1

Filed 11/24/14 P. v. Young CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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 ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMARRIEO YOUNG,

Defendant and Appellant.

C071355

(Super. Ct. No. 01F06852)

Defendant Lamarrieo Young appeals from an order extending his mental health 

commitment for two years. He contends the reports and information relied upon and 

discussed by the prosecution’s expert witnesses at trial were in reality testimonial 

hearsay, and that their admission prejudicially violated his Sixth Amendment 

confrontation right. Alternatively, defendant contends that even if the alleged hearsay 

was properly admitted, no substantial evidence demonstrates he has serious difficulty 

controlling his dangerous behavior, a required element for extending his commitment. 
2

We disagree with defendant’s contentions and affirm the order. An expert 

witness’s basis evidence is admissible under California law because it is deemed not to be 

admitted for the truth of the matter and, consequently, is not testimonial evidence subject 

to Sixth Amendment analysis. Even if the basis evidence was not admissible, we still 

could not find prejudicial error because much of the expert witnesses’ testimony was 

based on their personal treatment and observations of defendant. Moreover, sufficient 

evidence supports the jury’s determination that defendant had difficulty controlling his 

dangerous behavior.

FACTS AND PROCEDURAL HISTORY

The 2012 jury verdict extending defendant’s commitment arose from a petition 

filed on November 7, 2011, by the Sacramento County District Attorney pursuant to 

Penal Code section 1026.5, subdivision (b).

1

 The petition alleged defendant in 2000 was 

found not guilty by reason of insanity of committing assault with a deadly weapon 

(§ 245, subd. (a)). He was committed to the State Department of Mental Health (now 

called the State Department of State Hospitals) on February 28, 2002, under section 1026. 

That commitment was extended in May 2010 for two years and was set to expire on May 

27, 2012. 

The district attorney alleged defendant suffered from a mental disease, defect, or 

disorder, and, as a result of which, represented a substantial danger of physical harm to 

others. In support of her petition, the district attorney attached an affidavit by Anish 

Shah, M.D., acting medical director of the Napa State Hospital where defendant was 

committed, declaring his opinion that defendant qualified for a commitment extension 

under section 1026.5. Dr. Shah also attached a hospital case summary describing 

defendant’s treatment and behavior during commitment to support his opinion. 

 

1 Subsequent undesignated references to sections are to the Penal Code.
3

Before us, defendant does not specifically contest the use of hearsay to establish 

he was originally committed under section 1026, a required element for obtaining a 

commitment extension. (§ 1026.5, subd. (b)(1).) However, he challenges the admission 

of all hearsay evidence relied upon by the expert witnesses to reach their opinions.

At trial, defendant moved in limine to exclude all hearsay, and specifically to 

exclude second-hand information provided to the expert witnesses. He contended 

admission of such evidence through the experts violated his Sixth Amendment right of

confrontation under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] 

(Crawford), and its progeny. 

The trial court denied the motion, subject to individual objections. It also deemed 

the motion a continuing objection. 

As its case-in-chief, the prosecution introduced the testimony of two expert 

witnesses: Philip Cushman, Ph.D., a clinical psychologist at Napa State Hospital, and Dr. 

Hameed Jahangiri, a staff psychiatrist at Napa State Hospital. The prosecution 

introduced no other witnesses, and it did not move to admit any exhibits into evidence. 

Included in the record, however, is a sealed copy of the confidential evaluation prepared 

for the trial court and signed by both expert witnesses. 

Both experts testified that, in their opinions, defendant suffered from a mental 

disease, specifically schizoaffective disorder, along with antisocial personality disorder 

and controlled substance abuse. Both experts believed defendant, as a result of his 

mental disease, had difficulty controlling his dangerous behavior and would be a danger 

to others outside the hospital setting. 

To reach their opinions, the experts relied upon their personal observations from 

treating defendant along with information provided to them from other hospital staff

members and in various reports, including the hospital case summary that was attached to 

the petition. 
4

Dr. Cushman’s testimony

Asked to explain defendant’s underlying offense, Dr. Cushman stated defendant 

went into a store and asked a clerk where the flour was. While the clerk went to show 

defendant, he stabbed the clerk six times in his neck and shoulders. Defendant left the 

store without taking any items. Prior to the incident, defendant had been hospitalized

twice in a psychiatric hospital and prescribed antipsychotic medication. He had not been 

taking his medication for some time at the time of the offense. He lived in an agitated 

state at that time, isolating himself in his room, yelling at nonexistent people, repetitively 

rubbing his hands to the point they became raw, and repeatedly pounding on his chest. 

His thoughts were disorganized, and he believed people were out to get him. 

Defendant was placed in an involuntary psychiatric hold after committing the 

crime. He tested positive to THC, the active ingredient in marijuana. Medical staff 

believed defendant was hearing voices based on his outward behavior of moving his lips 

as if speaking to someone and chuckling to himself. Defendant, however, denied hearing 

voices. 

After being found not guilty by reason of insanity, defendant was first committed 

to Atascadero State Hospital, and was transferred to Napa State Hospital in 2002. Dr. 

Cushman described Napa State Hospital as a minimum security forensic facility. Unlike 

in a traditional hospital, where the patient is the client, at a forensic facility, the court is 

the hospital’s client. Individuals are placed into psychiatric treatment there by order of 

the court. The hospital’s mission is, first, to keep the people committed there out of 

society, and, second, to treat and help them to be able to reenter society. 

Reentry is achieved through a progressive series of treatment programs. A new 

patient may begin treatment subject to having two escorts with him at all times. Over 

time, if he follows his treatment regimen and his behavior improves, he may advance to 

having no staff escort him and being placed in an open or unlocked residential unit. 
5

From there, a successful patient may qualify for a conditional release program, 

commonly referred to as CONREP, where he is reintroduced to the community. 

Each patient is assigned a treatment team that includes a psychiatrist, a 

psychologist, a social worker, a rehabilitation therapist, and nursing staff. This team 

designs a treatment program and then monitors the patient’s compliance and progress. 

The members of the treatment team personally observe the patient in the group and 

individual treatment programs they provide and the nursing services they render. 

At the beginning of each work day, Dr. Cushman receives a nursing report on the 

patient’s behavior for the past 24 hours. All nursing and nonphysician staff members 

record their observations in the patient’s chart. These notes are called interdisciplinary

notes, or IDN’s. 

The treatment team meets in a monthly treatment planning meeting to monitor the 

patient’s progress and make any necessary changes to the treatment program. Reports of 

those meetings are also prepared.

By law, the hospital must also submit to the court a report on the patient’s status 

and progress every six months. (§ 1026, subd. (f).) The psychologist on the treatment 

team has traditionally been responsible for preparing the six-month report. 

When a patient completes the time of his sentence, and if the treatment team 

believes he remains a danger to society, the team engages in a commitment extension 

evaluation in order to recommend whether the patient’s commitment should be extended 

under section 1026.5. If this is to be the patient’s first extension, staff members review 

his progress since his initial commitment. If the patient is there on an extended 

commitment, the staff reviews his progress since the last commitment extension. 

To perform the commitment extension evaluation, the treatment team members 

provide their input on their observations of the patient in one of the team meetings, and 

they decide whether to recommend the commitment be extended. The treating 

psychologist or psychiatrist prepares the formal report documenting the team’s decision. 
6

The author relies on the six-month reports provided by the hospital to the court and the 

monthly conference reports, and the author’s own monthly progress reports, to write the 

formal recommendation. 

Dr. Cushman was involved in the commitment extension evaluation for defendant. 

He considered himself the person at the hospital most familiar with defendant. From 

2002, when defendant arrived at the hospital, until about 2005 or 2006, Dr. Cushman was 

the psychologist assigned to the unit where defendant resided. Dr. Cushman was not on 

defendant’s treatment team at that time, but defendant participated in some groups run by 

Dr. Cushman, and Dr. Cushman was familiar with defendant’s case. 

From 2005 or 2006 until 2007, Dr. Cushman and defendant were together in a 

different unit, and Dr. Cushman was on defendant’s treatment team as defendant’s

psychologist. In 2007, defendant was transferred to a different unit. He remained there 

until May 2010, when, after having his original commitment extended, he was transferred 

back to Dr. Cushman’s unit and treatment team, where he remained through the time of 

trial. 

Dr. Cushman testified defendant had a major mental illness known as 

schizoaffective disorder. He also suffered from antisocial personality disorder. He had 

originally been diagnosed with schizophrenia. A person with schizophrenia hears voices 

and can be paranoid or delusional. They may be unable to express themselves due to 

disorganized thinking. They also may exhibit disorganized behavior or ritualistic 

movements such as rubbing their hands or beating their chests. These behaviors take 

place over a period of many months. 

In 2010, defendant was diagnosed with schizoaffective disorder instead of 

schizophrenia. Schizoaffective disorder is an illness that causes the same symptoms and 

behaviors as schizophrenia, but it also causes mood disturbances, such as mania. The 

patient becomes hyperverbal, speaking and changing topics quickly. Along with mania, 
7

the disease results in an activated behavior level, with the patient seeking to be involved 

with more sexual activities, high risk theft, or even aggression against other people. 

Defendant’s change in diagnosis from schizophrenia to schizoaffective disorder 

followed a period of seven or eight months when defendant had been taken off all of his 

antipsychotic medications. In 2010, defendant thought he no longer had a mental illness 

and could successfully end his medications. Dr. Cushman and the psychiatrist thought it 

worth a try to see if defendant could in fact live successfully without his medications, 

knowing it would be done in the supervised environment of the hospital. 

For the first four months after medication was removed, defendant had several 

“incidents.” One was in June 2010, when he was in a fight with male patients from 

another unit. He suffered a swollen left eye and a split lip. In August, he yelled and 

cursed at staff. 

But then the incidents began to increase. In November 2010, defendant was found 

in possession of methamphetamine. In the same month, he rubbed his hands across a 

female staff member’s buttocks and asked, “Can I do that again, touch your butt?” In 

December 2010, he refused orders to move away from a doorway to an adjoining dining 

hall where he was trying to make contact with other patients. 

The number of incidents increased such that from February to March 2011, he had 

about ten or 11 incidents. In early February, defendant started exhibiting early signs of 

schizophrenia. He had an argument with a male patient, and was administered 

medication in order to calm him down. He challenged another male patient to a fight. 

He asked inappropriate personal questions of female staff members. He began missing a 

lot of sleep and became more hyperactive during the day. His sleeplessness became so 

bad that his roommates began to complain, and the nursing staff had him stay in a 

different side room at night. 

At the same time, defendant’s behavior became more psychotic. He walked in a 

manner referred to as a “monkey walk,” where he would walk the hallways making 
8

bizarre gesturing. He also became more aggressive and wanted to fight his roommates. 

He would be seen mumbling to himself more often, but he would deny he was hearing 

voices. 

Other incidents occurred. He had a verbal altercation with a difficult female 

resident who started calling him names. Staff advised him to back down, but he started 

“getting into it,” responding with some kind of gesture. Believing the interaction would 

turn physical, staff members had to separate him from the female. Defendant turned to 

walk away, but as he did, he brushed up against the shoulder of the staff member who 

was holding back the female patient.2 Although the report on this incident stated the 

contact was accidental, Dr. Cushman believed defendant was sending a message by 

bumping into the staff member: do not mess with me. 

Defendant was seen standing in front of a vending machine, talking with himself, 

and struggling to make a decision about what he was going to purchase. He spoke of 

how much more confused he had been since he had been off his medication. 

In March 2011, defendant was in the same room as a female staff member and a 

female patient. Defendant was sitting down with his feet up on a chair. He started 

holding his genital area and rubbing it while looking at the female patient. The staff 

member told him that was inappropriate. In response, defendant stood up, kicked the 

chair, told the staff member, “Shit, mind your own thing,” and slammed the door as he 

left the room. The next day, a staff member found defendant in the men’s bathroom with 

the same female patient. He was crawling under the stall wall to avoid being detected in 

the same stall with her. 

 

2 Defendant objected to Dr. Cushman’s testimony about this verbal altercation as 

hearsay, as Dr. Cushman read portions of a report not submitted into evidence as part of 

his testimony. The trial court overruled the objection and instructed the jury that the

evidence was being offered only to show the basis for Dr. Cushman’s opinion, not for the 

truth of the matter stated. 
9

Defendant also broke rules in a way that was consistent with his antisocial 

personality disorder. He was caught smoking in a restricted area, even though all tobacco 

was banned in the hospital. On another occasion, he rode his bike on the grounds when 

he should have been in a group session. On another occasion he was seen talking with 

another patient through a window in another unit. Staff members, investigating the 

incident, found two small holes that had been drilled into the window casing through 

which material could be passed. 

Other rule violations occurred. Defendant was found with cash that had been 

placed in a magazine sent to him, in violation of hospital rules, after defendant had said 

there was nothing inside the magazine. In April 2011, he was caught trying to transfer 

two rolled-up papers with cigarettes and quarters to someone in another dining hall. To 

do this, he had three peers cause a diversion to attract the nursing staff, and he told one of 

the food workers not to say anything. 

He was given the privilege of holding an inmate job. During three months of 

employment, defendant worked only one day. When asked why he did not attend his job, 

defendant blamed the staff for granting him access to the hospital grounds. 

Defendant also had a history of using controlled substances. In addition to testing 

positive when he was involuntarily committed after committing the offense, he tested 

positive for THC while at Napa State Hospital in 2003, 2005, 2008, and 2009, and for 

cocaine in 2006 and 2007. In 2010, he alluded to the psychiatrist that he was using 

methamphetamine. Two or three weeks later, he was caught with it. When tested, 

defendant attempted on occasion to use other persons’ urine or an older, clean sample of 

his own urine. He also appeared to be a runner for a known contraband and drug dealer 

in the hospital. 

Dr. Cushman interviewed defendant and was surprised at the change in his 

behavior. Dr. Cushman had interviewed defendant 10 years prior and, at that time, even 

though defendant was not then stabilized on his medication, he did not exhibit the level of 
10

hyperactivity, verbosity, and disorganized speech he now did. These were symptoms one 

did not regularly see with schizophrenia, but were more consistent with schizoaffective 

disorder. These symptoms were also combined with the warning signs of schizophrenia: 

the changes in sleep patterns and the aggression towards others. Left unchecked by 

medication, the disease would progress to paranoia, delusional thinking, and, in some 

people, aggressiveness against others. Dr. Cushman believed defendant was one of those 

persons who, when he became psychotic, would become aggressive. Defendant had

difficulty following the rules and had never progressed in his treatment enough to be 

allowed to live in an open unit. 

As a result of observing these changes in defendant’s behavior, his treatment team 

determined in March 2011 to place him back on his medications. In Dr. Cushman’s 

opinion, defendant can control his immediate behavior when he is on medication. But 

when he is off his medication, he becomes more impulsive and driven by the 

schizophrenia and the mood disorder. Dr. Cushman acknowledged that much of 

defendant’s acting out over the years occurred while he was on medication, and Dr. 

Cushman believed the majority of those incidents occurred due to his antisocial 

personality disorder or substance abuse instead of any psychosis. He agreed that when 

defendant is medicated, he still may misbehave, but that when he is not medicated, his 

condition worsens and he is driven more by schizophrenia. 

Defendant did not demonstrate an accurate understanding of his underlying 

offense, as he changed his statements about it over the years. Relying on various reports, 

Dr. Cushman noted that after defendant had been committed to Atascadero State 

Hospital, he was quoted in 2002 as saying, “ ‘I get delusional. I think something is there 

and it really isn’t. And I can hear voices and they make me react.’ [¶] . . . [¶] ‘I was 
11

really psychotic and paranoid at the time and thought the clerk was going to hurt me, so 

we got into an altercation.’ ”

3

 

In a 2009 report prepared for the first commitment extension, defendant denied he 

was mentally ill and called the offense an altercation. He was quoted in a 2009 report as 

saying the voices told him to take a knife with him to the store. 

In a 2011 interview with Dr. Cushman, defendant said the incident was “ ‘drug 

related. Cocaine. I used that morning. I did drugs. I felt I wasn’t safe. I assaulted him, 

the store clerk. I bought something. Paid for it. I did it [the stabbing].’ ” The 

underlying offense was part of the reason Dr. Cushman believed defendant was the type 

of schizophrenic who could be aggressive and violent. 

Dr. Cushman stated defendant had very poor insight into his medical illness and 

need for medication. Over the years, defendant had regularly asked the psychiatrist to 

lower or eliminate his medications, indicating he did not believe he needed medication. 

Dr. Cushman believed defendant would not take his medications if he was not supervised 

in a structured environment. At Napa State Hospital, defendant is monitored to make 

sure he takes his medications. 

Dr. Cushman believed defendant’s use of controlled substances increased his 

potential for becoming dangerous. Defendant’s drug use is a serious problem, as 

controlled substances significantly and negatively interact with antipsychotic 

medications. Dr. Cushman stated using drugs with medications exacerbates the mental 

illness and causes the patient to decompensate, or get worse in their psychotic processing. 

 

3 Defendant objected to the statements from the Atascadero report as multiple 

hearsay, but the court overruled the objection to the extent Dr. Cushman was relying on 

the report as a basis for his opinion. The court also acknowledged defendant had a 

continuing objection. 
12

He described it as “throwing gasoline on a fire in regards to driving the paranoia that you 

oftentimes see with schizophrenia.” 

In Dr. Cushman’s opinion, defendant, as a result of his schizoaffective disorder 

and antisocial personality disorder, has serious difficulty controlling his dangerous 

behavior and would be a substantial danger to others outside the hospital setting. This 

was particularly true when defendant was not taking his medications, and Dr. Cushman 

believed defendant could not be relied upon to take his medications as prescribed. 

Defendant’s use of street drugs would only hasten the process of becoming psychotic and 

dangerous. 

On cross-examination, Dr. Cushman acknowledged the notes and reports he relied 

upon for his testimony in court were written in part by staff members and were written in 

part for him to use while testifying in court. 

Dr. Jahangiri’s testimony

Dr. Jahangiri’s testimony was consistent with Dr. Cushman’s testimony. Dr. 

Jahangiri was the leader of defendant’s treatment team and defendant’s psychiatrist from 

April or May of 2010 until August 2011. That team evaluated defendant for this 

commitment extension. To do so, the team drew from their personal experiences with 

defendant as well as his recorded history. 

Based on his review of defendant’s medical records, Dr. Jahangiri understood that 

defendant had been diagnosed with schizophrenia before he committed the underlying 

offense. He had also been prescribed medication, but was not taking it at the time of the 

offense. Defendant exhibited impulsive behavior that was not rational or logical at that 

time. He felt scared the store clerk might hurt him, so he attacked him. Dr. Jahangiri 

believed defendant’s mental disorder could manifest in violence, especially when he was 

not medicated. 
13

Dr. Jahangiri stated defendant’s insight into his disease and his need for 

medication changed over time. At some times, he understood he needed to take 

medication; at other times, he believed he did not need medication. 

Dr. Jahangiri was the psychiatrist who authorized taking defendant off his 

medications in 2010. One reason he did so was to learn whether the medications were 

causing defendant to have a low white blood cell count. Dr. Jahangiri wanted to see if 

defendant’s bone marrow could be regained if he was not taking the medication on a 

daily basis. He allowed defendant to receive medication as needed. 

During the time defendant was not on his medication, his functioning changed. 

He became overly jocular with staff and peers, making odd remarks and laughing 

inappropriately. When he walked, he would make odd gestures like flailing his arms in 

various directions and touching or smacking people. Dr. Jahangiri said this type of 

activity was tied to a manic increase in mood. The behavior was also dangerous in the 

hospital environment, as it could trigger assaults from the patients. Defendant also lost 

logical coherence in his thought processes. 

Dr. Jahangiri knew of defendant’s inappropriate behavior. Defendant touched a 

female staff member’s buttocks and asked if he could do it again. He stripped off his 

clothes in a hallway. He traded in contraband and was found with methamphetamine on 

one occasion and smoking a cigarette on another. 

Defendant appeared at times to be responding to certain internal stimuli, such as 

voices, and then mumbling as if he was in a conversation with an unseen person. Also 

during the same time, he became more aggressive. 

By March 2011, Dr. Jahangiri concluded defendant’s behavior was the result of 

his mental illness, and so he started defendant back on his medication. Dr. Jahangiri met 

with defendant once or twice a week, and it became apparent defendant could not control 

his schizoaffective symptoms. Also, by that time, neurologists eliminated a neurological 
14

cause for defendant’s behaviors. Dr. Jahangiri concluded medications were necessary to 

control defendant’s symptoms. 

As with Dr. Cushman, Dr. Jahangiri testified defendant’s use of controlled 

substances and street drugs would only exacerbate his mental illness and could negate the 

effects of medication. 

Dr. Jahangiri stated defendant suffered from schizoaffective disorder, antisocial 

personality disorder, and controlled substance abuse. He also believed, as a result of 

those mental disorders, defendant had a propensity to be violent and had difficulty 

controlling his dangerous behavior unless his illnesses were properly managed. He 

believed, as a result of his illnesses, defendant posed a substantial danger to others. 

On cross-examination, Dr. Jahangiri acknowledged the existence of a transfer 

report, authored by another doctor, that stated defendant was low-risk for aggression and 

running away. On redirect, Dr. Jahangiri explained the report’s author was not on 

defendant’s treatment team, and, at the time the report was written, defendant was taking 

antipsychotic medication on a regular basis. 

DISCUSSION

I

Admission of Experts’ Basis Evidence

Defendant contends the trial court erred by allowing the expert witnesses to 

describe the reports and notes they relied upon in reaching their opinions. He asserts the 

witnesses’ descriptions of the reports and notes were inadmissible hearsay because they 

were of necessity used here by the jury to establish the truth of the reported matters in 

order to evaluate the expert opinions. He also claims admitting the descriptions violated 

his Sixth Amendment right of confrontation, as the descriptions were allegedly 

testimonial statements admitted for the truth of the matter. We disagree with both of his 

contentions under the current state of California law.
15

Expert testimony may be “premised on material that is not admitted into evidence 

so long as it is material of a type that is reasonably relied upon by experts in the particular 

field in forming their opinions. (Evid. Code, § 801, subd. (b); [citations].) . . . [¶] So 

long as this threshold requirement of reliability is satisfied, even matter that is ordinarily 

inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] 

And because Evidence Code section 802 allows an expert witness to ‘state on direct 

examination the reasons for his opinion and the matter . . . upon which it is based,’ an 

expert witness whose opinion is based on such inadmissible matter can, when testifying, 

describe the material that forms the basis of the opinion. [Citations.]” (People v. 

Gardeley (1996) 14 Cal.4th 605, 618, original italics (Gardeley).)

As the trial court ruled, the reports and notes the experts relied upon were not 

admitted for the truth of the matters stated, but rather only to help the jury evaluate the 

experts’ opinions. As such, they were not inadmissible hearsay under California law. 

In addition, admission of the evidence did not violate defendant’s right of 

confrontation. Assuming only for purposes of argument that the statements were 

testimonial in nature, the confrontation clause “does not bar the use of testimonial 

statements for purposes other than establishing the truth of the matter asserted.

[Citation.]” (Crawford, supra, 541 U.S. at p. 60, fn. 9.) 

Defendant contends we may follow a contrary argument developed, but not 

applied, by the First Appellate District in People v. Hill (2011) 191 Cal.App.4th 1104 

(Hill). Justice Simons, with Presiding Justice Jones and Justice Bruiniers concurring, 

agreed with the analysis by New York’s highest court in People v. Goldstein (2005) 6 

N.Y.3d 119, and stated “where basis evidence consists of an out-of-court statement, the 

jury will often be required to determine or assume the truth of the statement in order to 

utilize it to evaluate the expert’s opinion.” (Hill, supra, 191 Cal.App.4th at p. 1131, fn. 

omitted.) In such circumstances, the Hill court believed the statements are actually 
16

offered for their truth, and are thus both inadmissible hearsay and subject to Sixth 

Amendment analysis. (Id. at pp. 1131-1137.) 

However, even the Hill court, despite its persuasive critique, recognized it was 

obligated to follow Gardeley, and it did so. (Hill, supra, 191 Cal.App.4th at p. 1131.) 

We are under the same obligation (Auto Equity Sales, Inc. v. Superior Court (1962) 57 

Cal.2d 45, 455), and we reach the same result.

Moreover, this case may not be the vehicle for defendant to pursue his theory. 

Both experts testified to basing their opinions in part on their significant personal 

observation and experience with defendant. Dr. Cushman was the person at Napa State 

Hospital most familiar with defendant. Indeed, since defendant’s last commitment 

extension, Dr. Cushman has been defendant’s treating psychologist. He personally 

observed many of the changes in defendant’s behavior after medication was removed. 

Similarly, Dr. Jahangiri had been defendant’s treating psychiatrist, and was the physician 

who took defendant off his medication, personally observed some of the resulting 

behaviors, and put him back on medication. Dr. Jahangiri interviewed defendant as often 

as two times a week during this period. Because both experts relied to a significant 

extent on their own personal observations and experience, much of their testimony was 

not hearsay and was properly admitted. Moreover, it is difficult to determine from the 

record in many instances when the experts were relying on previously prepared reports. 

Because the experts personally observed defendant’s difficulty in controlling his 

behavior, we could not say admitting the portions of their basis evidence that allegedly

was hearsay and testimonial resulted in prejudicial constitutional error. 

We conclude the trial court did not err in allowing the experts to describe the 

reports and notes on which they based their opinions.
17

II

Sufficiency of the Evidence

Defendant contends sufficient evidence does not support his commitment 

extension. He specifically claims the evidence does not show he has a serious difficulty 

controlling his dangerous behavior. We disagree.

A defendant’s commitment can be extended only if “by reason of a mental disease, 

defect, or disorder [the defendant] represents a substantial danger of physical harm to 

others” (§ 1026.5, subd. (b)(1)), and the defendant has “serious difficulty in controlling 

dangerous behavior.” (People v. Galindo (2006) 142 Cal.App.4th 531, 533, following In 

re Howard N. (2005) 35 Cal.4th 117, 132.) The additional element of difficulty in 

controlling dangerous behavior serves “to limit involuntary civil confinement to those 

who suffer from a volitional impairment rendering them dangerous beyond their control.” 

(Id. at p. 128.) “[A] prediction of future dangerousness, coupled with evidence of lack of 

volitional control, adequately distinguishes between persons who are subject to civil 

commitment and ‘ “other dangerous persons who are perhaps more properly dealt with 

exclusively through criminal proceedings.” ’ [Citation.]” (People v. Galindo, supra, 142 

Cal.App.4th at p. 537.)

“ ‘ “In reviewing the sufficiency of evidence to support a section 1026.5

extension, we apply the test used to review a judgment of conviction; therefore, we 

review the entire record in the light most favorable to the extension order to determine 

whether any rational trier of fact could have found the requirements of section 

1026.5(b)(1) beyond a reasonable doubt. [Citations.]” [Citation.].’ [Citation.]” (People 

v. Bowers (2006) 145 Cal.App.4th 870, 878-879.) 

Our review of the entire record reveals sufficient evidence upon which the jury 

could determine defendant had serious difficulty controlling his dangerous behavior. The 

evidence demonstrated defendant could not control his behavior when he was off his 

medication, and that he could not be trusted to take his medication consistently. Indeed, 
18

the experiment of taking defendant off his medication was based in part on his claim that 

he could live safely without it. He was thus given the opportunity to control his behavior

without medication, and he could not do it. 

His behavior during that time was potentially dangerous. He engaged in verbal 

and physical altercations, and even challenged his peers to fight him. Even when 

separated from a verbal confrontation he did not initiate, he could not resist a final 

attempt to send a threat by bumping into the staff member who was restraining the 

antagonist. He also engaged in sexually inappropriate behavior.

He could not control his illicit drug use during this time. And the experts were 

clear that using street drugs quickly exacerbated the schizoaffective disorder and its 

effects, potentially rendering defendant even more dangerous and unable to control his 

behavior.

In addition, defendant’s insight into his disease was not consistent. Despite the 

disease being chronic, defendant continued to believe at times he did not require 

medication to remain stable.

The evidence amply supports both expert witnesses’ conclusions that defendant 

had serious difficulty controlling his dangerous behavior and would continue to do so if 

he was released from commitment.

Defendant contends the evidence is insufficient in part because neither expert 

prepared a formal risk assessment; in fact, the only such assessment in the record 

described defendant as low-risk for aggression and running away. However, the author 

of that report was not on defendant’s treatment team, and at the time it was authored, 

defendant was taking his medication on a regular basis. This report thus had little effect 

on the sufficiency of the evidence indicating defendant could not control his dangerous 

behavior.
19

DISPOSITION

The judgment is affirmed.

 NICHOLSON , J.

We concur:

 BLEASE , Acting P. J.

 HULL , J.