People v. Felious CA2/6

Filed 10/19/22 P. v. Felious 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B318931
(Super. Ct. No. 21PT-00453)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JOSEPH FELIOUS,
Defendant and Appellant.
Joseph Felious appeals an order determining him to be an
offender with a mental health disorder (OMHD) and
recommitting him to the State Department of State Hospitals
(Department) for involuntary treatment. (Pen. Code, § 2962 et
seq.)1 We conclude that the trial court’s findings rest
substantially upon inadmissible hearsay evidence and thus the
recommitment order is not supported by sufficient evidence.
(People v. Turner (2020) 10 Cal.5th 786, 823; People v. Sanchez
1 All statutory references are to the Penal Code.
1
(2016) 63 Cal.4th 665, 686.) We reverse and remand to permit
the People to retry the recommitment petition.
FACTUAL AND PROCEDURAL HISTORY
In 2009, Felious was convicted of one count of battery with
serious bodily injury based upon his assault of a staff member.
(§ 243, subd. (d).) In 2011, he was committed to the Department
as an OMHD. Since that time, he has been recommitted
periodically as an OMHD.
On July 19, 2021, the San Luis Obispo County District
Attorney filed a petition for continued involuntary treatment
pursuant to section 2970. Felious waived his right to a jury trial,
and on March 3, 2022, the trial court determined that he met the
criteria for continued involuntary treatment as an OMHD.
Testimony of Doctor Robin Campbell
Doctor Robin Campbell, a forensic consulting psychologist
for the Department, testified as the only witness at the
recommitment hearing. Campbell was not Felious’s treating
psychologist but had interviewed him for 30 minutes nearly three
years earlier regarding a previous petition. Campbell based her
current opinions upon her review of this documentary evidence
pertaining to Felious: legal records, prior forensic reports, recent
conduct reports, hospital treatment plan, treatment
participation, case notes, progress notes, nursing notes, social
worker notes, and prison records. Campbell also consulted with
Felious’s treating psychologist and his social worker. None of
these documents were presented at trial or admitted into
evidence. Felious declined to participate in an interview with
Campbell concerning the current petition.
Over repeated defense objections regarding lack of
foundation and inadmissible hearsay pursuant to Sanchez,
2
Campbell opined that Felious suffers from a severe mental
disorder, schizoaffective disorder, bipolar type. Campbell
supported her opinion by reference to her observations during her
2019 interview with Felious and her review of recent treatment
notes and information from his treating psychologist. Campbell
also opined that Felious was not in remission, based upon her
analysis of documents and current opinions of hospital staff. Her
conclusion also rested in part upon her previous interview with
Felious. Campbell believed that Felious represented a
substantial danger of physical harm to others by reason of his
severe mental disorder. She explained that Felious was
symptomatic, did not participate in treatment groups, and did not
have a relapse prevention plan. Campbell concluded that Felious
satisfied each of the requirements of section 2970, subdivision (b).
The trial court recessed twice during Campbell’s testimony
to analyze our Supreme Court’s opinions in People v. Sanchez,
supra, 63 Cal.4th 665 and People v. Burroughs (2016) 6
Cal.App.5th 378. It then overruled the defense foundation and
hearsay objections and permitted Campbell’s expert opinion
testimony.
Felious appeals and contends that the recommitment order
rests substantially upon inadmissible case-specific hearsay
evidence. The Attorney General concedes. The Attorney General
also agrees that Campbell’s 2019 interview with Felious is
insufficient alone to support the findings of lack of remission and
current dangerousness.
DISCUSSION
Our Supreme Court has held that an expert witness may
rely upon and base his opinion on admissible documents provided
that the documents are admitted in the proceeding. (People v.
3
Turner, supra, 10 Cal.5th 786, 823.) “Had the report been offered
and admitted under an exception, the words of the document
itself would have constituted admissible hearsay. [The expert
witness’s] recitation of the content of an unadmitted document
remains hearsay for which no exception was established. [The
expert witness] was allowed to present inadmissible hearsay as
true and supportive of her opinion. This was error under
California’s hearsay statutes.” (Ibid.)
Here the documentary evidence that Campbell reviewed
and her discussions with hospital staff constituted nearly the
entire basis for her opinion. The documents were not offered by
the prosecutor and admitted into evidence. Campbell’s 30-minute
interview with Felious occurred several years previously and bore
little relevance to his current status and substantial
dangerousness. At an OMHD hearing, an expert witness 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. (People v. Yates (2018) 25
Cal.App.5th 474, 485 [error to permit expert witness to testify
regarding case-specific facts found in criminal and hospital
records unless records admitted into evidence or fall within
hearsay exception]; People v. Bona (2017) 15 Cal.App.5th 511,
520 [application of Sanchez holding to MDO proceedings].)
The OMHD scheme is civil in nature and principles of
double jeopardy do not apply to the commitment proceedings.
(People v. Francis (2002) 98 Cal.App.4th 873, 877.) We reverse
and remand for further proceedings. (People v. Dodd (2005) 133
Cal.App.4th 1564, 1571, fn. 3.)
4
DISPOSITION
The recommitment order is reversed, and the matter is
remanded to the trial court.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
5
Teresa Estrada-Mullaney, Judge
Superior Court County of San Luis Obispo
______________________________
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Eric J. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
6