State high court clarifies proper hearsay use in mentally disordered offender hearings

Last week, in People v. Stevens, 2015 DJDAR 13187 (Dec. 10, 2015), the California Supreme Court said an expert could not rely on hearsay reports to prove a defendant committed a commitment offense under the state's Mentally Disordered Offender Act.

The MDO act authorizes civil commitment during parole if certain conditions are met. It "requires that an offender convicted of a specified felony related to a severe mental disorder and who continues to pose a danger to society received appropriate treatment until the disorder can be kept in remission." People v. Harrison, 57 Cal. 4th 1211, 1218 (2013). Under Penal Code Section 2962, if the commitment is challenged, the people have the burden of establishing to the trier of fact that the defendant qualifies for MDO status beyond a reasonable doubt.

In Stevens, the defendant was convicted of the crime of petty theft with a prior theft-related conviction (not a crime specified in the MDO act). A probation report, however, described how the defendant shoplifted and then threatened to kill the loss prevention agents. Before being released on parole, the Department of Corrections and Rehabilitation determined that the defendant met the criteria for MDO commitment for committing a "crime involving express or implied threat of force or violence."

At a bench trial challenging the commitment, the state's psychologist testified that the defendant had a severe mental disorder that caused or was an aggravating factor in his committing the offense. He also testified about why the petty theft conviction satisfied the MDO act's requirement that defendant's crime "involve violence or threat of violence likely to produce substantial bodily harm" - "even though petty theft with a prior is not a crime by definition that involves force or violence that will cause serious bodily injury." The state's psychologist responded that he had relied on the probation report describing the offense.

In California, expert testimony is limited to matters within the expert's special knowledge and skill. Evidence Code Section 801. Experts may provide opinion testimony only when it is "related to a subject that is sufficiently beyond the common experience on an ordinary person so that the opinion would assist the trier of fact." Campbell v. General Motors Corp., 32 Cal. 3d 112, 124 (1982). If expert testimony consists of inferences and conclusions which can be easily and intelligently draw by the trier of fact, the testimony is not admissible.

Experts, however, are allowed to testify about hearsay which serves as the basis of their opinion. Of course, such hearsay is still not admissible for the truth of the matter. People v. Gardeley, 14 Cal. 4th 605, 617-19 (1997). But, since that hearsay information is not admitted for the truth of the facts stated, it does not violate the confrontation clause of the Constitution. People v. Mendoza, 42 Cal. 4th 686, 698-99 (2007). And under Evidence Code 352, hearsay supporting the expert opinion may be inadmissible on direct examination. People v. Coleman, 38 Cal. 3d 69, 90-92 (1985).

The Supreme Court in Stevens said the prosecution failed to prove that the defendant's prior conviction was a qualifying offense. The court rejected People v. Miller, 25 Cal. App. 4th 913 (1994), which allowed mental health experts to testify about probation reports and medical records for their opinions and as proof of the underlying crime. On the contrary, Stevens said mental health experts can rely on hearsay to support their opinions on causation, but the prosecution, during an MDO commitment hearing, could not rely on this to prove the crime involved force or violence. See People v. Baker, 204 Cal. App. 4th 1234 (2012).

Stevens analyzed the manner of presentation of the evidence and the defendant's objections to that evidence. The expert had testified about the facts of the theft and the threat kill only in light of his opinions about the defendant's delusions, irrational thought process, and history of aggressive behavior. Defense counsel did not object to that testimony, since it was merely laying foundation for the psychologist's opinions - a permissible use of hearsay under the Evidence Code. However, when the prosecutor asked why the prior theft-related conviction satisfied the MDO requirements, the defense did object, and that objection was sustained. Stevens said that testimony about the facts of the underlying offense did not deal with the defendant's psychological condition, and thus did not call for mental health opinion testimony. The court reviewed legislative history and found that recent amendments to the MDO act did not address admissibly or use of expert testimony. In contrast, the Legislature allowed multiple level hearsay in sexually violent predator cases.

The takeaway is that anytime an expert is testifying in an MDO hearing, opposing counsel should seek to determine what facts are being relied upon and limit testimony on the underlying facts. A motion in limine should be consider to limit overly prejudicial testimony on the underlying facts during the expert's direct. A limiting instruction should be obtained when the underlying facts are discussed by the expert. Another motion in limine should try to limit the opinions of the experts to those whose expertise and opinions would assist the jury.

An Evidence Code Section 402 hearing maybe used in determining what, if anything, a jury will be allowed to hear, in addition to setting the boundaries of direct and cross examination. The 402 hearing should focus on whether the documents or reports were accusatory in nature and prepared for the trial.

At a minimum, during trial, the expert's discussion of any hearsay testimony should objected to especially if it comes from police reports, probation reports or other hearsay sources.

Frank Loo is a San Bernardino deputy public defender. He is a former civil attorney and prosecutor. His opinions are his own and do not reflect those of anyone else.