People v. McVeyPeople v. McVey
Sally Patrone Brajevich, 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, Margaret E. Maxwell and Scott A. Taryle, Supervising Deputy Attorneys General, and Gregory B. Wagner, Deputy Attorney General, for Plaintiff and Respondent.
Appellant contends the trial court erroneously excluded evidence that the victim had been diagnosed with paranoid schizophrenia and had behaved aggressively in two confrontations with police officers 20 years earlier in Florida. We disagree and affirm the judgment of conviction. Appellant further seeks remand for reconsideration of his firearm enhancement pursuant to Senate Bill No. 620,2 which amended
FACTUAL BACKGROUND
In the late night hours of January 4, 2015, appellant and his friend, Coby, were walking on Cahuenga Boulevard in Hollywood. Appellant was carrying a semiautomatic .22-caliber handgun in his waistband behind his back. The magazine was fully loaded and there was a round in the chamber; the gun was cocked, and the safety was off. Outside an adult bookstore appellant and Coby were approached by two African-American men, who sold appellant what he believed to be cocaine for $40. Appellant and Coby crossed the street as the drug dealers drove away. When appellant and Coby examined the drugs they had just bought, appellant was upset to discover the substance was not cocaine, but powdered sugar.
The two men went to their car and changed clothes. They then returned to the area where the drug deal had taken place, and appellant saw what he thought was the car belonging to the drug dealers. Still upset about the fake drugs, he smashed all of the car’s windows with the handle of a knife he was carrying. When an onlooker yelled at them, appellant stopped breaking the windows, and he and Coby walked away.
About a block away, appellant and Coby encountered a homeless man named Richard Miller, who was panhandling. Miller extended his hand toward appellant and asked for money.
Appellant and Miller stood between four and ten feet away from each other when appellant fired on Miller. According to seven eyewitnesses, Miller had made no aggressive moves toward appellant or threatened him before appellant fired his gun, but one witness reported seeing some pushing and shoving. None of the witnesses saw any weapon in Miller’s hands or in the area where he fell, nor did police find a weapon of any kind on or around Miller.
Appellant testified that Miller approached him from behind, gesturing with his palm up and asking for money. Appellant felt Miller was pushing him toward a wall. Looking over his shoulder, appellant saw Miller reach into his pocket, and appellant took out his gun. Still with his back to Miller, appellant fired a warning shot into the ground. Appellant then turned around to face Miller, who had balled his hands into fists. The men were about six to eight feet apart. Appellant told Miller to get away, but Miller ignored him. Appellant noticed a knife in Miller’s right hand and shot Miller in the right leg out of fear. But the shot appeared to have no effect, and Miller continued to
DISCUSSION
I. The Trial Court Properly Excluded Medical Records and Police Reports Pertaining to the Victim, as Well as the Defense Expert’s Testimony Based on Those Records
A. Procedural history
1. The motion for a new trial
Following appellant’s conviction for voluntary manslaughter in the second trial, appellant moved for a new trial. The basis for the motion was the prosecution’s delay until the end of trial in turning over evidence that Miller may have suffered from bipolar disorder or schizophrenia. (Brady v. Maryland (1963) 373 U.S. 83, 87.) Attached as exhibits to the motion were Miller’s medical records and two police reports from Florida.
The medical records contained observations of Miller between August and November 1995, while he was housed in Pinellas County jail. The observations included descriptions of Miller as “psychotic,” “delusional,” and “paranoid,” and documented “very bizarre behavior,” including urinating and smearing feces on the walls. Doctors diagnosed Miller with paranoid schizophrenia, and on November 14, 1995, he was transferred to Florida State Hospital in Chattahoochee, Florida, after a Pinellas County court found him incompetent to stand trial. The medical records included a California subpoena directed to the custodian of records for the Pinellas County Sheriff’s Office. In support of the new trial motion, defense
One of the police reports was from the Tarpon Springs Police Department. It described an encounter with police on July 27, 1995, in which Miller put his hand in his pocket and told officers to shoot him. Miller threw something at police and struggled violently as an officer attempted to conduct a pat-down search. After two officers subdued him, Miller was arrested on suspicion of resisting arrest with violence. The second police report, titled, “Fort Lauderdale Police Department: Offense Incident Report,” described an incident on May 21, 1998, in which Miller reacted violently to officers who had awoken him when they found him sleeping on the beach. Miller resisted arrest, and police used pepper spray to bring him into custody.
At the hearing on the motion for a new trial, the defense psychiatric expert, Dr. Stephen Wilson, testified that the Florida medical records and police reports showed Miller had been found incompetent four times between 1995 and 1996, and the prevailing diagnosis across all the medical records was that Miller suffered from schizophrenia. He stated that a person suffering from schizophrenia typically hears imaginary voices and displays aggressive behavior. Dr. Wilson explained that schizophrenia is a lifelong illness that can be controlled with medication, but never cured. The medical records described Miller’s behavior “as hostile, arrogant and delusional” throughout his commitment, but there was no indication that Miller acted out violently in the psychology ward or the state hospital. The police reports told a slightly different story, showing Miller behaving aggressively on two occasions in contacts with police.
The trial court (Judge Douglas W. Sortino) granted the new trial motion based on newly discovered evidence. In light of the jury’s acquittal on first and second degree murder, Judge Sortino found that the jury must have accepted the defense to some extent, and concluded that “this additional information . . . could have, likely might have, resulted in a different verdict at trial.”
2. The trial court’s ruling on the admissibility of evidence of Miller’s mental illness and criminal history
Prior to the third trial, the prosecution sought to exclude the medical records, police reports, and any testimony by the defense expert based on those documents. The court (Judge Henry J. Hall) reviewed Dr. Wilson’s testimony from the new trial motion along with the medical records and police reports. The court found the police reports were inadmissible hearsay under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Noting the absence of any declaration or affidavit pursuant to
During trial, defense counsel revisited the admissibility of the medical records. He advised the court that he had been unable to obtain a certification of the records because they had been purged from the hospital’s records and the medical facility where Miller was treated had since closed. Nevertheless, “in light of the totality of the circumstances,” which included Judge Sortino’s ruling on the new trial motion, counsel asked the court to apply the pre-Sanchez rules for expert testimony and allow the expert to testify about Miller’s mental illness based on the contents of the medical records.
Finding the medical records to be case-specific hearsay, Judge Hall held the documents inadmissible under Sanchez. Judge Hall added that he had strong reservations about the records’ reliability and would likely have excluded them even under the pre-Sanchez rules. The court reaffirmed its previous ruling prohibiting Dr. Wilson from relying on the medical records under
B. Judge Sortino’s ruling granting the motion for a new trial had no bearing on the issue of whether the documents were admissible.
Appellant argues that in granting the new trial motion, Judge Sortino implicitly found “the defense could introduce the evidence of mental illness and aggression at the third trial.”
Furthermore, even if Judge Sortino had made findings about the admissibility of the medical records and police reports, those evidentiary rulings would not have been binding on Judge Sortino himself or any other judge in a subsequent trial, for the trial “judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” (Luce v. United States (1984) 469 U.S. 38, 41–42; Ohler v. United States (2000) 529 U.S. 753, 758, fn. 3 [“in limine rulings are not binding on the trial judge, and the judge may always change his mind during the course of a trial”]; see People v. Rodrigues (1994) 8 Cal.4th 1060, 1174; Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096–1097, 1107.)
C. The medical records and police reports were inadmissible hearsay, and under Sanchez, the defense expert could not testify about the contents of those records and reports.
1. The business records hearsay exception
Codified by
Hospital records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception. (In re R.R. (2010) 187 Cal.App.4th 1264, 1280; People v. Landau (2016) 246 Cal.App.4th 850, 872, fn. 7.) Compliance with a subpoena duces tecum may dispense with the need for a live witness to establish the business records exception if the records are produced by the custodian or other qualified witness, together with the affidavit described in
The medical records appellant sought to introduce in this case were not authenticated in any way and plainly did not meet
The record on appeal in this case demonstrates that the sources of the medical records were third party entities which could supply no information about who prepared the documents, the circumstances and method of preparation, how the records were maintained by the hospital, or even whether the copies provided were the complete records. There being no proper foundation for the admission of the medical records under the business records exception to the hearsay rule, the trial court properly exercised its discretion in excluding the documents.
The police reports were similarly inadmissible. As a general rule, police reports do not fall under the business records exception. Our Supreme Court has explained: “Business records are defined as writings made in the regular course of business, at or near the time of the event, and created through sources of information and a method of preparation reflecting its trustworthiness. (
In any event, the absence of any affidavit or live testimony from an authenticating witness in this case is fatal to appellant’s claim that the police reports were admissible as business records. Because there is nothing about these documents to indicate any particular degree of trustworthiness, the trial court did not abuse its discretion in excluding them.
2. Sanchez
In Sanchez, our Supreme Court clarified the limits on the extent to which an expert witness can relate and rely upon hearsay in support of an opinion, based upon the distinction between “ ‘case-specific hearsay’ ” and hearsay which is “part of the ‘general background information’ acquired by the expert through out-of-court statements as part of the development of his or her expertise.” (People v. Stamps (2016) 3 Cal.App.5th 988, 995 (Stamps); Sanchez, supra, 63 Cal.4th at pp. 678, 686.) Sanchez defined case-specific facts as “those relating to the particular events and participants alleged to have been involved in the case being tried,” and held that an expert is prohibited from testifying to such facts if they are outside the expert’s personal knowledge and do not fall under an exception to the hearsay rule or have not been independently established by competent evidence. (Sanchez, at pp. 676–677, 686.)
Sanchez also explained 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 p. 685.) However, “[i]t has long been the rule that an expert may not ‘ “under the guise of reasons [for an opinion] bring before the jury incompetent hearsay evidence.” ’ ” (Id. at p. 679.) Thus, “[w]hat an expert cannot do is relate as true case-specific facts asserted in hearsay statements” about which the expert has no independent knowledge and for which there is no independent competent evidence, unless a hearsay exception applies. (Id. at p. 686.) In addition, an underlying fact that has not been proven by independent admissible evidence may not be included in a hypothetical question posed to the expert. (Id. at pp. 677, 686; Stamps, supra, 3 Cal.App.5th at p. 996.) “Like any other hearsay evidence, [case-specific hearsay considered by an expert] must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an
Appellant maintains that Sanchez does not preclude expert testimony based on medical records and police reports showing Miller was schizophrenic and had been aggressive in contacts with Florida police 20 years earlier because “an expert may still rely on hearsay in forming an opinion and may tell the jury he did so in general terms, with a hypothetical including case specific facts.” What appellant proposes is not simply informing the jury “in general terms” what the expert relied on, however. Rather, by appellant’s reasoning, the exception would swallow the rule by allowing an expert to rely on case-specific hearsay under the fiction that it is not offered for its truth—precisely what Sanchez prohibits. As the high court explained, “There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.” (Sanchez, supra, 63 Cal.4th at p. 686.) The former properly allows the jury to evaluate the probative value of the expert’s testimony, while the latter purports to transform otherwise inadmissible hearsay into competent evidence offered for its truth. (Id. at pp. 683, 686.) In short, Sanchez precluded the defense expert from relating to the jury the contents of the medical records and police reports pertaining to the victim in this case.
The trial court also properly excluded the defense expert’s testimony based on the documents, for without disclosure of the contents of the records, any opinion the expert might have offered would have been irrelevant. As Sanchez recognized, “When an
II. Remand Is Not Warranted for Reconsideration of the Firearm Enhancement
Appellant contends the case must be remanded for reconsideration of his firearm enhancement pursuant to Senate Bill No. 620, which gave trial courts discretion to strike firearm enhancements when the law became effective on January 1, 2018. Respondent concedes that the new legislation applies retroactively to cases in which judgment is not yet final on appeal. (See In re Estrada (1965) 63 Cal.2d 740, 748 [for a non-final conviction, “where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed”]; People v. Francis (1969) 71 Cal.2d 66, 75–78 [where statute enacted during pending appeal gave trial court discretion to impose a lesser penalty, remand was required for resentencing].) Nevertheless, the Attorney General maintains that remand in this case is inappropriate because the trial court’s statements on the record affirmatively demonstrate that the trial court would not exercise its new discretion to strike appellant’s firearm enhancement. We agree.
The People rely on People v. Gutierrez (1996) 48 Cal.App.4th 1894 (Gutierrez) to argue that no purpose would be
Under
In light of the trial court’s express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether. We therefore conclude that remand in these circumstances would serve no purpose but to squander scarce judicial resources. (Fuhrman, supra, 16 Cal.4th at p. 946; Gutierrez, supra, 48 Cal.App.4th at p. 1896; cf. People v. McDaniels (2018) 22 Cal.App.5th 420, 423 [remand proper where record contains no clear indication of trial court’s intent not to strike firearm enhancement].)
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.