Filed 7/3/14 P. v. Hamm CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F067055

                   v.                                                 (Super. Ct. Nos. CF98917916-9,
                                                                              CF96912986-7)
STEVEN MARK HAMM,
                                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff,
Judge.
         Paul Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and
Heather S. Gimle, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

        Before Cornell, Acting P.J., Poochigian, J., and Peña, J.
        The trial court extended for one year the commitment of appellant, Steven Mark
Hamm, as a mentally disordered offender (MDO) (Pen. Code, § 2960 et seq.)1 after it
sustained a petition pursuant to sections 2970 and 2972. On appeal, Hamm contends the
court’s decision is not supported by substantial evidence. We affirm.
                                          FACTS
        On April 9, 1999, Hamm pled no contest to first degree robbery (§§ 211, 212.5,
subd. (a)) and admitted a personal use of a knife enhancement (§ 12022, subd. (b)(1)).
        On July 13, 1999, the court sentenced Hamm to a four-year term, the middle term
of three years on his robbery conviction and a one-year weapon use enhancement.
        On March 1, 2002, pursuant to section 2962, Hamm was committed to Atascadero
State Hospital as a MDO. Thereafter, he had his commitment extended several times.
        On December 22, 2011, he was transferred from Napa State Hospital (the hospital)
to the California State Prison at Sacramento (CSP-SAC) pursuant to Welfare and
Institutions Code section 7301.
        On September 24, 2012, the Fresno County District Attorney filed a petition
seeking to again extend Hamm’s involuntary commitment pursuant to sections 2970 and
2972.
        On March 14, 2013, Hamm waived his right to a jury trial.
        On March 27, 2013, at a court trial, the prosecutor called Dr. Timothea McGinley,
a Senior Psychologist Supervisor for CSP-SAC, to testify as an expert witness regarding
Hamm’s mental status. Dr. McGinley testified that Hamm was sent to the prison from
Napa State Hospital for several reasons including assaulting other patients, attempting to
take money from other patients, and destruction of state property. In order to return to



1       Unless otherwise indicated all further statutory references are to the Penal Code.


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the hospital Hamm had to remain free of any rules violations for a minimum of 12
months while housed at CSP-SAC in a mental health main line setting.
       On May 25, 2012, and again on August 15, 2012, Hamm was admitted to a mental
health crisis bed (MHCB) because on each occasion he reported having suicidal
ideations.2
       Hamm also received two rules violation reports (RVR) at the prison and both were
found to be true. On May 30, 2012, he received a RVR for lunging at an officer while
swinging a push broom in an aggressive manner. This incident occurred during a search
of Hamm’s cell that resulted in officers finding mash, an ingredient used in making
pruno, an inmate-made alcoholic beverage.
       On September 21, 2012, Hamm received a RVR for threatening an officer after
some of Hamm’s paperwork was stained with coffee during a search of his cell.
       Dr. McGinley further testified that Hamm reported to a clinician that he heard
voices speaking in tongues, i.e., saying things that were not understandable, and that he
was not taking his medication. He also reported developing a non-profit church for the
homeless and a drug rehabilitation center, businesses worth $1.9 million, while he was in
prison. According to Dr. McGinley, these claims were grandiose delusions which often
occur with mania. Hamm also reported other symptoms of mania including anxiety,
racing thoughts, lack of concentration, and auditory and visual hallucinations.
       Dr. McGinley prepared for her testimony by reviewing records relating to Hamm
prepared by numerous clinicians and doctors from the hospital and the prison.3 These


2       Dr. McGinley explained that an inmate admitted to a MHCB is evaluated every
day by a mental health clinician, treated with appropriate medications, and not discharged
back to their original housing unit until the inmate is no longer a threat to themselves or
others.
3      Dr. McGinley did not personally conduct any tests on Hamm.


                                             3
records included a focus psychological assessment from the hospital and records relating
to Hamm’s December 22, 2011, transfer to CSP-SAC. In reviewing these records Dr.
McGinley noted that Hamm’s diagnoses changed over time and that although hospital
clinicians thought he might be malingering, they nevertheless kept him on antipsychotic
and mood-stabilizing medications while at the hospital. The hospital reported many
assaults and incidents where Hamm took advantage of other patients and that weighed in
significantly in their diagnosis of antisocial personality disorder. Dr. McGinley also
noted that several documents indicated that Hamm reported feeling people were after him
and conspiring against him and they included observations by clinicians that he had
paranoid ideation.
       Based on her review of the records, Dr. McGinley found that Hamm “most likely
fit a diagnosis of schizoaffective disorder bipolar type” which is a severe mental disorder,
that was not in remission, and which made him a danger to others and at times to himself.
In describing these disorders Dr. McGinley testified, “[W]ith schizoaffective disorder, the
underlying issues would be the psychotic symptoms, the auditory hallucinations, the
delusions, grandiose delusions, paranoid delusions, feeling people are after you. [¶] And
then the bipolar type that goes along with schizoaffective disorder we discussed where
you have the manic mood.” She also testified that “Hypomania is a symptom of, bipolar
disorder, bipolar 1 or 2. And essentially, hypomania or mania would be an excitable
mood, an elevated mood. One -- a type of mood that you might see if someone was high
on drugs, but yet they are not high on drugs. That is a hypomanic or manic mood. [¶]
Oftentimes these people engage in risk taking behavior when they are in a manic episode.
They might gamble, engage in … casual sex, or use drugs or sky dive or … go shopping,
on huge shopping sprees. Sometimes, they can ... also become suicidal.”4

4     Dr. McGinley testified that Hamm likely also had a cognitive disorder, not
otherwise specified.

                                             4
       In explaining her diagnosis of Hamm, Dr. McGinley stated that Axis I is typically
reserved for more serious mental disorders like schizophrenia, mood disorders,
depression, and bipolar disorder. Axis II is for long-standing personality disorders that
interfere with a person’s ability to interact with others in appropriate ways and are not
treated as much by medication. Dr. McGinley further testified that the record showed an
extensive history of substance abuse starting at the age of five or six that continued at the
hospital and at CSP-SAC. This would be taken into account in his diagnosis of
polysubstance abuse, depending on his clinician at the time.
       Dr. McGinley opined that Hamm’s mental disorder was not then in remission
because even while on medication he still reported symptoms and engaged in aggressive
behavior. According to his clinicians, under Axis II Hamm had antisocial personality
disorder which was significant because it meant he was likely to continue to engage in
violent behavior.
       Per a progress note of January 10, 2013 by Hamm’s last primary clinician, under
Axis V Hamm received a global assessment of functioning (GAF) score of 42. The GAF
is a scale clinicians use to rate how a patient is functioning. On a scale of 0 to 100 the
higher your score, the better the patient is functioning. The GAF score of 42 indicated
Hamm was categorized as having serious mental health symptoms that required frequent
contact by mental health clinicians.
       Dr. McGinley further testified that Hamm was being administered seven different
medications including an antipsychotic and two for his mood disorder. If Hamm were to
stop taking his antipsychotic medication he would likely have more psychotic symptoms
such as hearing voices and experiencing delusions. If he were to stop taking medications
for his mood disorder, Hamm would likely become more manic, more depressed, and
there was a strong likelihood he would have more incidents of violence, threatening
behavior and suicidal ideation.

                                              5
        At the hospital, Dr. White performed several tests on Hamm and found him to be
malingering and that he did not meet the criteria for schizophrenia or schizoaffective
disorder. On cross-examination, Dr. McGinley explained why she disagreed with Dr.
White. According to Dr. McGinley, malingering is a diagnosis that changes over time. It
does not necessarily mean the patient is not suffering any symptoms at all because the
person could be exaggerating symptoms for secondary gain. Additionally, in prison
multiple clinicians indicated that Hamm reported hearing voices and that he had paranoid
ideation, grandiose delusions, and elevated mood; symptoms that are consistent with
schizoaffective disorder, bipolar type. Further, even though clinicians at the hospital
indicated Hamm was malingering, they continued to medicate him with antipsychotic and
mood stabilizing medications. Dr. McGinley, however, did agree with Dr. White’s
assessment that Hamm was at high risk for recidivism.
        In concluding Hamm was a danger to himself and others, Dr. McGinley noted that
even though Hamm was medicated with mood stabilizers and antipsychotics he continued
to engage in violent conduct toward officers in prison. She recommended a continued,
extended commitment for Hamm and found it very necessary, especially considering that
Hamm continued to engage in violence at a maximum security institution.
        At the conclusion of the hearing the court extended Hamm’s commitment for a
year.
                                      DISCUSSION
        Hamm contends that Dr. McGinley’s diagnosis that he suffered from
schizoaffective disorder, bipolar type did not constitute substantial evidence and does not
support the judgment because: (1) it was merely a conclusion she repeated from the
reports of other doctors; and (2) she did not discuss how she arrived at that diagnosis.
We reject these contentions.



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       Under the Mentally Disordered Offender Act (the Act) (§ 2960 et seq.), when persons
who have been convicted of a violent crime related to their mental disorders are eligible
for release but currently pose a danger of harm to others, the Act permits their
involuntary commitment to a state hospital for treatment until their disorders can be kept
in remission. (In re Qawi (2004) 32 Cal.4th 1, 9.)
       The Act provides treatment at three stages of commitment: as a condition of
parole, in conjunction with the extension of parole, and following release from parole.
(Lopez v. Superior Court (2010) 50 Cal.4th 1055, 1061 (Lopez).) “Sections 2970 and
2972 govern the third and final commitment phase, once parole is terminated. If
continued treatment is sought, the district attorney must file a petition in the superior
court alleging that the individual suffers from a severe mental disorder that is not in
remission, and that he or she poses a substantial risk of harm. (§ 2970.)” (Id. at p. 1063.)
       To obtain an extension, the district attorney must prove, and the trier of fact must
find beyond a reasonable doubt, that (1) the person continues to have a severe mental
disorder; (2) the person’s mental disorder is not in remission or cannot be kept in
remission without treatment; and (3) the person continues to represent a substantial
danger of physical harm to others. (Lopez, supra, 50 Cal.4th at p. 1063; §§ 2970, 2972.)
       “We review the court’s finding on an MDO criterion for substantial evidence,
drawing all reasonable inferences, and resolving all conflicts, in favor of the judgment.
[Citations.]” (People v. Martin (2005) 127 Cal.App.4th 970, 975.)
       “‘“[A]n expert may generally base his opinion on any ‘matter’ known to him,
including hearsay not otherwise admissible, which may ‘reasonably ... be relied upon’ for
that purpose. [Citations.] On direct examination, the expert may explain the reasons for
his opinions, including the matters he considered in forming them.…”’” (People v. Dean
(2009) 174 Cal.App.4th 186, 193.) “Psychiatrists, like other expert witnesses, are entitled
to rely upon reliable hearsay, including the statements of the patient and other treating

                                              7
professionals, in forming their opinion concerning a patient’s mental state. [Citations.]”
(People v. Campos (1995) 32 Cal.App.4th 304, 308.) On direct examination, the expert
witness may testify that reports prepared by other experts were a basis for that opinion
(ibid.) and he may rely on tests performed by other experts. (Christiansen v. Hollings
(1941) 44 Cal.App.2d 332, 347.)
       In support of the petition extending Hamm’s commitment, the prosecution
presented one expert, Dr. McGinley. Although Dr. McGinley did not interview or
conduct any tests on Hamm, she reviewed numerous medical reports and other
documents from the hospital and CSP-SAC. In addition to containing the diagnosis of
Hamm by other clinicians, these documents also memorialized their observations of
symptoms Hamm exhibited and his commission of offenses against two officers. Dr.
McGinley concluded from her review of these documents that: (1) Hamm suffered from
a severe mental disorder, i.e., schizoaffective disorder, bipolar type; (2) the disorder was
not in remission; and (3) Hamm was a danger to others and to himself, especially if he
stopped taking his antipsychotic and mood stabilizing medications.
       Further, although Dr. McGinley referred to diagnoses of Hamm by other
clinicians, it is clear from her testimony that her diagnosis of Hamm was her own and did
not consist merely of repeating other clinicians’ diagnoses.5




5       Hamm cites People v. Campos, supra, 32 Cal.App.4th 304 to contend that on
direct examination an expert cannot reveal the contents of reports prepared or opinions
expressed by nontestifying experts. (Id. at p. 308.) However, this rule is inapplicable to
a court trial (People v. Martin, supra, 127 Cal.App.4th at p. 977) and, in any event,
Hamm waived any objection to the introduction of this evidence by his failure to object
(Evid. Code, § 353, subd. (a)). Additionally, we note that “hearsay evidence is competent
and relevant in the absence of a specific hearsay objection [citation].” (People v.
Rodriquez (1969) 274 Cal.App.2d 770, 776.)


                                              8
       Hamm also contends Dr. McGinley’s diagnosis of him is not supported by facts
and reasoning because she never described her methodology for arriving at her diagnosis
or how she applied her methodology. Thus, according to Hamm, her opinion does not
constitute substantial evidence that supports the judgment. Hamm is wrong.
       Dr. McGinley’s methodology involved reviewing the numerous reports and
information that had been generated by the hospital and CSP-SAC and rendering an
opinion on whether Hamm suffered from a severe mental disorder, that was not in
remission, and that made him a danger to others. In doing so, she took into account,
among other things, the symptoms Hamm was reported to have exhibited and the two
incidents underlying the RVR’s Hamm received. As an expert witness Dr. McGinley
was entitled to base her opinion on this type of information and the hearsay reports of
others in rendering an opinion on Hamm’s mental state. However, she was not required,
as Hamm suggests, to personally evaluate him in order to render her opinion.6
       Hamm also complains that Dr. McGinley did not actually diagnose him with
schizoaffective disorder, bipolar type. He bases this contention on Dr. McGinley’s
testimony that Hamm “most likely fit a diagnosis of schizoaffective disorder bipolar
type[,]” and that “based on [her] review of what other clinicians within [CSP-SAC] had
summarized, ... schizoaffective disorder, bipolar type seemed to fit.” Additionally, when
asked if she had an expert opinion whether or not Hamm had a severe mental disorder she
replied, “According to [her] review of the records, it looks like he qualifies for a
diagnosis of schizoaffective disorder, bipolar type, yes.” Dr. McGinley’s testimony
could have been more direct. Nevertheless it is clear from her testimony that she
diagnosed Hamm with schizoaffective disorder, bipolar type.

6      Hamm also contends that Dr. McGinley did not provide a “definition” for his
mental disorders. This contention, however, ignores her testimony quoted earlier that
describes schizoaffective disorder and bipolar disorder.


                                              9
       Hamm also contends that Dr. McGinley did not clarify that Hamm’s mental
disorder made him a danger to others because in stating her opinion she testified on two
separate occasions that Hamm represented a “substantial danger to others or himself.”7
In doing so, however, he ignores Dr. McGinley’s unequivocal testimony during redirect
examination that Hamm represented a “danger to others and at times to himself.” Thus,
we conclude that substantial evidence supports the court’s decision sustaining the petition
extending Hamm’s involuntary treatment pursuant to sections 2970 and 2972.

                                     DISPOSITION
       The judgment is affirmed.




7      Hamm bases this contention on the statutory language requiring that a defendant
represent “a substantial danger of physical harm to others” before his commitment can be
extended. (§ 2972, subd (c).)


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