Filed 1/27/15 P. v. Shepherd CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                          B254070

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA392569)
         v.

KEITH SHEPHERD,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, David V.
Herriford, Judge. Affirmed.
         Myra June Sun, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Margaret E. Maxwell and William H. Shin, Deputy Attorneys General, for
Plaintiff and Respondent.
                                     INTRODUCTION
        Defendant Keith Shepherd appeals from the judgment entered following his
conviction by jury of violating Vehicle Code section 2800.2, driving in willful or wanton
disregard while evading a peace officer. Defendant was sentenced to three years in
prison and ordered to pay various fines and fees. He contends the trial court erred by
excluding his mental health expert witness from testifying about certain statements
defendant made to the expert as they bear on the defendant’s mental state at the time of
the incident. We conclude that a portion of the expert’s testimony was erroneously
excluded, but that the error was harmless. We therefore affirm.
                     FACTUAL AND PROCEDURAL HISTORY
        An information filed on November 21, 2012, charged defendant with one count of
violation of Vehicle Code section 2800.2, subdivision (a), driving a vehicle in willful or
wanton disregard for the safety of persons or property while fleeing a pursuing peace
officer. The information further alleged that defendant had six prior convictions resulting
in prison terms. (Pen. Code, § 667.5, subd. (b).) The jury trial commenced on April 19,
2013.
        A. Prosecution’s Case
        Los Angeles Police Department Officer Brendy Ponce testified that he was on
duty on the evening of January 6, 2012, patrolling in a marked police vehicle with his
partner, Officer Gabriel Barrientos. At approximately 8:00 p.m., Officer Ponce observed
defendant, who was driving a Ford Fusion, run a stop sign at 50th Street and Broadway in
Los Angeles. Officer Ponce made a U-turn to initiate a traffic stop of defendant.
Immediately thereafter, defendant accelerated and began driving “really fast” at “easily
over 50 miles per hour” in a 25-mile per hour zone. Defendant ran another stop sign and
turned right at a speed that caused his vehicle to fishtail during the turn. At this point,
Officer Ponce turned on his vehicle’s lights and sirens and continued to follow
defendant’s vehicle, attempting to catch up to him. Defendant appeared to increase his
speed, ran a red light, and proceeded on the on-ramp for the northbound 110 Freeway.

                                              2
Officer Ponce estimated that defendant was driving in excess of 100 miles per hour.
Defendant also was driving erratically, weaving in and out of traffic, while the other
drivers were driving about 40-45 miles per hour. The officers lost sight of defendant in
traffic as he drove onto the on-ramp to the 10 Freeway.
       Several minutes later, another LAPD officer located defendant’s car on the
connector road between the 110 Freeway and the eastbound 10 Freeway. The
unoccupied vehicle was stopped and appeared to have collided with the side wall of the
freeway. Three K-9 officers and their dogs arrived at the scene and discovered defendant
approximately 45 minutes later, hiding under a vehicle in a parking lot located under the
freeway connector road overpass. Defendant was arrested and waived his Miranda1
rights. Officer Ponce asked defendant if he wanted to talk about what was going on and
defendant responded “I didn’t do shit.” Officer Ponce then asked defendant why he ran
and defendant said “I don’t like being messed with by cops or by police.” Defendant
refused the offer to provide a written statement.
       LAPD Officer Lotus Leong, a collision investigator, testified that she examined
the crash site and defendant’s vehicle and determined the collision was caused by driving
at an unsafe speed.
       B. Defense Expert
       Prior to trial, the prosecution filed a motion in limine seeking to limit the
testimony of the defense mental health expert, clinical psychologist Richard Romanoff,
Ph.D. Specifically, the prosecution sought to exclude, among other things, Dr. Romanoff
from testifying to defendant’s out of court statements made during an interview shortly
before trial. In his report, Dr. Romanoff indicated that he had reviewed defendant’s
criminal and medical records and had interviewed defendant and defendant’s wife on
May 13, 2013, to evaluate defendant’s “overall and current psychological functioning
with a particular focus on his mental health state in the period of time associated with his


1
       Miranda v. Arizona (1966) 384 U.S.

                                              3
involvement in the current alleged offense.” Dr. Romanoff opined that defendant had a
“long-standing paranoid delusional system that includes a belief that the CIA pursues
organized efforts to communicate with him in order to control his behavior.”
Specifically, defendant told Dr. Romanoff that he had been followed by the CIA for
many years and “has felt personally persecuted by them.”
       Defendant also stated that “in the weeks preceding this case, [t]he CIA was
fucking with me, they were heavy into it for a whole week, I was eluding their ass for a
while, but then they got to me.” However, with respect to the events of January 6, 2012,
defendant did not indicate that he believed he was fleeing from the CIA that day, instead
telling Dr. Romanoff that he had “no specific recollection of being followed by police, or
fleeing from them, or jumping off a freeway on-ramp.” Defendant was aware he was
accused of fleeing from the police, but stated “I believe that the CIA sent that report to
[the police], that I jumped off the freeway, it’s a plot, made up by the CIA.”
       Dr. Romanoff’s report also detailed defendant’s psychiatric treatment beginning in
March of 2011, when defendant began “experiencing auditory and visual hallucinations,
active delusional thinking, paranoid thinking, and mood swings,” as well as prior
“psychiatric impairment dating back to age twelve.”
       Dr. Romanoff concluded defendant had a “pattern of symptoms” “consistent with
a diagnosis of schizophrenia or schizoaffective disorder.” He noted that defendant’s
beliefs regarding the CIA “appear to have been in place both in the period of time
immediately preceding and subsequent to” the incident at issue. Dr. Romanoff noted that
defendant’s “consistent absence of recollection” regarding these events “make any effort
to definitively reconstruct his mental state during this time difficult to do,” and stated that
this absence of memory was “somewhat unusual.” However, he opined that it was “quite
likely” that defendant’s “paranoid delusional thinking, possibly exacerbated by ongoing
auditory hallucinations, directly contributed to” defendant’s actions on January 6, 2012.
Dr. Romanoff further noted that he did not believe defendant to be malingering, based on



                                               4
the “clear documentation” of previous mental illness and the “specific pattern of
behavior” exhibited by defendant during the evaluation.
       At the hearing on the prosecution’s motion in limine, the prosecutor primarily
objected to Dr. Romanoff’s testimony discussing defendant’s statements regarding his
lack of memory of the incident and his beliefs about the CIA. The prosecutor noted that
she would withdraw these objections if defendant testified, because he would then be
subject to cross-examination.
       Relying on People v. Bell (2007) 40 Cal.4th 582 (Bell), the trial court noted it had
“considerable discretion to control the form in which an expert is questioned to prevent
the jury from learning of incompetent hearsay,” and to “weigh the probative value of the
inadmissible evidence against the risk that the jury might improperly consider it as
independent proof of a fact recited therein.” In this instance, the court indicated a
concern about the danger, even with a limiting instruction, that the jury would accept
defendant’s statements “as his version of what occurred” and further noted that detailed
testimony by Dr. Romanoff about defendant’s statements might not be “necessary” given
the other bases he could give for his opinion, including defendant’s history, his
medication, and “his evaluation of his medical condition or any mental defects that he
may have.” Thus the statements at issue were more prejudicial than probative under
Evidence Code section 352.2 The court indicated at several points during oral argument
that its focus was whether to exclude defendant’s statements “regarding the day of the
incident.” However, the court then framed its ruling as excluding the expert’s testimony
“regarding any statements that the defendant made with respect to the events of that
particular day and everything else the defendant told him [the expert] regarding his
background. And he can testify that he’s [defendant] had hallucinations in the past. . . .




2
       All further statutory references are to the Evidence Code unless otherwise
indicated.

                                              5
As to everything else, [the expert] should be allowed to testify with the limiting
instruction.”
       The court then granted the prosecution’s motion to preclude testimony from the
defense expert about whether defendant had the requisite mental state at the time of the
incident, as defense counsel indicated she had no intention of eliciting such an opinion.
Based on these rulings, the prosecutor moved to exclude Dr. Romanoff entirely, arguing
that because he could not testify about defendant’s statements regarding the day of the
incident, he lacked foundation to testify about defendant’s mental state at the time of the
crime and any other testimony would be irrelevant. The court disagreed, explaining that
the expert was not precluded from testifying regarding a number of facts on which he
could base an opinion as to defendant’s mental state, including defendant’s past mental
history, his observations of defendant, and his interview of defendant’s wife, and that Dr.
Romanoff could also talk about “how those disorders may affect a person” and “in
general about the mental state or mental conditions.”
       C. Defendant’s Case
       In her opening statement, defense counsel stated the defense would present
evidence that “at the time . . . [defendant] was suffering from or experiencing the affects
[sic] of mental illness.” However, defendant did not call Dr. Romanoff. Instead,
defendant recalled Officer Leong as the only witness. Defense counsel’s questioning of
Officer Leong and argument in closing focused primarily on highlighting inconsistencies
in the testimony of prosecution witnesses, including errors in the police report and
Officer Leong’s report.
       D. Verdict and Appeal
       The jury found defendant guilty on count 1. Defendant admitted five prior prison
term felony convictions. The trial court sentenced him to three years in state prison and
entered judgment on November 26, 2013. Defendant timely appealed.




                                             6
                                       DISCUSSION
       Defendant contends the trial court erred in excluding certain statements he made to
Dr. Romanoff and, as a result, effectively precluded him from presenting a defense that
he failed to form the specific intent required for a violation of Vehicle Code section
2800.2, and thereby deprived him of a fair trial. Defendant appears to challenge the
exclusion of three types of statements: (1) what he did not remember about the incident
(e.g., his lack of recollection of being followed by police, of fleeing from police, or of
jumping off the freeway); (2) what he did remember about it (e.g., that “I remember I saw
a nurse” and “I remember that there were helicopters following me”); and (3) his beliefs
about the CIA’s attempts to control him.
       The proper scope of expert testimony concerning a defendant’s mental state after
the adoption of Penal Code sections 28 and 29, and the appropriate limitation on that
testimony under Evidence Code section 352, continue to present difficult issues. (People
v. Cortes (2011) 192 Cal.App.4th 873, 902 (Cortes).) We review the trial court’s ruling
on the exclusion of expert testimony for abuse of discretion. (Id. at p. 908.) “[A] trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
While we agree that some of the statements defendant made to the expert were excluded
in error, we find that defendant suffered no prejudice as a result.
       A. The Trial Court Erred in Excluding Certain Prior Statements
       Under section 801, an expert may rely upon otherwise inadmissible material,
including inadmissible hearsay statements, so long as it is material “of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which his testimony relates.” (See, e.g., In re Fields (1990) 51 Cal.3d 1063, 1070 [expert
witness can base “opinion on reliable hearsay, including out-of-court declarations of
other persons”].) On direct examination, an expert witness may state “the reasons for his
opinion and the matter . . . upon which it is based” (Evid. Code, § 802); thus, “an expert
witness whose opinion is based on such inadmissible matter can, when testifying,

                                               7
describe the material that forms the basis of the opinion. [Citations.]” (People v.
Gardeley (1996) 14 Cal.4th 605, 618-619 (Gardeley).) However, as a general rule,
“‘[w]hile 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 of on other grounds by People v. Riccardi (2012) 54 Cal.4th 758; People v.
Price (1991) 1 Cal.4th 324, 416 [“expert may not under the guise of stating reasons for an
opinion bring before the jury incompetent hearsay evidence”].)
       Moreover, the trial court ‘“has considerable discretion to control the form in which
the expert is questioned to prevent the jury from learning of incompetent hearsay.’
[Citation.] [And to] ‘weigh the probative value of inadmissible evidence relied upon by
an expert witness . . . against the risk that the jury might improperly consider it as
independent proof of the facts recited therein.’ Coleman, supra, 38 Cal.3d at p. 91.”
(Gardeley, supra, 14 Cal.4th at pp. 618–619.) While these hearsay issues often can be
cured by a jury instruction that matters admitted through an expert go only to the basis of
his opinion and should not be considered for their truth, sometimes such an instruction
may not be sufficient protection, and the court may exclude the hearsay statement under
section 352, finding that its “‘irrelevance, unreliability, or potential for prejudice
outweighs its proper probative value. Coleman, supra, 38 Cal.3d at pp. 91–93.’” (People
v. Bell, supra, 40 Cal.4th at p. 608.)
       Defendant contends, and the Attorney General does not dispute, that the
prosecution had to prove specific intent as part of the charged crime—the intent to evade
pursuing peace officers—and that defendant’s statements to Dr. Romanoff and Dr.
Romanoff’s resulting opinions could be relevant as to whether defendant had the requisite
specific intent at the time of the incident.3 Defendant therefore claims that his expert




3
       Neither party contends that Dr. Romanoff could have testified that defendant
lacked the capacity to form the requisite intent or that defendant had or did not have the
                                              8
should have been allowed to testify to defendant’s statements as non-hearsay statements
that formed the basis for the expert’s opinion rather than as statements admitted for their
truth.
         In excluding some of defendant’s statements, the trial court relied heavily on Bell,
supra, 40 Cal.4th at p. 582. In Bell, the trial court precluded the defense mental health
expert from testifying to statements made by the defendant related to his actions and
thoughts during the commission of the crimes, but admitted defendant’s statements
regarding his “‘psychological background,’ including childhood abuse.” (Id. at pp. 606-
607.) While the court found a limiting instruction sufficient for the latter topic, it
excluded the former statements under section 352. (Id. at p. 608.) The Supreme Court
affirmed, holding that “the court’s weighing of prejudice and probativeness was not
arbitrary or capricious [citation],” and noting that, while “the excluded statements were
not particularly inflammatory, for the jury to separate their proper and improper uses
would have been difficult.” (Id. at p. 609.)
         With respect to the first two categories of excluded statements regarding what
defendant did and did not remember happening on January 6, 2012, we find it was not an
abuse of discretion for the trial court to conclude that the danger of the jury considering
these statements for their truth outweighed their probative value, particularly since Dr.
Romanoff’s report does not appear to rely on these statements as the bases for his
opinions. Indeed, Dr. Romanoff noted that defendant’s lack of recollection about the
events of January 6, 2012, made his evaluation of defendant’s mental state more difficult,
but he was able to reach a conclusion about defendant’s delusions based on the record
“other than this somewhat unusual finding.” While defendant asserts that a limiting
instruction to the jury would have been preferable over exclusion, he provides no basis to
find that the trial court’s decision to exclude the statements in the first two categories


required mental state for the crime charged. (See Pen. Code, §§ 28 and 29 [barring such
testimony].)

                                               9
constitutes an abuse of discretion.4 Additionally, to the extent that defendant now
contends that his statements about his lack of memory were offered to prove his state of
mind (specifically, that he lacked the knowledge element of the offense), those statements
could not provide a proper basis for Dr. Romanoff’s testimony, which was limited to his
expert opinion on defendant’s mental state. Defendant’s statements would have been
hearsay if offered for any other purpose.
       Defendant’s statements regarding his beliefs about the CIA, on the other hand,
require a different analysis. It is important to note that the expert report contains no
statements by defendant that the CIA caused his actions on the night of the incident
(which is consistent with defendant’s claim that he did not remember his flight or the
police pursuit).5 Rather, defendant’s CIA-related statements to Dr. Romanoff included
descriptions of how the CIA had treated him in the past, up to the weeks preceding
January 6, 2012, as well as his belief that the CIA fabricated the incident and forwarded
the police report to the police. Thus, to the extent the court’s ruling was focused on
excluding defendant’s statements regarding the day of the incident, none of defendant’s
statements regarding the CIA (or at most, only his statement about the CIA fabricating
the incident) would be excluded.
       However, at least one iteration of the court’s ruling swept more broadly, also
excluding “everything” defendant told the expert “regarding his background.” That could
have encompassed all of defendant’s CIA-related statements, although, as discussed
further below, the court’s focus during oral argument on Bell and the unduly prejudicial


4
       Defendant’s citation to People v. Coddington (2000) 23 Cal.4th 529, and Cortes,
supra, 192 Cal.App.4th 873, as examples of cases where similar testimony was admitted
is inapposite, as neither case raises the hearsay issues we address here. We also reject
defendant’s contention that the trial court abused its discretion by conditioning the
admissibility of defendant’s statements on defendant’s decision to testify.
5
      Thus, to the extent defendant’s reply purports to “paraphrase” defendant’s
statements to Dr. Romanoff as including the statement “I was being chased by CIA
people that night,” that assertion is without support.
                                              10
effect of statements about the day of the incident makes it appear likely that many of
defendant’s statements about his past CIA hallucinations would ultimately have been
admitted.
       Assuming, however, that all of defendant’s CIA-related statements would have
been excluded as statements by defendant “regarding his background,” we agree with
defendant that this exclusion was erroneous. As defendant points out, there is little
danger the jury would have considered his statements that the CIA constantly followed
defendant and set him up for the truth of the matter, nor were they offered for that
purpose. As such, these statements should have been admitted for their nonhearsay
probative value. (See Evid. Code, § 1200(a).) However, as discussed below, we
conclude that any error in excluding these statements was harmless.
       B. Any Error Was Harmless
       When a trial court “misapplies Evidence Code section 352 to exclude defense
evidence . . . the applicable standard of prejudice is that for state law error, as set forth in
People v. Watson (1956) 46 Cal.2d 818, 836.” (People v. Cudjo (1993) 6 Cal.4th 585,
611.) Thus, the court will “reverse only if it also finds a reasonable probability the error
affected the verdict adversely to defendant. [Citations.]” (People v. Humphrey (1996) 13
Cal.4th 1073, 1089; see also People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
       We find no such prejudice here. In particular, the prosecution introduced
substantial evidence tending to prove that defendant had the requisite intent to evade the
police at the time of the incident, including defendant’s high-speed flight from a marked
police car using both sirens and lights and his statement when arrested that he was
running because “I don’t like being messed with by cops or by police.” Further, while
defense counsel decided not to call Dr. Romanoff at trial, the court reiterated several
times its intent to allow Dr. Romanoff to testify as to his opinion and as to all of the bases
for that opinion that remained admissible. Thus, Dr. Romanoff remained free to express
his opinion as to defendant’s mental state and to testify regarding his review of
defendant’s records and defendant’s past mental history, his observations of defendant,

                                               11
the remainder of his interview with defendant and his wife, and his understanding about
how certain types of mental disorders may affect a person.6 And even the most restrictive
iteration of the court’s ruling expressly permitted testimony on defendant’s “past
hallucinations” (which were presumably CIA-based). As such, Dr. Romanoff was not
precluded from offering his opinion as a result of the court’s ruling, and defendant cannot
show that the additional testimony relating defendant’s statements about the CIA would
have affected the verdict. Given the court’s evolving articulation of its ruling in this
complex area of the law, it is far from clear that the court would have ultimately excluded
all, or even most, of Dr. Romanoff’s testimony regarding defendant’s CIA delusions, had
he testified. 7
       Finally, we reject defendant’s contention that his federal constitutional rights to
present a defense were violated by the exclusion of these portions of Dr. Romanoff’s
testimony. “‘As a general matter, the ordinary rules of evidence do not impermissibly
infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a
traditional and intrinsic power to exercise discretion to control the admission of evidence


6
       At oral argument, defense counsel suggested that the court’s allowance of
testimony as to how mental disorders “may affect a person” restricted Dr. Romanoff’s
testimony to mental states in general. Such a restrictive reading of the court’s ruling is
not supported by the remainder of the court’s colloquy with counsel, including the court’s
statement that defendant’s past mental state would be relevant to his mental state at
another fixed point in time (including the time of the incident) and the court’s allowance
of Dr. Romanoff’s testimony in other areas, as detailed above. Moreover, excluding all
expert testimony about defendant’s mental state is precisely the approach that was
disapproved by the Court of Appeal in Cortes, supra, 192 Cal.App.4th 873, which was
cited by the trial court during the same discussion.
7
        Even if all of defendant’s statements regarding the CIA had been admitted, they
would not necessarily lead a jury to conclude that defendant fled from the police as a
result of a CIA-related delusion that night. Defendant did not tell Dr. Romanoff that the
CIA was chasing him that night. In fact, the defendant stated that the events were
“fabricated” by the CIA after the fact. Faced with these statements, Dr. Romanoff was
left to speculate that it was “possible” that defendant was “preoccupied with a belief he
was in danger, and was needing to flee from people who were in pursuit of him.”
                                               12
in the interests of orderly procedure and the avoidance of prejudice. [Citations.]’”
(Cudjo, supra, 6 Cal.4th at 611.) As such, “the application of ordinary rules of evidence
like Evidence Code section 352 does not implicate the federal Constitution. . . .” (People
v. Marks (2003) 31 Cal.4th 197, 226–227.) Nor do those rules impermissibly infringe on
the accused’s right to present a defense. (People v. Jones (1998) 17 Cal.4th 279, 305.)
                                     DISPOSITION
       The judgment is affirmed.


             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                       COLLINS, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




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