Filed 5 / 17 / 21 P. v. Darn ell CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff and Respondent,

v.

EDWARD DARNELL

,
Defendant and Appellan t. 2d Crim. No. B 3 0 7437 (Super. Ct. No

. 20PT

- 00392 ) ( San Luis Obis po County)

Edward Darnell appeals the trial court’s order

re committing him for treatment as a mentally disordered offender ( MDO; Pe n. Cod e , 1 § § 2970
, 2972 ). Appellant contends

, and the People concede, that the evidence is insufficient to support the finding that appellant represent s a substantial danger of physical harm to others by reason of a sever e mental
di sorder , as set forth in section 29 7 2, subdivision ( c ). Although the People presented expert opinion testimony on this issue, the

1 All statutory references are to th e Penal C ode unless otherwise stated.2

expert did not personally interview or o bserve appellant and her testimony was not supported by any other admissible evidence in
the record. The People also correctly concede that the court prejudicially erred in allowing the expert to repeatedly convey

case

- specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 ( Sanchez ). Accordingly, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY Appellant was fir st committed as an MDO in 2015. In June 2020, the People filed a petition to recommit appellant as a n MDO pursuant to section 2970. Appellant wa ived his right to a jury trial.
Dr. Brandi Mathews , a forensic psychologist at Atascadero State Hospital (ASH) , testified on behalf of the People. Since 2015, Dr. Mathews had evaluated appellant ’s case annually to
determine if he met the MDO criteria. The doctor had never personally interviewed appellant because he refused to participate

. In conducting her most recent evaluation Dr. Mathews reviewed appellant’s probation report, his ASH chart
document ing his daily behavior, and his prio r MDO evaluations. The doctor also spoke with appellant’s treating psychiatrist in January 2020 and reviewed the psychiatr i st’s evaluations of appellant.
Dr. Mathews op ined that appellant met the criteria for
recommitment as an MDO. The doctor concluded that appellant currently suffered from a severe mental disorder, i.e.,
schiz oaffective order, bipolar type. Based on her review of appellant’s records, Dr. Mathews testified that appellant exhibited symptoms of auditory hallucinations, made paranoid
and grandiose delusional statements, and had a histor y of disorganized thinking and manic and depressive episodes. The
doctor also opined that appellant’s severe mental disorder was3

not in remission and could not be kept in remission without

treatment. She based these opinions on her review of appellant’s records, which indicated that he continued to display over t signs and symptoms of his disor der and had been subject to an involuntary medication order since his initial commitment. Dr. Mathews further opined that appellant represented a substantial danger of physical harm to others by reason of his
severe mental disorder. The doctor based this opinion on her knowledge of appellant “over the last five years,” her “review of
all of his records,” and “consultations with his treatment psychia t rist over the last few years.”
On cross

- examination, Dr. Mathews acknowledged that none of her opinions were based on her personal observations of appellant. She also acknowledged that her testimony about appellant’s symptoms was based entirely on her review of his records, none of which were offered into evidence. At the conclusion of the hearing, appellant asserted that the prosecution had failed to meet its burden of proving that appellant qualified for recommitment as an MDO because Dr.
Mathew’s opinions were based entirely on multiple hearsay

statements that were not independently proven by competent
evidence

. In concluding otherwise, the trial court reasoned that “Dr. Mathews was able to testify to what she reviewed in the
records” and that her testimony “did not involve specific facts, but rather relying on her exper ts in her field, and she is certainly qualif i ed as an expert in the field.”

DISCUSSION Appellant contends that his MDO recommitment order
must be reversed because the evidence is insufficient to support
the findin g that he represents a substantial danger of physical harm to others by reason of his severe mental disorder. Appellant further claims that the court pre judic ial ly erred in4

repeatedly allowing Dr. Mathews to testify to case

- specific hearsay in violation of Sanchez

, supra , 63 Cal.4th 665. The People correctly concede both points. “[A] prisoner adjudicated to be [an MDO] may be civilly committed during and after parole if certain conditions are met. (See §§ 2962, 2966.) The People, represented by the district attorney, may file a petition for the MDO ’ s continued involuntary treatment for a period of one year. (§§ 2970, 2972, subds. (a)

- (c).) Thereafter, the district attorney may petition to extend that
commitment in one

- year increments. (§ 2972, subd. (e).)” ( Peo p le

v. Allen (200 7) 42 Cal. 4t h 91
, 94

. ) To obtain such an extension, the People must prove beyond a reasonable doubt tha t (1) the defendant continues to have a severe mental disorder; (2) the
defendant ’ s severe mental disorder is not in remission or cannot be kept in remission without treatment; and (3) because of his or her severe mental disorder, the defendant continues to represent a substantial danger of physical harm to others. (§ 2972 , subd. (c).) “In considering the sufficiency of the evidence to support MDO findings, an appellate court must determine whether, on the whole record, a rational trier of fact could have found that defendant is an MDO beyond a reasonable doubt, considering all
the e vidence in the light which is most favorable to the People, and drawing all inferences the trier could reasonably have made to support the finding. [Citation.] ” ( People v. Clark ( 2000) 82 Ca l.App. 4th 107 2, 1 08 2.) A single opinion by a psychiatric expert that a person is currently dangerous due to a severe mental disorder can constitute substantial evidence to support the extension of a n MD O commitment. (See P eople v. Bowers (2006 ) 145 Cal .App.4th 870, 879 ; People v. Z

apisek (200 7) 147 C a l .App.4th 1151, 11 65.) An expert ’ s testimony in civil commitment cases on a person ’ s5

dangerousness or likely dangerousness may be the only evidence
available on the issue

. ( Pe ople v. W ar d (1999 ) 71 Cal. App.4t h 368, 374. ) Howe ver, “ [e] xpert opinion testimony constitutes substantial evidence only if based on conclusions or assumptions supported by evidence in the record. Opinion testimony which is conjectural or speculative ‘cannot rise to the dignity of
substantial evidence.’” ( Rodden berry v . Roddenberr y (1996 ) 44
Cal. App. 4th 634, 651. ) “ ‘Like a house built on sand, the expert’s opi nion is no better than the fa cts on which it is based. ’ [C itation.]” ( People v. G ardeley (1996) 1 4 Cal. 4th 605, 6 18,
overruled on another ground in San chez

, supra , 6 3 Cal.4th at

p. 68 6, fn. 1 3.) Moreover, an e xpert witness testifying at an MDO hearing

cannot “ relate as true case

- speci fic facts asserted in hearsay

statement s, un less they are indep endently proven by comp etent evidence or are co vered by a hear say exception. ” ( Sanchez

, supra , 63 Cal. 4th at p. 6 86 ; see als o People v. Bona (201 7) 15
C al.App.5 t h 511, 5 20 [reco gn izing that S anchez ap pli es in MDO proceedings ] .) Accordingl y, an expert “is ge nerally not permi tted

. . . to supply case

- specific facts about which he [or she ] has no personal knowledge. ” ( Sanchez

, at p. 676 .) Case

- specifi c facts are “those relating to the particular ev ents and participants alleged to have been i nvolved in the case being t ried. ” ( Ibid. ) An

e xpert, however, “may still rely on hearsay in forming an opinion
and may tell [the trier of fac t] in general ter ms that he [or she ]
did so

. ” ( Id

. a t p. 685.)
Dr. Math ew’s o pinion te stimony that appellant currently

repre sent s a substantial danger of ph ysical harm to others by
reason of his se vere mental disorder was based entirely upon her
review of appel lan t’s recor ds and her consultation with his

t reating p sychiatri st six months prior to the hearing. T he doctor
never observed or interviewed appellant and none of the6

documents supporting her opinion wer e offered into evidenc e. As
the Peo ple concede, the opinion is thus insufficient to suppor t the finding that a ppellant is currently dangerous as se t forth in
section 2 972 , subdivision ( c )

. We also accept the People’s concession that the trial court
erred in repeatedly allowing Dr. Math ews, over appellant’s objections

, to testify to case

- specific hearsay in violation of
Sanchez

. For examp le, Dr. Math ews provided de tailed testimon y regarding the s ymptoms of appellant’s mental disorder and

conveye d that appellant was subject to an involuntary medication
order. The court plainly erred in all owing this testimon y , which

was neither based on the d octor’s own observat ions nor supported by any other comp e tent evidence in the record. ( S anchez

, supra , 63 Cal.4th at p. 686.) Because the re is no other evi dence to support Dr. Mathew’s testimony , the error is prejudic ial and t he
MDO recommitment order must be rev ersed.
DISPOSITION
The MDO recomm itment order is r eversed and the matter
is re mand ed to the trial co urt for further procee dings

. NOT TO BE PUBLISHED.

PERREN , J.

We concur:

GILBERT , P. J. TANGEMAN , J.Dod i e A. Harman

, Judge Superior Court County of Sa n Luis Obispo

______________________________

Gerald J. Miller , under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attor ney General, Pau l M. Roadarmel, Jr.

, Supervising Deputy Attorney General, and Eric J. Kohm , Deputy Attorney General, for Plaintiff and Respondent.