Filed 9/28/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX


THE PEOPLE,                                     2d Crim. No. B278102
                                             (Super. Ct. No. 16PT-00366)
     Plaintiff and Respondent,                (San Luis Obispo County)

v.

MICHAEL LIN,

     Defendant and Appellant.


      People v. Sanchez (2016) 63 Cal.4th 665 holds that an
expert's hearsay statements to prove a defendant's gang
membership are inadmissible hearsay. This paradigm change in
the law is far reaching and extends beyond the scope of criminal
law. Here we conclude that Sanchez applies to cases involving
commitments of mentally disordered offenders (MDO).
      Michael Lin appeals an order determining him to be an
MDO and committing him to the State Department of State
Hospitals for involuntary treatment. (Pen. Code, § 2962 et seq.)1
We reverse.



        All statutory references are to the Penal Code unless
        1

stated otherwise.
             FACTUAL AND PROCEDURAL HISTORY
       On June 8, 2015, Lin pleaded nolo contendere to one count
of assault with a deadly weapon. (§ 245, subd. (a)(1).) The
circumstances of the criminal offense concerned Lin confronting
police officers and brandishing a bow and arrow. Following Lin’s
plea, the Los Angeles County trial court sentenced him to a
three-year prison term.
       On May 26, 2016, the Board of Parole Hearings (Board)
determined that Lin was an MDO pursuant to the criteria of
section 2962. As a condition of parole, the Board required Lin to
accept treatment from the State Department of State Hospitals.
On May 31, 2016, Lin filed a petition pursuant to section 2966,
subdivision (b) to contest this decision. After discussion with his
counsel, Lin waived his right to a jury trial. A court trial
followed. Among other things, the parties stipulated that Lin
met the 90-day treatment requirement of section 2962,
subdivision (c). The parties also agreed to admit into evidence
the abstract of judgment and the written four-page felony
advisement of rights, waiver, and plea form for the underlying
assault with a deadly weapon conviction.
                     Expert Witness Testimony
       Doctor Brandi Mathews, a forensic psychologist at
Atascadero State Hospital, testified that she attempted to
interview Lin on two occasions regarding the MDO requirements.
The interviews were terminated after several minutes because
Lin was agitated, paranoid, and uncooperative. Mathews
reviewed Lin’s state hospital medical records, his prior MDO
evaluations, the probation officer’s report, physicians’ progress
notes, psychological and psychiatric assessments, and
interdisciplinary notes. She also consulted Lin’s treating




                                 2
psychologist and psychiatrist. Mathews concluded that Lin
satisfied the MDO criteria of section 2962.
       Specifically, Mathews opined that Lin suffers from the
severe mental disorder of schizophrenia, characterized by
auditory hallucinations, paranoid symptoms, disorganized
thinking, and grandiose delusions. She also concluded that his
severe mental disorder was a cause of, or an aggravating factor
in, the commission of the underlying assault with a deadly
weapon offense. Mathews relied upon these factors: Lin's severe
mental disorder predated the offense; he informed a doctor that
he was hearing voices at the time of the offense; and his behavior
during the offense was bizarre, requiring police officers to use a
taser to subdue him.
       Mathews also concluded that Lin’s severe mental disorder
was not in remission as of the date of the Board hearing and
could not be kept in remission without treatment. She noted that
assessments contained in his medical records described him as
paranoid, and prison records noted his refusal to follow his
medication regime. Last, she concluded that Lin represented a
substantial danger of physical harm to others due to his severe
mental disorder because his mental disorder was not in
remission, he denied that he suffered from a severe mental
disorder, and he did not participate in treatment.
       The prosecutor did not present Lin’s medical or prison
records or prior MDO evaluations into evidence. Mathews’s
expert witness testimony provided the only evidence concerning
application of the MDO criteria to Lin.
                          Lin’s Statement
       Lin made an unsworn narrative to the trial court and
explained the underlying criminal offense as “[j]ust a protest.”
He also stated that his father owed him money and, for that



                                3
reason, stated to police officers that he (defendant Lin) suffers
from schizophrenia.
                    Findings, Order, and Appeal
       The trial court determined that Lin met the requirements
of section 2962 beyond a reasonable doubt. In ruling, the trial
judge stated that she found Doctor Mathews’s testimony
persuasive concerning the relationship between Lin’s severe
mental disorder and the substantial danger of physical harm that
he presents to others.
       Lin appeals and contends that he received the ineffective
assistance of counsel because his attorney did not object to the
case-specific hearsay evidence admitted through Mathews’s
expert witness testimony. (People v. Sanchez, supra, 63 Cal.4th
665, 686 (Sanchez); Conservatorship of K.W. (2017) 13
Cal.App.5th 1274, 1285-1286 [in conservatorship proceeding,
error to permit expert witnesses to recite case-specific evidence
not independently proven by admissible evidence, but error not
prejudicial]; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 504
[in post-insanity verdict proceeding, prejudicial error to permit
expert witnesses to recite case-specific hearsay evidence not
independently proven by admissible evidence]; People v. Roa
(2017) 11 Cal.App.5th 428, 433 [in sexually violent predator
proceeding pursuant to Welfare and Institutions Code section
6600 et seq., prejudicial error to permit expert witnesses to recite
case-specific evidence not independently proven by admissible
evidence]; People v. Burroughs (2016) 6 Cal.App.5th 378, 383
[same].)
                            DISCUSSION
       Lin argues that the prejudicial hearsay evidence admitted
by Mathews’s testimony violates the Sanchez holding and denies
him due process of law. (Sanchez, supra, 63 Cal.4th 665, 684.)



                                 4
He points to Mathews’s testimony that he has a history of
psychotic symptoms, including hallucinations, paranoia,
delusions, and disorganized thinking; he had symptoms of mental
illness in 2013, continuing through the time of the underlying
offense; he made statements concerning the underlying offense
and his mental illness to other MDO evaluators; he refused
medication during imprisonment; he denies having a mental
illness; his father stated to police officers that he (defendant Lin)
suffers from schizophrenia; and, hospital police have intervened
during his commitment. Lin asserts that his counsel had no valid
tactical reason for not objecting at least to his father’s statement
as well as the testimony that he refused medication while
imprisoned.
       To establish a claim for ineffective assistance of counsel,
defendant must establish that counsel's performance was
deficient and that defendant suffered prejudice as a result.
(Strickland v. Washington (1984) 466 U.S. 668, 687-692; People v.
Mickel (2016) 2 Cal.5th 181, 198.) In demonstrating deficient
performance, defendant bears the burden of showing that
counsel's performance fell below an objective standard of
reasonableness. (Mickel, at p. 198; People v. Orloff (2016) 2
Cal.App.5th 947, 955.) In demonstrating prejudice, defendant
bears the burden of establishing a reasonable probability that,
but for counsel's deficient performance, the outcome of the
proceeding would have been different. (Mickel, at p. 198.)
       Claims of ineffective assistance of counsel are, as a
practical matter, difficult to decide on direct appeal. (People v.
Mickel, supra, 2 Cal.5th 181, 198; People v. Orloff, supra, 2
Cal.App.5th 947, 955.) “The record on appeal may not explain
why counsel chose to act as he or she did. Under those
circumstances, a reviewing court has no basis on which to



                                 5
determine whether counsel had a legitimate reason for making a
particular decision, or whether counsel's actions or failure to take
certain actions were objectively unreasonable." (Mickel, at
p. 198.)
         Appellate courts presume that counsel's actions fall within
the broad range of reasonableness and afford great deference to
counsel's tactical decisions. (People v. Mickel, supra, 2 Cal.5th
181, 198.) For this reason, a reviewing court will reverse a
conviction based upon the ineffective assistance of counsel on
direct appeal only if there is affirmative evidence that counsel
had no rational tactical purpose for an action or omissions.
(Ibid.; People v. Orloff, supra, 2 Cal.App.5th 947, 955.) Deciding
whether to object is inherently tactical, and a failure to object will
rarely establish ineffective assistance of counsel. (People v.
Romero and Self (2015) 62 Cal.4th 1, 25.)
         In Sanchez, supra, 63 Cal.4th 665, 686, our Supreme Court
held in part that an expert witness may not "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." Thus, an expert “is generally not permitted
. . . to supply case-specific facts about which he has no personal
knowledge.” (Id. at p. 676.) The court defined “case-specific
facts” as “those relating to the particular events and participants
alleged to have been involved in the case being tried.” (Ibid.)
However, an expert “may still rely on hearsay in forming an
opinion, and may tell [the trier of fact] in general terms that he
did so.” (Id. at p. 685.) Pursuant to Evidence Code section 802,
an expert may “relate generally the kind and source of the
‘matter’ upon which his opinion rests.” (Sanchez, at p. 686.)
         As the Attorney General suggests, for tactical reasons here
counsel may have refrained from objecting to Mathews’s



                                  6
testimony because counsel used portions of that testimony to
prove that Lin did not present a substantial physical danger to
others. Counsel elicited testimony that Lin had no criminal
history other than the underlying offense, he currently has no
medication regime, and he has not “acted out” physically at the
hospital. And counsel may have determined that having Lin
testify could have elicited unfavorable evidence in his defense.
       Plausible speculation about what might have been a
tactical decision, however, does not overcome what here is an
insuperable barrier. Lin walked out of his interview, depriving
Mathews of the opportunity to make an independent evaluation.
The People's case was constructed on an edifice with an illusory
foundation. Mathews’s opinion was based on multiple hearsay
statements that were not independently proven by competent
evidence. This, Sanchez does not allow. There is no competent
evidence to establish the statutory requirements of section 2962.
       We assume that in possible future hearings the trial court
will follow the holdings of our Supreme Court in People v.
Sivonxxay (2017) 3 Cal.5th 151 and People v. Blackburn (2015) 61
Cal.4th 1113 concerning Lin's waiver of the right to a jury trial.
       The order is reversed.
       CERTIFIED FOR PUBLICATION.



                                    GILBERT, P. J.
We concur:



      PERREN, J.                    TANGEMAN, J.




                                7
                     Gayle L. Peron, Judge

           Superior Court County of San Luis Obispo

                ______________________________



     Rudy Kraft, 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, Steven E. Mercer, Acting Supervising Deputy
Attorney General, Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.




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