Filed 7/11/13 P. v. Collier CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038124
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 162764)

             v.

BRENT MELTON COLLIER,

         Defendant and Appellant.



         Defendant Brent Melton Collier appeals from a trial court order extending his
involuntary commitment as a mentally disordered offender (MDO). He argues the order
must be reversed because an expert witness testified regarding the content of inadmissible
hearsay documents when opining that defendant was unsuitable for release from Patton
State Hospital (Patton). Defendant alternatively argues the trial court erred in refusing
placement in an outpatient treatment program. We will affirm.
                                  FACTUAL AND PROCEDURAL HISTORY
         In 1992, defendant threw a rock at a bus driver, causing her bodily injury. As a
result of this incident, he was convicted of violating Penal Code section 245.21 and
sentenced to four years in prison.




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             Subsequent unspecified statutory references are to the Penal Code.
       In 1995, defendant was deemed an MDO and civilly committed. He was released
on outpatient status, under the supervision of the South Bay Conditional Release Program
(CONREP), in 1997. That same year, he stole a CONREP van, and his outpatient status
was revoked. He was accordingly committed to Atascadero State Hospital.
       Defendant was administratively transferred to Patton in 1999. Over the next
12 years, the trial court periodically extended defendant’s commitment to Patton.
       On October 12, 2011, the Santa Clara County District Attorney filed a petition,
pursuant to section 2970, seeking to extend defendant’s commitment for an additional
year. A court trial on the petition commenced on March 20, 2012.
       Dr. Gregory Leong provided expert testimony at the trial. Dr. Leong was a Patton
psychiatrist, and he interviewed defendant for 45 minutes on August 16, 2011. During
the interview, defendant admitted that he experienced delusions and heard voices. He
explained that he had suffered from a mental disorder in the past, but he claimed that he
no longer suffered from any sort of mental disorder.
       During the interview with Dr. Leong, defendant talked about the 1992 assault on
the bus driver. Defendant stated that the bus driver, who was female, reminded him of
his father. He explained that the bus driver deserved to be assaulted because she had not
treated him with adequate respect. Based on defendant’s statements, Dr. Leong
determined that defendant experienced a delusional misidentification when he committed
the assault on the bus driver.
       Later in the interview, defendant told Dr. Leong that other people and entities
were responsible for all his failings in life. Defendant stated that CONREP was one of
the entities that had wronged him. He complained that, when he participated in CONREP
in 1997, he was forced to submit to frequent drug testing. He also complained that
CONREP prohibited him from having any money. He explained that the conditions



                                             2
imposed by CONREP were unduly restrictive, and that he was therefore justified in
fleeing from CONREP.
       Near the end of the interview, defendant began speaking about a fellow patient
who had been accepted into CONREP. Defendant explained that the patient was a
murderer, and that it would therefore be unfair if defendant were not also accepted into
CONREP. Defendant explained that he needed to go to CONREP because individuals at
Patton were out to get him. He believed he was in danger at Patton. He refused to
answer a hypothetical question regarding CONREP, explaining that answering the
question would further endanger him. Defendant was upset, and he terminated the
interview. Dr. Leong testified that defendant’s fearful statements and behavior showed
that he was delusional and hearing voices.
       Before trial, Dr. Leong reviewed defendant’s Patton file. The records in the file
showed that defendant had recently experienced illogical thinking, paranoia, irritability,
and mood disturbance. Notes made by defendant’s treating psychologist stated that
defendant’s symptoms were in partial remission, but that defendant was still experiencing
thought distortion and internal preoccupation that were indicative of delusions or
hallucinations. The records showed that defendant had recently experienced a delusion
that caused him to believe that Patton staff members were imposters.
       Based on his interview with defendant, as well as the symptoms and behaviors
documented in defendant’s Patton file, Dr. Leong opined at trial that defendant was
currently suffering from paranoid schizophrenia. Dr. Leong also opined that defendant
would pose a substantial risk of harm to others if released into the community. Dr. Leong
believed that defendant posed a substantial risk of harm because defendant was currently
exhibiting symptoms of a severe mental illness and defendant’s failure to recognize the
existence of his mental illness rendered him unlikely to comply with a treatment program.



                                             3
       Defendant testified at the trial. He explained that he was currently suffering from
paranoid schizophrenia. He testified that his disease caused him to experience “[t]hought
disorders, delusions, believing people are out to get you, inferiority complexes, worries
about things that aren’t real.” He explained that he currently experienced delusions
involving the devil, hell, and heaven. He currently believed that Patton staff members
were out to get him.
       Defendant testified that his act of stealing the van and fleeing from CONREP in
1997 was “[n]ot that big of a deal.” He explained that his actions were justified because
CONREP had violated his constitutional rights. Despite his belief that CONREP had
violated his constitutional rights, defendant testified that he would like the court to send
him to CONREP if outright release were denied.
       At the conclusion of the trial, the court found that defendant suffered from a
severe mental disorder that was not in remission, and that defendant would pose a
substantial danger of physical harm to others if he were released into the community.
The court accordingly granted the petition to extend defendant’s involuntary commitment
for an additional year. The court denied defendant’s request to be placed with CONREP,
finding that defendant had failed to satisfy the burden of proof required for an outpatient
placement.
       On March 29, 2012, defendant filed a timely notice of appeal. This appeal
followed.
                                        DISCUSSION
       Defendant argues the order extending his involuntary commitment must be
reversed because Dr. Leong testified regarding the content of several inadmissible
hearsay documents included in defendant’s Patton file. We conclude that Dr. Leong
properly relied on the hearsay in forming his opinion regarding defendant’s mental
disorder and dangerousness, and that Dr. Leong properly testified regarding facts

                                              4
contained in the Patton file at the court trial. We accordingly find no abuse of discretion
in the trial court’s admission of the hearsay.
       In the alternative, defendant argues the trial court’s denial of CONREP placement
should be reversed because defendant’s trial testimony established his suitability for
treatment at CONREP. We conclude that defendant’s testimony, which evinced a
hostility toward CONREP and its policies, constituted substantial evidence that defendant
could not be safely and effectively treated at CONREP. We therefore conclude that the
trial court did not err in refusing to place defendant with CONREP.
I. Admission of the Hearsay was Not an Abuse of Discretion
       Section 2972, subdivision (c) describes the elements that must be established to
extend an MDO’s involuntary commitment: “If the court or jury finds that the patient has
a severe mental disorder, that the patient’s severe mental disorder is not in remission or
cannot be kept in remission without treatment, and that by reason of his or her severe
mental disorder, the patient represents a substantial danger of physical harm to others, the
court shall order the patient recommitted . . . .” A qualified expert witness “is entitled to
render an opinion on the criteria necessary for an MDO commitment.” (People v.
Dodd (2005) 133 Cal.App.4th 1564, 1569.)
       Matter that is ordinarily inadmissible “can form the proper basis for an expert’s
opinion testimony.” (People v. Gardeley (1996) 14 Cal.4th 605, 618; see also Evid.
Code, § 801, subd. (b) [an expert’s opinion may be based on matters known to the expert
“whether or not admissible”].) Thus, an expert may generally base his or her opinion on
reliable hearsay “not otherwise admissible.” (People v. Montiel (1993) 5 Cal.4th 877,
918.) “[A]n expert witness whose opinion is based on such inadmissible matter can,
when testifying, describe the material that forms the basis of the opinion.” (Gardeley,
supra, 14 Cal.4th at p. 618.)



                                                 5
       An expert witness’s ability to testify regarding inadmissible hearsay, however, is
not unlimited. People v. Coleman explained: “While an expert may state on direct
examination the matters on which he relied in forming his opinion, he may not testify as
to the details of such matters if they are otherwise inadmissible.” (People v.
Coleman (1985) 38 Cal.3d 69, 92 (Coleman), disapproved on another point in People v.
Riccardi (2012) 54 Cal.4th 758, 824, fn. 32, internal quotation mark removed.) “The rule
rests on the rationale that while an expert may give reasons on direct examination for his
opinions, including the matters he considered in forming them, he may not under the
guise of reasons bring before the jury incompetent hearsay evidence.” (Ibid.)
       A trial court must therefore balance competing interests when determining the
extent to which an expert witness may testify regarding hearsay documents. The
desirability of permitting an expert to explain the basis for an opinion must be balanced
against the need to prevent the trier of fact from considering inadmissible matter for an
improper purpose. (See People v. Martin (2005) 127 Cal.App.4th 970, 977 (Martin),
disapproved on another point in People v. Achrem (2013) 213 Cal.App.4th 153, 156.)
“Because an expert’s need to consider extrajudicial matters, and a jury’s need for
information sufficient to evaluate an expert opinion, may conflict with an accused’s
interest in avoiding substantive use of unreliable hearsay, disputes in this area must
generally be left to the trial court’s sound judgment.” (Montiel, supra, 5 Cal.4th at
p. 919.) A trial court’s ruling regarding the admissibility of this hearsay is accordingly
reviewed for abuse of discretion. (People v. Valdez (1997) 58 Cal.App.4th 494, 511; see
also People v. Waidla (2000) 22 Cal.4th 690, 723 [“an appellate court applies the abuse
of discretion standard of review to any ruling by a trial court on the admissibility of
evidence”].)
       The following principles must guide a reviewing court’s abuse of discretion
analysis: “ ‘The discretion of a trial judge is not a whimsical, uncontrolled power, but a

                                              6
legal discretion, which is subject to the limitations of legal principles governing the
subject of its action, and to reversal on appeal where no reasonable basis for the action is
shown.’ (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 364, p. 420; see Westside
Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.) ‘The
scope of discretion always resides in the particular law being applied, i.e., in the “legal
principles governing the subject of [the] action . . . .” Action that transgresses the
confines of the applicable principles of law is outside the scope of discretion and we call
such action an “abuse” of discretion. [Citation.] . . . [¶] The legal principles that govern
the subject of discretionary action vary greatly with context. [Citation.] They are derived
from the common law or statutes under which discretion is conferred.’ (City of
Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1297-1298.) To determine if a court
abused its discretion, we must thus consider ‘the legal principles and policies that should
have guided the court’s actions.’ (People v. Carmony (2004) 33 Cal.4th 367, 377.)”
(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773).)
         People v. Campos (1995) 32 Cal.App.4th 304 (Campos) found such an abuse of
discretion in a trial court’s admission of the hearsay basis of an expert’s opinion. In
Campos, a jury determined the appellant qualified as an MDO. (Id. at p. 306.) Campos
held that the trial court erred in permitting a psychiatrist to testify that nontestifying
experts concurred in the psychiatrist’s opinion regarding the appellant’s MDO status. (Id.
at pp. 306-307.) Campos reasoned: “[D]octors can testify as to the basis for their
opinion [citation], but this is not intended to be a channel by which testifying doctors can
place the opinion of innumerable out-of-court doctors before the jury.” (Id. at p. 308,
internal quotation marks omitted.)
         In contrast, Martin, supra, 127 Cal.App.4th 970 found no abuse of discretion in
the admission of the hearsay basis of expert opinion. In Martin, the appellant’s MDO

                                               7
status was determined at a court trial. (Id. at p. 973.) At the court trial, three doctors
testified that specific facts in the probation report established the appellant’s status as an
MDO. (Id. at p. 976.) On appeal, the appellant argued the experts “should not have been
allowed to testify to the details of the report.” (Id. at p. 977.) Martin held that “there was
no error in allowing the experts to describe the probation report in stating the basis for
their opinions.” (Ibid.) Martin reasoned that a probation report is a reliable hearsay
document upon which an expert may base an opinion. (Ibid.) Martin also reasoned that
the Coleman rule, which proscribes an expert’s testimony regarding the details included
in hearsay documents, is inapplicable in a court trial. (Ibid.) Martin explained: “The
court in Coleman was attempting to balance the desirability of allowing an expert to
explain the basis for an opinion and the need to prevent the jury from considering
inadmissible matter for an improper purpose. In this case, however, appellant was tried
before the court. A judge is presumed to know and follow the law. [Citations.] We must
assume that the court in this case considered the testimony about the probation report’s
contents solely for the proper purpose of assessing the experts’ credibility, and not as
independent proof of the facts contained therein.” (Ibid., italics in original.)
       At defendant’s court trial, Dr. Leong’s opinion regarding defendant’s mental
disorder and unsuitability for release from Patton was based, in part, on medical records
in defendant’s Patton file. Specifically, Dr. Leong utilized the following hearsay in
defendant’s Patton file: the treating psychiatrist’s diagnosis of paranoid schizophrenia,
polysubstance dependence, and water intoxication; the facts of the 1992 assault on the
bus driver; defendant’s symptoms as described by Patton staff members; Patton staff
members’ descriptions of defendant’s participation in group treatment; Patton staff
members’ statements regarding the viability of defendant’s release plan; notes indicating
that defendant’s substance abuse problem was in institutional remission; Patton staff



                                               8
members’ statements that defendant denied having a substance abuse problem; and
Patton staff members’ notes regarding defendant’s recent delusions.
       Defendant’s case is analogous to Martin. The medical records in defendant’s
Patton file, like the probation report at issue in Martin, constituted reliable hearsay upon
which Dr. Leong was permitted to base his opinion. (Garibay v. Hemmat (2008) 161
Cal.App.4th 735, 743 [“although hospital records are hearsay, they can be used as a basis
for an expert medical opinion”]; see also People v. Nelson (2012) 209 Cal.App.4th 698,
707 [mental health experts “routinely rely on interview reports and observations of
nontestifying experts”].) Also like Martin, defendant’s MDO status was determined by
the trial court, not by a jury. Thus, just as the Martin court did, we must presume that the
trial court did not improperly consider the Patton medical records for their truth. (See
Martin, supra, 127 Cal.App.4th at p. 977.) Indeed, the trial court specifically stated that
it considered the hearsay in defendant’s Patton file only for the purpose of assessing the
credibility of Dr. Leong’s opinion. The Martin holding therefore authorized Dr. Leong’s
testimony regarding the content of the hearsay documents in defendant’s Patton file.
Accordingly, because the admission of the hearsay in defendant’s case comports with the
legal principles and policies articulated in Martin, we find no abuse of discretion.
       Defendant contends the Campos holding prohibited Dr. Leong from testifying
regarding the content of the hearsay documents in the Patton file. Campos, however, is
easily harmonized with our analysis. Campos held that the trial court erred in admitting,
in a jury trial, an expert’s testimony regarding the medical opinions of multiple
nontestifying doctors. (Campos, supra, 32 Cal.App.4th at p. 308.) In defendant’s case,
Dr. Leong described only one nontestifying doctor’s opinion: the treating psychiatrist’s
diagnosis regarding defendant’s mental disorder. The remainder of the hearsay utilized
by Dr. Leong largely pertained to Patton staff members’ direct observations of
defendant’s behavior, not the personal opinions of those Patton staff members.

                                              9
Moreover, unlike the jury trial in Campos, defendant had a court trial. In light of the
Campos court’s concern with placing “the opinion of innumerable out-of-court doctors
before the jury,” defendant’s case does not fall within the ambit of the Campos holding.
(Id. at p. 308, internal quotation marks omitted; see also People v. Bordelon (2008) 162
Cal.App.4th 1311, 1326 [Campos was “concerned with preventing the introduction of
multiple opinions, insulated from cross-examination, into evidence”].)
       Accordingly, we conclude that Dr. Leong’s testimony regarding the hearsay was
authorized under the legal principles and policies articulated in Martin. We therefore
hold that the trial court did not abuse its discretion in admitting the hearsay.
II. Substantial Evidence Supports the Trial Court’s Denial of CONREP Placement
       Defendant alternatively argues the trial court erred in refusing to place him in the
CONREP outpatient treatment program. Defendant’s contention is unpersuasive.
       Section 2972, subdivision (d) states: “A person shall be released on outpatient
status if the committing court finds that there is reasonable cause to believe that the
committed person can be safely and effectively treated on an outpatient basis.”
Section 2972, subdivision (d) describes “a disposition available to the trial court at the
conclusion of a recommitment hearing.” (People v. May (2007) 155 Cal.App.4th 350,
359; see also People v. Rish (2008) 163 Cal.App.4th 1370, 1382 [section 2972,
subdivision (d) “describes an alternative disposition that is available to the court” upon
sustaining a section 2970 petition].)
       The patient “shoulders the burden of showing his suitability for outpatient
treatment.” (People v. Gregerson (2011) 202 Cal.App.4th 306, 316 (Gregerson).) The
standard of proof is set forth in the plain language of section 2972, subdivision (d): the
patient must demonstrate reasonable cause to believe that he or she can be safely and
effectively treated on an outpatient basis. (Id. at p. 317.) Under this reasonable cause
standard, “the patient must raise a strong suspicion in a person of ordinary prudence that

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outpatient treatment would be safe and effective.” (Id. at p. 319, fn. omitted.)
       A trial court’s ruling regarding placement in an outpatient program must be based
on evidence. (Gregerson, supra, 202 Cal.App.4th at p. 320.) “Accordingly, if the court
grants outpatient treatment, its order will be affirmed if substantial evidence shows
reasonable cause existed to believe outpatient treatment would be safe and effective. If
the court denies outpatient treatment, its order will be affirmed if substantial evidence
shows there was no such reasonable cause. In any event, if substantial evidence does not
support the court’s order, it must be reversed.” (Ibid.)
       In the instant case, defendant testified that, during his 1997 CONREP placement,
he stole a CONREP van and fled from the CONREP facility. He explained that stealing
the van was justified because CONREP’s drug-testing procedures and “flea-bitten”
facility violated his constitutional rights. He specifically testified that stealing the
CONREP van and fleeing from CONREP was “[n]ot that big of a deal.” During his
August 2011 interview with Dr. Leong, defendant expressed his continuing belief that
CONREP had wronged him, and he complained that CONREP’s policies were unduly
restrictive. At the time of trial, defendant still believed CONREP had violated his
constitutional rights.
       Given the evidence of defendant’s negative feelings toward CONREP and the
evidence of his non-compliance with CONREP’s policies, the trial court reasonably
concluded that defendant could not be safely and effectively treated at CONREP.
Although defendant testified that, if placed with CONREP, he would comply with
CONREP’s policies, this testimony was insufficient to establish reasonable cause for a
CONREP placement. (See Rish, supra, 163 Cal.App.4th at p. 1385 [patient’s testimony
regarding his willingness to comply with outpatient procedures was insufficient to
establish reasonable cause for an outpatient placement].) Indeed, in light of defendant’s
testimony regarding his hostility toward CONREP and its policies, defendant’s assurance

                                              11
that he would comply with CONREP’s policies was suspect. Accordingly, substantial
evidence shows there was no reasonable cause to believe that CONREP treatment would
be safe and effective, and the trial court did not err in refusing to order CONREP
placement. (See generally ibid. [patient failed to meet his burden of proof where the
“evidence does not come close to addressing how [the patient] intended to comply with
outpatient treatment and how such treatment would be safe and effective”].)
                                      DISPOSITION
       The order granting the petition to extend defendant’s involuntary commitment is
affirmed.


                                          ______________________________________
                                                     RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.


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