Conservatorship of the Person of K.W. CHRISTINE KOPER, as Public Conservator, etc., Petitioner and Respondent, v. K.W., Objector and Appellant.
A148614 (Sonoma County Super. Ct. No. SPR-87836)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 8/3/17
CERTIFIED FOR PUBLICATION
The Conservator petitioned for reappointment in April 2016, alleging K.W. remained gravely disabled and unable to care for his own needs. K.W. demanded a jury trial. The jury found him gravely disabled due
I. BACKGROUND
K.W.‘s LPS conservatorship was established following a contested bench trial in May 2015. Psychiatrist Gary Bravo, M.D., testified he had diagnosed K.W. with a bipolar schizoaffective disorder and opined that K.W. had severe problems with impulse control, had a denial of his illness and need for medications, and could not independently provide for his food, clothing and shelter because of his illness. The court found K.W. to be gravely disabled and appointed the Conservator for a one-year term.3
The Conservator petitioned for reappointment (
In addition to his own observations, Bravo testified concerning “information about [K.W.‘s] past and his functioning in other settings” provided by
Bravo diagnosed K.W. as suffering from a schizoaffective disorder and identified his “main symptoms” as “disorganized thinking and behaviors” resulting in lack of impulse control, impaired judgment, and “paranoid and grandiose” delusions. Bravo said the delusions caused K.W. to “think his capabilities are better than they actually are . . . .” Bravo opined that K.W. lacked insight into his mental illness and the impact of that illness on his behaviors and ability to provide for himself. While K.W. exhibited better insight than in the past, Bravo said K.W. “still has a way to go in the realm of insight.” Bravo opined that K.W met the criteria for grave disability criteria established in the LPS Act and was unable to care for himself. In Bravo‘s opinion, K.W. would return to San Francisco or Los Angeles if not conserved, and he would become homeless and, eventually, return to a psychiatric facility or jail.
K.W. testified and acknowledged he suffered from schizoaffective and bipolar disorders, as well as diabetes. He identified his prescribed medications and said he would continue to take them if released. He denied refusing medication while hospitalized. If released, K.W. said he would seek emergency psychiatric care if necessary. He had $3,000 in a personal bank account and received $890 each month in Supplemental Security Income, which was managed by a designated representative payee. K.W. said he knew how to cook, named grocery stores where he would do his food shopping, knew of a free soup kitchen and “pantries in the neighborhood that offer gourmet, free bags of groceries” if he were to run out of money. He had adequate clothing but would go to Goodwill for clothing if necessary. K.W said he would be able to live with friends or at a shelter or “easily rent an apartment on their Section 8 housing list that I‘m on, or stay at Redwood Gospel for a night.” When asked if he could take care of himself, K.W. insisted: “I have ever since I left my parents’ home in ‘86. It‘s very simple for me. It‘s not a complicated issue. I have done very well.”
K.W. was examined about an incident in which he “jumped out of [a] van” while being transported in San Francisco. K.W said he was “just visiting” a friend. He initially denied having a criminal record but then admitted a
The jury found K.W. was gravely disabled due to a mental disorder. Based on that finding, the court ordered reestablishment of the conservatorship.
II. DISCUSSION
Under the LPS Act, a conservator may be appointed “for a person who is gravely disabled as a result of a mental disorder . . . .” (
” ‘[T]o establish that a person is gravely disabled, the evidence must support an objective finding that the person, due to mental disorder, is incapacitated or rendered unable to carry out the transactions necessary for survival or otherwise provide for his or her basic needs of food, clothing, or shelter,’ and the public guardian must prove beyond a reasonable doubt that the proposed conservatee is gravely disabled. [Citation.] On appeal, we apply the substantial evidence test to determine whether the record supports the court‘s finding of grave disability. The testimony of one witness may be sufficient to support such a finding.” (Conservatorship of Jesse G. (2016) 248 Cal.App.4th 453, 460–461.)
K.W. does not challenge the sufficiency of evidence actually presented to the jury to establish grave disability. Rather, he argues the trial court erred in permitting case-specific hearsay evidence in support of expert opinion of his disability, in violation of the rule articulated by our Supreme Court in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). He contends that the rule of Sanchez must be applied retroactively to his case.
A. Sanchez
Expert testimony may be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. (
”Sanchez announced a ‘paradigm shift’ regarding how out-of-court statements used as expert testimony basis are treated under California hearsay law.” (People v. Ochoa (2017) 7 Cal.App.5th 575, 588.) Sanchez departed from Gardeley, and rejected Montiel‘s “two-pronged approach to balancing ‘an expert‘s need to consider extrajudicial matters, and a jury‘s need for information sufficient to evaluate an expert opinion’ so as not to ‘conflict with an accused‘s interest in avoiding substantive use of unreliable hearsay.’ [Citation.] . . . [U]nder this paradigm, there was no longer a need to carefully distinguish between an expert‘s testimony regarding background information and case-specific facts. The inquiry instead turned on whether the jury could properly follow the court‘s limiting
Sanchez addressed gang expert testimony in a criminal prosecution, thus also implicating constitutional confrontation rights. (Crawford v. Washington (2004) 541 U.S. 36 (Crawford) [admission of testimonial hearsay against a criminal defendant violates the Sixth Amendment right to confront and cross-examine witnesses].) Sanchez is not, however, limited in its application to criminal proceedings. (People ex rel. Reisig v. Acuna (2017) 9 Cal.App.5th 1, 10 [applying aspect of Sanchez concerning state evidentiary rules for expert testimony in civil nuisance action]; People v. Burroughs (2016) 6 Cal.App.5th 378, 383 (Burroughs) [sexually violent predator commitment].) The Sanchez court stated its intention to “clarify the proper application of
B. Application of Sanchez
1. Forfeiture
We first reject the Conservator‘s assertion that K.W. forfeited any hearsay issue by failing to make a contemporaneous objection in the trial court. As the Conservator concedes, failure to raise an issue at trial is generally excused where an objection would have been futile or wholly unsupported by existing substantive law. (People v. Welch (1993) 5 Cal.4th 228, 237–238.) Gardeley and Montiel were controlling Supreme Court authority at the time of K.W.‘s trial and his trial counsel was not required to assert objections that would have been clearly, and correctly, overruled.
2. Retroactivity
The Conservator argues we should not apply Sanchez retroactively to LPS jury trials pending on appeal, based on justifiable reliance by litigants on the prior contrary rule. (People v. Guerra (1984) 37 Cal.3d 385, 399.) When a decision establishes a new rule, and there is ” ‘clear break with the past’ . . . i.e., when the decision (1) explicitly overrules a precedent of this court [citation], or (2) disapproves a practice impliedly sanctioned by prior decisions of this court [citation], or (3) disapproves a longstanding and widespread practice expressly approved by a near-unanimous body of lower-court authorities [citation,] [¶] . . . courts may choose to make, on grounds of policy, an exception to ‘the ordinary assumption of retrospective operation.’ ” (Id. at p. 401.) In deciding whether to make such an exception, a court weighs three factors: “(a) the purpose to be served by the new standards, (b) the extent of the reliance . . . on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” (Ibid.)5
We have found no case that has yet directly addressed this issue,7 and because of the relatively short duration of LPS commitments, the question may now be largely moot. Significantly, our Supreme Court granted review in the majority, if not all, of the decided cases presenting Gardeley issues on appeal while Sanchez was being considered, and subsequently remanded those cases to the Court of Appeal with instructions to reconsider prior opinions in light of Sanchez. (See, e.g., People v. Vega-Robles (2017) 9 Cal.App.5th 382, 387 [gang testimony]; People v. Ochoa, supra, 7 Cal.App.5th at
pp. 578, 580 [gang testimony].) Although these cases appear to have presented Crawford confrontation issues as well, absent a different policy articulation by the Supreme Court, we will assume Sanchez is fully retroactive in any context where liberty interests are at stake.8
We would agree that at least some portions of Bravo‘s testimony are problematic in light of Sanchez. Specifically, elements of his testimony were drawn from review of medical and institutional records and discussions with others, as opposed to personal contacts with K.W. For example, Bravo characterized K.W. as “very inappropriate with his boundaries with people both in a sexual manner“—touching and groping women—and generally being “provocative,” based on incidents described in prior hospitalization records. Bravo told the jury that K.W. had to leave a local psychiatric facility during the preceding year due to altercations with others, and that K.W. had been evicted from outside housing for causing a fire by leaving cooking items on a hot stove. Bravo also testified that K.W. had been involved in physical altercations involving throwing things and insulting people. He described K.W.‘s failure to observe rules and participate in his treatment program while in a community setting, and his failure to obtain appropriate health care and treatment. Bravo testified that “records show and [K.W.‘s] case manager says that he has not had impulse control around money.” All of this was case-specific hearsay, and inadmissible under Sanchez absent independent proof, or establishment by a hearsay exception.
The Conservator suggests any case-specific hearsay related by Bravo came from medical records qualifying for admission under the business records exception to the hearsay rule (
Not all of the testimony K.W. complains of, however, was inadmissible under the Sanchez standard. K.W. suggests it was Sanchez error when Bravo testified that, in formulating his opinion, he received “[a] lot of the information about [K.W.‘s] past and his functioning in other settings” provided by “other people.” Sanchez does not change the rule of
“We review the erroneous admission of expert testimony under the state standard of prejudice.” (People v. Stamps, supra, 3 Cal.App.5th at p. 997.) The standard for prejudice applicable to state law error in admitting hearsay evidence is whether it is reasonably probable the appellant would have obtained a more favorable result absent the error.9 (People ex rel. Reisig v. Acuna, supra, 9 Cal.App.5th at p. 36; Burroughs, supra, 6 Cal.App.5th at pp. 411–412.) We conclude the error here was harmless.
Bravo‘s testimony was not based entirely on third party reports, but also upon his own experience: serving as a consulting member of K.W.‘s treatment team; consulting about appropriate placements and services for K.W.; and conducting three personal interviews and evaluations of K.W. Bravo also had observed K.W. when K.W. was a patient at Sonoma County‘s psychiatric emergency facilities. As Bravo testified, he was “pretty familiar” with K.W. In addition, Bravo properly testified to the fact he considered medical and institutional reports documenting K.W.‘s behavioral history, and he testified unequivocally to his diagnosis—opining that K.W. suffered from a schizoaffective disorder, with “main symptoms” of “disorganized thinking and behaviors” resulting in lack of impulse control, impaired judgment, and “paranoid and grandiose” delusions. Bravo further properly opined that K.W.‘s lack of insight into his mental illness and the impact of that illness on his behaviors affected his ability to provide for himself. He testified, without any contradictory medical opinion, that K.W met the criteria for grave disability criteria established in the LPS Act and was unable to care for himself.
The only evidence to the contrary was K.W.‘s own testimony. K.W. acknowledged his mental illness but insisted he was capable of providing for his own needs in the community. K.W was examined about several of the hearsay incidents described by Bravo, and he attempted to explain or deny the alleged conduct. Therefore, much of the disputed evidence was otherwise before the jury and it had full opportunity to assess K.W.‘s demeanor, and to make its own assessment of the credibility of K.W.‘s explanations and denials.
K.W. speculates that evidence of specific instances of his behavior improperly bolstered Bravo‘s opinion before the jury. The fact remains, however, that the only medical evidence before the jury was an unimpeached opinion of K.W.‘s disability and incapacity from a well-qualified expert, and K.W.‘s contrary view of his own abilities could reasonably have been rejected by the jury. We do not find it reasonably probable the jury would have reached a different result in the absence of the improperly admitted testimony.
The judgment is affirmed.
BRUINIERS, J.
WE CONCUR:
JONES, P. J.
SIMONS, J.
A148614
Superior Court of Sonoma County, No. SPR-87836, René Auguste Chouteau, Judge.
Jeremy T. Price, under appointment by the Court of Appeal, for Objector and Appellant.
Bruce D. Goldstein, County Counsel, Phyllis C. Gallagher, Michael King, Deputy County Counsel, and Katherine P. McGrath for Petitioner and Respondent.