appellant’s verbal and physical outbursts at ASH. The People
contended the testimony was proper because the ASH records fall
within the business records exception to the hearsay rule (Evid.
Code, § 1271). The trial court agreed the exception applied and
allowed the testimony. The People chose not to admit the
“voluminous” ASH records, asserting it was more practical to
have Dr. Rassti recount their factual content.
Dr. Rassti concluded that appellant met the three criteria
for MDO recommitment under section 2972, subdivision (c).2
First, she opined that as of the May 5, 2020 BPH hearing,
appellant continued to suffer from a severe mental disorder, i.e.,
2 Section 2972, subdivision (c) states, in relevant part: “If
the court or jury finds that the patient has a severe mental
health disorder, that the patient’s severe mental health disorder
is not in remission or cannot be kept in remission without
treatment, and that by reason of the patient’s severe mental
health disorder, the patient represents a substantial danger of
physical harm to others, the court shall order the patient
recommitted to the facility in which the patient was confined at
the time the petition was filed . . . .”
3
schizoaffective disorder. She noted appellant’s history of auditory
hallucinations, paranoia, delusional ideations, manic episodes,
extreme hostility, thought disorganization, and disorganized
behavior, as well as his belief that he can communicate with
people on television and direct their activities, that he can read
other people’s minds and that they could read his mind, and that
a scar on his forehead caused the problems in his life.3
Dr. Rassti testified that these signs and symptoms of
appellant’s severe mental disorder were not controlled by
treatment as of May 5, 2020. In the preceding months, those
symptoms caused him to engage in verbal altercations with
hospital staff and patients. In February 2020, he made Hitler
salutes in front of African American patients, drew swastikas and
made inappropriate comments to female staff members. In
March 2020, he had three altercations with staff, drew swastikas
on his hand and smeared Vaseline on his face. Dr. Rassti
believed the Vaseline was connected to his belief about the scar
on his forehead.
In April 2020, appellant was prescribed Zoloft. Although
his mood improved, he had five more altercations with staff and
patients and continued to exhibit paranoia and irritability.
During their May 4, 2020 interview, appellant told Dr.
Rassti that he felt better due to the Zoloft but had some strange
experiences that week, which he attributed to the scar on his
forehead. He said that when other people looked at his scar or
touched the same spot on their own foreheads, they were sending
him messages or negatively affecting his life.
Dr. Rassti could not see a scar on appellant’s forehead but
3
admitted she may not have been close enough to see it.
4
Second, Dr. Rassti opined that appellant was not in
remission as of the BPH hearing date, and that he could not be
kept in remission without treatment. She based that opinion on
appellant’s conduct during the year preceding the 2020 BPH
hearing.
On May 23, 2019, appellant argued with staff during a
routine contraband search, yelling “Fuck you, bitch. Shut the
fuck up and search my room.” When put in restraints, he
violently struggled and yelled racial comments. On July 21,
2019, appellant extended his arm and yelled, “White power.”
When counseled about this, appellant said, “You’re going to die,
bitch,” and lunged toward a staff member. When staff members
restrained him, he yelled, “You are going to die. You fat, wetback
piece of shit,” and “You wetback, whore, slut, I’m going to kill
you.”
The next day appellant told a staff member, “I’ll fuckin’ spit
on you mother fucker. I’ll fuckin’ kill you, nigger. . . . You’re a
faggot. I’m going to kill you mother fucker.” When staff
members attempted to restrain him, appellant kicked a staff
member and shouted, “I’m going to kill you mother fuckers. I
didn’t do anything. You were torturing me mother fuckers.”
On October 5, 2019, appellant instigated a mutual, physical
fight with another patient. On January 28, 2020, during a
meeting about his behavior, appellant told staff members, “What
do you want dog? You’re a dog because you look like one.” He
became increasingly agitated and said, “I will kill you. I will split
your throat. I will kill all you mother fuckers.” When staff
members restrained appellant, he yelled, “I will kill all of you
wetback niggers. I’ll fuck you up right now. Let’s go you stupid
5
fat bitches. I’m going to kill all of you. Watch me you nigger
fuckers. I will spit in your face right now.”
On February 9, 2020, appellant referred to a female staff
member as his girlfriend, grabbed her by the arm, and said, “Why
not.” On February 20, 2020, appellant again threatened to kill a
staff member.
In March 2020, appellant threatened to kill two other
patients in separate incidences. On April 2, 2020, another
patient bumped into appellant, apologized and tried to shake
appellant’s hand. Appellant responded, “Fuck you, I’m not
shaking your hand. Next time that happens, I’m going to fuck
you up.”
On April 10, 2020, during an argument, appellant told
another patient, “I’ll kick your ass, you fat bitch,” and said “fuck
you” to a staff member who intervened. On May 5, 2020,
appellant broke a shower head after being told that he had spent
too much time in the shower.
According to Dr. Rassti, the cause of most of appellant’s
behavioral problems was paranoia, rooted in psychotic thought
processes. She opined that appellant could not be kept in
remission without treatment. During the year before his BPH
hearing, appellant was less cooperative with his treatment than
is reasonable. His group attendance was 67 percent, well below
the recommended minimum 80 percent attendance rate.
Appellant also intermittently refused his medications between
November 2019 and April 2020.
Lastly, Dr. Rassti opined that appellant represented a
substantial danger to others because of his severe mental
disorder. She based that opinion on appellant’s two qualifying
6
convictions, his conduct in prison and his behavioral history at
ASH.
Prison records showed that in November of 2018, appellant
was placed in a prison psychiatric facility after “threatening and
profaning while demonstrating psychiatric symptoms.” Dr.
Rassti explained that appellant’s behavioral incidents in the
hospital during the past year were driven by his psychiatric
condition and that he “has an increased risk for violence when his
symptoms are not in remission.”
Although appellant had displayed some insight into his
disorder and the benefits of his medication during his interview
with Dr. Rassti, he was only able to discuss some of his symptoms
and he still intermittently refused his medication. Dr. Rassti
noted that appellant’s noncompliance “suggests that he does not
truly have adequate insight into his mental illness or th[e] role of
his medication in managing [his] symptoms,” and that his violent
criminal history and history of substance abuse further
exacerbate his risk of recidivism and violence.
Appellant’s Testimony
Appellant testified that when he first arrived at ASH he
felt suicidal and “that’s why a lot of the incidents did happen.”
Nevertheless, he denied having said “most of that stuff,”
evidently referring to the incidents described by Dr. Rassti.
Appellant said his mood improved greatly once he was prescribed
Zoloft and claimed that his group attendance rate was now 98.2
percent, that he was doing a lot of chores in his unit, that he was
getting along well with his peers and that he missed his
medication only once since May 1 or June 1, 2020. Appellant
apologized for acting up, said he had learned his lesson and
promised to do his best to be safe in the community.
7
DISCUSSION
Appellant contends the bulk of Dr. Rassti’s testimony
regarding his conduct at ASH was inadmissible hearsay. He
claims the hearsay testimony was necessarily prejudicial because
it was the only evidence of the incidents Dr. Rassti relied upon to
support her opinion that appellant met each of the MDO
recommitment criteria.
The People acknowledge that the facts relayed by Dr.
Rassti were based on a hearsay source but argue the trial court
properly found that the ASH records met the foundational
requirements for admission under the business records exception
to the hearsay rule. (See Evid. Code, § 1271.) Even assuming
this is true, the failure to offer and admit the records into
evidence rendered Dr. Rassti’s recitation of their content
“hearsay for which no exception was established.” (Turner,
supra, 10 Cal.5th at p. 823.)
An expert witness testifying at an MDO hearing cannot
“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.” (Sanchez, supra, 63 Cal.4th
at p. 686; see People v. Bona (2017) 15 Cal.App.5th 511, 520
[recognizing Sanchez applies in MDO proceedings].) Accordingly,
an expert “is generally not permitted . . . to supply case-specific
facts about which he [or she] has no personal knowledge.”
(Sanchez, at p. 676.) Case-specific facts are “those relating to the
particular events and participants alleged to have been involved
in the case being tried.” (Ibid.)
In People v. Yates (2018) 25 Cal.App.5th 474 (Yates), the
case-specific facts related by the experts were taken from the
defendant’s “criminal, juvenile and state hospital records – that
8
were neither introduced or admitted into evidence, nor shown to
fall within a hearsay exception.” (Id., at p. 485.) The Court of
Appeal rejected the argument that it was not necessary to admit
the documents because Sanchez allows an expert to rely on
hearsay. (Ibid.) Although some of the documents would have
been admissible if introduced under section 6600, subdivision
(a)(3) as predicate offense information, the fact that the records
were not properly introduced and admitted prevented the experts
from testifying as to their contents. (Yates, at pp. 485-486.)
Regarding the state hospital records, Yates noted that “the
mere fact [they] had been subpoenaed did not make their entire
contents reliable or otherwise admissible as business records.”
(Yates, supra, 25 Cal.App.5th at p. 486.) The court explained:
“[T]here was no blanket hearsay exception for the experts’
testimony to the case-specific hearsay contained in documents
which were neither presented to the court for an evidentiary
ruling nor admitted into evidence. Admission of expert testimony
relating case-specific hearsay to the jury that was neither subject
to a hearsay exception nor independently established by
competent evidence was error.” (Ibid.)
As previously discussed, our high court clarified in Turner
that it is the admission of a hearsay document under an
exception that allows the expert to relate the case-specific content
of that document. (Turner, supra, 10 Cal.5th at p. 823.) The
expert in that case, Dr. Lisa Scheinin, was permitted to testify
regarding the content of a fetal autopsy report prepared by
another doctor. The People conceded the report was hearsay but
argued it could have been admitted as a business or official
record. (Ibid.) The Court rejected this argument because it was
not presented to the trial court but observed that “[h]ad the
9
report been offered and admitted under an exception, the words
of the document itself would have constituted admissible hearsay.
Dr. Scheinin’s recitation of the content of an unadmitted
document remains hearsay for which no exception was
established.” (Ibid.)
It is undisputed that appellant’s ASH records were not
offered or admitted into evidence. The Deputy District Attorney
informed the trial court that the records had been subpoenaed to
the court, which had “physical possession of the records that
could be admitted,” but said “it just . . . wouldn’t be practical
because they would be too voluminous.” The trial court
responded: “I’ll take you for your word. I haven’t seen the
records. But I usually don’t for [these] petition trials.”
We are not persuaded by the People’s argument that the
trial court’s finding that the ASH records fall within the business
records exception to the hearsay rule was sufficient to permit Dr.
Rassti to testify as to their content. Dr. Rassti related case-
specific hearsay from documents that were not admitted into
evidence, offered into evidence or even viewed by the court, and
thus her recitation of their content “remains hearsay for which no
exception was established.” (Turner, supra, 10 Cal.5th at p. 823.)
As in Turner, “[t]his was error under California’s hearsay
statutes.” (Ibid.)
The People do not assert that any error in allowing the
case-specific hearsay was harmless. (See People v. Watson (1956)
46 Cal.2d 818, 837; People v. Duarte (2000) 24 Cal.4th 603, 618-
619.) Dr. Rassti’s testimony demonstrated that appellant’s
conduct at ASH involved significant physical aggression, racial
slurs and oral threats against staff and patients occurring over a
substantial period. In recommitting appellant, the trial court
10
noted appellant was improving on medication, but found that the
court had to “look at what you’ve done at the state hospital. How
you’ve behaved.” We agree with appellant that the MDO
recommitment order is based primarily upon inadmissible
hearsay evidence regarding his ASH behavior and that such
evidence was so pervasive and inflammatory that it prejudicially
influenced the trial’s outcome. Although Dr. Rassti briefly
discussed her interview with appellant, that testimony alone was
insufficient to support the recommitment.
Because the MDO scheme is civil in nature, however,
double jeopardy does not apply. (People v. Francis (2002) 98
Cal.App.4th 873, 877.) Thus, the matter may be retried at the
People’s discretion. (See, e.g., People v. Dodd (2005) 133
Cal.App.4th 1564, 1571, fn. 3.)
DISPOSITION
The MDO recommitment order is reversed and the matter
is remanded for further proceedings.
NOT TO BE PUBLISHED.
PERREN, J.
I concur:
TANGEMAN, J.
11
YEGAN, Acting P. J., Dissenting.
I respectfully dissent. The majority opinion is obedient to
the letter of the law recently announced by the Supreme Court in
People v. Turner (2020) 10 Cal.5th 786. But there is no
“structural error” in this case and reversal is not appropriate. In
my view, applying this new opinion as a basis for reversal in this
case, is an exultation of form over substance. The hospital
records delineating appellant’s misbehavior were physically in
the courtroom and the only reason they were not introduced is
because they were “voluminous.” The trial court had access to
them and since the expert had read and considered them, it saw
no need to go with the original source. There is no question but
that the expert opinion was based upon the records to some
degree. But it was not based solely upon the records. Putting the
records aside, the expert consulted with appellant’s treating
psychologist, consulted with his treating psychiatrist, did her
own assessment, and interviewed appellant before forming and
expressing her opinion to the trial court. This was not her first
interview of appellant. She was well-acquainted with appellant
and his activities at the MDO program.
To his credit, appellant himself acknowledged his problems
at the hospital, said he was doing better, and apologized for his
behavior. He said that “a lot of the incidents did happen.” This
corroborates the expert testimony concerning the incidents, his
assaultive behavior, that did happen. Is not this some evidence
supporting the trial court’s order? Appellant’s apology appears to
be sincere. Implied therein is the reasonable inference that
appellant knows he needs additional time in the program before
release into the community. There is no miscarriage of justice
here and the error is harmless by any standard of appellate
review. It is a virtual certainty that retrial will produce the same
result.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
2
Hernaldo J. Baltodano, Judge
Superior Court County of San Luis Obispo
______________________________
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Colleen M.
Tiedemann, Deputy Attorney General, for Plaintiff and
Respondent.