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.
The Conservator petitioned for reappointment (§ 5361) in April 2016. K.W. requested a jury trial, which commenced and concluded on May 31, 2016. Bravo, who was board certified by the American Board of Psychiatry and Neurology, testified as an expert in forensic psychiatry. He served as a consulting member of K.W.'s treatment team, and consulted about appropriate placements and services for K.W. As part of his pretrial evaluation of K.W., Bravo conducted a 50-minute face-to-face interview with K.W. Bravo also had interviewed K.W. in connection with prior conservatorship evaluations and was "pretty familiar" with him. Bravo personally observed K.W. when he was a patient at the county's psychiatric emergency facilities. In addition to personal observations, Bravo relied on medical records from the Sonoma County Behavioral Health Department, and medical records from the locked Santa Cruz facility (7th Avenue Center) where K.W. was receiving treatment. Bravo also spoke to K.W.'s former outpatient psychiatrist, and with a social worker acting as a liaison for patients at the 7th Avenue Center.
In addition to his own observations, Bravo testified concerning "information about [K.W.'s] past and his functioning in other settings" provided by
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...." (§ 5350.) " 'Gravely disabled' " is defined as, inter alia, "[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." (§ 5008, subd. (h)(1)(A).) Under section 5350, subdivision (e)(1), "a person is not 'gravely disabled' if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person's basic personal needs for food,
" '[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)
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
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. ( Evid. Code, § 801, subd. (b).) "So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony." ( People v. Gardeley (1996)
" Sanchez announced a 'paradigm shift' regarding how out-of-court statements
Sanchez addressed gang expert testimony in a criminal prosecution, thus also implicating constitutional confrontation rights. ( Crawford v. Washington (2004)
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)
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)
We have found no case that has yet directly addressed this issue,
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
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 ( Evid. Code, § 1271 ). While perhaps true, no attempt was made at trial to establish a proper business records foundation for any of the documents reviewed or relied upon by Bravo, and none were offered or admitted in evidence. Sanchez does not permit an expert to "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,
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 Evidence Code section 801, subdivision (b), that an expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so. ( Sanchez, supra , 63 Cal.4th at pp. 685-686,
"We review the erroneous admission of expert testimony under the state standard of prejudice." ( People v. Stamps, supra,
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
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.
WE CONCUR:
JONES, P.J.
SIMONS, J.
Notes
Undesignated statutory references are to the Welfare and Institutions Code.
We have been advised by counsel that a subsequent petition for reappointment of conservatorship was filed in April 2017, and that in June 2017, a jury found K.W. gravely disabled and the new petition was granted. The Conservator has moved to dismiss the appeal as moot. We deny the motion. Although K.W.'s challenge to the prior confinement order may be technically moot, we exercise our discretion to decide this case because it raises important issues that are capable of repetition but, due to the comparatively short duration of LPS commitments, are likely to evade review. (Conservatorship of John L. (2010)
K.W. filed a petition for rehearing (§ 5364), which was ultimately denied on February 25, 2016.
See also CALCRIM No. 360.
Guerra 's retroactivity test has been questioned with respect to new rules for the conduct of criminal prosecutions based on the federal Constitution. (People v. Hedgecock (1990)
Proceedings under the LPS Act are civil in nature. (Conservatorship of John L., supra,
Burroughs applied Sanchez retroactively in reversing a sexually violent predator commitment under section 6600 et. seq. The issue of retroactive application was neither discussed nor expressly decided. (Burroughs, supra,
Different policy considerations would be presented in general civil litigation that might dictate a different result. That issue is not before us, and we express no opinion on it.
People v. Watson (1956)